Citation Nr: 18146180 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 16-32 385 DATE: October 31, 2018 ORDER Entitlement to an effective date earlier than August 5, 2013 for service connection for scars of the right tympanic membrane and right ear is denied. FINDING OF FACT The Veteran filed a statement in support of her claim on August 5, 2013, which was interpreted as an informal application for service connection for scars in her right ear. This statement was filed more than a year after the prior final rating decision regarding her claims for service connection for hearing loss and tinnitus. Accordingly, August 5, 2013 is the earliest possible effective date for this claim. CONCLUSION OF LAW The criteria for the assignment of an effective date earlier than August 5, 2013 for the grant of service connection for scars of the right tympanic membrane and right ear have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.105(a), 3.400(b)(2)(i) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1974 to April 1977. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). I. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). With respect to claims of entitlement to service connection, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. See 38 C.F.R. § 3.400(b)(2). For cases where a Veteran seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447 (2004), aff’d Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Lapier v. Brown, 5 Vet. App. 215 (1993). Consistent with the above-described prior case law, the Court has held that after a decision establishing an effective date becomes final, there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Court reasoned that a decision assigning an effective date for a service-connected disability becomes final when the decision is not appealed, and a Veteran could only attempt to overcome finality of the decision by a request for revision based on clear and unmistakable error, or by a claim to reopen based upon new and material evidence. However, because the proper effective date for an award based on a claim to reopen could be no earlier than the date on which that claim was received, only a request for revision based on clear and unmistakable error could result in the assignment of an earlier effective date. 1. Entitlement to an earlier effective date for service connection for scars of the right tympanic membrane and right ear. The Veteran first filed for service connection for right ear hearing loss and residuals of right ear drum surgery in August 1999. The RO denied this claim in a January 2000 rating decision and a July 2000 statement of the case (SOC). The Veteran did not further appeal, however, in November 2001 following the passage of The Veterans Claims Assistance Act of 2000 (VCAA), the RO initiated a reconsideration of her claim. After failing to attend two scheduled VA examinations, the RO again denied the Veteran’s claim in a June 2002 rating decision. The Veteran did not appeal this decision; therefore, it became final. In December 2008, the Veteran requested to reopen her claim for service connection for hearing loss and tinnitus. The RO again denied her claim in a February 2009 rating decision. The Veteran did not further appeal this decision; therefore, it also became final. In February 2013, the Veteran again filed a claim for service connection for hearing loss. In support of this claim, in August 2013 the Veteran provided a statement indicating that she had seen several ear specialists regarding the removal of scar tissue from her right ear, but it was not recommended. The Veteran went on to report that the scar tissue was the result of two in-service right ear surgeries, and that her hearing has been substantially reduced because of the scar tissue. The RO interpreted this statement of support as an informal claim for service connection for right ear scar tissue and scheduled the Veteran for a VA examination. Following this examination, the Veteran was granted service connection for scars of the right tympanic membrane and right ear, effective August 5, 2013 at 30 percent; her request for service connection for hearing loss remained denied. As explained above, the effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Here, the Veteran mentioned the scaring in her right ear on August 5, 2013. As such, the earliest possible effective date for service connection for scars of the right tympanic membrane and right ear is August 5, 2013, the date of her informal claim for service connection following the prior final denials. The Veteran’s previous claims for service connection for hearing loss and residuals of right ear drum surgery all became final and there is no such procedure as a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Accordingly, entitlement to an effective date earlier than August 5, 2013 is denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Ruiz, Associate Counsel