Citation Nr: 19130863 Decision Date: 04/19/19 Archive Date: 04/19/19 DOCKET NO. 15-33 747 DATE: April 19, 2019 ORDER An effective date earlier than October 29, 1996 for the grant of service connection for post-traumatic stress disorder (PTSD) is dismissed. FINDING OF FACT 1. The April 1997 rating decision granting service connection for PTSD effective from October 29, 1996 is final; the subsequent rating decisions confirming and continuing the assigned ratings for PTSD are final. 2. VA received the Veteran’s freestanding clam for an earlier effective in March 2011. 3. The Veteran has not plead clear and unmistakable error (CUE) in any prior final decision. CONCLUSION OF LAW 1. The April 1997 rating decision that granted service connection for PTSD, and the subsequent rating decisions that confirmed and continued the assigned rating for PTSD are final. 38 U.S.C. §§ 5103, 7105(c); 38 C.F.R. § 20.1103. 2. The claim of entitlement to an effective date earlier than October 29, 1996 for the grant of service connection for PTSD is dismissed without prejudice. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1969 to June 1971 in the United States Marine Corps. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). 1. The claim of entitlement to an earlier effective date for PTSD. The Veteran appears to contend that his service connected PTSD should be assigned an effective date earlier than October 29, 1996. He reported that he has been receiving treatment for PTSD since 1995, prior to his current effective date. On his September 2015 Form 9, he argued that an earlier effective date is warranted for PTSD because the evidence shows that substance abuse was the cause of his unemployability. He cited to Allen v. Principi, 237 F. 3d 1368 (Fed. Cir 2001) and argued that a Veteran is not precluded from receiving compensation for alcohol or drug-related disabilities as evidence of the increased severity of service-connected disability. Generally, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later, unless otherwise provided. 38 U.S.C. § 5110 (a); 38 C.F.R. 3.400. Entitlement arises on the date the claimant meets the basic eligibility criteria. For direct service connection claims, if the claim is received within one year of separation, the date of entitlement will be the day after separation commenced. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). If entitlement is established because of the correction, change or modification of a military record, or of a discharge or dismissal, by a Board established under 10 U.S.C. 1552 or 1553, or because of other corrective action by competent military naval, or air authority, will be effective from the latest of these dates: (1) date of application for change, correction, or modification, was filed with the service department, in either an original or disallowed claim; (2) date of receipt of claim if disallowed; (3) one year prior to the reopening of the claim.. 38 U.S.C. § 5110 (a), (i); 38 C.F.R. § 3.400(g)(1). The law specifies that, unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year after that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). Notwithstanding, an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception is where the evidence establishes that there is CUE in the prior final decision. 38 U.S.C. §§ 5109A. A claim of CUE is a collateral attack on an otherwise final rating decision by a VA regional office. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision and, when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo v. Brown, 6 Vet. App. at 43-44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). The question before the Board is whether revision any PTSD rating decision, prior final disallowance, is warranted. Notably, the Veteran has not argued that he appealed April 1997 or other rating decisions addressing the claim of PTSD within the applicable timeframe. He further has not made any specific allegation of CUE in any prior final rating decision. The record shows that an April 1997 rating decision initially granted service connection for PTSD with a 10 percent rating, effective October 29, 1996. The effective date was based on the date of his original claim. Under authority of Title 10, U.S. Code Section 1552, a correction was made to the Veteran’s DD-214 cancelling the assignment of character of service as “under conditions other than honorable.” As part of a November 2007 rating decision, the Veteran’s PTSD was assigned a temporary 100 percent evaluation from July 2, 2007 and his PTSD rating was increased to 70 percent disabling and assigned an effective date of October 31, 2007. The Veteran was notified of the decision by VA letter of November 29, 2007. VA received no appeal of that decision. Rating decisions dated in January 2007, September 2008 and Apri 2009 addressed the disability rating for PTSD. The RO notified the Veteran of these decisions. VA received no appeal of these decisions within the applicable appeal period. Therefore, the April 1997 rating decision granting service connection for PTSD is final. Also, the January 2007, November 20007, September 2008 and Apri 2009 rating decisions are final. The Veteran does not contend that he filed an appeal with any of these rating decisions within the year following notice of the decisions. 38 U.S.C. §§ 5103, 5108, 7105(c); 38 C.F.R. § 20.1103. Years later, VA received a claim for earlier effective date for PTSD on March 31, 2011. It was unclear whether the Veteran was referring to the grant of service connection or the assigned disability rating based on his correspondence, but the outcome here is the same given that he has a freestanding claim for an earlier effective date. Because the April 1997 rating decision and the above identified subsequent rating decisions as to PTSD are final, any later action to alter the final decision would constitute a "freestanding" earlier effective date claim, which is simply not permissible absent a showing of CUE. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (indicating that "[n]o matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of clear and unmistakable error (CUE), he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003); 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, the Board finds that the Veteran has not alleged specific error with a rating decision and has not filed a motion with the Board to review a prior rating decision based on the grounds of CUE, which is his only potential avenue to obtain an earlier effective date for either the grant of service connection or an increased rating in a final prior decision. See 38 U.S.C. § 7105 (the Board may dismiss any appeal that fails to allege a specific error of fact or law in the determination being appealed). See Simmons v. Principi, 17 Vet. App. 104, 114 (2003). Accordingly, the claim is dismissed without prejudice to refiling. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. A. Macek, Associate Counsel