Citation Nr: 18152730 Decision Date: 11/26/18 Archive Date: 11/23/18 DOCKET NO. 16-56 643 DATE: November 26, 2018 ORDER An effective date prior to January 31, 2016 for the grant of service connection for low back disability is denied. FINDINGS OF FACT 1. A September 2013 rating decision denied a claim for service connection for low back disability; VA received no appeal of this decision or new and material evidence prior to expiration of the appeal period. 2. VA received the Veteran’s petition to reopen the previously denied claim for service connection for low back disability on January 31, 2016; the effective date of the award of compensation cannot be earlier than the date of receipt of the claim to reopen. CONCLUSIONS OF LAW 1. The September 2013 rating decision that denied service connection for low back disability is final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria for a effective date earlier than January 31, 2016 for the grant of service connection for low back disability are not met. 38 U.S.C. §§ 5109A, 5110(a); 38 C.F.R. §§ 3.105 (a), 3.400(q). REASONS AND BASES FOR FINDING AND CONCLUSION Generally, 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 final disallowance; or a claim for increase, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) and (b)(2); 38 C.F.R. § 3.400(o)(1). Entitlement to an earlier effective date for service connection for low back disability prior to January 31, 2016 The Veteran contends that an effective date prior to January 31, 2016 for the grant of service connection for low back disability is warranted because he filed a claim in 2013; he further contends that an effective date of May 30, 2012 is warranted because his diagnosis did not change from the original time he had filed his claim. The Board concludes that the preponderance of the evidence is against an effective date earlier than January 31, 2016 for the grant of service connection for low back disability because the award was based on a claim reopened after final disallowance. 38 U.S.C. §5110(a); 38 C.F.R. § 3.400(q). In a September 2013 rating decision, the originating agency denied service connection for a low back condition. VA did not receive a Notice of Disagreement with that decision within one year from the date he was notified of the decision, nor did he submit new and material evidence within that year. Therefore, the September 2013 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 20.1103. On January 31, 2016, VA received VA Form 21-526EZ, which indicated that the Veteran sought service connection for low back disability. In view of the prior final denial, the VA claims form was properly accepted as a claim to reopen the previously denied claim. A July 2016 rating decision granted the claim and assigned an effective date of January 31, 2016. In this case, because the award of benefits is based on the receipt of new and material evidence received after final disallowance, the date of receipt of the new claim or date entitlement arose is the correct effective date. While the Board does not dispute that the Veteran had problems prior to this date and that his disability arose prior to this date, the applicable law requires that the assigned effective date is either the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q) (emphasis added). As such, notwithstanding the Veteran’s belief that he is entitled to an earlier effective date, the law does not permit the assignment of an earlier effective when the grant of benefits is based on a reopened claim. The Veteran has not identified nor has the Board’s review of the record disclosed new and material evidence, or claim for benefits, prior to January 31, 2016, and after the originating agency’s September 2013 final decision. See 38 C.F.R. §§ 3.1(p), 3.155(a). See also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). As is, the evidence of record provides no basis for an award of service connection prior to January 31, 2016. (Continued on the next page)   Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel