Citation Nr: A21017459 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 210928-187902 DATE: October 28, 2021 ORDER Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for cervical spine degenerative arthritis is denied. Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for right upper extremity radiculopathy is denied. Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for left upper extremity radiculopathy is denied. Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for right lower extremity radiculopathy is denied. Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. A September 2008 rating decision, in pertinent part, denied entitlement to service connection for right leg pain, left leg condition, and neck pain. The appellant was duly notified of the RO's decision and his appellate rights in a September 30, 2008, letter, but did not appeal, nor was new and material evidence received within the applicable period. 2. A May 2015 rating decision, in pertinent part, determined that new and material evidence had not been received to warrant reopening the previously denied claims of entitlement to service connection for right leg pain, left leg condition, and neck pain. The appellant was duly notified of the RO's decision and his appellate rights in a May 22, 2015, letter, but did not appeal, nor was new and material evidence received within the applicable period. 3. The appellant's request to reopen his claims of service connection for "bilateral leg conditions" and "neck condition" was received on December 12, 2017. No intent to file a claim was received within the one-year period prior to December 12, 2017. 4. In an August 2020 rating decision, the RO effectuated the Board's grant of service connection for cervical spine degenerative arthritis and radiculopathy of the bilateral lower extremities and assigned an effective date of December 12, 2017. 5. In a November 2020 rating decision, the RO granted service connection for radiculopathy of the bilateral upper extremities and assigned an effective date of December 12, 2017. CONCLUSIONS OF LAW 1. The September 2008 rating decision which denied entitlement to service connection for right leg pain, left leg condition, and neck pain is final. 38 U.S.C. § 7105(c) (2006); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2007). 2. The May 2015 rating decision which determined that new and material evidence had not been received to warrant reopening the previously denied claims of entitlement to service connection for right leg pain, left leg condition, and neck pain is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2014). 3. The criteria for entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for cervical spine degenerative arthritis have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. § 3.400 (2020). 4. The criteria for entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for right upper extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for left upper extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. The criteria for entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the U.S. Marine Corps from August 1958 to May 1960. This matter comes before the Board of Veterans' Appeals (Board) from a June 2021 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to an effective date earlier than December 12, 2017, for the awards of entitlement to service connection for cervical spine degenerative arthritis and/or bilateral upper and lower extremity radiculopathy. The AOJ issued the rating decision to the appellant with a notification letter on July 21, 2021. Received on September 28, 2021, was a timely VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), upon which the appellant requested direct review by a Veterans Law Judge of the evidence considered by the RO. 38 C.F.R. § 20.301. As explained on the VA Form 10182, a direct review entails review of the evidence of record of the time of the prior decision; there is no evidence submission or hearing request when this option is chosen. By way of background, in June 2020, the Board, inter alia, awarded entitlement to service connection for cervical spine degenerative arthritis and bilateral lower extremity radiculopathy. In an August 2020 rating decision, the RO assigned initial ratings for such and an effective date of December 12, 2017, for the awards of service connection. See Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997). The AOJ issued the rating decision to the appellant with a notification letter on August 18, 2020. A November 2020 rating decision, in pertinent part, awarded entitlement to service connection for bilateral upper extremity radiculopathy, effective December 12, 2017. The AOJ issued the rating decision to the appellant with a notification letter on December 7, 2020. Received on May 7, 2021, was a VA Form 20-0996, Decision Review Request: Higher-Level Review, regarding the December 7, 2020, rating decision, specifically the effective dates assigned for the awards of service connection for cervical spine degenerative arthritis and bilateral upper and lower extremity radiculopathy. Such resulted in the issuance of the June 2021 rating decision currently on appeal. The Board observes that effective dates for the awards of service connection for cervical spine degenerative arthritis and bilateral lower extremity radiculopathy were not assigned in the December 2020 rating decision. Rather, such were assigned in the August 2020 rating decision. Although the appellant's VA Form 20-0996 only listed the December 2020 rating decision, because the effective dates for the awards of service connection for cervical spine degenerative arthritis and bilateral lower extremity radiculopathy had been assigned within one year, the RO performed higher-level review of the claims, which resulted in the June 2021 rating decision. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (holding that once a decision assigning an effective date has become final, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed VA decision). Effective Dates As a preliminary matter, the Board notes that, 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 also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. In general, decisions of the RO that are not appealed in the prescribed time period are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.1103. 