Citation Nr: 1821159 Decision Date: 04/11/18 Archive Date: 04/19/18 DOCKET NO. 14-26 766 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to November 16, 1998, for the award of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from April 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Waco, Texas. The Veteran initially requested a hearing before a Veterans Law Judge; however, in a July 2015 written statement, he withdrew that request. The issue of whether a May 24, 1974, rating decision which denied service connection for a psychiatric disability is the result of clear and unmistakable error has been raised by the record in a July 2014 statement by the Veteran, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT In an October 2000 rating decision, the Veteran was granted service connection for PTSD and an effective date of November 16, 1998 was assigned; as the Veteran did not timely perfect an appeal regarding this determination, it is final. CONCLUSION OF LAW To the extent that the Veteran is attempting to disturb the finality of the October 2000 rating decision, the Appellant's claim of entitlement to an effective date prior to November 16, 1998, for the award of service connection for PTSD is dismissed. Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The claim for an earlier effective date for service connection arises from the Veteran's disagreement with the effective date assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to downstream questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). Furthermore, in the present case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). The Board notes that the issue here is of entitlement to an earlier effective date for service connection and does not involve any medical questions. The Court has held that when the interpretation of a statute or regulation is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004). Hence, adjudication of this appeal at this time is proper. The Veteran contests the effective date of November 18, 1998, for the award of service connection for PTSD. He asserts an effective date of March 31, 1972, the date he initially filed a claim for VA compensation, is warranted. Under the applicable criteria, the effective date of an award of disability compensation based on an initial claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a) (2014). The implementing regulation provides that the effective date of an award of disability compensation is the day following separation from active service, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of claim or the date that entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2) (2017). A "claim" is defined in the VA regulations as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). The date of receipt of the claim, or "date of the claim," means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In the present case, the award of service connection for PTSD was made effective November 16, 1998, based on receipt on that date of the claim at issue. The Veteran asserts that he previously filed a service connection claim for a psychiatric disability in 1972, and an effective date back to that claim is warranted. This effective date issue was previously considered and denied by the Board in March 2009 and in the absence of a timely appeal, that Board decision is final. The Board found then, as it does now, that the October 2000 rating decision granting the Veteran service connection for PTSD and assigning a November 16, 1998 effective date is final, and thus the assignment of this effective date may not be challenged, outside of very narrow exceptions not pertinent to this claim. The U.S. Court of Appeals for Veterans Claims (Court) has held that once a rating decision awarding service connection for a claimed disability becomes final, finality attaches to all decisions therein, to include the assignment of the effective date of the service connection award. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on clear and unmistakable error (CUE) could result in the assignment of an effective date earlier than the date of a final decision as free-standing claims for earlier effective dates vitiate the rule of finality). The Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim is raised, the Court has held that such an appeal should be dismissed. Id. at 299-300. Thus, the October 2000 rating decision, to include the effective date assigned therein, is final. The Board further notes that absent a showing of CUE in the prior Board decision, the Veteran cannot receive an effective date earlier than the date of the claim to reopen. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). Although the Veteran has asserted that there was CUE in the prior May 1974 rating decision denying service connection for a psychiatric disability, at no time has the Veteran asserted that there was CUE in the March 2009 Board decision. As noted in the introduction, the Veteran has asserted that the initial May 1974 rating decision denying service connection for a psychiatric disability contains CUE. Because the RO has yet to adjudicate that pending claim, it is not before the Board at this time, and the Board makes no finding regarding its ultimate disposition. In conclusion, an effective date prior to November 16, 1998 for the award of service connection for PTSD must be dismissed as a matter of law. As such, the benefit-of-the-doubt does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The appeal of entitlement to an effective date prior to November 18, 1998, for the award of service connection for PTSD is dismissed. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs