Citation Nr: 18154041 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-48 036 DATE: November 29, 2018 ORDER An effective date earlier than February 22, 2012 for the grant of service connection for bronchial asthma (asthma) is denied. FINDING OF FACT The Veteran filed a claim to reopen service connection for asthma is February 22, 2012. CONCLUSION OF LAW The criteria for an effective date earlier than February 22, 2012 for the grant of service connection for asthma have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1989 to February 1998. This appeal comes before the Board of Veterans’ Appeals (Board) from an August 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after 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) (2012); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation or the increased rating will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). 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 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2017). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). The United States Court of Appeals for Veterans Claim (Court) has defined the “date entitlement arose” as the date when the claimant met the requirements for the benefits sought. This is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For example, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369 – 70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. Therefore, it is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the examination, opinion, or diagnosis. DeLisio, 25 Vet. App. at 56. The Veteran asserts that his initial service connection claim for asthma was denied by error in September 1999. Additionally, after this appeal had been certified, he submitted an August 2017 Form VA 21-526-EZ Fully Developed Claim for asthma, due to clear and unmistakable error (CUE). His assertions are too vague, and thus, has not appropriately advanced a formal claim or motion based on CUE. Furthermore, the Veteran also asserts that the effective date of his entitlement to service connection for asthma should be February 11, 1998, because this was the date of his initial application for service connection for asthma. A procedural history of the Veteran’s claim reflects that the RO initially denied the service connection claim for asthma in a September 1999 decision. The Veteran did not perfect an appeal of this rating decision within one year, and thus, this decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Thereafter, the Veteran did not file claims to reopen service connection for asthma until April 2007. That resulted in a decision that denied reopening the claim in April 2008. The Veteran filed a claim to reopen service connection for asthma in April 2009, and he timely filed a February 2011 notice of disagreement to a March 2010 rating decision, he failed to perfect this appeal because he filed a May 2012 Board appeal well after the sixty-day deadline, after the RO issued a statement of the case (SOC) in September 2011. Therefore, this March 2010 rating decision, which determined that new and material evidence had not been submitted to reopen service connection for bronchial asthma, became final. The Veteran submitted a claim to reopen service connection for asthma on February 22, 2012. Accompanying his claim was service treatment record that was already a part of the record and previously considered by the RO. Thereafter, it was not until July 2014 whereby VA received a medical statement linking the Veteran’s current asthma disability to service. The RO relied upon this medical evidence to grant service connection. Here, the RO has assigned the date of the claim to reopen as the appropriate effective date. It was not until July 2014, however, when entitlement arose. Thus, the RO has assigned a date earlier than that permitted under law. There is no legal basis for the Board to assign an earlier date. Accordingly, the claim must be denied. MATTHEW TENNER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD V-N. Pratt, Associate Counsel