Citation Nr: 1713369	
Decision Date: 04/25/17    Archive Date: 05/04/17

DOCKET NO.  14-06 995	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an effective date earlier than June 5, 1997, for the award of service connection for posttraumatic stress disorder (PTSD), to include whether there was clear and unmistakable error (CUE) in a November 24, 2004 rating decision to the extent it assigned an effective date of June 5, 1997, for the award of service connection for PTSD.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran 



ATTORNEY FOR THE BOARD

C. Bosely, Counsel


INTRODUCTION

The Veteran had active service from September 1966 to April 1969.  His discharge was initially characterized as a bad conduct discharge, but this was later upgraded to Under Honorable Conditions. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2004 and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO).  

This appeal was initially certified to the Board as a motion for revision of the November 2004 rating decision on the basis of CUE.  For the reasons discussed in greater detail herein below, the appeal is actually a direct appeal for an earlier effective date for the award of service connection for PTSD.  As such, the Board has recharacterized the issue on the title page.  

The Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO in February 2016.  A transcript of the hearing has been associated with the claims file.  

At the Board hearing, the undersigned advised the Veteran and his representative to file a motion to revise or reverse a 1989 Board decision on the basis of CUE.  Board Hr'g Tr. 10-11.  Since that time, no such CUE motion has been received.  

In a November 2010 statement, the Veteran raised the issues of entitlement to earlier effective dates for diabetes mellitus type II and "both feet."  Those issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over them, and they must be referred to the AOJ for appropriate action.  
FINDINGS OF FACT

1.  The Veteran is diagnosed with PTSD, which at least as likely as not arose during service.  

2.  He filed an original claim of service connection for PTSD on August 12, 1986, and that claim became final with a February 1989 Board decision.  

3.  Upon petition to reopen the claim in June 1997, new and material evidence was received in the form of official service department records that were not previously associated with the claims file and confirmed the Veteran's service in combat in the Republic of Vietnam during the Vietnam War.  

4.  The November 2004 rating decision, which granted service connection for PTSD assigned an effective from the June 1997 rating decision, never became final when the Veteran filed a notice of disagreement and a statement of the case was not issued.  


CONCLUSIONS OF LAW

1.  The criteria for assignment of an earlier effective date of August 12, 1986, for the award of service connection for PTSD, are met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.156 3.400 (2016).

2.  The motion for revision or reversal of the November 2004 rating decision on the basis of clear and unmistakable error is dismissed as moot.  38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105 (2016).






REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

A.  Duty to Notify

VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Here, the Veteran was sent a notice letter in June 1997 concerning his underlying claim of entitlement to service connection, which was granted in the November 2004 rating decision now on appeal.  Because service connection was granted, the claim is substantiated and no additional notice is required as to the downstream issue involving entitlement to an earlier effective date.  A case-specific notice is not otherwise required, and any other notice defect is deemed not prejudicial.  See 38 U.S.C.A. § 5103; see also VAOPGCPREC 6-2014 (VA is authorized to provide notice under § 5103(a) before a claim is filed, including on the standard application forms); see also Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, the duty is satisfied.

B.  Duty to Assist

VA has also met the duty to assist the Veteran in the development of the appeal being decided.  The Veteran's available service treatment records (STRs) and all other evidence needed to resolve the appeal, including the relevant VA and private treatment records, have been obtained.  The evidence currently of record is adequate to resolve the appeal, to include the matter of when entitlement to service connection for PTSD arose. 

For the reasons noted above, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits at this time.


II.  Earlier Effective Date

At the outset, it is important to understand why this appeal arises as an original appeal for an earlier effective date instead of from a CUE motion.  Service connection was granted in the November 2004 rating decision effective from June 5, 1997.  In February 2005, which was within one year of the November 2004 rating decision, the Veteran requested an earlier effective date for the award of service connection for PTSD.  His request was denied in a March 2005 rating decision.  A statement of the case (SOC) was not issued.  

