Citation Nr: 21065201 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 16-63 872 DATE: October 25, 2021 ORDER An effective date prior to June 21, 2007, for a 100 percent rating for posttraumatic stress disorder (PTSD) with panic disorder without agoraphobia is denied. FINDING OF FACT There is no evidence of record of either an earlier increased rating claim or a worsening of the Veteran's psychiatric condition prior to June 21, 2007. CONCLUSION OF LAW The criteria for an effective date prior to June 21, 2007, for the award of a 100 percent evaluation for PTSD are not met. 38 U.S.C. § 7105; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1999 to October 2003. In July 2021, the Veteran testified before the undersigned Veterans' Law Judge. A copy of the transcript is associated with the record. Earlier Effective Date The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C. § 5110(b)(2). See 38 C.F.R. § 3.400(o)(2). The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term "increase" as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). A claimant cannot file a new claim seeking an earlier effective date for an award where the decision that assigned the effective date has already become final. Such would be a "freestanding" effective date claim, which is impermissible under VA law. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The only way to overcome the finality of a decision is to request revision of the decision based on clear and unmistakable error (CUE). PTSD The Veteran is seeking an effective date prior to June 21, 2007, for the 100 percent rating of his PTSD and associated mental health disorders. The record shows that the Veteran was originally granted service connection for a panic disorder as of October 29, 2003 and assigned a 30 percent rating. See May 2004 Rating Decision. The Veteran did not appeal this decision and it became final. On June 21, 2007, VA received a Congressional inquiry about the Veteran's ratings and claims regarding service connection for PTSD. VA considered this inquiry as a request for an increased rating. Based on a medical evidence, an October 2007 Rating Decision granted the Veteran's claim for PTSD and assigned a 100 percent rating as of the June 21, 2007, Congressional inquiry. The Veteran did not appeal this decision and it became final. The Veteran's claim for an earlier effective date for his 100 percent PTSD rating came out of a February 2016 proposal to reduce his PTSD rating a determination which was denied. A May 2016 Rating Decision confirmed the Veteran's 100 percent rating as of the May 2016 proposed reduction. In an October 2016 Notice of Disagreement, the Veteran sought an effective date of October 2003 for his 100 percent rating. The Veteran's 100 percent PTSD rating has been continually in effect since his June 2007 grant of the 100 percent rating. In this matter, the Board interprets the Veteran's October 2016 NOD as a freestanding effective date claim, which is prohibited by law. See Rudd, 20 Vet. App. 296. He did not previously appeal the Rating Decisions which assigned either his 30 percent or his 100 percent rating. His appeal was directed at the continuation of his 100 percent rating after a proposed reduction. There are no documents contained in the Veteran's file which indicate that he was seeking an earlier effective date for his 100 percent rating prior to his October 2016 NOD. The only way to overcome the finality of a decision is to request revision of the decision based on clear unmistakable error (CUE), which has not been alleged or asserted in this matter. However, should the October 2016 NOD not be considered as a freestanding claim, after review of the evidence, the Board is not able to find that there were any claims, informal or otherwise, for a higher rating for the Veteran's service connected mental health disabilities prior to the June 2007 Congressional inquiry. There are no records which indicate that the Veteran's mental health disorders had increased in severity such to warrant a 100 percent rating prior to September 2007 medical records and a VA examination which determined he was totally occupationally and socially impaired by his PTSD and associated mental health disorders. These records were the basis for his 100 percent rating, which was dated back to the receipt of the June 21, 2007, Congressional inquiry. The Board has considered the Veteran's 2021 hearing testimony in which he stated that his medications masked the true severity of his mental health disorder symptoms in 2003 when he first sought service connection. However, the Board is unable to reverse the factual findings of the May 2004 rating decision. The Board again notes that the Veteran has not asserted CUE in correlation to the Rating Decisions which assigned his percentages and the effective dates of those percentages. Finally, the Board notes that a disagreement with how the facts were weighed or evaluated is not adequate to raise a valid argument of CUE. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). As such, while the Board is very sympathetic to the Veteran's claim, an effective date prior to June 21, 2007, for a 100 percent rating for PTSD is denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.