Citation Nr: 21030620 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 16-34 246 DATE: May 19, 2021 ORDER Entitlement to an effective date earlier than April 14, 2009 for the grant of service connection for posttraumatic stress disorder (PTSD) is dismissed. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to an initial compensable rating for lichen simplex chronicus is remanded. Entitlement to an initial compensable rating for residuals of traumatic brain injury (TBI) with headaches is remanded. Entitlement to a rating in excess of 50 percent for PTSD and cognitive disorder is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's claim for an effective date earlier than April 14, 2009 for the grant of service connection for PTSD constitutes a freestanding claim for an earlier effective date and is therefore barred as a matter of law. CONCLUSION OF LAW The criteria for dismissal of the claim of entitlement to an earlier effective date prior to April 14, 2009 for the grant of service connection for PTSD have been met. 38 U.S.C. § 5110 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2001 to June 2004. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in November 2018 when it was remanded for further development. Earlier Effective Date The assignment of effective dates of awards 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 for service connection "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." See 38 U.S.C. § 5110(a). The evidence of record reflects that in a September 2009 rating decision, the Veteran was granted service connection for PTSD and a 50 percent evaluation was assigned effective April 14, 2009. The Veteran submitted a statement in October 2009, indicating that he was appealing the "amount of back pay your company calculated. At the very least these conditions should be re-considered to my ETS date." Based on that statement, the RO issued a January 2010 rating decision which denied an entitlement to an earlier effective date for the grant of service connection for PTSD, and the Veteran was notified of this decision in a January 2010 notification letter. The Veteran did not file a timely Notice of Disagreement (NOD) challenging this determination or otherwise express disagreement with that determination within one year of the decision, nor did he submit new and material evidence within one year of its promulgation. Thus, the January 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 3.156(b), 20.302, 20.1103. In June 2013 the Veteran submitted a claim for an increased rating for his service-connected PTSD. In an August 2014 rating decision, the 50 percent rating for PTSD and cognitive disorder (which was added due to overlapping symptoms) was continued. The Veteran filed an NOD in October 2014, and checked the boxes indicating that he disagreed with the evaluation of the disability and the effective date of the award. The Veteran also indicated on his July 2016 VA Form 9 that he was seeking an earlier effective date for his PTSD and cognitive disorder. For an award an effective date based on an earlier claim that became final and binding, the appellant must collaterally attack the prior decision and show there was clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Similarly, in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court) 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 Court noted that any other result would vitiate the rule of finality. In other words, the Court found that there is no valid freestanding claim for an earlier effective date. The Court held that if a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed. In this case, applicable law afforded the Veteran one year after the issuance of the January 2010 rating decision to file a formal appeal of that rating decision, which as stated above, denied an earlier effective date for the grant of service connection for PTSD. 38 C.F.R. § 20.302. Because the Veteran did not file a timely formal appeal, the April 14, 2009 effective date is final. By disagreeing with the effective date assigned in his October 2014 NOD, the Veteran has effectively attempted to raise an impermissible freestanding claim for an earlier effective date. The Veteran is precluded from filing an additional earlier effective date claim other than on the basis of CUE, which has not been alleged. Consequently, there is no legal entitlement to an earlier effective date on this basis and the appeal must be dismissed. Sabonis v. Brown, 6 Vet. App. 426 (1994); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS FOR REMAND Regarding the claims for service connection for a left shoulder disability, right shoulder disability, low back disability, left knee disability, right knee disability, an increased rating for residuals of TBI with headaches, and an increased rating for PTSD, the November 2018 remand directed that the Veteran be afforded new VA examinations in conjunction with his claims. While the record reflects that examinations were scheduled, in September 2019, several "Exam Scheduling Request Contention Cancellation" forms indicate that examinations for the service connection issues were cancelled because the Veteran was unable to be contacted, and an October 2019 form indicated that the Veteran did not appear for a TBI examination, and an October 2019 "Invoice" indicated that the Veteran did not appear for an examination regarding his PTSD. However, the Veteran indicated in a September 2020 statement that he did not receive notification of the dates and times of those examinations by mail or phone, and was not informed that they had been scheduled until he received the July 2020 Supplemental Statement of the Case (SSOC) indicating he had failed to report for them. The Veteran also indicated that the address listed on the statement was his correct address, which is an address different from the one listed on the exam request forms in the claims file. The record does not contain any copies of the appointment letters sent to Veteran. However, October 2019 search results of the Veteran's address included the new address included in the September 2020 statement from the Veteran. As it is unclear whether the Veteran received notice of the scheduled examinations, the Board will afford the Veteran the benefit of the doubt and find good cause to reschedule the VA examinations. Regarding the claim for an increased rating for lichen simplex chronicus, the Board noted in the November 2018 remand that effective August 13, 2018, VA revised the regulations pertaining to the evaluation of skin disabilities including dermatitis and eczema, and that claims pending prior to the effective date are to be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See 83 Fed. Reg. 32592 (July 13, 2018). Because the Veteran's claim for a higher initial rating for lichen simplex chronicus was pending prior to the effective date of the revised regulations, the Board indicated that remand was warranted for consideration of the new rating criteria by the RO in the first instance. The record reflects that the RO addressed the increased rating in the July 2020 SSOC. However, the July 2020 SSOC did not include consideration of the revised regulations pertaining to the evaluation of skin disabilities effective August 13, 2018. As there has not been substantial compliance with the prior No9vember 2018 Board remand directives, remand is warranted. See Stegall v. West,11 Vet. App. 268, 271 (1998) (holding that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Consideration of entitlement to a TDIU is dependent upon the impact of the Veteran's service-connected disabilities on his ability to obtain or retain substantially gainful employment. Accordingly, the matter of a TDIU is inextricably intertwined with the Veteran's claims remanded herein. Harris v. Derwinski, 1 Vet. App. 180 (1991). Remand of the inextricably intertwined TDIU claim is also required. Finally, updated VA treatment records should be obtained and associated with the claims file. The matters are REMANDED for the following actions: 1. Obtain the Veteran's VA treatment records for the period from February 2017 to the present. 2. Schedule the Veteran for VA examinations to determine the nature and etiology of any disability of the i) left and right shoulders; ii) lower back; and iii) left and right knees, all to include as due to an undiagnosed illness. The claims file should be reviewed by the examiner in conjunction with the examinations. The examiner should ensure that all indicated tests and studies are conducted. Following an examination of the Veteran and a review of the claims file, the examiner must provide the following opinions: a) Whether it is at least as likely as not (50 percent probability or greater) that a disability of the i) left and right shoulders; ii) lower back; or iii) left and right knees had its onset during active service or within one year thereafter, or is otherwise causally related to such service. b) Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a chronic disability of the i) left and right shoulders; ii) lower back; or iii) left and right knees as a result of an undiagnosed illness or a medically unexplained chronic multi-symptom illness, which is defined by a cluster of signs or symptoms. If symptoms represent an objective indication of chronic disability resulting from an undiagnosed or chronic multi-symptom illness, describe the extent to which the illness has manifested. The examiner should discuss the service treatment records and VA medical records. The examiner should also discuss the Veteran's statements regarding the history and chronicity of symptomatology. A complete rationale for the opinions rendered must be provided. If the examiner cannot provide the requested opinions without resorting to speculation, he/she must expressly indicate this and provide a supporting rationale as to why that is so (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 3. Schedule the Veteran for a VA neuropsychological examination to assess the current nature and severity of his residuals of TBI with headaches. The claims file should be reviewed by the examiner in conjunction with the examination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his PTSD and cognitive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected PTSD and cognitive disorder alone. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.