Citation Nr: 1801674 Decision Date: 01/10/18 Archive Date: 01/23/18 DOCKET NO. 14-07 315A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date earlier than August 16, 1996, for an award of service connection for peripheral neuropathy and carpal tunnel syndrome of the upper extremities. 2. Entitlement to an effective date earlier than November 27, 2002, for an award of service connection for peripheral neuropathy of the lower extremities. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Ragheb, Counsel INTRODUCTION The Veteran had verified active duty service from November 1973 to November 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a November 2009 rating decision by the Department of Veterans Affairs (VA) Regional Offices (RO) located in Columbia, South Carolina. FINDINGS OF FACT 1. The Veteran first filed a claim for service connection for numbness of all four extremities on November 25, 1977. This claim was denied in a July 1978 rating decision. The Veteran did not appeal this decision or submit any evidence within one year of the decision, and it therefore became final. 2. The Veteran filed a claim to reopen service connection for numbness of the hands on August 23, 1994. This claim was denied in an October 1994 rating decision. The Veteran did not appeal this decision or submit any evidence within one year of the decision, and it therefore became final. 3. The Veteran filed another claim to reopen service connection for numbness of the hands on August 16, 1996. A November 2009 rating decision implemented the June 2009 Board grant of service connection peripheral neuropathy and carpal tunnel syndrome of the upper extremities effective August 16, 1996 (date of claim). 4. The Veteran filed a claim to reopen service connection for numbness of all four extremities, to include the lower extremities, on November 27, 2002. A November 2009 rating decision implemented the June 2009 Board grant of service connection peripheral neuropathy of the lower extremities effective November 27, 2002 (date of claim). CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 16, 1996, for an award of service connection for peripheral neuropathy and carpal tunnel syndrome of the upper extremities have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017). 2. The criteria for an effective date earlier than November 27, 2002, for an award of service connection for peripheral neuropathy of the lower extremities have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). With respect to the issues on appeal, resolution of these issues turns on the law as applied to the undisputed facts regarding the date of receipt of the respective claim and date entitlement arose. As these issue turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the appealed issues. As such, no further notice or development under the VCAA is warranted with respect to these issues. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Earlier Effective Date Legal Authority Generally, the effective date of an award of a service connection claim, including a claim reopened after a final disallowance, is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A claim is a formal or informal communication in writing requesting determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(2). The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Earlier Effective Date for Service Connection for Peripheral Neuropathy and Carpal Tunnel Syndrome of the Upper Extremities The Veteran seeks an effective date earlier than August 16, 1996, for an award of service connection for peripheral neuropathy and carpal tunnel syndrome of the upper extremities. The Veteran's original claim for service connection for numbness in all four extremities was filed on November 25, 1977. This claim was denied in a July 1978 rating decision. The Veteran did not appeal this decision or submit any evidence within one year of the decision, and it therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.1103. The Veteran filed a claim to reopen his claim for service connection for numbness in the hands on August 23, 1994. This claim was denied in an October 1994 rating decision. The Veteran did not appeal this decision or submit any evidence within one year of the decision, and it therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.1103. The Veteran again filed a claim to reopen his claim for service connection for numbness of the hands on August 16, 1996. This claim was ultimately granted by the Board in a June 2009 decision. The RO implemented the Board grant of service connection for peripheral neuropathy and carpal tunnel syndrome of the upper extremities in a November 2009 rating decision and assigned an effective date of August 16, 1996, the date the claim to reopen service connection for numbness of the hands was received by VA. Since the Veteran did not file a timely notice of disagreement with the July 1978 and October 1994 rating decisions, nor did he submit new and material evidence during the relevant appeal period, these rating decisions became final, and are not subject to revision in the absence of a finding of clear and unmistakable error. 38 U.S.C. §§ 5109A, 7104; Rudd v. Nicholson, 20 Vet. App. 296 (2006). In this case, the Veteran did not assert CUE with respect to the July 1978 and October 1994 rating decisions. The earliest date after the October 1994 rating decision that the Veteran expressed an intent to reopen his claim for service connection for numbness of the hands, which was granted as service connection for peripheral neuropathy and carpal tunnel syndrome of the upper extremities, is August 16, 1996, which is the presently assigned effective date. Under the controlling law and regulations outlined above, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). In his October 2010 notice of disagreement, the Veteran asserted that the effective date should start in 1978, as the date of the original denial of the claim that is now service connected; however, as noted above, the Veteran did not timely file a notice of disagreement with the July 1978 rating decision that denied service connection for numbness of all four extremities. In multiple statements, the Veteran stated that he has had numbness in the hands since service. Based on the foregoing, the Board finds that the August 16, 1996, date of the claim is the appropriate effective date, because, even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400. Accordingly, the earlier effective date claim must be denied. See 38 C.F.R. § 3.400(q)(2), (r); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). Earlier Effective Date for Service Connection for Peripheral Neuropathy of the Lower Extremities The Veteran seeks an effective date earlier than November 27, 2002, for an award of service connection for peripheral neuropathy of the lower extremities. The Veteran's original claim for service connection for numbness in all four extremities was filed on November 25, 1977. This claim was denied in a July 1978 rating decision. The Veteran did not appeal this decision or submit any evidence within one year of the decision, and it therefore became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.1103. The Veteran filed a claim to reopen his claim for service connection for numbness in all extremities, to include numbness in the lower extremities, on August November 27, 2002. This claim was construed as a claim for service connection for numbness of the lower extremities, because the claim for service connection for numbness of the upper extremities was already on appeal. This claim was ultimately granted by the Board in a June 2009 decision. The RO implemented the Board grant of service connection of peripheral neuropathy of the lower extremities in a November 2009 rating decision and assigned an effective date of November 27, 2002, the date the claim to reopen service connection for numbness of the lower extremities was received by VA. Since the Veteran did not file a timely notice of disagreement with the July 1978 rating decision, nor did he submit new and material evidence during the relevant appeal period, this rating decision became final, and is not subject to revision in the absence of a finding of CUE. 38 U.S.C. §§ 5109A, 7104; Rudd, 20 Vet. App. 296. In this case, the Veteran did not assert CUE with respect to the July 1978 rating decision. The earliest date after the July 1978 rating decision that the Veteran expressed an intent to reopen his claim for service connection for numbness of the lower extremities is November 27, 2002, which is the presently assigned effective date. Under the controlling law and regulations outlined above, the award of compensation based on a reopened claim may be no earlier than the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). In his October 2010 notice of disagreement, the Veteran asserted that the effective date should start in 1978, as the date of the original denial of the claim that is now service connected; however, as noted above, the Veteran did not timely file a notice of disagreement with the July 1978 rating decision that denied service connection for numbness of all four extremities. In multiple statements, the Veteran stated that he has had symptoms of peripheral neuropathy of the lower extremities since service. Based on the foregoing, the Board finds that the November 27, 2002, date of the claim is the appropriate effective date, because, even if the date that the entitlement arose could be found to precede it, the latter of the two dates controls. 38 C.F.R. § 3.400. Accordingly, the claim must be denied. See 38 C.F.R. § 3.400(q)(2), (r); see also Washington, 10 Vet. App. at 393; Wright, 10 Vet. App. at 346-47. ORDER An effective date earlier than August 16, 1996, for an award of service connection for peripheral neuropathy and carpal tunnel syndrome of the upper extremities is denied. An effective date earlier than November 27, 2002, for an award of service connection for peripheral neuropathy of the lower extremities is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs