Citation Nr: 18142166 Decision Date: 10/16/18 Archive Date: 10/12/18 DOCKET NO. 16-20 418 DATE: October 16, 2018 ORDER Entitlement to an effective date earlier than August 29, 2013 for service-connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than August 29, 2013 for service-connection for diabetes mellitus with hypertension associated with herbicide exposure is denied. Entitlement to an effective date earlier than August 29, 2013 for service connection for bilateral hearing loss is denied. FINDINGS OF FACT 1. VA received the Veteran’s original claim for service connection for PTSD, diabetes mellitus with hypertension, and bilateral hearing loss on September 11, 2003. A May 2004 rating decision denied service connection; as the Veteran did not file a timely notice of disagreement regarding this determination, it is final. 2. A May 2007 rating decision denied reopening the claims of service connection for PTSD, diabetes mellitus with hypertension, and bilateral hearing loss; as the Veteran did not file a timely notice of disagreement regarding this determination, it is final. 3. The Veteran’s most recent claim for service connection for PTSD, diabetes mellitus with hypertension, and bilateral hearing loss was received on August 29, 2013; no prior unadjudicated claim for this benefit is of record. CONCLUSIONS OF LAW 1. The criteria for an effective date for service connection for PTSD earlier than August 29, 2013 have not been met. 38 U.S.C. §§ 501, 7105(d); 38 C.F.R. §§ 3.156, 3.400(q), 20.201. 2. The criteria for an effective date for service connection for diabetes mellitus with hypertension earlier than August 29, 2013 have not been met. 38 U.S.C. §§ 501, 7105(d); 38 C.F.R. §§ 3.156, 3.400(q), 20.201. 3. The criteria for an effective date for service connection for bilateral hearing loss earlier than August 29, 2013 have not been met. 38 U.S.C. §§ 501, 7105(d); 38 C.F.R. §§ 3.156, 3.400(q), 20.201. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1967 to October 1969, and from October 1969 to February 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge during an October 2016 hearing. A transcript of the hearing is of record. At the October 2016 hearing, the Veteran discussed his desire for entitlement to total disability based on individual unemployability (TDIU) due to service-connected disabilities. While entitlement to TDIU was denied in a March 2016 rating decision, the Veteran did not file a notice of disagreement. Therefore, the Board construes the testimony in October 2016 as a claim to reopen the previously denied claim. This claim is referred to the RO for appropriate action. Effective Date The Veteran seeks effective dates prior to August 29, 2013 for the grants of service connection for PTSD, diabetes mellitus with hypertension, and bilateral hearing loss. For the following reasons, these claims are denied. In May 2004, the RO denied the Veteran’s claims for service connection for PTSD, diabetes mellitus with hypertension, and bilateral hearing loss. The decision became final after the Veteran failed to perfect an appeal of his denial or submit new evidence within one year of being notified of the rating decision. The Veteran filed an application to reopen in October 2006. The RO denied the Veteran’s application to reopen the claim in a May 2007 rating decision. The Veteran again failed to perfect an appeal or submit new evidence within one year of being notified of the rating decision. The Veteran next filed another claim to reopen his claims for PTSD, diabetes mellitus with hypertension, and bilateral hearing loss on August 29, 2013. In the April 2014 rating decision that is the subject of this appeal, the RO established service connection for PTSD, diabetes mellitus with hypertension, and bilateral hearing loss effective August 29, 2013, the date on which the Veteran’s claim had been received. The Veteran appealed the effective date of service connection. The Veteran asserts that he is entitled to an effective date earlier than August 29, 2013. In a June 2013 notice of disagreement, the Veteran asserted that the effective date should be when he filed his first claim in 2003. Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. “The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” Sears v. Principi, 16 Vet. App. 244 (2002). In order for the Veteran to be awarded an effective date based on an earlier claim, he would have to show clear and unmistakable error (CUE) in the prior denials of the claim. See Flash v. Brown, 8 Vet. App. 332 (1995). Here, however, the Veteran has not alleged CUE in the previous rating decision (the record does not clearly indicate such a clear and unmistakable error in the prior rating). As explained above, the previous rating decision is final, and therefore the effective date for service connection was appropriately assigned as of the date the Veteran’s claim to reopen was received on August 29, 2013. See Ingram v. Nicholson, 21 Vet. App. 232 (2007); see also McGrath v. Gober, 14 Vet. App. 28, (2000). The Board understands that the Veteran did file claims for service connection for PTSD, diabetes mellitus with hypertension, and bilateral hearing loss many years prior to it being granted. Unfortunately, he did not appeal the prior denial, and the law is very clear that in such a case, the effective date should be the date the claim was received to reopen the previously denied claim. As such, the claim is denied JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kettler, Associate Counsel