Citation Nr: 18146497 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 16-24 565 DATE: October 31, 2018 ORDER An effective date earlier than January 10, 2011, for the award of service connection for multiple disabilities (bilateral pes planus, a cognitive disorder, face and neck scars, left and right shoulder degenerative joint disease, left and right knee degenerative joint disease, right foot hallux valgus with osteoarthritis of the great toe, tinnitus, hiatal hernia with gastroesophageal reflux disease (GERD), dermatitis, right carpal tunnel syndrome, left inguinal strain, hemorrhoids, erectile dysfunction, and an appendectomy scar) is denied. FINDING OF FACT 1. Service connection claims for bilateral pes planus, face and neck scars, a cognitive disorder, left and right shoulder disorders, left and right knee disorders, right foot bunion, tinnitus, heartburn and acid reflux, dermatitis, right carpal tunnel syndrome, a left groin disorder, hemorrhoids, erectile dysfunction, and residuals of an appendectomy were denied in an unappealed February 2006 rating decision. 2. An application to reopen the previously denied claims for service connection for the above listed disabilities was received on January 10, 2011. CONCLUSION OF LAW The criteria for an effective date earlier than January 10, 2011, for the award of service connection for multiple disabilities (bilateral pes planus, a cognitive disorder, face and neck scars, left and right shoulder degenerative joint disease, left and right knee degenerative joint disease, right foot hallux valgus with osteoarthritis of the great toe, tinnitus, hiatal hernia with GERD, dermatitis, right carpal tunnel syndrome, left inguinal strain, hemorrhoids, erectile dysfunction, and an appendectomy scar) have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.160(d), 3.400, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from October 1975 to July 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from November 2012 and February 2013 rating decisions which granted service connection for multiple disabilities listed above, effective from January 10, 2011. As set forth below, the Board is denying an effective date earlier than January 10, 2011. Because the outcome and analysis is essentially the same for each disability, they will be discussed as a single issue for simplicity. The Veteran first filed for a claim seeking service connection for 23 disorders on July 29, 2005. These service connection claims, including the disabilities at issue in the present appeal, were denied in a February 2006 rating decision. The Veteran filed a notice of disagreement (NOD) that same month, and in response, the Regional Office promulgated a statement of the case (SOC) in January 2008. A review of the claims file does not show that the Veteran filed a VA Form 9 within 60 days of that SOC. Indeed, the Veteran did not submit anything between the January 2008 SOC and his application to reopen the previously denied claims, which was received on January 10, 2011. In a May 2016 statement, he asserted that he delivered a VA Form 9 to the RO, as required to perfect an appeal of the February 2006 rating decision. He also cited to news articles discussing prior instances of incorrectly processed, misfiled, misplaced or destroyed documents within the VA claims system in support of his contention. While the Board acknowledges his submission, the fact remains that a VA Form 9 or other substantive appeal is not contained in the claims file between January 2008 and January 2011. As the Veteran’s representative stated in its May 2018 brief, “There is no evidence within the claims file that would indicate any type of intent to continue the appeals process, to include the absence of a VA Form 9.” An appeal consists of a timely NOD and, after a SOC has been furnished, a timely filed substantive appeal (such as a VA Form 9). 38 C.F.R. §§ 20.200, 20.202. A NOD and a substantive appeal serve different purposes in the VA appellate scheme, so both are required. See Ledford v. West, 136 F.3d 776, 780 (Fed. Cir. 1998). Because no substantive appeal was received after the January 2008 SOC, those service connection denials became final. 38 U.S.C. § 7105(c), (d)(2); 38 C.F.R. § 3.160(d). The claims denied at that time included service connection for bilateral pes planus, a cognitive disorder, left and right shoulder conditions, left and right knee conditions, right foot bunion, tinnitus, heartburn and acid reflux, dermatitis, right carpal tunnel syndrome, a left groin condition, hemorrhoids, erectile dysfunction, residuals of an appendectomy, and a cervical spine condition. He filed to reopen these claims on January 10, 2011, and except for his cervical spine disability, they were all ultimately granted effective from that date. Because the Veteran filed his request to reopen the previously denied claims on January 10, 2011, that is the correct effective date for the grants of service connection. 38 C.F.R. § 3.400(r) (with respect to claims to reopen, the effective date for an award of benefits will be the date of the new claim or the date entitlement arose, whichever is later) (emphasis added). The U.S. Court of Appeals for Veterans Claims held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), that “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” See also Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran first sought to reopen his claim). Notably, service connection for cervical spine degenerative disc disease was granted in the November 2012 rating decision effective from July 20, 2005. The notification letter accompanying that rating decision stated that service records relevant to the cervical spine claim had been obtained after the prior denial. On that basis, the claim was not reopened based on new and material evidence, but rather it was reconsidered on the merits, and the effective date of the original service connection claim was applied. 38 C.F.R. § 3.156(c)(1), (3). This type reconsideration was applicable only to the cervical spine claim, which is why it was the only one to receive the July 29, 2005 sought by the Veteran. (Continued on the next page)   As explained above, there is no legal basis to grant an effective date prior to January 10 2011, for the award of service connection for the Veteran’s bilateral pes planus, cognitive disorder, face and neck scars, left and right shoulder degenerative joint disease, left and right knee degenerative joint disease, right foot hallux valgus with osteoarthritis of the great toe, tinnitus, hiatal hernia with GERD, dermatitis, right carpal tunnel syndrome, left inguinal strain, hemorrhoids, erectile dysfunction, and an appendectomy scar. The Board has considered the doctrine of affording the appellant the benefit of any existing doubt with regard to the issue on appeal; however, because there is no legal basis for the assignment of an earlier effective date, such doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In a case, such as this, in which the law is dispositive, the claim must be denied due to lack of legal merit. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel