Citation Nr: A21017645 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 200403-80232 DATE: November 1, 2021 ORDER Entitlement to an effective date prior to June 19, 2012, for the award of service connection for a lumbar spine disability is denied. Entitlement to an effective date prior to June 19, 2012, for the award of service connection for left ankle disability is denied. FINDINGS OF FACT 1. VA did not receive a claim for entitlement to service connection for a lumbar spine disability prior to June 19, 2012. 2. VA did not receive a claim for entitlement to service connection for a left ankle disability prior to June 19, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to June 19, 2012, for the award of service connection for a lumbar spine disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302. 2. The criteria for entitlement to an effective date prior to June 19, 2012, for the award of service connection for left ankle disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1996 to June 2000. In October 2019, the Regional Office (RO) issued a rating decision that implemented a Board decision that awarded service connection for a lumbar spine disability and a left ankle disability. In April 2020, the Veteran timely appealed this decision to the Board by requesting the AMA Hearing option before a Veterans Law Judge and consideration of any evidence submitted at the hearing and within 90 days of the hearing. In April 2021, the Veteran testified at a Board hearing. The transcript of that hearing has been associated with the Veteran's claims file. As an initial matter, the Board acknowledges that the Veteran now contends that he is entitled to an earlier effective date for the award of service connection for a lumbar spine disability and a left ankle disability because the December 2000 rating decision that initially denied these claims was based on Clear and Unmistakable Error (CUE). The Board notes that allegations of CUE may be freestanding, or they may arise in the context of a claim for an earlier effective date (EED). However, a claim for CUE is distinct from other claims and must be separately appealed. Phillips v. Brown, 10 Vet. App. 25, 30 (1997); see also Nacoste v. Brown, 6 Vet. App. 439, 442 (1994). That is, the Court has held that an assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim. Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). Moreover, the Court has held that each theory of CUE in an earlier AOJ decision is a separate and distinct matter that must be adjudicated by the AOJ in the first instance, and then separately appealed, in order for the Board to have jurisdiction. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). To this end, during the course of the earlier effective date issues on appeal, the AOJ did not address or adjudicate in the first instance the issue of whether there was CUE in the earlier December 2000 rating decision. Accordingly, at the present time, the Board does not have jurisdiction of any allegation of CUE in the earlier December 2000 rating decision. Lastly, the Board's finding in this regard does not prejudice any future adjudication of a raised issue of CUE in the December 2000 rating decision. Earlier Effective Date 1. Entitlement to an effective date prior to June 19, 2012, for the award of service connection for a lumbar spine disability 2. Entitlement to an effective date prior to June 19, 2012, for the award of service connection for left ankle disability The Veteran contends that his disabilities warrant the assignment of an earlier effective date for the award of service connection. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, VA was required to construe any communication or action from a Veteran indicating intent to apply for one or more benefits as an informal claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it). Medical evidence alone could not be an informal claim; there must be an intent to apply for a benefit. Brannon, 12 Vet. App. at 35. VA's possession of medical evidence showing a particular diagnosis or causal connection may not provide a basis for the assignment of an earlier effective date. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the filing date of the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999); see McGrath v. Gober, 14 Vet. App. 28 (2000). The effective date of an award based upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. §§ 3.400(q)(2), 3.400(r); Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). As to the Veteran's lay statements, the Board acknowledges that the Veteran testified that he submitted medical records in 2005 that demonstrated an intent to file a claim for service connection. Moreover, the Board notes that the Veteran testified that he received treatment at the VA which indicated an intent to file a claim. In December 2000, the RO issued a rating decision that denied entitlement to service connection for a lumbar spine disability and a left ankle disability. The Veteran did not file a notice of disagreement and this rating decision became final. In May 2005, the Veteran filed an application to reopen a claim for entitlement to service connection for a back disability. In September 2005, the RO issued a rating decision that found that new and material evidence was not submitted to reopen the Veteran's claim. The Veteran did not appeal this rating decision and this rating decision became final. In April 2007, the Veteran submitted a VA Form 21-4138 in which he stated that there were medical records at the Audie Murphy VA hospital in San Antonio, Texas that will satisfy new and material standard to reopen. Subsequently, medical records from this hospital were added to the Veteran's claims file. In August 2007, the RO issued a rating decision that found that new and material evidence was not submitted to reopen the Veteran's claim. The Veteran did not file a notice of disagreement and the rating decision became final. The Veteran's claim file is silent for any communications from the Veteran that expressed an intent to reopen the claims for entitlement to service connection for a left ankle disability and a lumbar spine disability until June 19, 2012. On June 19, 2012, VA received correspondence from the Veteran and medical evidence which constituted new and material evidence. In October 2019, the RO issued a rating decision that awarded service connection for a lumbar spine disability with an effective date of October 22, 2019. In addition, the RO awarded service connection for a left ankle disability with an effective date of June 19, 2012. In September 2020, the RO issued a rating decision that granted an effective date of June 19, 2012, for the award of service connection for a lumbar spine disability. In sum, the Board must unfortunately find that entitlement to an effective date prior to June 19, 2012, for the awards of service connection for a left ankle disability and a lumbar spine disability is not warranted. After a review of the record, the Board notes that the Veteran is in receipt of the earliest possible effective date for the award of service connection for these disabilities, which is the date that the Veteran filed to once again reopen these claims. Additionally, the Board notes that VA did not receive any communication from the Veteran or his representative indicating an intent to reopen the claims for service connection during the time period following the August 2007 rating decision and prior to the Veteran's correspondence on June 19, 2012. Moreover, as to the Veteran's contention that he submitted evidence in 2005 that should form the basis for the assignment of an earlier effective date for service connection, the record reflects that the Veteran's application was considered and in September 2005, the RO issued a rating decision that found that new and material evidence was not submitted to reopen the Veteran's claim. Furthermore, as to the Veteran's contention that his treatment at VA should form the basis for the assignment of an earlier effective date, VA's possession of medical evidence showing a particular diagnosis or causal connection may not provide a basis for the assignment of an earlier effective date. Thus, for the above stated reasons, the preponderance of the evidence is against entitlement to earlier effective dates for the establishment of service connection for a left ankle disability and a lumbar spine disability, the benefit of the doubt doctrine does not apply, and the claim for entitlement to an earlier effective date for the award of service connection for these disabilities must be denied. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Rescan, 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.