Citation Nr: 18146026 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-60 919 DATE: October 30, 2018 ORDER Entitlement to an effective date earlier than December 22, 2016, for the grant of service connection for hemorrhoids is denied. FINDINGS OF FACT 1. The Veteran’s initial claim of entitlement to service connection for hemorrhoids was denied in a March 2014 rating decision; he did not perfect an appeal as to that decision following the issuance of a September 2015 statement of the case, and as such, that decision is considered final. 2. The Veteran initiated a claim to reopen the previously denied claim for service connection for hemorrhoids, which was received on December 22, 2016, more than one year following his previous denial. CONCLUSION OF LAW The criteria for an effective date earlier than December 22, 2016, for service connection for hemorrhoids have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As explained below, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with VA’s duties to notify and assist claimants. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Legal Criteria Generally, the effective date of an award of disability compensation based on a reopened claim for service connection will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Factual Background and Analysis The record shows the Veteran submitted an initial claim for service connection for hemorrhoids on May 13, 2013. A March 2014 rating decision denied service connection, as the evidence failed to show a current disability. The Veteran expressed initial disagreement with the March 2014 rating decision by way of an April 2014 notice of disagreement ; however, following the issuance of a September 2015 statement of the case (SOC), the Veteran failed to perfect his appeal. Specifically, the Veteran was advised in his September 2015 SOC that he was required to file a VA Form 9 within 60 days of the issuance of the SOC in order to continue his appeal, and that failure to file a VA Form 9 would result in the closure of his case. The Veteran did not file a VA Form 9. The Veteran subsequently filed a claim to reopen the claim for service connection for hemorrhoids on December 22, 2016, and service connection was established effective that date. The Veteran has expressed disagreement with the assigned effective date. In sum, the Veteran has indicated he was improperly denied service connection for hemorrhoids in his March 2014 rating decision. The Veteran asserts that his January 2014 VA examination was deficient; however, a review of that examination indicates the Veteran underwent an examination of the rectal/anal area, with normal findings being noted. The Veteran also underwent lab tests, which were normal. In his May 2017 notice of disagreement, the Veteran asserted a clear and unmistakable error occurred in the March 2014 rating decision. The Court of Appeals for Veterans Claims has held that allegations that previous adjudications have improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. See Damrel v. Brown, 6 Vet. App. 242, 246 (1994). Similarly, the Court has held that the VA’s breach of its duty to assist cannot form a basis for a claim of CUE. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000); Caffrey v. Brown, 6 Vet. App. 377, 382 (1994). Here, the Veteran has merely argued the RO improperly weighed the evidence, and should have assigned less weight to the January 2014 VA examination, which does not rise to the level of CUE. In sum, the evidence shows the Veteran was provided a statement of the case explaining the basis of his denial in September 2015, but failed to perfect his appeal. As such, his prior denial is final. (Continued on the next page)   Therefore, the earliest possible effective date for the grant of service connection for the Veteran’s hemorrhoids is the assigned effective date of December 22, 2016. Accordingly, the claim must be denied. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Fraser, Counsel