Citation Nr: 21028102 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-08 662 DATE: May 10, 2021 ORDER Entitlement to an effective date prior to September 22, 2009, for post-traumatic stress disorder (PTSD) is dismissed. FINDINGS OF FACT 1. The Veteran's initial claim for entitlement to service connection for PTSD was granted by the RO in April 2010 with an effective date of September 22, 2009. 2. After considering new evidence received, another rating decision was issued in July 2010 with an effective date of September 22, 2009. 3. The Veteran did not appeal the effective date assigned in either the April 2010 or July 2010 rating decisions within a year, and they became final. CONCLUSION OF LAW The Veteran's free-standing claim for an effective date prior to September 22, 2009, for PTSD is not permitted by law. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 20.200, 20.302, 3.400; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service with the Army from October 1972 to October 1974. This matter is on appeal to the Board of Veterans' Appeals (the Board) from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the evidence of record. Under 38 U.S.C. § 7105(e), for cases in which substantive appeals are received on or after February 2, 2013, if the claimant or the claimant's representative submits evidence to the AOJ or the Board for consideration in connection with the issues on appeal, the Board may consider such evidence in the first instance unless the claimant or representative requests in writing that the AOJ initially review such evidence. This automatic waiver is an exception to the general requirement of a waiver of AOJ review or an SSOC considering new pertinent evidence. See 38 C.F.R. §§ 19.31, 19.37, 20.1304. The Board notes that following the issuance of the January 2015 Statement of the Case (SOC), the Veteran submitted additional evidence. Since these records were submitted by the Veteran and her VA Form 9 was received in March 2015, a waiver of AOJ consideration is presumed. Applicable Law and Regulations Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency, and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.§ 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2). If a claim is reviewed at the request of the claimant more than one year after the effective date of a liberalizing law, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(2). When an award is based on a claim to reopen a previously denied claim, the effective date will be the date of receipt of the new (i.e., reopened) claim or the date entitlement arose, whichever is later, unless new and material evidence was received within the relevant appeal period. 38 C.F.R. § 3.400(q). If new and material evidence other than service department records is received within the appeal period or prior to appellate decision, the effective date will be as though the former decision had not been rendered. Rating decisions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. An appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. The United States Court of Appeals for Veterans Claims (the Court) has held that once a rating decision which establishes an effective date becomes final, such a decision can only be revised if it contains clear and unmistakable error. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). The Court has stressed that any other result would vitiate the rule of finality, thereby recognizing that free-standing claims for earlier effective dates are impermissible. Factual Background and Analysis The Veteran contends she is entitled to an effective date prior September 22, 2009, for her service-connected PTSD. The Veteran originally filed a claim for service connection for PTSD in September 2009. The claim was granted in an April 2010 rating decision. In an April 2010 email, the Veteran expressed concern that the date of her in service incident was incorrectly listed. Another rating decision was issue in April 2010. The RO had previously listed the date of her rape as both 1973 and 1974. After reviewing the medical records, March 1973 was shown to be the correct date. The previously assigned effective date of September 22, 2009, was also found correct. After considering additional evidence received, another rating decision was issued in July 2010. She continued to have an effective date of September 22, 2009. The Veteran did appeal the effective date assigned in the April 2010 or July 2010 rating decisions; therefore, they became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The April 2010 and July 2010 rating decisions that assigned the effective date are final, as the Veteran did not appeal either decision, no new and material evidence pertinent to the assigned effective dates was physically or constructively received in the year after the issuance of the July 2010 rating, and no relevant service department records have since been received. Thus, the Veteran's instant earlier effective date challenge is a "free-standing" earlier effective date claim, as it was initiated after the appeal period for which an effective date challenge would be viable. However, a free-standing claim for an earlier effective date, meaning a claim initiated once the appeal becomes final, is impermissible, as such a claim attempts to vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). When such a free-standing claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. The only means of substantiating these earlier effective date claims is to overcome the finality of the April 2010 and July 2010 rating decisions, which requires revision or reversal based on clear and unmistakable error (CUE). Where a rating decision that established an effective date becomes final, an earlier effective date can only be established by a request for a revision of that decision based on CUE. However, the Veteran has failed to plead CUE with the requisite specificity. She did not assert that CUE was present in the initial April 2010 and July 2010 rating decisions to justify overturning it long after the fact. See Simmons v. Principi, 17 Vet. App. 104 (2003). Accordingly, the Board finds that a CUE claim has not been raised with respect to the April 2010 and July 2010 rating decisions, and no further discussion of CUE is warranted. The Veteran is free to raise such a claim in the future. In sum, the Veteran's claim seeking an earlier effective date for the grant of service connection for PTSD is tantamount to free-standing earlier effective date claim, and therefore the appropriate disposition is dismissal. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.L. Byers 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.