Citation Nr: 20053370 Decision Date: 08/12/20 Archive Date: 08/12/20 DOCKET NO. 17-04 617 DATE: August 12, 2020 ORDER Entitlement to an effective date earlier than August 19, 2010 for the grant of service connection for status post fracture with scar of the left ankle (left ankle disability), is denied. Entitlement to an effective date earlier than August 19, 2010 for the grant of service connection for status post old healed fracture of the right ankle (right ankle disability), is denied. FINDINGS OF FACT 1. Claims of entitlement to service connection for a left ankle disability and a right ankle disability were last denied in April 1994 and June 2008 rating decisions; new and material evidence was not received within a year of the issuance of the rating decision. 2. The Veteran’s claim to reopen service-connection for a left ankle disability was received by VA on August 19, 2010. 3. The Veteran’s claim to reopen service-connection for a right ankle disability was received by VA on August 19, 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 19, 2010 for the grant of service connection for a left ankle disability have not been met. 38 U.S.C. §§ 5110, 5107(b), 7105(c); 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than August 19, 2010 for the grant of service connection for a right ankle disability have not been met. 38 U.S.C. §§ 5110, 5107(b), 7105(c); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from March 1979 to March 1987. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in March 2020. A transcript is of record. Earlier Effective Date The Veteran contends that service connection for his left and right ankle disabilities, each, warrant an effective date prior to August 19, 2010. The Board finds that the effective dates were properly assigned and that an earlier date for either disability is not warranted. By way of history, the Veteran initially filed claims for entitlement to service connection for a left ankle disability and a right ankle disability, each, in May 1992. In an April 1994 rating decision, the RO denied both of the claims for service connection. The Veteran was notified of the decision but did not appeal, and there is no evidence that new and material evidence concerning the claims for left ankle and right ankle disabilities was obtained within one year of the April 1994 rating decision. The April 1994 rating decision, therefore, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Subsequently, the Veteran filed claims to reopen his previously denied claims for a left ankle disability and a right ankle disability, in November 2003. In a June 2008 rating decision, the RO denied both of the claims to reopen the previously denied service connection claims for a left ankle disability and a right ankle disability. The Veteran was notified of the decision later that month but did not appeal, and there is no evidence that new and material evidence concerning the claims to reopen the previously denied service connection claims for left ankle and right ankle disabilities was obtained within one year of the June 2008 rating decision rating decision. The June 2008 rating decision, therefore, became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 Generally, a final decision issued by the agency of original jurisdiction may not thereafter be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C. § 7105(c), (d). However, if new and material evidence is presented or secured with respect to a claim that has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. On August 19, 2010, VA received the Veteran’s request to reopen claims for benefits for his left ankle disability and his right ankle disability. In a May 2015 rating decision, the RO allowed reopening of the claims and granted service connection for a left ankle disability and a right ankle disability, each, on the basis of new and material evidence, with an effective date of August 19, 2010, the date the claim was received. The Veteran appealed the effective date. Under 38 U.S.C. § 5110(a), the effective date of an award based on an original claim or on a claim reopened after a final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application. The statutory provision is implemented by regulation, which provides that the date of entitlement to an award of service connection will be 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 later. 38 C.F.R. § 3.400(b)(2)(i). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his 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. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a). A claim is defined as a communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Based upon the evidence of record or constructively of record at the time of the May 2015 rating decision, the Board finds that, prior to August 19, 2010, there is no evidence of any unadjudicated claims concerning entitlement to service connection for a left ankle disability or a right ankle disability. Here, the Veteran filed a claim to reopen a claim for compensation which was received by VA on August 19, 2010. The RO granted an effective date of August 19, 2010. While evidence of record shows the Veteran was diagnosed with a left ankle disability and a right ankle disability prior to August 19, 2010, the date of entitlement must be the date of receipt of the claim, or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). In this case, the earliest effective date available to the Veteran is the date his claim was received, which was August 19, 2010. The Board notes that the Veteran and his representative argued at the March 2020 Board hearing that the effective date should be based on the claim filed in November 2003. The Veteran and his representative specifically argued that in denying the claims to reopen in June 2008, the RO informed the Veteran that the effective date of service connection for a left ankle disability and a right ankle disability, each, would be in 2008 if the Veteran’s claims were ever granted. However, the Board notes that the relevant law [38 U.S.C. § 5110(a)] specifically stipulates that the effective date of an award based on an original claim or on a claim reopened after a final adjudication shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application. Additionally, the Board also notes that the Veteran and his representative also argued at the March 2020 Board hearing that the Veteran service treatment records (STRs) were missing at the time of the prior denials and that the RO informed the Veteran that the effective date of service connection for a left ankle disability and a right ankle disability, each, would be in 2008 or the date of the original claim, if the Veteran’s claims were ever granted. The Board does note that the April 1994 rating decision contained language recognizing that the Veteran’s STRs are incomplete. 38 C.F.R. § 3.156(c)(1) provides that “notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph(a) of this section.” The Board notes that at no point from the April 1994 original denial to May 2015 rating decision that granted service connection, did the VA receive or associate with the claims file any relevant official service department records. In fact, in granting service connection, the RO in the May 2015 rating decision explicitly stated that “[w]hile we were unable to obtain your [STRs] we did review your lay testimony, photographs, and letters from [V.S.] and [R.T.].” Thus, the award of service connection was not based on subsequently received service department records and 38 C.F.R. § 3.156(c)(1) does not provide a basis for an earlier effective date in this matter. As noted above, the April 1994 and June 2008 rating decisions were final. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The United States Court of Appeals for Veterans Claims (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), that “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service- connected benefits that is predicated upon a reopened claim.” In order for the Veteran to be awarded an effective date based on an earlier claim, he would have to show CUE in the prior denial of the claim. See Flash, 8 Vet. App. at 340. Here, however, the Veteran has not alleged CUE in the prior RO decisions. In conclusion, for the reasons and bases set forth above, the Board finds that the effective date for the grant of service connection for a left ankle disability and a right ankle disability, each, is no earlier than the currently assigned date of August 19, 2010. Accordingly, the benefit sought on appeal is denied. KATHERINE KIEMLE BUCKLEY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hammad Rasul, Associate Counsel 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.