There can be no freestanding claim for an earlier effective date.  Rudd v. Nicholson, 20 Vet. App. 296 (2006).  Instead, an RO's award of service connection consists of a full award of benefits, and a separate NOD initiates an appeal of the effective date for the first time.  Holland v. Gober, 10 Vet. App. 433, 436 (U.S. 1997); see also Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997).  A timely filed NOD places an issue into appellate status, which requires the issuance of an SOC.  See 38 C.F.R. §§ 3.103(f), 19.26; see also, e.g., Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  Once an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending.  Juarez v. Peake, 21 Vet. App. 537, 543 (2008) (discussing Myers v. Principi, 16 Vet. App. 228 (2002)).

Accordingly here, the Veteran's February 2005 statement must be considered an NOD with regard to the effective date for the award of service connection for PTSD.  To construe his statement otherwise would require that it be considered a freestanding claim for an earlier effective date, which is impermissible.  In fact, it does not take a liberal interpretation to construe the February 2005 statement as an NOD.  The statement identifies the November 2004 rating decision and articulates the reasons why the Veteran believed an earlier effective date should be assigned.  This statement is most reasonably construed as an NOD.  See 38 C.F.R. § 20.201.

On this basis, because the RO did not issue the Veteran an SOC after his February 2005 NOD, the appeal did not become final.  It remained pending until ultimately addressed in the context of the SOC upon which the immediate appeal arises.  See 38 C.F.R. §§ 3.103(f), 19.26; Percy, 23 Vet. App. at 45.  
(The Veteran's February 2005 statement also requested an earlier effective date for the award of a 100 percent disability rating for PTSD.  As a disability rating has not yet been assigned for the period prior to June 1997, no decision has been made for which the February 2005 statement can be considered an NOD as to that issue.  Thus, remand pursuant to 38 C.F.R. § 19.9(c) for issuance of an SOC is not warranted for that issue.)    

On this basis, the Board's analysis must proceed with consideration of whether an earlier effective date is warranted for the award of PTSD.  

A.  Applicable Law

The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).  For reopened claims, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later, except in limited situations provided in § 20.1304(b)(1) of this chapter.  See 38 C.F.R. § 3.400(r). 

(1) Date Entitlement Arose

Service connection may be granted for a disability resulting from disease or injury incurred coincident with or aggravated by service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  Service connection generally requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ('nexus') between the present disability and the disease or injury incurred or aggravated during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999).

"[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition."  DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015).  Instead of assigning an effective date mechanically on the date of a Veteran was diagnosed, "all of the facts should be examined to determine the date that [the Veteran's disease] first manifested."  See id. at 58.  The Board must determine when a service-connected disability manifested itself under the all of the "facts found," including the medical opinions in question, and assign an effective date based on that evidence.  See McGrath v. Gober, 14 Vet. App. 28, 35 -36   (2000).  "[I]t is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date."  Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528).  The effective date of a service connection claim is not necessarily the date the diagnosis is made or submitted to the VA.  Rather, a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms.  Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). 

If a veteran whose petition to reopen is granted and the claim is ultimately granted "relies on the 'receipt of the claim' prong of section 3.400, rather than the 'date entitlement arose' prong, [the claimant] by definition had an entitlement to benefits that existed before the date of the relevant application to reopen."  Akers v. Shinseki, 673 F.3d 1352, 1359 (Fed. Cir. 2012).

(2) Date of Claim

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  38 U.S.C.A. §5101(a)); 38 C.F.R. § 3.151.  A "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p).  The benefit sought must be identified, though it need not be specific.  See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). 

Once a decision has been made on a claim, a claimant and his representative will be notified in writing of any decision affecting the payment of benefits or granting relief.  All notifications will advise the claimant of the reason for the decision; the date the decision will be effective; the right to a hearing; the right to initiate an appeal by filing a Notice of Disagreement (NOD) which will entitle the individual to a Statement of the Case (SOC) for assistance in perfecting an appeal; and the periods in which an appeal must be initiated and perfected.  Further, any notice that VA has denied a benefit sought will include a summary of the evidence considered.  38 C.F.R. § 3.103(f). 

The time period to appeal a VA decision does not does not commence, and the VA decision will not become final, if a veteran is not notified of the decision and his appellate rights.  See Sellers v. Shinseki, 25 Vet. App. 265 (2012); Ingram v. Nicholson, 21 Vet. App. 232, 241 (2007).

An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal.  38 C.F.R. § 20.200.  An NOD must be filed within one year from the date that that the RO mailed notice of the rating decision.  Otherwise, that determination becomes final.  See 38 C.F.R. § 20.302(a).  A timely filed NOD places the issue(s) into appellate status, which requires the issuance of an SOC.  See 38 C.F.R. §§ 3.103(f), 19.26; see also, e.g., Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the SOC (or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends).  38 C.F.R. §§ 20.200, 20.300, 20.302.  Otherwise, the rating decision becomes final.  See 38 C.F.R. § 20.1103.  However, the filing of a timely substantive appeal, as opposed to an NOD, is not a jurisdictional bar to the Board's jurisdiction.  Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal.  Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed.  See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009).  

Also, if new and material evidence is received during an applicable appellate period following a RO decision, the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period.  See 38 C.F.R. § 3.156(b); Young v. Shinseki, 22 Vet. App. 461, 466 (2009).  VA has an express regulatory obligation to make a determination regarding the character of the new evidence submitted.  An initial claim remains pending, despite a subsequent final decision, until VA determines that evidence timely submitted after a decision on the initial claim was not new and material under 38 C.F.R. § 3.156(b).  Mitchell v. McDonald, 27 Vet. App. 431, (2015); Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014) (distinguishing Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008)). 

Moreover, before October 6, 2006, where the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction.  This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs.  Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such.  The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence.  Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim. 38 C.F.R. § 3.156(c) (2006).  

The current version of 38 C.F.R. 3.156(c), effective October 6, 2006, contains more detailed provisions as to which particular service department records are to be governed by this section.  Except as otherwise provided, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.  Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name; additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and declassified records that could not have been obtained because the records were classified when VA decided the claim.  This section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source.  

Prior to October 6, 2006, VA's ability to reconsider a claim under 38 C.F.R. § 3.156(c) in light of new and material service records was not limited.  Beginning October 6, 2006, however, § 3.156(c)(2) was added to except those records that "VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim," and where "the claimant failed to provide sufficient information for VA to identify and obtain the records."  The latter exception [where "the claimant failed to provide sufficient information for VA to identify and obtain the records"] may not be applied retroactively where a claimant "submitted his claim to reopen, provided the information necessary to verify his stressor, and was awarded benefits all prior to October 2006," when the new amendments, including the exceptions, became effective.  Cline v. Shinseki, 26 Vet. App. 18 (2012). 

A Veteran bears the evidentiary burden to establish all elements of a claim.  Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013).  In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  Fagan, 573 F.3d at 1287   (quoting 38 U.S.C. § 5107(b)).

B.  Discussion

In this case, after careful consideration of the entire record, the Board finds that an effective date of August 12, 1986, is warranted for the award of service connection for PTSD.  


(1) Entitlement Arose

As an initial matter, the evidence is in equipoise in showing that entitlement to service connection for PTSD arose during the Veteran's service.  

The Veteran served in combat in the Republic of Vietnam during the Vietnam War.  Of record are declassified patrol reports, which detail combat operations in Vietnam.  These records affirmatively list the Veteran as a member of the patrol unit at the time the unit engaged with the enemy.  Thus, the Veteran's combat stressors are conceded.  See 38 C.F.R. § 3.304(f)(2).  

With regard to the diagnosis element, the claim was granted on the basis of an August 2004 VA examiner's opinion indicating that the Veteran's PTSD was related to his service.  In light of the August 2004 VA examiner's opinion, the Board finds that the question as to the diagnosis is not materially in dispute.  

There is a question as to the date of onset.  

