Citation Nr: 21071601 Decision Date: 11/30/21 Archive Date: 11/30/21 DOCKET NO. 18-03 231 DATE: November 30, 2021 ORDER Entitlement to an effective date earlier that August 9, 2016, for a 40 percent disability rating for lumbar spine disability is denied. Entitlement to an effective date earlier that August 9, 2016, for a 30 percent disability rating for cervical spine disability is denied. Entitlement to an effective date earlier that August 9, 2016, for a 20 percent disability rating for right lower extremity (RLE) radiculopathy is denied. Entitlement to an effective date earlier that August 9, 2016, for a 20 percent disability rating for left lower extremity (LLE) radiculopathy is denied. Entitlement to an effective date earlier that August 9, 2016, for a 20 percent disability rating for right upper extremity (RUE) radiculopathy is denied. Entitlement to an effective date earlier that August 9, 2016, for a 20 percent disability rating for left upper extremity (LUE) radiculopathy is denied. Entitlement to an effective date earlier that August 9, 2016, for a 50 percent disability rating for depressive disorder is denied. Entitlement to an effective date earlier that August 9, 2016, for a 10 percent disability rating for recurring aseptic meningitis is denied. FINDING OF FACT The Veteran filed increased rating claims for his service-connected lumbar spine, cervical spine, bilateral lower extremity (BLE), bilateral upper extremity (BUE), depressive disorder and recurring aseptic meningitis on August 9, 2016. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than August 9, 2016, for a 40 percent evaluation for lumbar spine disability have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. 2. The criteria for an effective date earlier than August 9, 2016, for a 30 percent evaluation for cervical spine disability have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. 3. The criteria for an effective date earlier than August 9, 2016, for a 20 percent evaluation for RLE radiculopathy have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. 4. The criteria for an effective date earlier than August 9, 2016, for a 20 percent evaluation for LLE radiculopathy have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. 5. The criteria for an effective date earlier than August 9, 2016, for a 20 percent evaluation for RUE radiculopathy have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. 6. The criteria for an effective date earlier than August 9, 2016, for a 20 percent evaluation for LUE radiculopathy have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. 7. The criteria for an effective date earlier than August 9, 2016, for a 50 percent evaluation for depressive disorder have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. 8. The criteria for an effective date earlier than August 9, 2016, for a 10 percent evaluation for recurring aseptic meningitis have not been met. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.156, 3.160, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to October 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision by a Department of Veterans Affairs Regional Office (RO). In July 2021, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. Effective Dates The Veteran asserts entitlement to earlier effective dates. Specifically, he asserts that the effective dates should be commensurate with the day following his separation from service. By way of history, the Veteran filed service connection claims for meningitis and lumbar and cervical spine disabilities in October 1994, a few days following his separation from service. Those claims were denied in an unappealed October 1995 rating decision. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. Another service connection claim for cervical spine disability was filed in May 1996. An unappealed June 1996 VA letter denied reopening that claim. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. Thereafter, an unappealed April 1997 rating denied the claim for a cervical spine disability. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. In August 1998, he filed a service connection claim for recurring aseptic meningitis which was granted in a May 1999 rating decision and assigned a noncompensable rating effective August 13, 1998. He did not appeal the assigned effective date, or the assigned rating, and the May 1999 rating decision became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. Thereafter, he filed service connection claims for depressive disorder and lumbar spine disability, and an increased rating claim for recurring aseptic meningitis in October 2003. In February 2004, he filed a claim for a cervical spine disability. A September 2004 rating decision granted service connection for depressive disorder and assigned a 30 percent rating. The service connection claims for lumbar and cervical spine disability were denied. The rating decision further denied a compensable rating for recurring aseptic meningitis. The Veteran filed a timely notice of disagreement (NOD) in September 2005, and only appealed the rating assigned for the service-connected depressive disorder, and the denial of service connection for lumbar and cervical spine disability. He perfected his appeal to the Board in January 2006. A November 2009 Board Decision denied a rating in excess of 30 percent for depressive disorder, and remanded the service connection claims for lumbar and cervical spine disability. The Veteran did not appeal the portion of the Board's decision denying an increased rating to the United States Court of Appeals for Veterans Claims (Court), and that decision became final. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1100. In a June 2011 Board Decision, the service connection claims for lumbar and cervical spine disabilities were denied. The Veteran filed a motion for reconsideration in September 2011, and a January 2012 Board Decision vacated the June 2011 Decision on the basis that a letter from a private physician had been submitted to the RO in March 2010, but was not associated with the claims file at the time the Board issued its decision, and, therefore, did not have the opportunity to review and consider that evidence. Additionally, at that time, he had not submitted a waiver for the RO to consider this evidence in the first instance. During the pendency of that appeal, a December 2012 rating decision granted service connection for lumbar spine disability and cervical spine disability, effective October 23, 2003; the date of claim. A claim for right lower extremity was also granted effective May 3, 2012. The Veteran did not appeal either the effective date or the assigned ratings, and the December 2012 rating decision became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. Additionally, during this time period, the Veteran filed an increased rating claim for his service-connected depressive disorder in July 2011, and an unappealed June 2013 rating decision continued the 30 percent rating. Accordingly, the June 2013 rating decision became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. The Veteran filed an intent to file a claim on August 9, 2016. In November 2016, he filed increased rating claims for his service-connected lumbar spine, RLE radiculopathy, cervical spine, depressive disorder and recurring aseptic meningitis. An April 2017 rating decision granted increased ratings for the service-connected lumbar spine, cervical spine, depressive disorder, and recurring aseptic meningitis effective August 9, 2016. The rating decision also granted service connection for LLE and BUE radiculopathy, effective August 9, 2016. The rating pertaining to the RLE radiculopathy was continued. He filed a timely NOD in June 2017 asserting entitlement to earlier effective dates, and perfected his appeal to the Board in January 2018. At a July 2021 Board hearing, the Veteran testified that he did not file timely appeals with regard to earlier rating decisions because he was going through a low point in his life in 2014 due to losing his job and not having any income. He further stated that he did not know what to do in regard to his claims on appeal, which was the reason he obtained a representative. In addition, he stated that his representative was unable to advise him properly. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication 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; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). The evidence of record reflects that the Veteran filed his increased rating claims for the conditions on appeal on August 9, 2016; the date he submitted an intent to file a claim. As noted above, the effective date cannot precede the date the Veteran filed his claim. Accordingly, he filed his increased rating claims on August 9, 2016, and the effective dates set for the increased ratings and the grant of additional secondary service-connected disabilities is August 9, 2016. The Board finds that the legally correct effective date is August 9, 2016. There is no legal basis for an earlier effective date. The Board recognizes the Veteran's assertion that the effective date for all issues decided in the April 2017 rating decision should be commensurate with the day following his separation from service; namely, October 23, 1994. However, there can be no free-standing claim for an earlier effective date because to allow such a claim would be contrary to the principle of finality set forth in 38 U.S.C. § 7105. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on clear and unmistakable error (CUE) could result in the assignment of an effective date earlier than the date of a final decision, as free-standing claims for earlier effective dates vitiate the rule of finality). The Veteran has not filed a claim for CUE with any prior rating decision. The Board additionally recognizes testimony provided by the Veteran whereby he asserts several reasons why he failed to appeal prior rating decisions. However, the Board finds his assertions without merit. In this regard, while he reports going through a low point in 2014 which interfered with his ability to file timely appeals, the Board points out that the most recent rating decisions relevant to the claims on appeal are dated September 2004 (recurring aseptic meningitis), December 2012 (lumbar spine, cervical spine, and RLE radiculopathy) and June 2013 (depressive disorder). Therefore, the rating decisions in question predate the reason expressed by the Veteran for not filing timely appeals. With regard to the June 2013 rating decision, although he had until June 2014 to file a NOD, a review of the claims file shows that he actively participated in an appeal with regard to the assigned rating for his service-connected headache condition. Moreover, with regard to the September 2004 rating decision, he did file a timely NOD, but specifically did not appeal the assigned rating for his recurring aseptic meningitis. Accordingly, the Board finds statements that he was personally unable to timely appeal any rating decision in 2014, or prior to 2014, not persuasive. The Board further finds his assertion that he was not advised properly by his representative lacking. In this regard, he appears to assert that he did not understand the appeals system. However, he assigned his current representative in May 1996, and since that time, has appealed several rating decisions with the assistance of his representative, and previously adjudicated appeals both at the Board and the Court. Therefore, his testimony is directly contradicted by the procedural history evident in his claims file. Therefore, as the record shows he did not file his current claims on appeal until August 9, 2016, there is no legal basis for earlier effective dates for these claims on appeal. In reaching this decision the Board has considered the doctrine of reasonable doubt. However, the preponderance of the evidence is against the Veteran's claims and they are denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.