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 therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim is received within one year of separation from service, the effective date is generally the day following separation from service. See 38 C.F.R. § 3.400. Otherwise, the effective date is the receipt of the claim or the date entitlement arose, whichever is later. Id. When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). 1. Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for cervical spine degenerative arthritis. 2. Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for right upper extremity radiculopathy. 3. Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for left upper extremity radiculopathy. 4. Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for right lower extremity radiculopathy. 5. Entitlement to an effective date earlier than December 12, 2017, for the award of entitlement to service connection for left lower extremity radiculopathy. For the reasons that follow, the Board finds that entitlement to an effective date earlier than December 12, 2017, for the awards of entitlement to service connection for cervical spine degenerative arthritis and bilateral upper and lower extremity radiculopathy is not warranted. An April 2001 rating decision, in pertinent part, awarded entitlement to service connection for degenerative disc disease of the lumbosacral spine, as secondary to service-connected bilateral pes planus, and assigned an initial 10 percent rating, effective August 21, 2000. It was noted that the VA examiner also stated that the appellant had lumbosacral radiculopathy attributable to the same. The appellant was duly notified of the RO's decision and his appellate rights in April 30, 2001, letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. The appellant does not contend otherwise. A September 2008 rating decision, in pertinent part, denied entitlement to service connection for right leg pain, left leg condition, and neck pain, in part because the RO determined that there was no current diagnosis of a right leg, left leg, or neck disability. The appellant was duly notified of the RO's decision and his appellate rights in a September 30, 2008, letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. The appellant does not contend otherwise. A May 2015 rating decision, in pertinent part, determined that new and material evidence had not been received to warrant reopening the previously denied claims of entitlement to service connection for right leg pain, left leg condition, and neck pain. The appellant was duly notified of the RO's decision and his appellate rights in a May 22, 2015, letter, but did not appeal, nor was new and material evidence received within the applicable period. As such, the decision is final and not subject to revision on the same factual basis. The appellant does not contend otherwise. Received on December 12, 2017, was a VA Form 21-526EZ, upon which the appellant claimed entitlement to service connection for "bilateral leg conditions" and "neck condition." Again, when there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). The appellant's claim to reopen the previously denied claim was received on December 12, 2017. No intent to file was received within the previous year. No formal claim or intent to file was received prior to December 12, 2017. The appellant does not contend otherwise. Rather, it is contended that effective dates of August 21, 2000, for bilateral lower extremity radiculopathy, and October 26, 2000, for cervical spine degenerative arthritis and bilateral upper extremity radiculopathy are warranted. On the May 2021 VA Form 20-0996, it was argued that the August 21, 2000, claim of service connection for a back disability reasonably raised the issue of service connection for bilateral lower extremity radiculopathy, particularly as the report of the October 26, 2000, VA examination specifically noted lumbosacral radiculopathy. It was also argued that the report of the October 26, 2000, examination reasonably raised the issues of service connection for a cervical spine disability and bilateral upper extremity radiculopathy because the report made reference to cervical spine degenerative disc disease and that such was due to the appellant's service-connected bilateral foot disability. See also August 2019 VA Form 9, September 2021 brief. However, even assuming arguendo that the issues were reasonably raised in 2000, there have been multiple prior final denials of service connection since that time, as delineated above. When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). As such, these arguments do not avail the appellant. The appellant's former attorney also made statements to the effect that earlier effective dates were warranted due to previous rating decisions containing clear and unmistakable error. See August 2019 VA Form 9, September 2021 brief. A claim of clear and unmistakable error (CUE) must be pled with specificity. Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) ("to raise CUE there must be some degree of specificity as to what the alleged error is and... persuasive reasons must be given as to why the result would have been manifestly different"). A mere disagreement with how the evidence was weighed does not constitute clear and unmistakable error. Damrel v. Brown, 6 Vet. App. 242, 245 (1994). If the appellant wishes seek revision of a prior decision on the grounds of CUE, he should so notify the RO in writing, keeping in mind the specific requirements for CUE challenges set forth in 38 C.F.R. § 3.105(a). The applicable law provides that the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The appellant had the opportunity to appeal the prior denials of service connection but did not do so within one year of notification of such, nor was new and material evidence received within such periods. Under the facts of this case, therefore, there is no legal basis for awarding an effective date earlier than December 12, 2017, for the awards of service connection. See Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("When a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."). K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Behlen, 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.