Citation Nr: 19124751
Decision Date: 04/03/19	Archive Date: 04/02/19

DOCKET NO. 17-28 503
DATE:	April 3, 2019

ORDER

Entitlement to an earlier effective date for the award of service connection for an acquired psychiatric disability is dismissed.

REMANDED

Entitlement to service connection for tinea pedis is remanded.

Entitlement to more than a 50 percent initial rating for service-connected psychiatric disability prior to November 18, 2013 is remanded.

FINDING OF FACT

An October 2013 rating decision awarded service connection for psychotic disorder not otherwise specified (NOS), rated 50 percent from November 18, 2010. While a subsequent November 18, 2013 “claim” seeking a higher rating for his psychiatric disability reasonably constitutes timely disagreement with that initial rating, nothing indicates similar disagreement with the initial effective date until a December 2014 claim (well outside the one-year appellate period from the decision in question) initiating this appeal. Therefore, the instant claim is “freestanding” and, absent an allegation of clear and unmistakable error (CUE) in a prior adjudication, must be dismissed as a matter of law. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).

CONCLUSION OF LAW

The claim seeking an earlier effective date for the award of service connection for an acquired psychiatric disability is freestanding and is dismissed. 38 U.S.C. §§ 5109A, 7105 (West 2014); 38 C.F.R. § 20.101 (2018); Rudd, 20 Vet. App. at 299.

REASONS AND BASES FOR FINDING AND CONCLUSION

The appellant is a Veteran who served on active duty from December 1984 to June 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal from October 2013, May 2014, January 2015 rating decisions. For the reasons outlined above, the claim seeking an earlier effective date for the award of service connection for acquired psychiatric disability is dismissed as a matter of law and no further discussion thereof is needed. Notably, the substantive question therein is part and parcel of the initial rating appeal for psychiatric disability being remanded (because the Board must consider whether a higher rating is warranted at any time based on all evidence of record). That issue has also been amended because VA has since awarded a 100 percent schedular rating for this disability from November 18, 2013 and, therefore, the rating from that date is moot.

REASONS FOR REMAND

Entitlement to a higher initial rating for psychiatric disability prior to November 18, 2013 and service connection for tinea pedis are remanded.

December 2014 and November 2013 “claims” for service connection for tinea pedis and a higher rating for a psychiatric disability were received within a year of May 2014 and October 2013 rating decisions that denied service connection for a foot disability and granted service connection for a psychiatric disability and therefore reasonably express disagreement with those decisions. Because no statement of the case (SOC) has been issued, corrective action is needed pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). 

The matters are REMANDED for the following action:

Issue a SOC for service connection for bilateral tinea pedis and a higher initial rating for psychiatric disability prior to November 18, 2013. The Veteran and his representative should be notified of the time and means for perfecting those appeals. Any properly perfected appeals should be returned to the Board. 



 

VICTORIA MOSHIASHWILI

Veterans Law Judge

Board of Veterans’ Appeals

ATTORNEY FOR THE BOARD	M. Yuan, Associate Counsel