On this question, the Veteran's service records show that he was court-martialed and confined during service for various offenses committed after his combat service in Vietnam.  He was hospitalized during this confinement after smashing his right fist against a mirror to get help for headaches.  On neuropsychiatric evaluation, it was found that he had "long existing characterologic features of passive-aggressiveness and emotionally unstable personality."  A different neuropsychiatric examiner later during service in December 1968 came to the same impression.  At his service separation examination in March 1969, the Veteran endorsed a history of frequent trouble sleeping, depression or excessive worry, and nervous trouble of any sort.  

After his service, two private examiners gave positive opinions.  

First, a private examiner in April 1987 diagnosed the Veteran with PTSD and schizotypal personality disorder.  He explained that he "suspect[ed] that [the Veteran] was suffering from a post-traumatic stress disorder with a fairly wide range of dramatic and florid symptoms and this is in his case superimposed on the long-term pre-existing schizotypal personality."  On this basis, the "schizotypal personality constituted something of a foundation, basically weak in structure and organization, which was quickly eroded by the stresses of Vietnam, combat, alienation from home, etc."  Thus, the patient examiner "would conceptualize his problem in the service as being one of an underlying latent schizophrenia on which was superimposed a post-traumatic stress reaction (chronic)."  

A different private examiner in December 1987 also concluded that the Veteran had PTSD as a result of his participation in the Vietnam conflict.  This examiner explained that "it is apparent that from the date he left a combat zone [in February 1963] in Vietnam (because his tour of duty ended) to his arrival in a military prison was somewhat less than four months during which time he never resumed normal duty."  According to the examiner, "it seems that [the Veteran's] post-traumatic stress disorder was aggravated by confinement in an isolation cell which progressed to a full blown psychotic reaction requiring physical treatment of his right hand and psychiatric hospitalization."  This VA examiner gave the same diagnosis and explanation in June 1990.  In July 1997, the examiner again reiterated this opinion.  

These two private examiners' opinions indicate that the Veteran had been experiencing symptoms of PTSD since his combat service in Vietnam.  

In contrast with these private examiners' opinions, a VA examiner in March 1987 found that the Veteran had an [unreadable] personality disorder.  This examiner explained that there was a reliability problem and insufficient material to support a PTSD diagnosis.  In April 1991, a different VA examiner concluded that the Veteran met the minimal criteria for a PTSD diagnosis at that time.  This diagnosis was co-signed by the same VA examiner who previously examined the Veteran in March 1987.  In May 1991, the March 1987 VA examiner "withdrew" the PTSD diagnosis and changed the diagnosis to borderline personality disorder.  This examiner explained the changed diagnosis on the basis of "the previous position of the BVA [and] the inability to document the [V]eteran's history."  The VA examiner specifically explained that the prior diagnoses of PTSD "represent the opinion of an examiner[, which] may vary from examiner to examiner and from situation to situation by the same examiner."  According to the examiner, "[c]urrent psychiatric practices permit more than one diagnosis on the clinical record. It is difficult, therefore, to certify that the numerous diagnoses are incorrect."  This changed diagnosis was co-signed by the April 1991 VA examiner.  

At present, the Board finds that this May 1991 change in diagnosis is essentially nonprobative as it was based on a questionable factual basis, including "inconsistencies in this record," which were not identified.  Moreover, the examiner's explanation is unconvincing where it attempts to explain why the prior diagnoses were incorrect.  Finally, the entire rationale is vague, and it appears to have been influenced by a nonmedical, nonbinding adjudicative determination where it cited a prior "position of the BVA."  See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007);  See also, e.g., Sizemore v. Principi, 18 Vet. App. 264, 275 (2004).  

Overall, the Board can identify no compelling reason to find the VA examiners' opinions more probative than the two private opinions.  Both considered the same factual record, which led them to different conclusions.  Therefore, based on the current evidence of record, this disagreement must be considered a professional difference of opinion between equally qualified medical experts.  The VA examiner in May 1991 appears to have conceded as much.  Thus, the benefit of the doubt rule applies, and the private opinions indicating that the Veteran's PTSD started during service are sufficiently probative to establish an onset during service.  

