Citation Nr: 21071882 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-42 197 DATE: December 1, 2021 ORDER An effective date earlier than August 14, 2015, for the award of a 20 percent rating for a back disorder is denied. FINDING OF FACT 1. The Veteran did not appeal the January 1988 and February 2004 rating decisions. 2. Subsequently, there was no other claim for increase prior to August 14, 2015. CONCLUSION OF LAW 1. The February 2004 rating decision denying a compensable disability rating is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for an effective date earlier than August 14, 2015, for the award of a 20 percent rating for a back disorder, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1966 to July 1987. The case is on appeal from a January 2016 rating decision. In September 2021, the Veteran testified at a Board hearing. In addition, in a September 2021 correspondence, the Veteran alleged clear and unmistakable error (CUE) in regard to a January 1988 rating decision. This issue has not been adjudicated by the RO and, therefore, the Board does not have jurisdiction to address such an issue in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An effective date earlier than August 14, 2015 for the award of a 20 percent rating for a back disorder. Legal Criteria Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will 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. For increases in disability, the effective date will generally be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). Otherwise, the effective date may be assigned beginning from the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). Analysis The Veteran contends that a 20 percent rating for his back disorder should have been assigned prior to August 14, 2015. In this regard, in an April 2016 notice of disagreement (NOD), he reported that he first filed a claim in 1987 for a back injury experienced during service. He reported that he submitted another claim for the same injury which was denied for lack of documentation. The Veteran reported that since then he had obtained documentation, the form of medical records, to support the back disorder claim. He reported that in February 2015 he "re-filed" the claim, providing documentation of the back injury incurred during service for which a rating of 40 percent was awarded. The Veteran contended that "since documentation has been provided to support this claim and a disability rating of 40 [percent] was awarded effective Aug 14, 2015 with an effective date of 1 September 2015," such disability rating should be dated back to August 1987 or the date of the injury in 1982. During the September 2021 Board hearing, the Veteran reported experiencing back pain since August and September of 1982. He also reported that in 2014 he found medical records in regard to his in-service back injury, prompting him to file a VA claim for which a received a 20 percent rating effective September 1, 2015, which he contended was wrong. Furthermore, in a September 2021 correspondence, the Veteran contended that a 20 percent disability rating effective August 1, 1987, should have been granted in the January 1988 rating decision. In a January 1988 rating decision, the RO granted service connection for chronic lumbosacral strain and assigned a noncompensable disability rating, and also decided seven additional issues. The Veteran was notified of the decision by letter in March 1988, which was mailed to the then current mailing address of record. Thereafter, the Veteran did not appeal the January 1988 rating decision. No new evidence or NOD was received by VA within one year of the issuance of the January 1988 rating decision. Subsequently, in September 2003, the Veteran filed a claim for increased rating for the service-connected back disorder based on worsening symptoms. A February 2004 rating decision denied the claim. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. No new evidence or NOD was received by VA within one year of the issuance of the February 2004 rating decision. As this decision was not appealed as well, it is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. Subsequently, there was no claim for increase for several years. However, in August 2015, the Veteran filed a claim for increase for the back disorder. In the January 2016 rating decision presently on appeal, the RO increased the Veteran's back disability rating to 20 percent based on the August 14, 2015 date of the claim received. Then, in a September 2021 rating decision, the RO increased the Veteran's back disability rating to 40 percent effective July 20, 2021, which is not an aspect of the appeal. The Board finds that there is no basis upon which to award an earlier effective date than August 14, 2015. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran contends that his back disorder symptoms warranted a 20 percent rating prior to such date. As explained above, the January 1988 and February 2004 rating decisions were not appealed. The January 1988 and February 2004 rating decisions are final and the only manner in which to have an effective date go back in time that much earlier is to request CUE, which as noted above, the Veteran has separately done. Here, the assigned effective date is already the date of the claim for increase. Additionally, the evidence does not show a factually ascertainable increase within the one year prior. In fact, the Veteran contends the worse severity many years earlier. As the preponderance of the evidence is against the claim for an effective date prior to August 14, 2015 for the assignment of a 20 percent rating for the Veteran's back disorder, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, an earlier effective date for such rating is not warranted. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nevarez-Myrick, Nancy 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.