Citation Nr: 21008623 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 19-06 602 DATE: February 17, 2021 ORDER Entitlement to an effective date earlier than September 1, 2004, for the award of service connection for posttraumatic stress disorder (PTSD) with major depressive disorder is denied. FINDING OF FACT In a July 2005 rating decision, the RO granted service connection for PTSD with major depressive disorder, effective September 1, 2004. Although notified of the award of service connection and effective date in a August 2005 letter, the Veteran did not initiate an appeal as to the effective date assigned, and he has not asserted clear and unmistakable error in the July 2005 rating decision assigning the September 2004 effective date. CONCLUSION OF LAW The claim for entitlement to an earlier effective date for the award of service connection for PTSD with major depressive disorder is dismissed. 38 U.S.C. § 7104 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). On his February 2019 VA Form 9, the Veteran limited his appeal to the issue listed on the title page of this decision. In January 2021, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to an earlier effective date for the award of service connection for PTSD with major depressive disorder. The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or application to reopen shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (2020). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.155. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). These amendments apply only to claims filed on or after March 24, 2015. Because the relevant claim in this case was received by VA prior to that date, the former regulations apply, as provided below. For effective date purposes, "claim" is defined as a formal or informal written communication identifying and requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, could be considered an informal claim. See 38 C.F.R. § 3.155 (2014). Such an informal claim must identify the benefit sought. Id. VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2014); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). On September 1, 2004, the Veteran filed a VA Form 21-526, Application for Compensation and/or Pension, seeking entitlement to service connection for PTSD. In July 2005, the RO granted service connection for PTSD with major depressive disorder and assigned a 50 percent rating for the disability, effective the September 1, 2004, date of receipt of claim. The Veteran was notified of the decision in an August 2005 letter. In March 2006, the Veteran submitted a statement expressing disagreement with the 50 percent rating assigned in the July 2005 rating decision; there was no expression of disagreement with the effective date of the award of service connection. An April 2006 statement of the case continued the 50 percent rating, and in May 2006 the Veteran filed a VA Form 9, Appeal to the Board, stating his belief that his PTSD should be rated as 70 percent disabling. In July 2007, the RO issued a rating decision assigning an increased, 70 percent rating effective September 1, 2004. The RO indicated that the decision was a complete grant of the benefit sought given that the Veteran had previously indicated that the disorder should be rated at 70 percent. In November 2009, the RO awarded a 100 percent rating for the disability, effective the January 23, 2008, date of receipt of claim for increase. In September 2012, the Veteran submitted a statement contending he was entitled to an earlier effective date for his 100 percent rating for PTSD. He noted that he first reported to VA with the issues documented as “emotional problems” when he went to school after returning from Vietnam. Along with this statement, he submitted various lay and medical statements to the effect that the Veteran’s PTSD onset soon after his return from Vietnam and that he sought psychiatric care shortly after service. The RO interpreted the 2012 claim as a claim for earlier effective date for the award of service connection for PTSD with major depressive disorder and denied entitlement to an effective date prior to September 1, 2004, in the July 2013 rating decision. On his February 2019 VA Form 9, the Veteran reported that he had to withdraw from school after service due to his mental health, and that VA failed to provide due process by not providing an application for compensation for PTSD. During his Board hearing, the Veteran testified that he would have filed for compensation in 1967 had he known about it. While the Veteran now seeks to establish an earlier effective date for the grant of a of service connection for PTSD with major depressive disorder, the United States Court of Appeals for Veterans Claims (Court) has held that such a freestanding claim for an earlier effective date attempts to vitiate the rule of finality. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). As noted above, in a July 2005 rating decision, the RO granted service connection for PTSD with major depressive disorder and assigned a 50 percent rating effective September 1, 2004. The Veteran did not appeal that decision with respect to the effective date assigned, nor was any new and material evidence received as to the effective date of the award within the applicable appeal period. Hence, that rating decision with respect to the effective date component is final. See 38 C.F.R. §§ 3.104, 3.156, 19.52, 20.1103. The only way the Veteran could attempt to overcome the finality of the July 2005 decision in an attempt to gain an earlier effective date is to request a revision of that decision on the basis of clear and unmistaken error (CUE). See 38 C.F.R. § 3.105. In this appeal, however, the Veteran has not asserted that the July 2005 rating decision involved CUE. His contentions to the effect that his PTSD first manifest at an earlier date, that VA was aware of his mental health problems shortly after service in relation to his education benefits, and that he would have filed for compensation at an earlier date if he were aware or provided the proper form, are therefore of no avail. Thus, the issue of entitlement to an earlier effective date for the award of service must be denied as a freestanding claim for an earlier effective date, as it was filed after the July 2005 rating decision granting service connection has become final decision in which CUE (an exception to finality) has not been established or even alleged. VA has no authority to adjudicate a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. See Rudd, 20 Vet. App. at 299. (Continued on the next page)   As such, there is no legal basis upon which to grant the benefit sought, and the claim on appeal must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.