Citation Nr: 21031199 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 17-41 973 DATE: May 20, 2021 ORDER Entitlement to an effective date earlier than August 27, 2014, for the award of service connection for posttraumatic stress disorder (PTSD) with depressive disorder is denied. FINDINGS OF FACT 1. An unappealed June 2006 rating decision denied the Veteran's petition to reopen his claim of entitlement to service connection for PTSD. 2. On August 27, 2014, the Veteran filed a petition to reopen his claim of entitlement to service connection for PTSD. Following the June 2006 final rating decision, no formal or informal application to reopen the claim of entitlement to service connection for a psychiatric disorder was received prior to August 27, 2014. CONCLUSION OF LAW The criteria for an effective date earlier than August 27, 2014, for service connection for PTSD with depressive disorder have not been met. 38 U.S.C. §§ 5101, 5107, 5110, 7105; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION Preliminary Matters The Veteran had honorable active duty service with the United States Army from October 1966 to July 1969. He also had a second period of active service from November 1970 to February 1973, from which he was discharged under other than honorable conditions. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2020, the Veteran and his brother testified at a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the Veteran's electronic claims file. During the October 2020 hearing, the Veteran asserted that there was clear and unmistakable error (CUE) in an August 1984 Board decision that denied entitlement to service connection for a psychiatric disorder. However, that issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over the matter, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). The Board notes that there is no prejudice to the Veteran in adjudicating the claim of entitlement to an earlier effective date because, if a favorable determination in the CUE claim is granted by the RO, the Board's decision herein as regards to the earlier effective date claim will become moot. Earlier Effective Date Entitlement to an effective date earlier than August 27, 2014, for the award of service connection for PTSD with depressive disorder is denied. The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for PTSD with depressive disorder. Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Veteran initially filed a claim for service connection for a psychiatric disorder in February 1982. The Veteran appealed an April 1982 rating decision in which the RO denied service connection for PTSD. In August 1984, the Board denied entitlement to service connection for a nervous disorder, including PTSD. The Veteran did not appeal the Board's August 1984 decision to the United States Court of Appeals for Veterans Claims (Court). Where a claimant does not appeal a Board decision, it becomes final. 38 U.S.C. § 501(a). He also did not file a motion for reconsideration or motion to vacate with the Board within 120 days. Thus, the August 1984 Board decision became final. In December 1991, the Veteran filed a request to reopen the claim of entitlement to service connection for PTSD. In a September 1992 rating decision, the RO denied the Veteran's petition to reopen the claim. The Veteran did not appeal this decision. Moreover, the Veteran did not submit additional evidence within one year. Thus, the September 1992 decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. In October 2001, the Veteran filed another request to reopen the claim of entitlement to service connection for PTSD. In a June 2002 rating decision, the RO denied the Veteran's petition to reopen the claim. In July 2002, the Veteran filed a notice of disagreement (NOD), appealing the decision. A statement of the case (SOC) was issued in October 2002. However, as the Veteran did not perfect his appeal, the June 2002 decision became final. Then, in August 2004, the Veteran again filed a request to reopen the claim of entitlement to service connection for PTSD. In a June 2006 rating decision, the RO denied the Veteran's petition to reopen the claim. The Veteran did not appeal this decision. Moreover, the Veteran did not submit additional evidence within one year. Thus, the June 2006 decision also became final. See id. On August 27, 2014, the Veteran filed another request to reopen the claim of entitlement to service connection for PTSD. In a March 2015 rating decision, the RO confirmed and continued the previous denial. Then, in a June 2015 rating decision, the RO found CUE in the March 2015 decision and granted PTSD, assigning a 100 percent disability rating, effective August 27, 2014. As indicated above, the previous August 1984 Board decision and rating decisions dated September 1992, June 2002, and June 2006 became final. Furthermore, the Board finds no new and material evidence was submitted with respect to the Veteran's psychiatric disorder within the applicable one-year period of each decision. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). Once a Board decision is final, a claimant may attempt to overcome the finality of that decision in one of two ways: By a request for revision of the decision based on CUE or by a claim to reopen based on new and material evidence. Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see 38 U.S.C. § 5109A(a) ("A decision by the Secretary... is subject to revision on the grounds of [clear and unmistakable error]. If evidence establishes the error, the prior decision shall be reversed or revised."); see also 38 U.S.C. § 5108 ("If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."). Once a rating decision is final, only a request for a revision premised on CUE could result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("absent a showing of clear and unmistakable error, [the Veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("when a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."); Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). In this case, there simply is no legal authority for the Board to assign an earlier effective date, as the RO has already assigned the earliest possible effective date for the award of service connection. As discussed above, the August 1984 Board decision and the September 1992, June 2002, and June 2006 rating decisions are final, and, as such, they are no longer the appropriate points from which to determine the effective date of an award. See 38 C.F.R. § 3.400; Rudd, 20 Vet. App. at 296. Indeed, in Sears v. Principi, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). As the Federal Circuit explained, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Id. at 248. After review of the record, the Board finds that there was no communication received after the last final rating decision of June 2006 and prior to August 27, 2014, that established an informal or formal application to reopen the previously denied claim of service connection for a psychiatric disorder. On August 27, 2014, the Veteran filed a formal claim to reopen service connection for PTSD. As previously noted, service connection was awarded from August 27, 2014, in a June 2015 rating decision. The Veteran appealed the effective date for the grant of service connection. The request to reopen the claim for service connection for PTSD following the last final rating decision of June 2006 was not received until August 27, 2014. The statute provides that the effective date of an award of compensation based on a claim reopened after final disallowance shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). Because the application to reopen the claim for service connection for PTSD was not received until August 27, 2014, and the effective date can be no earlier than the claim to reopen, an earlier effective date for the grant of service connection for PTSD with depressive disorder is legally precluded. Furthermore, to the extent that the Veteran complained of, or was treated for, a psychiatric disorder prior to the effective date assigned, the Board notes that the date of a VA treatment record does not constitute an informal claim when service connection has not yet been established. See prior 38 C.F.R. § 3.157; Lalonde v. West, 12 Vet. App. 377 (1999). In cases such as this, where the law is dispositive and the case turns on undisputed facts regarding a prior final decision and the date of receipt of a claim to reopen, the appeal should be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Y. MacDonald, Associate 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.