In short, the diagnosis of PTSD is established and the evidence is in equipoise in establishing that the Veteran's PTSD likely began during service as a result of his combat service in Vietnam.  Thus, entitlement to service connection arose during service.  See 38 C.F.R. §§ 3.303(a), 3.304, 3.400.  

(2) Date of Claim

The Board next finds that, upon application of § 3.156(c), the date of claim from which the award of service connection arises is the original claim filed August 12, 1986.  
On that date, the Veteran filed an original claim of service connection for "post delayed stress syndrome."  The RO denied the claim in May 1987.  The Veteran filed an NOD in October 1987, after which the RO issued an SOC in November 1987.  The Veteran perfected the appeal by filing a VA Form 9 in January 1988.  The Board then denied the claim in February 1989.  

On June 5, 1997 (the current effective date), the Veteran filed a petition to reopen.  The claim was reopened and granted in the November 2004 rating decision effective from the June 5, 1997 claim.  According to the rating decision, this was the date the "case was reopened."  The RO determined that the Veteran had submitted new and material evidence, including copies of U.S. Marine Corps action reports which verified his stressors.  The RO explained that the previous denials were based on having no verified stressor and no confirmed diagnosis based on the stressors, which in turn was based on a 1991 VA examiner's opinion that the Veteran's stressors were not verified.  A current VA examination found that the Veteran had PTSD with a stressor related to combat service.  

In this scenario, the provisions of § 3.156(c) apply.  The cited action reports are declassified patrol reports.  They were not of record when the claim was previously denied.  The patrol reports detail combat operations in Vietnam, and they affirmatively list the Veteran as a member of the patrol unit at the time the unit engaged with the enemy.  Thus, they unequivocally establish his combat service.  As the fact of the Veteran's combat service was one of the previously unsettled questions in the case, these official service department records are relevant evidence.  Moreover, these service records were relied on by the August 2004 VA examiner in finding that the Veteran had PTSD due to his combat service.  

The version of § 3.156(c) in effect prior to October 6, 2006, is applicable here because the Veteran filed his claim and the service records were received prior to that date.  Thus, the clause in the current version regarding declassified service records is not applicable.  (Even if it were applicable, it is not clear when the patrol reports were declassified.  Thus, it cannot be concluded with any degree of certainty that they remained classified at the time of the prior denial.)  On this basis, under the prior version of § 3.156(c), VA's ability to reconsider a claim in light of new and material service records was not limited.  See Cline, 26 Vet. App. 18.  By operation of § 3.156(c), an original claim is not just reopened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted.  Stowers v. Shinseki, 26 Vet. App. 550, 554 (2014).

Accordingly here, the original claim filed on August 12, 1986, must be recognized as the date of claim in this case.  See id.  Because, as discussed, entitlement to service connection for PTSD had already arisen by this date, the date of claim in August 1986 is the later of the date of claim or the date entitlement arose, which determines the assignment of the effective date.  This claim was not filed within one year of the Veteran's separation from service.  Therefore, an effective date from the day following separation from active service cannot be assigned.  See 38 C.F.R. § 3.400(b)(2).  

To conclude, after resolving all reasonable doubt in the Veteran's favor, the appeal for an earlier effective date for the award of service connection for PTSD is granted from the original date of claim in August 1986.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400((b)(2)(i).  This is the earliest possible effective date assignable under the circumstances of this case.  

III.  CUE

The CUE motion is dismissed as moot.  The Board explains herein above why the November 2004 rating decision never became final.  Prior decisions can only be reversed or revised on the basis of CUE if they are final and binding.  38 C.F.R. § 3.105(a).  Because the November 2004 rating decision never became final once the Veteran filed an NOD without issuance of an SOC, it did not become final.  Thus, it cannot be subject to collateral attack via a CUE motion, and the CUE motion is moot.  See 38 C.F.R. § 3.105(a).



ORDER

An earlier effective date of August 12, 1986, for the award of service connection for PTSD, is granted.

The motion to revise or reverse a November 24, 2004 rating decision on the basis of clear and unmistakable error is dismissed.  



____________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs