Citation Nr: A21020368 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 191205-48123 DATE: December 21, 2021 ORDER Entitlement to an earlier effective date prior to October 13, 2004 for the grant of service connection for paraplegia with loss of bowel function and bladder function, as secondary to Posttraumatic stress disorder (PTSD) is dismissed. FINDINGS OF FACT The Veteran's request for an earlier effective date for the grant of service connection for paraplegia with loss of bowel function and bladder function prior to October 13, 2004 is a "freestanding" earlier effective date claim. CONCLUSIONS OF LAW The Veteran's freestanding claim seeking an effective date prior to October 13, 2004, for the award of service connection for paraplegia with loss of bowel function and bladder function lacks legal merit and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104; 20.101; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to October 1989 and from August 1991 to December 1991. The October 2019 VA notification letter is an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the December 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD), the Veteran elected the Direct Review option; therefore, the Board of Veterans' Appeals (Board) may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. In this case, the Board may consider evidence received prior to October 30, 2019. Earlier Effective Date 1. Paraplegia, as secondary to PTSD with loss of bowel and bladder function The Veteran seeks an earlier effective date prior to October 13, 2004 for the grant of service connection for paraplegia, loss of bowel function, and loss of bladder function. See August 2019 VA Form 21-4138, Statement in Support of Claim. Legal Criteria Generally, the effective date of an award of service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The United States Court of Appeals for of Veterans Claims (Court) has determined that when an effective date on appeal was assigned in a final unappealed rating decision, a claimant cannot attempt to overcome the finality of that prior rating decision by raising a freestanding claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). The Court specifically held that, once a decision has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim to overcome the finality of a decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. Rather, the only way to overcome the finality of a final decision in an attempt to gain an earlier effective date is by a request for revision of that final RO decision based on CUE. Id Factual Background By way of history, the Veteran was involved in motor vehicle accident in December 1993 and sustained severe closed head and spinal cord injuries that resulted in paraplegia with loss of bowel and bladder functions. See August 1994 VA Compensation and Pension Examination Report for Diseases/Injuries of the Spinal Cord. In an April 1996 rating decision, the Regional Office (RO) granted the Veteran non-service-connected pension and special monthly pension for aid and attendance effective December 29, 1993. The Veteran initially filed a service connection claim for PTSD in July 1998. See July 1998 VA Form 21-4138. In September 2004, the Veteran submitted a statement in support of claim for PTSD. See September 2004 VA Form 21-4138. In October 2004, the Veteran also submitted a statement regarding his PTSD claim. See October 2004 Third Party Correspondence. The Veteran described his PTSD stressors while serving in the Persian Gulf War and difficulty adjusting to life after active service. He further stated experienced conflict with his girlfriend and that the "conflict caused me to burst down the road in anger, and caused an accident to occur, which led and contributed to the spinal cord injury I live with today." Id. The RO granted service connection for PTSD, effective September 29, 2004. See December 2005 Rating Decision. The Veteran did not appeal either the initial rating or the effective date assigned by the December 2005 rating decision. Therefore, that decision became final in December 2006. In a January 2008 rating decision, in connection with a claim for an increased rating for the service connected PTSD, the Decision Review Officer (DRO) noted that entitlement to service connection for paraplegia with loss of bowel and bladder claimed as secondary to PTSD was deferred as the Veteran raised the issue during his December 2007 DRO hearing. The RO denied the claim for entitlement to service connection for paraplegia with loss of bowel and bladder claimed as secondary to PTSD in a June 2008 rating decision. The Veteran disagreed with the denial and appealed the claims to the Board. The Board granted the claim for service connection in an August 2014 Board decision. The DRO effectuated the Board decision and granted service connection for paraplegia with loss of bowel and bladder functions effective October 13, 2004. See September 2014 Rating Decision. The DRO also granted special monthly compensation based on loss of use of lower extremities and loss of bladder and bowel functions effective October 13, 2004. In correspondence dated November 2014, the Veteran's representative requested reconsideration of/disagreed with the assigned effective date for PTSD and paraplegia with loss of bowel and bladder functions. In an April 2015 rating decision, the RO confirmed the effective date of October 13, 2004 for special monthly compensation based on loss of use of lower extremities and loss of bladder and bowel functions. The Veteran did not file a Notice of Disagreement (NOD) the April 2015 decision or submit additional evidence within the one-year period. The Veteran filed an earlier effective date claim for grant of service connection for PTSD in January 2017. See January 2017 VA Form 21-526EZ. In April 2017, the RO granted an earlier effective date of July 17, 1998 based on a finding of clear and unmistakable error (CUE) for not adjudicating the Veteran's July 1998 claim for PTSD. In September 2019, the Veteran filed an earlier effective date claim for the grant of service connection paraplegia and loss of bowel and bladder functions. See September 2019 VA Form 21-526EZ. The Veteran noted that he was granted an earlier effective date for PTSD and stated "[s]ince my paraplegia and other conditions were secondary to the PTSD, I feel that the ratings for those condition[s] should have been granted with an earlier effective date as well." See August 2019 VA Form 21-4138, Statement in Support of Claim. In an October 2019 rating decision, the RO continued the assigned ratings for the Veteran's loss of bowel function, paraplegia and loss of bladder function. In correspondence dated October 2019, the RO noted that the Veteran was notified of special monthly compensation and additional aid and attendance for loss of lower extremities and loss of bladder and bowel functions benefits in rating decisions dated October 2004, April 2015, and April 2017. See October 2019 VA Correspondence. The RO also stated that the October 2004, April 2015, and April 2017 rating decisions were final decisions, and that VA could not accept the Veteran's earlier effective date claims absent a showing of CUE. Id. Consequently, this appeal ensued. Analysis Here, the Veteran was granted service connection for granted service connection for paraplegia with loss of bowel and bladder functions effective October 13, 2004 in a September 2014 rating decision. The Veteran requested reconsideration of the assigned effective date in November 2014. In response to his request, the RO confirmed the effective date of October 13, 2004 for special monthly compensation based on loss of use of lower extremities and loss of bladder and bowel functions in an April 2017 rating decision. The Veteran did not file a Notice of Disagreement (NOD) with the April 2015 decision or submit additional evidence within the one-year period. Therefore, the grant of service connection and the assigned initial rating became final. See 38 U.S.C. 5110 (a); 38 C.F.R. 3.400 (a), 20.202. In September 2019, the Veteran filed an earlier effective date claim for the grant of service connection paraplegia and loss of bowel and bladder functions. See September 2019 VA Form 21-526EZ. The September 2019 claim for an earlier effective date constitutes a free-standing earlier effective date claim. Consequently, pursuant to the Court's opinion in Rudd, the claim must be dismissed. However, the Veteran is not precluded from seeking an earlier effective date based on CUE in that rating. Notably, the Veteran has not made a claim of CUE, but rather, has simply indicated that he is entitled to an earlier effective date because he was granted an earlier effective date for his primary PTSD service-connected disability (see August 2019 VA Form 21-4138). However, CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). Here, the Veteran has not asserted any error was made in any prior rating decisions regarding the assigned effective date for paraplegia with loss of bowel and bladder functions. A simple disagreement as to how the facts were weighed or evaluated does not rise to the level of CUE. As such, the Board finds that the Veteran's claim is a free-standing claim earlier effective date that violates the rule of finality. Rudd, 20 Vet. App. 296 Accordingly, the Board cannot adjudicate the Veteran's earlier effective date claim for paraplegia and loss of bowel and bladder functions, without violating the Court's express prohibition against freestanding earlier effective date claims found in Rudd. See Rudd, 20 Vet. App. at 296. Thus, there is no legal entitlement to an effective date earlier, on this basis, must be dismissed. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, the Veteran's claim for an earlier effective date must be dismissed. The Board is sympathetic to the Veteran's assertions and regrets it cannot issue a favorable decision. T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Lilly, 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.