Citation Nr: 18158507 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 16-39 321 DATE: December 18, 2018 ORDER The claim for an earlier effective date for service connection for bilateral plantar fasciitis and pes planus is dismissed. REMANDED The claim for an increased rating, in excess of 30 percent, for bilateral pes planus and plantar fasciitis (bilateral flat foot disability) is remanded. FINDING OF FACT The Veteran filed a freestanding claim for an effective earlier date for the grant of service connection for bilateral flat foot nearly three years after a final, October 2010 rating decision, which granted service connection for a right flat foot disability, and merged this disability with the service-connected left flat foot disability, to constitute a bilateral flat foot disability. CONCLUSION OF LAW The claim for an earlier effective date for an award of service connection for a bilateral flat foot disability is an impermissible freestanding claim. 38 C.F.R. § 20.1103 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 2004 to January 2006. This appeal comes before the Board of Veterans’ Appeals (Board) from June 2013 and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In the June 2013 rating decision, the RO increased the service-connected bilateral flat foot disability from 10 percent to 30 percent, effective December 14, 2011. In the April 2014 rating decision, the RO denied the claim of entitlement to an earlier effective date for service connection for a bilateral flat foot disability, and additionally, continued the 30 percent disability rating for the bilateral flat foot disability. In October 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is of record. Earlier Effective Date In an October 2010 rating decision, the RO granted service connection for a right flat foot disability, effective August 31, 2010, and merged this disability with the service-connected left flat foot disability, to comprise a bilateral flat foot disability. Thereafter, the Veteran filed a claim, requesting a review of the effective date of the award for service connection for a bilateral flat foot disability, in a July 2013 statement in support of claim. However, given that the Veteran did not appeal the October 2010 rating decision within one year, this decision is final. See 38 U.S.C. § 7105 (West 2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). Thus, the Veteran’s July 2013 claim constitutes a freestanding claim. The United States Court of Appeals for Veterans Claims (Court) has held that a freestanding claim for an earlier effective date is impermissible. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that VA claimants may not properly file, and VA has no authority to adjudicate, a free-standing earlier effective date claim in an attempt to overcome a final decision). As the Court reasoned, to allow such a claim would vitiate the rule of finality. Rudd, 20 Vet. App. at 299. Notwithstanding, as an exception to this rule, after a rating decision has established an effective date for a claim, and thereafter, becomes final, a claim for an earlier effective date can only be established by a request for a revision of that final decision, based on clear and unmistakable error (CUE). While the Veteran requested a review of the effective date for the award of service connection for bilateral flat foot, as noted above, he has not asserted CUE, nor has he provided any other bases for the request, which may be suggestive of CUE. Thus, in this regard, the Veteran’s freestanding claim for an earlier effective date for the award of service connection for bilateral flat foot must be dismissed. REASONS FOR REMAND The Board regrets further delay but finds that additional development is necessary before a decision may be rendered on the remaining issue on appeal. After the RO issued a statement of the case (SOC) for the increased rating claim for a bilateral flat foot disability in July 2016, the Veteran underwent a VA examination, and thereafter a September 2016 disability benefits questionnaire (DBQ) for flat foot conditions was associated with the claims file. Thus, the SOC did not consider this VA examination. Since the Veteran has not waived his due process right to initial agency of jurisdiction (AOJ) consideration of this additional, pertinent evidence, this claim must be remanded for AOJ review and issuance of a supplemental statement of the case (SSOC). See 38 C.F.R. § 20.1304 (2017). Thereafter, the claim will be returned to the Board if the Veteran continues to disagree with the rating assigned. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment record, including and not limited to, the most recent treatment records, and associate them with the claims file. 2. Readjudicate the increased rating claim for the bilateral flat foot disability, with consideration for the September 2016 DBQ and any other pertinent evidence that has been submitted since July 2016, and provide the Veteran with a SSOC. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Vanessa-Nola Pratt, Associate Counsel