Citation Nr: 20003245 Decision Date: 01/14/20 Archive Date: 01/14/20 DOCKET NO. 18-54 072 DATE: January 14, 2020 ORDER Entitlement to an effective date earlier than October 30, 2017, for the award of service connection for discoid lupus erythematosus, claimed as chronic pityriasis / pityriasis rosea, is denied. REFERRED The issue of clear and unmistakable error in March 2004 rating decision, which denied entitlement to service connection for discoid lupus, was raised in the Veteran’s June 2018 Notice of Disagreement (NOD). The issue is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. The Board recognizes that the October 2018 Statement of the Case (SOC) discussed factors related to the issue of clear and unmistakable error in the March 2004 rating decision. However, a claim of clear and unmistakable error in a prior rating decision is a distinct claim that must be separately adjudicated by the AOJ. The AOJ should, thus, notify the Veteran of any information necessary to substantiate his claim of clear and unmistakable error and then issue a decision on the claim. FINDINGS OF FACT 1. The Veteran’s claim of entitlement to service connection for discoid lupus erythematosis was denied in a March 2004 rating decision that was not appealed and then became final. 2. The Veteran’s claim of entitlement to service connection for pityriasis rosea was denied in a December 2007 rating decision that was not appealed and then became final. 3. The evidence reflects no communication that can be interpreted as a claim of service connection for discoid lupus or pityriasis rosea since December 2007 and prior to October 30, 2017. 4. On October 30, 2017, the Veteran filed a request to reopen the December 2007 rating decision that denied service connection for chronic pityriasis, which the AOJ broadly construed to include a request to reopen the March 2004 rating decision that denied service connection for discoid lupus. 5. The date of receipt of the October 30, 2017 claim is later than the date entitlement rose for discoid lupus and is, thus, the effective date for the grant of service connection for discoid lupus. CONCLUSIONS OF LAW 1. The March 2004 rating decision that denied entitlement to service connection for discoid lupus erythematosis is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 2. The December 2007 rating decision that denied entitlement to service connection for pityriasis rosea is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2018). 3. The criteria for an effective date for service connection earlier than October 30, 2017, for the grant of service connection for discoid lupus erythematosus, claimed as chronic pityriasis / pityriasis rosea, have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to April 1971. This appeal to the Board of Veterans’ Appeals (Board) arose from a December 2017 rating decision issued by the Department of Veterans Affairs (VA). See June 2018 NOD; October 2018 SOC; November 2018 Substantive Appeal (VA Form 9). Entitlement to an effective date for service connection for discoid lupus erythematosus, claimed as chronic pityriasis / pityriasis rosea, prior to October 30, 2017. The Veteran asserts that the effective date of his award of service connection for discoid lupus erythematosus should be December 15, 2003, the date of his prior claim of entitlement to service connection for discoid lupus erythematosus that was denied in a March 2004 rating decision. See June 2018 NOD; November 2018 VA Form 9. As discussed above, the Veteran’s assertion of clear and unmistakable error in the March 2004 rating decision is referred to the AOJ for adjudication. Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If there is a prior final decision denying the benefit sought, the effective will be the date of the claim to reopen that decision or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Here, the first question for the Board is whether the March 2004 rating decision was a final decision on the issue of entitlement to service connection for discoid lupus erythematosus. The Veteran’s claim of entitlement to service connection for discoid lupus erythematosus was denied in a March 2004 rating decision. The evidence shows no statement filed within a year of the March 2004 rating decision that could be construed as an appeal. 38 C.F.R. § 20.1103. New and material evidence was not received within a year of the March 2004 rating decision. 38 C.F.R. § 3.156(b). The March 2004 rating decision is, thus, final and the Veteran’s December 15, 2003 claim cannot be used as the effective date for his current award of service connection for discoid lupus erythematosus. The Board also considered whether the December 2007 rating decision was a final rating decision on the Veteran’s claim of entitlement to service connection for pityriasis rosea. While the claim on appeal is about an awarded service connection for discoid lupus erythematosus, that award arises from the Veteran’s request to reopen his finally disallowed claim of entitlement to service connection for pityriasis rosea. See October 2017 VA 21-526EZ; November 2017 VA examination; December 2017 Rating decision. Thus, whether the prior December 2007 rating decision for pityriasis rosea is final is also relevant in this case. The evidence shows no statement filed within a year of the December 2007 rating decision that could be construed as an appeal, nor is there new and material evidence received within a year of the December 2007 rating decision. 38 C.F.R. § 3.156(b), 20.1103. The December 2007 rating decision is, thus, also final and the May 9, 2007 claim cannot be used as the effective date for his current award of service connection for discoid lupus erythematosus. Next, the Board considered whether there is a statement in the claims file that may be construed as a claim of service connection for discoid lupus erythematosus or pityriasis rosea since December 2007; or if there is an application for service connection for discoid lupus erythematosus or pityriasis rosea since March 24, 2015. The 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 only for claims and appeals filed on or after March 24, 2015. However, in this case, the Board finds no statement or application that may be used as a claim of service connection for discoid lupus erythematosus or pityriasis rosea since December 2007 that would warrant granting an effective date earlier than October 30, 2017. Lastly, the Board finds that the Veteran’s entitlement to service connection for discoid lupus erythematosus arose before his October 30, 2017, request to reopen his claim of entitlement to service connection for pityriasis rosea (which was later broadly construed as a claim to reopen his claim of entitlement to discoid lupus erythematosus). As the March 2004 and December 2007 rating decisions are final, and there is no evidence of an expressed or implied intent to file a claim of entitlement to service connection for either discoid lupus erythematosus or pityriasis rosea prior to October 30, 2017, the effective date will be the Veteran’s October 30, 2017 request to reopen his claim of entitlement to service connection for pityriasis rosea. The Board has carefully and compassionately reviewed the appellant's arguments, and the law has been considered in the most favorable light possible. However, for the reasons discussed above, the benefit which the appellant seeks is simply and clearly precluded by law. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Accordingly, the appeal is denied. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.