Citation Nr: 21001745 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 16-27 312 DATE: January 11, 2021 ORDER Entitlement to an effective date prior to June 9, 2004, for the grant of service connection for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to a rating in excess of 70 percent for PTSD is remanded. FINDING OF FACT 1. In April 2005, the Agency of Original Jurisdiction (AOJ) granted service connection for posttraumatic stress disorder effective September 22, 2004. The Veteran was notified of the rating decision and of his appellate rights, but he did not express disagreement within one year. 2. In June 2014, the Veteran filed for an earlier effective date for the grant of service connection for posttraumatic stress disorder, but did not plead clear and unmistakable error (CUE) in a prior final decision. 3. In November 2017, the Board referred a subsequent attempt to plead CUE to the Agency of Original Jurisdiction. The Agency of Original Jurisdiction has not acted on this referral. CONCLUSION OF LAW 1. The April 2005 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 19.52, 20.1103. 2. The criteria to readjudicate the effective date assigned in the April 2005 rating decision have not been met. 38 U.S.C. §§ 5109A, 7105(c); 38 C.F.R. §§ 3.105, 3.400, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1955 to December 1957. The Board denied both claims in a November 2017 decision. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). In June 2020, the Court issued a memorandum decision setting aside a portion of the Board’s decision and remanding the claims to the Board for further action. 1. Entitlement to an effective date prior to June 9, 2004, for the grant of service connection for posttraumatic stress disorder (PTSD) The Court remanded the Veteran’s claim so the Board may: 1) provide an adequate statement of reasons or bases for whether the Veteran’s April 2003 conditional statement constituted a valid withdrawal of his PTSD claim under 38 C.F.R. § 20.204 (2003); 2) provide an adequate statement of reasons or bases for its effective-date determination for the Veteran’s service-connected PTSD; and 3) address whether the Veteran filed an informal PTSD claim prior to April 2002. Upon further review of the evidence of record, the Board finds the Veteran filed a freestanding claim for an earlier effective date, which is improper. In the November 2017 decision, “the Board erred to the extent that it entertained such an improper ‘claim’ without imposing the strictures of finality.” See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). Therefore, the claim will be dismissed. In April 2005, the Agency of Original Jurisdiction (AOJ) granted service connection for posttraumatic stress disorder (PTSD) effective September 22, 2004. The Veteran was notified of the rating decision and of his appellate rights. Although the Veteran was in contact with VA in the year after being notified of the April 2005 decision, he did not express disagreement with the effective date assigned. Four days after the letter notifying the Veteran of the April 2005 rating decision was sent, VA received a duplicate of an August 2004 letter from Dr. F.S.W. meant to support his service connection claim. In the year that followed, VA received Congressional correspondence and copies of correspondence the Veteran previously submitted to VA, including a copy of his June 2004 claim for an earlier effective date for service connection for his service-connected duodenal ulcer. A request for a copy of his service medical records was received in July 2005, and the records were sent to the Veteran in September 2005. However, a notice of disagreement was not included within the congressional correspondence, duplicate correspondence and request for service medical records. Additionally, the correspondence, including the letter from Dr. F.S.W., was duplicative and not new and material. See 38 C.F.R. § 3.156(b). In VA’s September 2005 response to Senator Dole, it was noted the Veteran has one year from the date of notification of the rating decision to submit a notice of disagreement. Although the Veteran provided copies of correspondence that expressed a desire for an earlier effective date, this was a copy of correspondence that pre-existed the April 2005 decision and was the basis for a September 2004 decision denying an earlier effective date for service connection for duodenal ulcer. In the year after notice of the April 2005 decision was sent, the only reference made by the Veteran to the April 2005 rating decision was related to his request for service medical records. After VA provided the requested records, the Veteran did not submit a notice of disagreement within one year of notification of the April 2005 decision. In other words, even when reading the correspondence sympathetically, the Veteran did not express disagreement with the effective date assigned in the April 2005 decision within one year of notification of the decision. Therefore, the April 2005 decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 19.52, 20.1103. In June 2014, the Veteran submitted correspondence that was interpreted by the Agency of Original Jurisdiction as a claim for an increased rating and an earlier effective date for the grant of service connection for PTSD. Once a decision