Citation Nr: 18139876 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-12 155 DATE: October 1, 2018 ORDER An effective date prior to December 30, 2013, for the assignment of a combined evaluation for compensation of 70 percent, is denied. REMANDED Entitlement to an initial compensable rating for allergic rhinitis is remanded. FINDING OF FACT The Veteran’s claim to reopen the previously denied claims for service connection was received on December 30, 2013. CONCLUSION OF LAW The criteria for an effective date earlier than December 30, 2013 for the assignment of a combined evaluation for compensation of 70 percent, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Army from November 1999 to January 2004. This matter is on appeal to the Board of Veterans’ Appeals (Board) from a May 2015 rating decision of a regional office of the Department of Veterans Affairs (VA). Earlier Effective Dates The Veteran contends that entitlement to an effective date earlier than December 30, 2013 for the assignment of a combined evaluation for compensation of 60 percent. As will be explained below, a May 2015 rating decision granted service connection for previously denied claims which resulted in the Veteran’s combined evaluation for compensation to be increased from 30 percent to 60 percent, effective December 30, 2013, the date VA received the Veteran’s claim to reopen. Additionally, a February 2017 rating decision awarded an increased rating from the date of the reopened claim for the Veteran’s right shoulder strain, which resulted in an increase for the Veteran’s combined evaluation for compensation to be 70 percent, effective December 30, 2013. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). 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). Here, the Veteran’s claim to reopen the previously denied claims for service connection was received on December 30, 2013. See Correspondence received December 30, 2013. In her written communication, the Veteran specifically listed the conditions to reopen for right shoulder strain; cervical spine condition; right ankle condition; and gall bladder condition, which were granted by rating action of May 2015 and assigned a 10 percent evaluation for each reopened condition. The Board notes that service connection for the above identified conditions was denied by an unappealed February 2004 rating decision. There is no subsequent correspondence that was received prior to her statement received on December 30, 2013 that can reasonably be interpreted as a formal or informal claim to reopen the previous final decision. VA regulations clearly dictate that the effective date assigned for reopened claims should be the date of receipt of claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (q)(2), (r). In other words, the December 30, 2013 date of receipt of the Veteran’s claim to reopen 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; Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application). Thus, the Board observes that the RO has assigned the earliest possible effective date for the grant of benefits, the date of receipt of the claim to reopen. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Based on a review of the foregoing evidence and the applicable laws and regulations, the Board finds that the preponderance of the evidence is against the Veteran’s claim for an effective date earlier than December 30, 2013 for the assignment of a combined evaluation for compensation of 70 percent. The benefit-of-the-doubt doctrine is not for application, and the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND The Veteran asserts that her initial noncompensable rating for allergic rhinitis is not reflective of her present level of severity and does not account for continuous medication and steroids that prevent nasal polyps. See Statement in VA Form 9 dated March 2016. The Veteran was afforded a VA contract examination in February 2016 for her sinusitis/rhinitis. In this particular case, the Board finds the 2016 examination of record too remote in time to address the current severity of the Veteran’s service-connected allergic rhinitis. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that a veteran was entitled to a new examination after a two-year period between the last VA examination and the veteran’s contention that the disability had increased in severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (noting that an examination too remote for rating purposes cannot be considered “contemporaneous”). In order to ensure that the Veteran’s claim is afforded full consideration, the Board concludes that a reexamination is necessary. The matter is REMANDED for the following action: 1. Obtain any outstanding pertinent VA treatment records not evidenced by the current record and associate with the claims file. 2. Following completion of the above, schedule the Veteran for a VA examination to determine the current nature, extent and severity of her allergic rhinitis. All required tests should be performed. The claims file, including this remand, should be reviewed by the examiner to become familiar with the Veteran’s pertinent medical history and such review should be noted in the examination report. 3. After completing the requested actions, and any additional development deemed warranted, readjudicate the claim in light of all pertinent evidence and legal authority. If the claim remains denied, a supplemental statement of the case must be provided to the Veteran and her representative. After the Veteran and her representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel