Citation Nr: 18117203 Decision Date: 07/10/18 Archive Date: 07/10/18 DOCKET NO. 15-06 555A DATE: July 10, 2018 ORDER Entitlement to an earlier effective date for a low back condition, claimed as degenerative changes of the lumbar spine with IVDS is denied. FINDINGS OF FACT 1. An October 1998 rating decision, which denied service connection for a low back condition, became final as new and material evidence or a notice of disagreement was not received within one year of the notice of the decision. 2. The next communication from the Veteran regarding a claim for a low back condition was received February 28, 2014, the current effective date for the grant of service connection for his low back condition. CONCLUSIONS OF LAW 1. The October 1998 rating decision denying service connection for a low back condition is final. 38 U.S.C.§ 7105(c); 38 C.F.R. §§ 3.104, 20.201, 20.302, 20.1103. 2. The criteria for an effective date prior to February 28, 2014, for the grant of service connection for a low back condition, claimed as degenerative changes of the lumbar spine with IVDS have not been met. 38 U.S.C. § 1155, 5110; 38 C.F.R. § 3.155, 3.400(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from July 1972 to July 1975, from September 1979 to September 1981, and from February 1983 to February 1998. Earlier Effective Dates In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p) (2014). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2014); Norris v. West, 12 Vet. App. 413, 421 (1999). 1. Entitlement to an earlier effective date for a low back condition, claimed as degenerative changes of the lumbar spine with IVDS The Veteran filed a claim for service connection for a low back disorder in March 1998. His claim was denied in an October 1998 rating decision and the Veteran did not file a notice of disagreement nor did he submit new and material evidence to support his claim. Therefore, the denial of service connection for a low back condition became final. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(a), 20.202. Then, in February 2014, the Veteran filed to reopen his claim for service connection for a low back condition, which was granted with a 20 percent evaluation in a November 2014 rating decision. The Veteran filed a notice of disagreement in December 2014 stating that he wanted his service-connected benefits for degenerative changes of the lumbar spine with IVDS to be granted retroactive to the year of his military discharge from service. According to the November 2014 rating decision, the Veteran filed his claim to reopen on February 28, 2014, which was the date applied when assigning an effective date. As there is no evidence to the contrary, the Board agrees that this is the date of the Veteran’s formal claim. The date of receipt of the claim having been established, the Board has also reviewed whether there is any evidence of an intent to file a claim for benefits prior to February 28, 2014. The Board notes that during the time between his previous denial and the filing of his current claim, the Veteran filed claims for other disabilities not related to a low back condition. Additionally, a review of the record fails to show that the RO received a claim or informal written communication indicative of the Veteran’s desire to seek service connection for a low back condition. The Board finds that there is no legal basis for the grant of an earlier effective date in this case and the currently assigned February 28, 2014 is the earliest effective date possible in this case. In reaching this conclusion, the Board does acknowledge the Veteran’s statements with regard to the October 1998 rating decision, and his belief that it was decided incorrectly. As discussed above, that claim has been final since the date stamped on its face. However, if the Veteran seeks reconsideration of that opinion based on clear and unmistakable error (CUE), that is a separate claim from a claim to reopen which must be pled with specificity (the claim must state either “clear and unmistakable error” or “CUE” in the claim itself). If the Veteran were to file a CUE claim with regard to the 1998 rating decision, the RO must adjudicate that CUE matter in a formal rating decision which, if denied, is appealable to the Board. See 38 U.S.C. § 5102; 38 C.F.R. § 20.1404. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Vample, Associate Counsel