Citation Nr: 18159423 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 15-46 339 DATE: December 19, 2018 ORDER Entitlement to an effective date earlier than August 3, 2007 for the grant of service connection for major depressive disorder is dismissed. Entitlement to an effective date earlier than May 11, 2010 for a 100 percent disability rating assigned to major depressive disorder is dismissed. FINDING OF FACTS 1. An August 2008 rating decision that granted service connection for major depressive disorder and assigned an August 3, 2007 effective date is final. 2. The June 2010 rating decision that assigned 100 percent disability rating for major depressive disorder effective May 11, 2010 is final. 3. The Veteran has not raised a claim of clear and unmistakable error (CUE) in the August 2008 and June 2010 rating decisions. CONCLUSIONS OF LAW 1. The Veteran’s freestanding claim seeking an effective date prior to August 3, 2007, for the grant of service connection for major depressive disorder lacks legal merit. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. The Veteran’s freestanding claim seeking an effective date prior to May 11, 2010, for an assignment of 100 percent disability rating for major depressive disorder lacks legal merit. 38 U.S.C. §§ 5109A, 7105; 38 C.F.R. § 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1973- January 1979, and from March 1980- March 1984. The Veteran is found to be incompetent as of December 01, 2010 and the Appellant is his spouse. As she perfected this appeal on his behalf, she is listed in the above caption. Earlier Effective Date The Appellant is seeking an effective date earlier than assigned for his service-connected major depressive disorder, as well as the 100 percent rating assigned. Section 5110(a), Title 38, United States Code, provides that “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” The VA administrative claims process previously recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151 (a). An informal claim may be any communication or action indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); 38 C.F.R. §§ 3.1 (p), 3.155(a). An informal claim must be written and it must identify the benefit being sought. Although a claimant need not identify the benefit sought “with specificity,” some intent on the part of the veteran to seek benefits must be demonstrated. VA has a duty to fully and sympathetically develop a veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” and extends to giving a sympathetic reading to all pro se pleadings of record. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding will be accepted as correct in the absence of collateral attack by showing the decision involved CUE. 38 C.F.R. § 3.105 (a). There is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). Here, in an August 2008 rating decision, the Veteran was granted service connection for major depression disorder with an effective date of August 3, 2007. Subsequently, the ratings for the Veteran major depressive disorder was increased to 100 percent by way of a June 2010 rating decision. Review of the record shows that notice of disagreement was not filed regarding either of these decisions within one year. Thus, these decisions are final and may only be reviewed if there is a claim of CUE. The Appellant is seeking entitlement for an effective date based on the assertion that the Veteran had major depressive disorder earlier than August 2007, and that the severity of his condition warranted 100 percent rating earlier than May 2010. Therefore, the Appellant’s claim for an earlier effective date is seeking review of the August 2008 and June 2010 rating decisions that assigned the effective dates at issue. Because both rating decisions are final, the Board may only review these decisions if there was a motion for CUE. A sympathetic reading of the Veteran’s and Appellant’s statements in the record do not reflect that a claim of CUE was raised regarding either of August 2008 or June 2010 decisions. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005). Therefore, the finality of the August 2008 and June 2010 decisions precludes assignment of an earlier effective date.   Because the Veteran has not submitted a motion for CUE in the August 2008 and June 2010 rating decisions, the Board finds that the present assertions for entitlement to an effective earlier than August 2007 for the grant of service connection for major depressive disorder, and earlier than May 11, 2010 for a 100 percent disability rating are attempts to establish freestanding claims for an earlier effective date, which are not permitted under Rudd. Accordingly, these claims are dismissed. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.SOLOMON