Citation Nr: 18136243 Decision Date: 09/18/18 Archive Date: 09/18/18 DOCKET NO. 15-10 468A DATE: September 18, 2018 ORDER An effective date earlier than October 28, 2010, for the award of service connection for cervical sprain with degenerative disc disease (DDD) and degenerative joint disease (DJD) is denied. FINDINGS OF FACT 1. A November 2008 rating decision that denied a July 2008 service connection claim for chronic neck pain was not appealed, and no pertinent exception to finality applies. 2. A request to reopen the previously denied claim for service connection for chronic neck pain was filed on October 28, 2010; there was no pending formal or informal claim for service connection for cervical spine (neck) disability prior to that date. CONCLUSION OF LAW The criteria for an effective date prior to October 28, 2010, for the award of service connection for cervical sprain with DDD and DJD are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1975 to January 1976, and from November 1976 to March 1983. This appeal to the Board arose from an October 2013 rating decision in which the Department of Veterans Affairs (VA) Regional Office (RO granted service connection and assigned an initial 10 percent disability rating for the Veteran’s cervical spine disability, effective October 28, 2010. The Veteran disagreed with the assigned effective date, and this appeal ensued. In September 2016, the Veteran and his wife testified during a Board videoconference hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. At the outset, the Board notes that with respect to claim for an earlier effective date the Veteran has been notified of the reasons for the denial of the claim, and has been afforded the opportunity to present evidence and argument with respect to the claim. The Board finds that these actions are sufficient to satisfy any fundamental due process owed him. As will be explained below, the claim lacks legal merit. As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the Veterans Claims Assistance of 2000 (VCAA) are not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Manning v. Principi, 16 Vet. App. 534, 542-43 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter). The Veteran contends that an effective date earlier than October 28, 2010, is warranted for the award of service connection for his cervical spine disability. He has specifically contended that the assigned effective date should be back to at least 2008, when he first filed a service connection claim for a neck disability. However, considering the claim in light of the governing legal authority, the Board finds that no earlier effective date is assignable Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. Thus, the regulations in effect prior to March 24, 2015, will be applied in this case. Under the prior regulations, any communication or action, indicating intent to apply for one or more benefits under laws administered by VA, from a claimant or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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 from 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(a) (as in effect prior to March 24, 2015). In the instant case, the Veteran filed the current request to reopen a previously denied claim for service connection for chronic neck pain in October 2010. As noted, in the rating decision on appeal, the RO effectively reopened the claim, and awarded service connection for the Veteran’s cervical spine disability, effective October 28, 2010—the e date of receipt of the petition to reopen. The Board finds that the assignment of such a date is consistent with the provisions of 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. While the Veteran had previously filed a formal claim for service connection for neck disability in July 2008, that claim was denied in a November 2008 rating decision. The Veteran was notified of the July 2008 denial in a letter dated later in November 2008 but did not initiate an appeal. See 38 C.F.R. §§ 20.200, 20.201. Moreover, no new and material evidence was received within the one-year appeal period from the date of the notice of the denial of the claim, and no additional service records (warranting reconsideration of the claim) were received at any time. See 38 C.F.R. § 3.156(b), (c). There also is no specific evidence or argument that the November 2008 denial was clearly and unmistakably erroneous. See 38 C.F.R. § 3.105(a). Therefore, the November 2008 denial of service connection claim for a neck disability became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Accordingly, unless an exception to finality applies—a matter not reasonably raised here—there is no basis for the Board to find that the Veteran’s initial July 2008 claim, which was considered and finally resolved by the RO, can provide a basis for assignment of any earlier effective date. Additionally, while the record contains evidence of a diagnosis of and treatment for cervical spine disability as early as in May 2004, and the Veteran has testified as to this fact, the Board notes that the documented presence of a disability predating the service connection claim cannot, alone, serve as a basis to assign an earlier effective date. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999) (holding that “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.”). As there is no evidence whatsoever of any unadjudicated formal or informal claim for service connection for cervical spine(neck) disability prior to October 28, 2010, there is no legal basis upon which to find that an earlier effective date for service connection for the disability is warranted. The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Although the Board is required to “render a decision which grants every benefit that can be supported in law,” under these circumstances, there is no basis in law to grant the appeal for an earlier effective date for the award of service connection for cervical spine disability. See 38 C.F.R. § 3.103(a). Accordingly, the Veteran’s claim for effective date claim must be denied for lack of legal merit or entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael Wilson, Counsel