Citation Nr: 18154853 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 16-29 794 DATE: November 30, 2018 ORDER Entitlement to an earlier effective date prior to October 9, 2013 for the grant of a 20 percent rating for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran’s original claim of entitlement to service connection for right lower extremity radiculopathy, claimed as a low back disorder, was received on June 1, 2011. 2. A June 2012 rating decision established service connection for right lower extremity radiculopathy as 10 percent disabling, effective June 1, 2011. 3. In September 2012, the Veteran filed a timely notice of disagreement with the June 2012 rating as it pertains to the initial rating for right lower extremity radiculopathy. 4. In a May 2014 rating decision, an initial higher evaluation of 20 percent was granted for the right lower extremity radiculopathy effective from October 9, 2013, the date entitlement arose. 5. A statement of the case was issued in May 2014 including the issue of entitlement to an initial evaluation greater than 10 percent prior to October 9, 2013, and in excess of 20 percent from that date for right lower extremity radiculopathy. 6. The Veteran did not timely perfect his appeal of the June 2012 rating decision and it is final. 7. In correspondence received in October 2014, the Veteran asserted that his claim/appeal should be considered as having gone back to at least August 2012. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for the award of a 20 percent rating for right lower extremity radiculopathy prior to October 9, 2013 have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from September 1970 to October 1991. The Veteran contends that evidence supports a 20 percent evaluation for his right lower extremity radiculopathy prior to October 9, 2013. In a May 2018 statement, the Veteran’s representative noted that the medical evidence supported an earlier effective date prior to October 9, 2013 for the grant of a 20 percent evaluation for right lower extremity radiculopathy. Also, in October 2014, the Veteran noted that his entitlement to a 20 percent rating for right lower extremity radiculopathy arose in August 2012. Generally, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later, unless otherwise provided. 38 U.S.C. § 5110 (a); 38 C.F.R. 3.400. Entitlement arises on the date the claimant meets the basic eligibility criteria. For increased rating claims, if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (Sept. 23, 1998). If the increase occurred more than a year prior to the claim, the effective date shall be the date of the claim. 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Finally, if the increase occurs after the claim is filed, the effective date shall be the date the increase occurred. 38 C.F.R. § 3.400 (o)(2); Harper, 10 Vet. App. at 126-27. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved a “clear and unmistakable error” (CUE). 38 C.F.R § 3.105 (a). The United States Court of Appeals for Veterans Claims (Court) has made it clear that there can be no free-standing claim for an earlier effective date because to allow such a claim would be contrary to the principle of finality set forth in 38 U.S.C. § 7105. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision, as free-standing claims for earlier effective dates vitiate the rule of finality). The Veteran’s original claim of service connection for right lower extremity radiculopathy, claimed as a low back disorder, was received in June 2011, many years after his separation from service. He does not contend, and the evidence does not reflect, that there was any prior formal or informal claim for service connection for right lower extremity radiculopathy. 38 C.F.R. §§ 3.155, 3.160. In a June 2012 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for right lower extremity radiculopathy as 10 percent disabling, effective June 1, 2011. The Veteran filed a timely notice of disagreement (NOD) to this determination in September 2012. After additional development, in a May 2014 rating decision, the RO increased the Veteran’s right lower extremity radiculopathy rating to 20 percent, effective October 9, 2013, the date of examination evidencing an increase in symptomatology. In May 2014, a statement of the case (SOC) was furnished the Veteran, in pertinent part, on the issue of entitlement to an initial evaluation greater than 10 percent prior to October 9, 2013, and in excess of 20 percent from that date for right lower extremity radiculopathy. In July 2014, the Veteran requested time extensions to gather additional evidence for his total rating based on individual unemployability (TDIU) claim which was also on appeal and included in the SOC and he did submit such evidence eventually resulting in an award of a TDIU effective from June 2, 2010, in a March 2016 rating decision. Prior to that award, however, in correspondence received in October 2014, the Veteran generally asserted that his claim/appeal went back to at least August 2012 when he filed a claim for the “same issues” and that he was submitting additional information for his TDIU claim. Presumably, this is the basis for the earlier effective date claim. However, based on the foregoing, the Board finds that the Veteran did not perfect his appeal of the June 2012 rating decision within 60 days of the May 2014 statement of the case on the issue of entitlement to an initial evaluation greater than 10 percent prior to October 9, 2013, and in excess of 20 percent from that date for right lower extremity radiculopathy. Therefore, the June 2012 rating decision which was on appeal at the time of the May 2014 decision (and hence it too is also final) is final as to the issue of the 20 percent rating for right lower extremity radiculopathy. (Continued on the next page)   The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As, on these facts, due to the lack of a timely perfected appeal, no effective date for the award of a 20 percent rating for right lower extremity radiculopathy earlier than October 9, 2013, is assignable, the claim for an earlier effective date must be denied as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Veteran's challenge to the effective date is a freestanding claim and may not be considered by the Board. See Rudd; see also Sabonis, supra. The Board is bound by the laws and regulations that apply to veterans' claims. 38 U.S.C. § 7104 (c); 38 C.F.R. §§ 19.5, 20.101(a). For the reasons stated above, those laws and regulations preclude the Board from addressing the Veteran's earlier effective date claim on the merits. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel