Citation Nr: 18161258 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-07 694 DATE: December 31, 2018 ORDER An effective date of April 19, 2016, and no earlier, for the grant of service connection for the Veteran’s cause of death is granted. FINDINGS OF FACT 1. A February 2012 rating decision denied service connection for the Veteran’s cause of death; VA did not receive an appeal of that decision or new and material evidence prior to expiration of the appeal period. 2. VA received an Intent to File form on April 19, 2016, which was later supported by evidence received in June 9, 2016 that constituted new and material evidence to reopen the previously denied claim for service connection for the Veteran’s cause of death. 3. The date of claim for reopening the previously denied claim was April 19, 2016. CONCLUSION OF LAW 1. The criteria for an effective date of April 19, 2016, and no earlier, for the grant of service connection for the Veteran’s cause of death are met. 38 U.S.C. §§ 5101, 5107, 5110, 5111; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an effective date earlier than June 9, 2016 for the grant of service connection for the Veteran’s cause of death. The appellant contends that an earlier effective is warranted for the grant of service connection for the cause of the Veteran’s death. The Board concludes that, because the effective date of an award based on a claim to reopen after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later, the criteria for an effective of April 19, 2016 and no earlier for the grant of service connection for the Veteran’s cause of death are met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). Generally, 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 on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q)(2). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. §§ 3.400(q)(2), 3.400(r); Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In this case, a February 2012 rating decision denied service connection for the Veteran’s cause of death; VA did not receive an appeal of that decision or new and material evidence prior to expiration of the appeal period. That decision became final. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. Years later, on April 19, 2016, VA received an Intent to File form. This was later supported by evidence received in June 9, 2016, which met the criteria to reopen the previously denied claim based on receipt of new and material evidence. In a June 2016 rating decision, the VA Regional Office reopened and granted the previously denied claim for service connection for the Veteran’s cause of death. Because the award was predicated on a reopened claim after final disallowance, the award is the date of the new claim or the date entitlement arose, whichever is later. The Board finds that the Veteran’s death and the cause of his death clearly existed prior to the date of claim. It is noted that the Veteran died in July 2010. Therefore, the appropriate effective date is April 19, 2016 and no earlier. While the appellant argues that the effective date should be the date of the original claim, the Board notes that the effective date for service connection based on a reopened claim cannot be the date of receipt of an original claim that was previously denied. Waddell v. Brown, 5 Vet. App. 454, 456 (1993). The Board further notes that the validity of the RO’s August 2016 rating decision has not been challenged on the basis of clear and unmistakable error (CUE), which is a different avenue by which to achieve the same end: an earlier effective date for the award. See Flash v. Brown, 8 Vet. App. 332 (1995). Therefore, the Board will not address CUE in the prior rating decision. (Continued on the next page)   Accordingly, the claim for an effective date of April 19, 2016, and no earlier is granted. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thaddaeus J. Cox, Associate Counsel