Citation Nr: 22017007 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 15-11 482 DATE: March 23, 2022 ORDER Entitlement to an earlier effective date for service connection for posttraumatic stress disorder (PTSD) prior to June 11, 2014, is denied. REMANDED Whether there was clear and unmistakable error in the September 1997 rating action that denied service connection for PTSD, is remanded. FINDINGS OF FACT 1. A September 1997 rating decision denied service connection for PTSD; that issue was not appealed; and new and material evidence relating to the issue was not submitted within the appeal period. 2. Following the September 1997 decision, the Veteran did not file a claim for entitlement to service connection for PTSD, nor could any evidence be reasonably construed as a claim, prior to June 11, 2014. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for service connection for PTSD prior to June 11, 2014, are not met. 38 U.S.C. § 5110 (b)(1); 38 C.F.R.§ 3.400 (b)(2)(i). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1987 to October 1991. This matter is on appeal to the Board of Veterans' Appeals (Board) from a rating decision of the VA Regional Office (RO). The Veteran was provided with a hearing before the undersigned Veterans Law Judge in November 2021. A copy of the transcript is of record and has been reviewed accordingly. By way of background, the Veteran filed a claim for service connection for PTSD, received by VA on April 30, 1997. A September 1997 rating decision denied the claim. The decision was based on the Veteran's complete service treatment records, which were cited in the body of the decision, as well as a 1997 VA examination opinion, which indicated the Veteran did not suffer from PTSD. The Veteran did not appeal that decision, and new and material evidence relating to his claim was not submitted within the appeal period, so the decision became final. The Veteran next filed a claim for service connection for PTSD, and a request to reopen her claim for service connection for PTSD, in June 2014. No earlier correspondence or treatment records were submitted prior to that date indicating a desire on the part of the Veteran to reopen her claim or that should have otherwise put VA on notice of this desire. In a February 2015 rating decision, the Veteran was granted service connection for PTSD rated 50 percent, effective June 11, 2014. The Veteran filed a Notice of Disagreement (NOD) in March 2015 seeking an earlier effective date for service connection for PTSD. The Veteran has argued that the effective date for the grant of service connection for PTSD should go back to the date of claim for her initial claim in April 1997. In particular, she claims that the RO appears to have decided here current claim in the February 2015 rating decision favorably based upon service treatment records that were not associated with the claims file until 2014. It is contended that, had the RO considered these records at the time of the April 1997 rating decision, the results would have been favorable at that time as they were in the February 2015 rating decision. As discussed further below, to demonstrate entitlement to an effective date prior to the date of her reopened claim (June 11, 2014), the Veteran must show either that the September 1997 denial did not become final, entitling her to an earlier effective date under 38 C.F.R. §§ 3.156 (b), (c); or that the September 1997 denial rested on clear and unmistakable error (CUE) thereby entitling the Veteran to an earlier effective date under 38 C.F.R. § 3.105. With respect to whether the September 1997 denial did not become final, it is noted that for a claim reopened after a final disallowance the effective date is the date of receipt of the reopened claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The September 1997 denial represents the last final rating decision on the issue of service connection for the Veteran's PTSD. 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52 (numbered 20.302 at the time period relevant to this claim), 20.1103. The Board finds that the Veteran was notified of the September 1997 denial by VA correspondence also dated September 1997. The Board further finds that no appeal of the September 1997 denial was initiated. Therefore, the September 1997 denial became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In regard to the Veteran's argument that the RO did not consider her service treatment records that were later used to grant her claim in the February 2015 rating decision, it is noted that, generally, where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). However, when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1). Here, it appears that the RO did in fact consider the Veteran's service treatment records when it rendered its decision in September 1997. Although the Veteran indicated that the RO contacted her and asked her to provide her service treatment records and, thus, because she could not locate them, she believed that the RO had not obtained them, a June 1997 letter from the RO indicated that the records were actually being obtained from the service department. Additionally, the September 1997 rating decision itself listed the service treatment records considered as "October 19, 1987 to October 18, 1991, to include entrance exam of April 5, 1997 and reserve physical exam of February 1, 1992." Furthermore, the discussion section of the September 1997 rating decision specifically referenced psychiatric treatment during the Veteran's military service in a service treatment record dated May 16, 1988. There is no additional indication in the available record that the service treatment records considered in the February 2015 rating decision included any previously unavailable records from the time of the September 1997 rating decision. In light of the above, the Board has determined that the Veteran's service treatment records available at the time of the February 2015 rating decision were substantially complete and consistent with records considered at the time of the September 1997 rating decision. Therefore, there is no mechanism for VA to reconsider the claim in accordance with 38 C.F.R. § 3.156(c)(1). As the Veteran's September 1997 rating decision was the last final rating decision and the evidence of record shows that the earliest date upon which she initiated a claim to reopen was June 11, 2014, entitlement to an earlier effective date in accordance with 38 C.F.R.§ 3.400 (b)(2)(i) is not warranted. Thus, the claim is denied. REASONS FOR REMAND At the outset, the Board notes that if there is no RO adjudication of a CUE motion in the first instance, the Board does not have jurisdiction to do so in the first instance. A motion seeking revision on the basis of CUE is completely separate from entitlement to an earlier effective date and must be adjudicated by the RO in the first instance. Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (explaining that 38 U.S.C. § 5109A requires that a request for revision of a final RO decision on the basis of CUE be submitted to the RO for initial adjudication); Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that a CUE motion and a claim seeking an earlier effective date are not the same or inextricably intertwined because while the effective date element flows directly from the award of service connection, a CUE motion may be brought at any time and is premised upon an error in a prior final RO adjudication). An assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). Here, as the RO has not adjudicated the Veteran's CUE claim in an initial rating decision, such issue is not yet ripe for appeal before the Board. Nevertheless, the matter was raised at the Board hearing, and as it was raised in the context where service connection has been awarded and an earlier effective date is sought in the same claim stream, remand is appropriate. On remand, the RO should consider in the first instance the CUE theory that the service connection for PTSD was warranted when the September 1997 rating decision was issued. The matter is REMANDED for the following action: Adjudicate in the first instance the theory of CUE in the September 1997 rating action that denied service connection for PTSD. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Dodd, Ryan 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.