Citation Nr: 18142957 Decision Date: 10/17/18 Archive Date: 10/17/18 DOCKET NO. 16-22 349 DATE: October 17, 2018 ORDER The issue of whether a clear and unmistakable error (CUE) was made in not assigning an earlier effective date for posttraumatic stress disorder (PTSD) is dismissed without prejudice to refiling. REMANDED Entitlement to an effective date earlier than February 14, 2008, for the grant of service connection for PTSD is remanded. FINDING OF FACT An April 2009 rating decision granted service connection for PTSD, effective February 14, 2008; the Veteran appealed the assigned effective date via a timely notice of disagreement, but the RO did not issue a statement of the case. CONCLUSIONS OF LAW 1. The April 2009 rating decision that granted service connection for PTSD, effective February 14, 2008, is not final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200. 2. As the April 2009 rating decision has not become final, the Veteran’s allegation of CUE in the April 2009 rating decision is premature, and the issue must be dismissed. 38 U.S.C. § 7105. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1981 to November 1985, and from May 1987 to April 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision. On the May 2016 VA Form 9, the Veteran requested a Board hearing. The Veteran’s attorney withdrew the Board hearing request in a June 2018 correspondence. Whether a clear and unmistakable error (CUE) was made in not assigning an earlier effective date for posttraumatic stress disorder (PTSD). The August 2012 rating decision determined that no clear and unmistakable evidence (CUE) was made in not assigning a June 2013 effective date for service connection for PTSD. The Veteran appealed this decision via a December 2012 notice of disagreement. As explained below, the Board finds that the Veteran’s CUE motion is not ripe for adjudication and, as such, must be dismissed. CUE is a way to overcome the finality of a rating decision, opening the door to an earlier effective date. Only rating decisions that are final may be collaterally attacked using allegations of CUE. 38 U.S.C. § 5109A. Here, however, the Veteran is asserting CUE in a rating decision that has not become final. The matter of CUE stems from an January 2014 statement, in which the Veteran requested “the earlier effective date on my rating decision of 03/11/2010 granting S/C for my PTSD.” While this statement suggests that the Veteran is alleging CUE in the March 2010 rating decision, the Board finds that this is not altogether clear, as the March 2010 rating decision did not establish service connection for PTSD. Rather, it granted a higher rating of 100 percent for PTSD. Service connection for PTSD was established via an earlier April 2009 rating decision. As the Veteran is clearly challenging the effective date assigned by the RO, the Board, resolving doubt in the Veteran’s favor, assumes that he is challenging the April 2009 rating decision that established service connection for PTSD. (The Board acknowledges the Veteran’s assertion that he is entitled to an earlier effective date because his grant of service connection of PTSD was based on military records that were available and should have been obtained at the time of his original August 2003 claim. While there is no clear argument or indication that the Veteran is challenging any of the rating decisions that denied service connection for PTSD prior to April 2009, the Board notes that insofar as the Veteran is alleging CUE in any of these prior rating decisions due to a breach of the duty to assist, such a breach cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1345-47 (Fed. Cir. 2002). Therefore, the only issue properly before the Board is whether there is CUE in the April 2009 rating decision.) In June 2009, months after the April 2009 grant of service connection for PTSD, the Veteran submitted a claim of entitlement to a higher rating for PTSD. More importantly, in September 2009, he submitted a statement, requesting an earlier effective date of 2003 for the award of service connection for PTSD. As this statement expresses dissatisfaction with the effective date assigned by the April 2009 rating decision, the Board finds that it should have been considered as a timely notice of disagreement. 38 C.F.R. § 20.201 (2009). This, however, was not the case. While the RO addressed the issue of an earlier effective date in a November 2009 rating decision, it did not list it in the title page of the rating decision. Furthermore, the RO did not issue a statement of the case for the issue of an earlier effective date, to include providing the Veteran with relevant statutes and regulations. Thus, the Veteran’s appeal of the effective date assigned regarding the grant of service connection is still pending, and the April 2009 rating decision has not become final. As the April 2009 rating decision has not become final, the Veteran cannot, as a matter of law, assert a claim of CUE at this time. Link v. West, 12 Vet. App. 39, 45 (1998); Best v. Brown, 10 Vet. App. 322, 325 (1997). In other words, the CUE matter is premature. As there are no allegations of fact or law upon which relief may be granted, the Veteran’s CUE motion is dismissed. 38 U.S.C. § 7105(d)(5). REASONS FOR REMAND As noted above, in September 2009, the Board finds that the Veteran submitted a timely notice of disagreement with regard to the April 2009 rating decision that assigned an effective date of February 14, 2008, for the grant of service connection for PTSD. Specifically, the Veteran expressed dissatisfaction with the effective date assigned by the RO for the grant of service connection for PTSD. The RO, however, did not provide a statement of the case for this issue. As such, the Board has no discretion, and a remand is required. Manlincon v. West, 12 Vet. App. 238, 240 (1999). This issue will only be returned to the Board if the Veteran files a timely substantive appeal after issuance of the statement of the case. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). (CONTINUED ON THE NEXT PAGE)   Accordingly, the case is REMANDED for the following action: Provide the Veteran with a statement of the case on the issues of entitlement to an effective date earlier than February 14, 2008, for the grant of service connection for PTSD. Do not return this issue to the Board unless a timely substantive appeal is received. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel