Citation Nr: 21028158 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-37 029 DATE: May 10, 2021 ORDER Entitlement to an effective date earlier than January 7, 2010 for the grant of service connection for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to an increased rating in excess of 50 percent for service-connected PTSD is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The March 2011 rating decision which established an effective date of January 7, 2010 for the award of service connection for PTSD is final, and the claim for an effective date earlier than January 7, 2010 for the award of service connection for PTSD is dismissed as a matter of law. 38 U.S.C. § 7105(c) (2017); 38 C.F.R. §§ 20.302, 20.1103 (2010); Rudd v. Nicholson, 20 Vet. App. 296 (2006). CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38C.F.R.§§3.151, 3.155, 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1968 to June 1971, to include service in the Republic of Vietnam. In October 2019, the Veteran testified before the undersigned Veterans Law Judge. The hearing transcript has been associated with the claims file. In the October 2019 hearing, the Veteran's representative raised the issue of unemployability due to his service-connected disabilities. Where a claimant, or the record, raises the question of unemployability due to a disability for which an increased rating is sought, then a claim of entitlement to a TDIU is part and parcel of that claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to an earlier effective date for the grant of service connection for PTSD. Generally, the effective date of an award based on an original claim, or a claim reopened after final adjudication, 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). Except as otherwise provided, the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (CAVC) held that once a rating decision that establishes an effective date for an award becomes final, the only way that such a decision can be revised is if it contains CUE. The CAVC noted that any other result would vitiate the rule of finality. In other words, the CAVC found that there is no valid freestanding claim for an earlier effective date. The CAVC held that if a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed. Here, a March 2011 rating decision awarded service connection for PTSD and assigned an initial 50 percent rating effective January 7, 2010. By letter dated March 18, 2011, the Veteran was notified of this decision and his appellate rights. While the Veteran filed an April 2011 notice of disagreement, the Veteran specifically appealed his service connection claims for left arm nerve damage and left shoulder condition. Within one year of the March 18, 2011 date of notice of decision, the Veteran did not submit any written statement which can be reasonably construed as expressing disagreement with the assignment of the effective date of award for service connection for PTSD, and no new and material evidence was received pertaining to this issue. As such, the March 2011 rating decision is final, see 38 C.F.R. §§ 3.156, 20.300, 20.302, and the Veteran is precluded from filing a freestanding earlier effective date of award claim. Rudd, 20 Vet. App. at 299-300. The Board also notes that the Veteran initially filed a claim for service connection for PTSD in July 1999. In a May 2000 rating decision, the RO denied service connection for PTSD. The Veteran did not timely appeal the decision within the one-year time frame. Therefore, that decision became final. To that end, appealing the effective date after finality of the March 2011 rating decision is not the proper procedural course to resolve that perceived error, because there can be no freestanding claim for an effective date. See Rudd, 20 Vet. App. at 296. If the Veteran believes that the RO made a clear and unmistakable error (CUE) in denying service connection for PTSD in the March 2011 rating decision, he should consider filing a new claim alleging CUE. The Veteran's freestanding claim for an earlier effective date for the grant of service connection for PTSD is denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; Rudd, 20 Vet. App. 296. REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 50 percent for service-connected PTSD is remanded. Review of the Veteran's testimony from 2019 suggests that his PTSD symptoms may have worsened since his last VA examination in May 2017. At his October 2019 hearing, the Veteran reported suicidal ideations, daily obsession or rituals which interfere with routine activities, and difficulty adapting to stressful situations and inability to establish and maintain effective relationships. Considering his contentions and the time since the last VA examination, the Board finds that a remand is necessary for a VA examination to assess the current severity of his service-connected PTSD. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. The Board finds that the Veteran's claim for TDIU is inextricably intertwined with his increased rating claim for PTSD. The remanded increased rating claim could affect whether the Veteran meets the schedular criteria for a TDIU, as he currently does not satisfy the schedular criteria. Thus, a remand is also warranted for the TDIU claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain updated medical records, including private and VA treatment records, and associate them with the claims file. 2. Thereafter, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected PTSD. The claims file should be made available to the examiner for review in conjunction with the examination. The examiner must identify all current manifestations of the Veteran's PTSD and attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any related symptoms and opine on the extent to which the Veteran's PTSD causes functional and occupational impairment. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Thereafter, readjudicate the claims. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a supplemental statement of the case and allow an appropriate period of time to respond. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Adeleke, T. 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.