Citation Nr: 21004737 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 20-00 550 DATE: January 28, 2021 ORDER An effective date earlier than March 5, 2014 for the award of service connection for chronic obstructive pulmonary disease (COPD) is denied. FINDINGS OF FACT 1. On March 5, 2014, the Veteran filed a claim for entitlement to service connection for COPD. 2. Prior to March 5, 2014, there was no pending formal claim, informal claim, or written intent to file a claim for entitlement to service connection for COPD. CONCLUSION OF LAW The criteria for an effective date earlier than March 5, 2014, for the award of service connection for COPD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served honorably on active duty in the United States Air Force from September 1953 to December 1959. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran attended a virtual hearing before the undersigned in September 2020. As a preliminary matter, the Board will first address the Veteran’s contention of clear and unmistakable error (CUE) raised in his November 2018 Notice of Disagreement and in his testimony at his September 2020 hearing. The Veteran contends that there was CUE in a March 2004 rating decision denying service connection for asbestosis (claimed as lung condition). The Veteran timely filed a notice of disagreement challenging the March 2004 rating decision, and in April 2008 the Board granted service connection for a lung condition, specifically asbestosis. When a Veteran timely appeals an RO determination to the Board and the Board affirms the determination, the rating decision at issue is subsumed by the Board decision on that issue. 38 C.F.R. § 20.1104. A rating decision that is subsumed by a Board decision is not subject to revision or reversal on the basis of CUE. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). To reverse a rating decision that has been subsumed by a Board decision, the Veteran must collaterally attack the Board decision. Id. To date, the Veteran has not submitted a motion seeking revision of the April 2008 Board decision on the basis of CUE. 38 C.F.R. § 20.1404. Thus, to the extent the Veteran seeks revision of the March 2004 rating decision on the basis of CUE, the Board finds that his appeal must be denied. Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim 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, the effective date 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(b)(2)(i). A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered from a claimant may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the 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 the receipt of the informal claim. 38 C.F.R. § 3.155. For the Veteran to have an effective date prior to March 5, 2014, he needed to communicate with VA or take an action indicating an intent to apply for benefits prior to March 5, 2014. Though the Veteran filed a claim for a lung condition in August 2001, the Board issued an April 2008 decision granting service connection for asbestosis. The Veteran did not appeal the Board’s April 2008 decision and the decision became final. Also, there is no evidence indicating an informal claim for COPD received by VA prior to March 5, 2014. Accordingly, the Board finds that the preponderance of the evidence is against an effective date prior to March 5, 2014, for the Veteran’s COPD. 38 U.S.C. § 5108; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael Chandeck, 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.