Citation Nr: 18141485 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-21 506 DATE: October 10, 2018 ORDER Entitlement to an effective date earlier than October 23, 2008, for a 100 percent rating for an acquired psychiatric disability is denied. FINDING OF FACT The earliest possible date for the award of a 100 percent rating for an acquired psychiatric disability is October 23, 2008. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for the award of a 100 percent rating for an acquired psychiatric disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 2000 to January 2001. 1. Earlier effective date for the award of a 100 percent rating A November 2009 rating decision granted service connection for a psychiatric disability and assigned a 50 percent rating effective March 26, 2009. In December 2009, the Veteran’s representative submitted a notice of disagreement, which reports disagreement with “service connection for major depressive disorder is granted with an evaluation of 50 percent effective March 26, 2009.” In February 2010, the Veteran submitted a statement in which he addressed the issue of “appeal ‘service connection for major depressive disorder is granted with an evaluation of 50 percent effective March 26, 2009.” In a September 2010 rating decision, the RO assigned an effective date of October 23, 2008, for the award of service connection for a psychiatric disability. On the same date, the RO issued a statement of the case on the issue of entitlement to a rating in excess of 50 percent for the psychiatric disability, which the Veteran appealed to the Board. In a July 2013 decision, the Board granted an initial 100 percent rating for the service-connected psychiatric disability. In an August 2013 rating decision, the RO assigned the 100 percent rating effective October 23, 2008, the date of service connection for the psychiatric disability. In November 2013, the Veteran submitted a notice of disagreement with the effective date of the 100 percent rating for the psychiatric disability. Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant’s discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The effective date, “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a). The effective date of an award of disability compensation based on new and material evidence (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). For increases, the effective date will also be the date of receipt of claim or date entitlement arose, whichever is later, except it shall also be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). The record indicates that the 100 percent rating is assigned effective the date of service connection for an acquired psychiatric disability. There is no legal means with which to assign an earlier effective date for an increased rating prior to the date of service connection. It appears the Veteran is seeking an earlier effective date for the award of service connection for an acquired psychiatric disability. There is no “freestanding” earlier effective date claim that can be raised at any time. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). After a rating decision establishing an effective date becomes final, an earlier effective date can only be established on the basis of clear and unmistakable error (CUE). After review of the evidence the Board finds the September 2010 rating decision that awarded an effective date of October 23, 2008, is final. There is no argument or evidence submitted within a year of the issuance of the September 2010 rating decision that indicates disagreement with the effective date assigned therein. The Board acknowledges that the Veteran submitted a notice of disagreement with the November 2009 rating decision that granted service connection in December 2009. The December 2009 notice of disagreement and February 2010 statement did not specify disagreement with the effective date assigned for the psychiatric disability, however, and the Board finds the statements are too vague to indicate disagreement with the effective date assigned for the award of service connection for a psychiatric disability. Notably, the record is absent any argument that the December 2009 notice of disagreement or February 2010 statement should be considered a disagreement with the effective date assigned for the award of service connection for an acquired psychiatric disability. Moreover, the matter was readjudicated in the September 2010 rating decision that assigned an earlier effective date for the award of service connection, and the record is absent any record that could be interpreted as a notice of disagreement with the September 2010 rating decision. The Board finds the September 2010 rating decision is final with respect to the effective date assigned for the award of service connection for an acquired psychiatric disability. After a rating decision establishing an effective date becomes final, an earlier effective date can only be established on the basis of CUE. The record is absent an allegation of CUE. Thus, the Board finds the claim must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Snyder, counsel