on a claim becomes final, it cannot be challenged through a freestanding claim for entitlement to an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Knowles v. Shinseki, 571 F.3d 1167 (Fed. Cir. 2009) (rejecting a freestanding challenge to the finality of a decision); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“absent a showing of [clear and unmistakable error], [the Veteran] 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.”). In other words, the Veteran is not entitled to make an earlier effective date claim after the April 2005 rating decision, which assigned the effective date for service connection for PTSD, was not timely appealed. A final decision can be revised on the basis of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). A motion for CUE must be plead with specificity. 38 C.F.R. § 20.1404(b); Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011), aff’d 695 F.3d 1257 (Fed. Cir. 2012). Furthermore, the Board does not have jurisdiction to adjudicate in the first instance assertions of CUE in AOJ decisions. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (assertion of CUE in an AOJ decision must first be presented to and decided by the AOJ before the Board has jurisdiction to decide the matter). To the extent the Veteran may have made a motion for revision of a decision based on clear and unmistakable error in March 2017, the Board does not have jurisdiction over it. In our November 2017 decision, the Board referred this issue to the AOJ for appropriate action. In the Board’s reading, the Court did not take jurisdiction over and set aside this portion of the November 2017 decision. Therefore, additional action is required by the AOJ. In light of the above, the Board finds the Veteran filed a freestanding claim for an earlier effective date. Accordingly, there is no proper claim in this case for which the Board has jurisdiction and the Veteran’s improper claim will be dismissed. 38 U.S.C. § 7105(d); see Rudd, 20 Vet. App. at 300. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent for PTSD is remanded. The Court remand the Veteran’s claim so the Board may provide adequate reasons and bases for why the Veteran is not entitled to a 100 percent rating for PTSD, to include addressing favorable evidence regarding suicide. In order to provide adequate reasons and bases, the Board finds remand is warranted to obtain outstanding medical records and a medical examination. A March 2015 letter from Dr. D.J.H., the Veteran’s therapist, refers to an October 2014 letter the doctor sent about the Veteran’s “worsening condition”. See letter received March 18, 2015. However, a review of the record contains no such October 2014 letter. Furthermore, the record indicates the Veteran saw or sees Dr. D.J.H. weekly. However, although his claims file contains multiple letters from Dr. D.J.H. and other clinicians, there is a dearth of actual treatment records in the Veteran’s claims file. Therefore, remand is warranted to obtain treatment records from Dr. D.J.H. Additionally, the AOJ scheduled the Veteran for a March 2015 examination for this claim. Dr. D.J.H. submitted a letter advising VA that the Veteran should not attended this examination “due to his current state of mental health.” See letter received March 30, 2015 (emphasis). The examination was subsequently cancelled. In June 2015, VA received a disability benefits questionnaire filled out by Dr. D.J.H., in which it was opined the Veteran has total occupational and social impairment. However, Dr. D.J.H. noted little in the social history section of the report to support this opinion, as it was only noted that the Veteran is widowed, has four children and five grandchildren. The questionnaire and other evidence of record does not contain adequate information on the Veteran’s social activities to determine the Veteran’s level of social impairment, e.g. whether he eats out with family, goes to church activities, or spends time with friends. Dr. D.J.H. records may assist in this determination. However, the Veteran has not been evaluated in over five years and in order to determine if an increased rating is warranted, staged or otherwise, an additional examination is warranted to allow a clinician to solicit the requisite information needed to provide an opinion and adequate rationale. This does not preclude the Veteran from obtaining an additional opinion, supported by rationale, from Dr. D.J.H. The matters are REMANDED for the following action: 1. Take appropriate action on the Board’s November 2017 referral. 2. Ask the Veteran to complete a VA Form 21-4142 for providers of psychiatric treatment, including Dr. D.J.H. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected posttraumatic stress disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms, including a history of his social activities (e.g. eating out with family, going to church activities, spending time with friends). To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the Veteran’s service-connected PTSD alone. The examiner should also opine whether there has been any change in the Veteran’s occupational and social impairment since June 2013. Provide rationale for all opinions. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gregory T. Shannon, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.