Citation Nr: A21016296 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 201112-122445 DATE: October 4, 2021 ORDER Entitlement to an effective date prior to April 11, 2018, for the establishment of service connection for posttraumatic stress disorder (PTSD), is denied. Entitlement to an effective date prior to April 11, 2018, for the establishment of total disability based on individual unemployability (TDIU) due to service-connected PTSD is denied. FINDINGS OF FACT 1. The Veteran filed a service connection claim for PTSD on April 11, 2018. The Veteran's claim for service connection for PTSD was granted by the AOJ and implemented in a February 2020 rating decision, and an effective date of April 11, 2018 was assigned. 2. Prior to April 11, 2018, there was no formal or informal service-connection claim for a psychiatric disability that remained pending. 3. The Veteran filed a claim for total disability based on individual unemployability (TDIU) due to service-connected PTSD on March 6, 2020. The Veteran's claim for a TDIU was granted by the AOJ and implemented in a June 2020 rating decision, and an effective date of April 11, 2018 was assigned. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date earlier than April 11, 2018, for the award of service connection for PTSD, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for the assignment of an effective date earlier than April 11, 2018, for the award of a TDIU due to service-connected PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1967 to March 1968. This case comes before the Board of Veterans' Appeals on appeal from February 2020 and June 2020 rating decisions, which established effective dates for the award of service connection for PTSD and a TDIU, respectively. In the November 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decisions on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). In March 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing is of record. The Board acknowledges that the Veteran filed a second VA Form 10182, Decision Review Request: Board Appeal, on March 23, 2021, in which he elected Direct Review, suggesting he wished to change his Board review option from the Hearing docket to the Direct Review docket. However, the Veteran's Board hearing was scheduled approximately one week later, and the Veteran appeared and testified at that hearingaction clarifying his intent to remain in the Hearing lane. In any event, requests to modify a VA Form 10182 in order to switch Board dockets will not be granted if the appellant has submitted evidence or testimony as described in 38 C.F.R. §§ 20.302 (Hearing docket) or 20.303 (Evidence Submission docket). 38 C.F.R. § 20.202(c)(2). Earlier Effective Dates 1. Entitlement to an earlier effective date for service connection for an acquired psychiatric disorder, to include PTSD. 2. Entitlement to an earlier effective date for a TDIU due to service-connected PTSD. The Veteran asserts that he is entitled to an effective date prior to April 11, 2018, for the award of service connection for PTSD and for a TDIU. See November 2020 VA Form 10182. Specifically, he asserts that both awards should be made effective in February 2015, which is when he filed his first service-connection claim for depression. By way of background, the Veteran submitted a claim for service connection for depression secondary to erectile dysfunction on February 10, 2015. The AOJ denied the claim in a rating decision under the Legacy system dated January 12, 2016, as depression was not shown during service, nor was erectile dysfunction a service-connected condition. The Veteran was notified of the decision by letter dated January 22, 2016. The Veteran did not disagree with the January 2016 decision, nor was new and material evidence received within one year; accordingly, the January 2016 decision denying the Veteran's service-connection claim for depression became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Thereafter, the Veteran submitted an application to reopen his service-connection claim for depression secondary to prostate cancer, which was received on January 31, 2017. The AOJ denied the claim in a rating decision under the Legacy system dated March 25, 2017, as depression was not shown during military service, nor was prostate cancer a service-connected condition at the time, and evidence submitted in connection with the claim did not constitute new and material evidence. The Veteran was notified of the decision by letter dated March 29, 2017. The Veteran did not disagree with the March 2017 decision, nor was new and material evidence received within one year; accordingly, the March 2017 decision denying the Veteran's application to reopen his service-connection claim for depression also became final. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the period. However, such regulation is inapplicable here, as there is no indication that new and material evidence was received prior to the expiration of the appeal periods associated with the January 2016 and March 2018 rating decisions. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011). Furthermore, 38 C.F.R. § 3.156(c) is also inapplicable, as the Veteran's service treatment records were considered in connection with the January 2016 and March 2018 rating decisions. Given the finality of these decisions, neither the Veteran's February 2015 initial claim nor his January 2017 application to reopen can serve as the basis for an earlier effective date, absent a finding of clear and unmistakable error (CUE). In this connection, the Board recognizes the Veteran's assertion that the AOJ unfairly adjudicated his previous claims. See November 2020 VA Form 10182. The Veteran's representative asserted during the Veteran's March 2021 hearing that the AOJ failed to schedule the Veteran for a VA examinations before denying entitlement to service connection for depression in January 2016 and March 2017. It is well established that any assertion of CUE must be pled with specificity and assert more than mere disagreement with how the facts of the case were weighed or evaluated. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium). Further, VA's failure in the duty to assist cannot constitute CUE. See Cook v. Principi, 318 F.3d 1334, 1346 (Fed. Cir. 2003). In this case, CUE in the January 2016 or March 2017 rating decisions has not been specifically alleged. Moreover, even if the Board were to construe the Veteran's and his representative's assertions as specific allegations of CUE with the January 2016 or March 2017 rating decisions, the AOJ has not adjudicated the matter in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (assertion of CUE in a regional office decision must first be presented to and decided by the regional office before the Board has jurisdiction to decide the matter). Thus, if the Veteran wishes to file a specific CUE claim with regard to the AOJ's January 2016 or March 2017 denial of his depression claim, he is invited to do so with the AOJ. Following the prior denials of his service-connection claim for depression, the Veteran filed his initial claim for service connection for PTSD due to "service in US Marine Corps stress" which was received by VA on April 11, 2018. See April 2018 VA Form 21-526EZ. Service connection was subsequently granted for PTSD in a February 2020 rating decision, effective April 11, 2018, the date of receipt of the initial PTSD claim. The Veteran filed his application for a TDIU due to PTSD that was received by VA on March 9, 2020. Entitlement to a TDIU was granted in a June 2020 rating decision, effective April 11, 2018, the date the Veteran met the schedular requirements for entitlement to a TDIU, because the Veteran's claim for a TDIU was received within one year of notification that he met the schedular requirements. In general, except as otherwise provided, the effective date of an evaluation based on an original claim or a claim to reopen will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. There is no provision in either statute or VA regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error (CUE) was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant service department records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). As discussed above, neither of these exceptions are applicable. In the instant case, based on consideration of these regulations, the effective date has been appropriately assigned as the date the Veteran's claim was received, April 11, 2018. Although the Veteran filed service-connection claims for depression beginning in February 2015, each claim was adjudicated by the AOJ in a final unappealed rating decision. The Veteran filed his most recent claim for service connection for PTSD on April 11, 2018, and his claim for TDIU on March 6, 2020, both of which were granted and assigned an effective date of April 11, 2018. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, in this case the Board is precluded from assigning an effective date prior to April 11, 2018 for the grant of service connection for PTSD and for a TDIU, as the effective date for the award cannot be earlier than the date of receipt of the April 2018 claim. Moreover, with respect to the TDIU award, the Veteran is not in receipt of service connection for any disabilities prior to April 11, 2018, and the effective date of a TDIU award cannot pre-date the effective date for the disabilities upon which the award is based. Accordingly, the benefits sought on appeal must be denied. V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Fulmer, 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.