Citation Nr: 21041591 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 17-52 267 DATE: July 9, 2021 ORDER Entitlement to an effective date prior to May 10, 2012, for service connection for major depressive disorder is dismissed. REMANDED Entitlement to revision of a September 2002 rating decision denying entitlement to service connection for personality disorder on the basis of clear and unmistakable error (CUE) is remanded. FINDINGS OF FACT 1. On March 29, 2002, a claim was received for service connection for a personality disorder. In a September 2002 rating decision, service connection for a personality disorder was denied. The Veteran did not file a notice of disagreement or submit new and material evidence within one year, and the decision became final. 2. On May 10, 2012, the Veteran submitted a claim for service connection for depression. In a November 2012 rating decision, service connection was granted for major depressive disorder from May 10, 2012. The Veteran did not perfect an appeal with respect to the effective date assigned in the November 2012 rating decision. 3. On September 16, 2015, a claim was received for an earlier effective date for service connection for major depressive disorder. CONCLUSION OF LAW To the extent that he claims entitlement to an effective date prior to May 10, 2012, for major depressive disorder on a non-CUE basis, the Veteran's request for an earlier effective date is not a legally recognizable claim and raises no question to be decided. 38 U.S.C. § 7105; 38 C.F.R. § 20.205; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1992 to February 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2019, the Veteran testified before a Veterans Law Judge at a hearing via videoconference. A transcript of his testimony has been associated with the claims file. After the hearing, however, the Veterans Law Judge left employment with the Board. In April 2021, the Board sent the Veteran a letter explaining that he had the right to another hearing and was given 30 days to respond, with the caveat that if no response was received the Board would assume he did not want another hearing. The 30-day period has expired, but no response has been received. As such, the Board finds that the Veteran has declined to have another hearing with a different Veterans Law Judge. The Board also notes that in May 2012, the Veteran submitted a VA Form 21-22 appointing the Oregon Department of Veterans Affairs as his representative. In July 2019, 10 days prior to the Veteran's July 2019 hearing, he submitted a VA Form 21-22 appointing Vietnam Veterans of America as his representative. At his July 2019 hearing, the Veteran appeared without a representative. However, the Veteran consented to appearing without a representative at the hearing, as reflected in the hearing transcript. Moreover, Vietnam Veterans of America submitted an informal hearing presentation in April 2021, which indicated that the Veteran's representative had no additional arguments to present at that time. Earlier Effective Date At the outset, the Board notes that the Veteran has asserted that he is entitled to an effective date prior to May 10, 2012, for the grant of service connection for a major depressive disorder. He originally filed a claim for service connection for a personality disorder in March 2002, which was denied in a September 2002 rating decision. The Veteran did not appeal this decision, which became final. Service connection for major depressive disorder was subsequently granted in a November 2012 rating decision, which assigned an effective date of May 10, 2012 (i.e., the date his claim for service connection for depression was received). The Veteran did not appeal this decision, which also became final. In September 2015, the Veteran submitted a motion arguing that CUE was present in the September 2002 rating decision, as well as arguing that an earlier effective date should be awarded for service connection for major depressive disorder. Once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains CUE. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006) (holding that any other result with vitiate the rule of finality); DiCarlo v. Nicholson, 20 Vet. App. 52 (2006) (stating there is no procedure for filing a freestanding challenge to the finality of a VA decision). In other words, if there is disagreement as to the effective date assigned in a given rating action, it must be timely appealed within one year of notice of the rating decision assigning the effective date. In cases where this is not done, only a finding of CUE in an unappealed, final decision would yield an earlier effective date. To the extent that the Veteran is seeking an effective date prior to May 10, 2012, for major depressive disorder on any basis other than CUE, such claim is precluded. As freestanding earlier effective claims are barred as a matter of law, his claim for an earlier effective date on a non-CUE basis must be dismissed. See Rudd, 20 Vet. App. at 296. To the extent that Veteran has raised allegations of CUE in the September 2002 rating decision, these contentions are addressed in the Remand portion of the decision. REMAND Although the Board sincerely regrets the additional delay, the Board finds that further action is needed before the Board can adjudicate his claim of entitlement to revision of the September 2002 rating decision. To that end, the Board notes that the Veteran asserted in a September 2015 motion that revision of a September 2002 rating decision that denied entitlement to service connection for a personality disorder was warranted based on clear and unmistakable, or CUE. These contentions were reiterated in his October 2017 substantive appeal and at his July 2019 hearing. To date, however, the RO has not addressed these contentions in the first instance. The RO instead adjudicated his contentions as a claim that an effective date prior to May 10, 2012, was warranted for establishing service connection for major depressive disorder (MDD) based on CUE in the November 2012 rating decision that granted service connection for MDD and assigned an effective date. The Veteran did not raise these specific arguments in his September 2015 CUE motion. Ultimately, the record reflects that it is the Veteran's clear intent to challenge the September 2002 rating decision that denied service connection for a personality disorder in order to obtain an effective date prior to May 10, 2012, for MDD. Unfortunately, the RO did not address this specific contention prior to the matter reaching the Board. Because the RO has not yet addressed the CUE allegations explicitly raised by the Veteran in the first instance, the Board currently lacks jurisdiction over this claim. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2012); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). As such, the Board remands the issue of CUE in the September 2002 rating decision to the RO for adjudication in the first instance in a rating decision. Accordingly, the matter is REMANDED for the following action: Adjudicate in the first instance in a rating decision the Veteran's claim that revision of the September 2002 rating decision denying entitlement to service connection for a personality disorder based on CUE is warranted. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.