Citation Nr: 21076194 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-01 695 DATE: December 22, 2021 ORDER Entitlement to an earlier effective date than September 22, 2013, for a 10 percent rating for a left hip disability is denied. Entitlement to an earlier effective date than January 18, 2007, for a 40 percent rating for a lumbosacral spine disability is denied. Entitlement to an earlier effective date than March 6, 2009, for a 100 percent rating for bronchial asthma is denied. FINDINGS OF FACT 1. The record evidence shows that the September 2009 rating decision denying disability ratings greater than 10 percent and 40 percent for left hip and lumbosacral spine disabilities, respectively, is final; VA has not received a motion for revision of this rating decision based on clear and unmistakable error (CUE). 2. The record evidence does not show an increase in severity of service-connected bronchial asthma within 1 year preceding March 6, 2009; thus, it is not factually ascertainable that the Veteran's bronchial asthma was 100 percent disabling prior to March 6, 2009. CONCLUSIONS OF LAW 1. The September 2009 rating decision which denied claims for disability ratings greater than 10 percent rating for a left hip disability and greater than 40 percent for a lumbosacral spine disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The claim of entitlement to an earlier effective date than September 22, 2013, for a 10 percent rating for left hip disability is denied as a matter of law. 38 U.S.C. §§ 5103, 5109A, 5110; 38 C.F.R. § 3.105(a); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. The claim of entitlement to an earlier effective date than January 18, 2007, for a 40 percent rating for lumbosacral spine disability is denied as a matter of law. 38 U.S.C. §§ 5103, 5109A, 5110; 38 C.F.R. § 3.105(a); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 4. The criteria for an earlier effective date than March 6, 2009 for a 100 percent rating for bronchial asthma have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Army from January 1974 to March 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Although the Veteran initially requested a hearing in his December 2017 substantive appeal (VA Form 9), he withdrew his request in November 2021. See 38 C.F.R. § 20.704. 1. Entitlement to an earlier effective date than September 22, 2013, for a 10 percent rating for a left hip disability 2. Entitlement to an earlier effective date than January 18, 2007, for a 40 percent rating for a lumbosacral spine disability The Veteran appears to contend that the 10 percent and 40 percent ratings assigned for his service-connected left hip and lumbosacral spine disabilities should be assigned earlier effective dates. Specifically, he requests that the 10 percent and 40 percent ratings be granted retroactive to March 17, 1977. With regard to the left hip, a December 2003 rating decision granted service connection for left hip disability with a 10 percent rating, effective September 22, 2003. The Veteran continuously pursued this claim until a September 2009 rating decision denied a rating higher than 10 percent for left hip disability. This decision was not appealed and became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. With regard to the lumbosacral spine, a May 2007 rating decision granted a disability rating of 40 percent effective January 18, 2007, for lumbosacral spine disability. The Veteran continuously pursued this claim until a September 2009 rating decision denied a rating higher than 40 percent for lumbosacral spine disability. This decision also was not appealed and became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. He also did not submit any relevant evidence or argument within 1 year of the September 2009 rating decision which would render it non-final for VA adjudication purposes. See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011). Because the September 2009 rating decision is final, any later action to alter the final decision constitutes a "freestanding" earlier effective date claim which is prohibited absent a showing of CUE. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (indicating that "[n]o matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of clear and unmistakable error (CUE), he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003); and Rudd v. Nicholson, 20 Vet. App. 296 (2006). The record does not reflect that the Veteran or his representative submitted a motion for revision based on CUE of the September 2019 rating decision as to the effective dates of the assignment of 10 percent and 40 percent ratings for left hip and lumbosacral spine disabilities. Therefore, the claims of entitlement to an earlier effective date than September 22, 2013, for a 10 percent rating for a left hip disability and entitlement to an earlier effective date than January 18, 2007, for a 40 percent rating for a lumbosacral spine disability are denied as a matter of law. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Entitlement to an earlier effective date than March 6, 2009, for a 100 percent rating for bronchial asthma The Veteran appears to contend that the 100 percent rating for his service-connected bronchial asthma should be assigned an effective date retroactive to March 17, 1977. A February 2010 rating decision assigned a 100 percent disability rating for bronchial asthma, effective March 6, 2009, the date of receipt of the claim for increased benefits. In this case, the Board finds that the record does not reflect that the Veteran had any pending unadjudicated claims regarding his bronchial asthma prior to March 6, 2009. A May 2007 rating decision denied a rating higher than 30 percent for bronchial asthma. The Veteran was informed of that decision, including his right to appeal, and did not appeal. As such, under the law, the earliest the Veteran could be entitled to an effective date for his 100 percent rating for bronchial asthma would be March 6, 2008, which is 1 year prior to the date of the increased rating claim, if it is factually ascertainable that the increase in severity took place during that year. Upon review of the evidence that is within one year prior to the date of the Veteran's March 6, 2009 increased rating claim, there is no evidence to support a factually ascertainable increase in the severity of the service-connected bronchial asthma during that time. The evidence for the period from March 6, 2008 to March 6, 2009 shows no FEV-1 less than 40 percent of the predicted value, or, FEV-1/FVC less than 40 percent, or, demonstrates more than one attack per week with episodes of respiratory failure. Additionally, there were no reports of one asthma attack per week with episodes of respiratory failure, or, daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. And outpatient treatment records dated during this time period indicate the Veteran's bronchial asthma was treated with albuterol. As a result, the Board finds that an effective date earlier than March 6, 2009 is not warranted. The regulations governing an effective date for increased ratings do not provide an effective date earlier than 1 year prior to the date of the claim. In other words, an effective date of March 6, 2009, is the earliest allowable date under the law, and an earlier effective date for the 100 percent increased rating for the service-connected bronchial asthma is not warranted. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Veteran otherwise has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than March 6, 2009, for a 100 percent rating for his service-connected bronchial asthma. In summary, the Board finds that the criteria for an earlier effective date than March 6, 2009, for a 100 percent rating for bronchial asthma have not been met. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.N., 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.