Citation Nr: 21002498 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-33 341 DATE: January 13, 2021 ORDER Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for right shoulder acromioclavicular joint separation (major) is denied. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for right shoulder impingement syndrome, rotator cuff (major) is denied. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for surgical scars as secondary to the service-connected disability of right shoulder impingement syndrome, rotator cuff (major) is denied. FINDINGS OF FACT 1. The Veteran’s claim for a right shoulder condition was last denied by a January 1998 rating decision; the Veteran neither appealed nor submitted new and material evidence within one year of this rating decision, and the decision is final. 2. The evidence of record shows that June 3, 2014 is the date of the receipt of the Veteran's application to reopen his claim for service connection after final adjudication. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 3, 2014 for the grant of service connection for right shoulder acromioclavicular joint separation (major) have not been met. 38 U.S.C. §§ 5107, 5110, 7105; 38 C.F.R. §§ 3.156, 3.400, 4.3, 20.1103. 2. The criteria for an effective date earlier than June 3, 2014 for the grant of service connection for right shoulder impingement syndrome, rotator cuff (major) have not been met. 38 U.S.C. §§ 5107, 5110, 7105; 38 C.F.R. §§ 3.156, 3.400, 4.3, 20.1103. 3. The criteria for an effective date earlier than June 3, 2014 for the grant of service connection for surgical scars as secondary to the service-connected disability of right shoulder impingement syndrome, rotator cuff (major) have not been met. 38 U.S.C. §§ 5107, 5110, 7105; 38 C.F.R. §§ 3.156, 3.400, 4.3, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1968 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) following an October 2018 Board remand. This matter was originally on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. 1. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for right shoulder acromioclavicular joint separation (major) 2. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for right shoulder impingement syndrome, rotator cuff (major) 3. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for surgical scars as secondary to the service-connected disability of right shoulder impingement syndrome, rotator cuff (major) The Veteran is seeking an earlier effective date for the grant of service connection for his right shoulder conditions. The Veteran contends that medical evidence submitted gives him reasonable doubt in his favor due to prior medical evidence and an earlier claim already on record. See October 2020 Appellate Brief. In October 1997 the Veteran’s representative submitted a statement that the Veteran had medical treatment and evaluation at the Baltimore, VA Medical Center within the last 60 days, and requested the records be retrieved. The January 1998 rating decision noted review of a VA examination dated September 8, 1997 conducted at VA Medical Center Baltimore and service medical records for the period of July 19, 1968 to June 30, 1972. The Veteran’s claims file currently shows VA Medical Center Baltimore treatment records beginning in October 1997, which were added to the claims file in August 2013 and thereafter. Records dated within a year of the 1998 rating decision are not new and material as the records only continued to show the Veteran had a shoulder condition which he contended was due to service. The Veteran did not submit an appeal request within one year of notification of the January 1998 rating decision, therefore that decision became final. Following the January 1998 rating decision, the Veteran submitted a claim to reopen for his right shoulder condition on June 3, 2014. A November 2014 rating decision granted service connection for right shoulder impingement syndrome, rotator cuff (major), with an evaluation of 20 percent effective June 3, 2014; service connection for right shoulder acromioclavicular joint separation (major) with an evaluation of 20 percent effective June 3, 2014, and service connection for surgical scars with an evaluation of zero percent, effective June 3, 2014. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a) (previously 38 U.S.C. § 3010(a)). The effective date for an award of service connection is 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, the effective date is the later of the date of receipt of the claim or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 C.F.R. §§ 3.400(q)(2) (previously 38 C.F.R. § 3.400(q)(1)(ii)), 3.400(r). The effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (holding that 38 U.S.C. § 5110(a) "is clear on its face with respect to granting an effective date for an award of VA periodic monetary benefits no earlier than the date that the claim for reopening was filed"). The United States Court of Appeals for Veterans Claims (Court) explained that the statutory framework 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 based on a reopened claim. Id. (holding that the term "new claim," as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to that date, the former regulations apply, as provided below. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a) (previously 38 U.S.C. § 3001(a)); 38 C.F.R. § 3.151(a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant 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. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an effective date earlier than June 3, 2014, for the grant of service connection for right shoulder conditions. The Veteran’s claim for service connection for arthritis of the joints (to include shoulders) was originally denied in a July 7, 1978 rating decision. Following the July 1978 rating decision, the Veteran did not file a notice of disagreement (NOD) or submit additional evidence within one year of the rating decision, thus the decision became final. In July 1997, the Veteran submitted an NOD for an increased rating claim and indicated he would like to reopen his claim for arthritis of the shoulders. As stated above, a January 1998 rating decision denied the Veteran’s claim for service connection for right shoulder conditions because the RO stated that new and material evidence had not been submitted that was adequate to re-open the Veteran’s claim. No appeal request was received within one year of that notification and as such, the decision became final. The November 2014 rating decision granted service connection for right shoulder conditions effective June 3, 2014, the date the Veteran submitted his claim to reopen. Generally, a decision of the RO that is not timely appealed becomes final and binding in the absence of clear and unmistakable error (CUE). A claim for benefits based on CUE in a prior final rating decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). In order for a claimant to successfully establish a valid claim of CUE in a final RO rating decision, the claimant must articulate with some degree of specificity what the alleged error is, and unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the final rating decision would have been manifestly different but for the alleged error. Luallen v. Brown, 8 Vet. App. 92, 94 (1995); Fugo, 6 Vet. App. 44, review en banc denied, 6 Vet. App. 162, 163 (1994) (noting that pleading and proof are two sides of the same coin; if there is a heightened proof requirement, there is, a fortiori, a heightened pleading requirement). In this case, the Veteran and his representative have not specifically alleged a claim of CUE in a prior rating decision. The Board has also considered whether the provisions of 38 C.F.R. § 3.156(c) are applicable in the present case and whether the regulation would allow for reconsideration of the Veteran’s original claim for service connection and a possible legal basis for an earlier effective date for the grant of service connection. Under 38 C.F.R. § 3.156(c)(1), 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 38 C.F.R. § 3.156. Such records include, but are not limited to: (i) Service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of paragraph (c) of 38 C.F.R. § 3.156 are met; (ii) Additional service records forwarded by the Department of Defense or the service department to VA any time after VA's original request for service records; and (iii) Declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). An award based in all, or in part, upon such service department records identified by 38 C.F.R. § 3.156(c)(1) will be effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date that may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). Only if VA grants benefits resulting from reconsideration of the merits under § 3.156(c)(1) must it consider an earlier effective date under subsection (c)(3). Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014). In this regard, the Board notes that the Veteran’s file contained his service treatment records (STRs) prior to the January 1998 decision and no additional relevant STRs were added after the January 1998 rating decision. Most recently, the Court has held the term “relevant” under 38 C.F.R. § 3.156(c)(1) has only one reasonable meaning: “in order to be ‘relevant,’ a record must speak to a matter in issue, in other words, a matter in dispute.” See Kisor v. Wilkie, No. 2016- 1929, 2020 U.S. App. LEXIS 25527 (Fed. Cir. Aug. 12, 2020) (Kisor III). The Veteran’s record in January 1998 already showed he was treated in service for a bilateral shoulder condition. The ultimate award was not based on the addition of any STRs. 38 C.F.R. § 3.156(c)(3) does not permit an earlier effective date unless it is established that service records were used as part of the basis for the ultimate award of service connection. In Jones (Florence) v. Wilkie, 2020 U.S. App. LEXIS 21914, the Court held that mere reconsideration of a claim under 38 C.F.R. § 3.156(c)(1) does not necessitate the assignment of an effective date under 38 C.F.R. § 3.156(c)(3). Rather, when determining whether an earlier effective date is warranted under 38 C.F.R. § 3.156(c)(3), the question is whether the award of benefits was based all or in part on service department records that existed and had not been associated with the file when VA first decided the claim. In this case, the award was based on new and material evidence from a November 2014 VA examination report that provided a positive nexus opinion linking the Veteran’s current right shoulder conditions to his military service. As previously noted, the effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r). Accordingly, the effective date assigned can be no earlier than June 3, 2014, which was the date of VA’s receipt of the Veteran’s application to reopen his claim for service connection for right shoulder conditions. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Daley, 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.