Citation Nr: 21062449 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 16-59 367 DATE: October 7, 2021 ISSUES 1. Entitlement to an effective date prior to February 14, 2014, for the grant of service connection for posttraumatic stress disorder (PTSD) and schizophrenia. 2. Entitlement to revision of an October 2015 rating decision, on the basis of clear and unmistakable error (CUE), that granted service connection for PTSD and schizophrenia with an effective date of February 14, 2014. ORDER The claim of entitlement to an effective date prior to February 14, 2014, for the grant of service connection for PTSD and schizophrenia is dismissed. REMANDED Entitlement to revision of an October 2015 rating decision, on the basis of clear and unmistakable error (CUE), that granted service connection for PTSD and schizophrenia with an effective date of February 14, 2014, is remanded. FINDINGS OF FACT 1. Service connection for PTSD was denied in October 2012. A proper notice of disagreement was not received within one year of the date of this decision, and it became final. 2. Service connection for PTSD with schizophrenia and cannabis use disorder (also claimed as emotional stress) was granted in an October 2015 rating decision with an evaluation of 100 percent effective February 14, 2014. CONCLUSION OF LAW To the extent that the Veteran claims entitlement to an effective date prior to February 14, 2014, on a non-CUE basis, the Veteran's request for an earlier effective date is not a legally recognizable claim and raises no question to be decided. 38 U.S.C. § 7105; 38 C.F.R. § 20.205; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1976 to May 1976 and from October 1979 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a January 2020 videoconference Board hearing; a copy of the transcript is of record. During this hearing, the record was held open for 30 days; the Veteran subsequently submitted additional argument in February 2020 to specifically include CUE argument. The Board has accepted this additional evidence for inclusion into the record on appeal. See 38 C.F.R. § 20.800. Historically, service connection for emotional stress was denied in February 2003; service connection for paranoid schizophrenia was denied in February 2008; service connection for PTSD was denied in October 2012. The Veteran did not appeal the October 2012 decision, and it became final. The previous denial of service connection for PTSD was confirmed and continued in August 2014. Ultimately, service connection for PTSD with schizophrenia and cannabis use disorder (also claimed as emotional stress) was granted in an October 2015 rating decision with an evaluation of 100 percent effective February 14, 2014. The RO stated that the effective date of February 14, 2014, corresponded to the date in which the most recent claim was received. Once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE. See Rudd v. Nicholson, 20Vet. App.296, 300 (2006) (holding that any other result with vitiate the rule of finality); DiCarlo v. Nicholson, 20Vet. App.52 (2006) (stating there is no procedure for filing a freestanding challenge to the finality of a VA decision). In other words, if there is disagreement as to the effective date assigned in a given rating action, it must be timely appealed within one year of notice of the rating decision assigning the effective date. In cases where this is not done, only a finding of CUE in an unappealed, final decision would yield an earlier effective date. To the extent that the Veteran is seeking an effective date prior to February 14, 2014, for PTSD and schizophrenia on any basis other than CUE, such claim is precluded. As freestanding earlier effective claims are barred as a matter of law, his claim for an earlier effective date on a non-CUE basis must be dismissed. See Rudd, 20 Vet. App. at 296. REASONS FOR REMAND Specifically, as addressed in the January 2020 hearing before the undersigned, the Veteran contends that there was CUE regarding the October 2015 rating decision which assigned a February 14, 2014, effective date for the grant of service connection. To date, however, the RO has not addressed these contentions in the first instance. Ultimately, the record reflects that it is the Veteran's clear intent to challenge the October 2015 rating decision. Unfortunately, the RO did not address this specific contention prior to the matter reaching the Board. Because the RO has not yet addressed the CUE allegations explicitly raised by the Veteran in the first instance, the Board currently lacks jurisdiction over this claim. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2012); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). The matter is REMANDED for the following action: 1. Ensure the Veteran is apprised of all appropriate VCAA and other notice pertinent to his claim. 2. Adjudicate the issue of whether the October 2015 rating decision, which granted service connection for PTSD with schizophrenia and cannabis use disorder (also claimed as emotional stress) with an evaluation of 100 percent effective February 14, 2014, should be revised or reversed on the grounds of CUE. 3. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M.K., 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.