Citation Nr: 18155343 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 18-41 649 DATE: December 4, 2018 ORDER Entitlement to an earlier effective date for the establishment of service connection for Meniere’s disease due to clear and unmistakable error (CUE) is denied. Entitlement to an effective date prior to May 7, 2015, for the grant of service connection for Meniere’s disease is denied. FINDINGS OF FACT 1. In a March 1982 rating decision, the RO denied entitlement to service connection for Meniere’s disease; the Veteran appealed and the Board denied the claim in a December 1983 decision. 2. The Veteran’s application to reopen his claim of service connection for Meniere’s disease was received by VA on May 7, 2015. 3. In an April 2018 rating decision, the RO granted service connection for Meniere’s disease, effective May 7, 2015, the date of receipt of the Veteran’s claim to reopen. CONCLUSIONS OF LAW 1. The RO’s March 1982 rating decision that denied service connection for Meniere’s disease was subsumed by the December 1983 Board decision. 38 U.S.C. §§ 1110, 5109A, 7104, 7105; 38 C.F.R. § 3.104, 3.105(a), 20.1104, 20.1404. 2. The criteria for an effective date prior to May 7, 2015, for grant of service connection for Meniere’s disease have not been met. 38 U.S.C. §§ 1110, 5107, 5108, 5110, 7104; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1961 to March 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for Meniere’s disease effective May 7, 2015. In support of this claim, the Veteran argues that an earlier effective date is warranted for service connection for Meniere’s disease because he developed the conditions due to in-service acoustic trauma. Here, the Veteran filed a timely notice of disagreement challenging the March 1982 RO denial for service connection for Meniere’s disease. The Board denied service connection for Meniere’s disease in a December 1983 decision. When a Veteran timely appeals an RO determination to the Board and the Board affirms the determination, the rating decision at issue is subsumed by the Board decision on that issue. 38 C.F.R. § 20.1104. A rating decision that is subsumed by a Board decision is not subject to revision or reversal on the basis of CUE. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000)). To reverse a rating decision that has been subsumed by a Board decision, the Veteran must collaterally attack the Board decision. Id. To date, the Veteran has not submitted a motion seeking revision of the December 1983 Board decision on the basis of CUE. 38 C.F.R. § 20.1404. Thus, to the extent the Veteran seeks revision of the March 1982 rating decision on the basis of CUE, the Board finds that his appeal must be denied. Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). As such, in the absence of clear and unmistakable error, the earliest possible effective date for a grant of service connection for the reopened claims would be the date the application to reopen was filed with VA. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Thus, the earliest possible effective date for its grant of the reopened claim, which was received by VA on May 7, 2015, is that date of receipt. An effective date prior to May 7, 2015, however, is not warranted. Because the Veteran’s Meniere’s disease had its onset in service, service connection was established. It does not follow, however, that because service connection is warranted that the effective date of service connection be the day following service or the date he filed his original claim because doing so would render meaningless many of the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Indeed, in Sears, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pursuant to 38 C.F.R. § 3.400(q)(1)(ii), which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received, i.e.,   May 7, 2015. Id. at 1332. As such, there is no basis to assign an effective date prior to May 7, 2015, for service connection for Meniere’s disease. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Tracie N. Wesner, Counsel