Citation Nr: 21076783 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 18-06 614 DATE: December 27, 2021 ORDER An effective date prior to July 13, 2015, for the grant of service connection for degenerative joint disease of the thoracolumbar spine with intervertebral disc syndrome and scoliosis, is denied. An effective date prior to July 13, 2015, for the grant of service connection for right lower extremity radiculopathy, is denied. An effective date prior to July 13, 2015, for the grant of service connection for left lower extremity radiculopathy, is denied. FINDINGS OF FACT 1. A March 1989 rating decision denied the claim of entitlement to service connection for a scoliotic deformity and hemisacralization at L5. The Veteran was notified of this decision and of her appellate rights, but did not appeal the decision. 2. A January 2014 rating decision denied the claim of entitlement to service connection for degenerative joint disease of the thoracolumbar spine with IVDS and scoliosis. The Veteran was notified of this decision and of her appellate rights, but did not appeal the decision. 3. The earliest document in the claims file that may be accepted as a claim to reopen service connection for a thoracolumbar spine disorder (and associated radiculopathy) is a claim for VA disability compensation benefits received by VA on July 13, 2015. CONCLUSIONS OF LAW 1. The March 1989 and January 2014 rating decisions that denied the claim for service connection for a thoracolumbar spine disorder are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103. 2. The criteria for an effective date prior to July 13, 2015, for the grant of service connection for degenerative joint disease of the thoracolumbar spine with intervertebral disc syndrome and scoliosis, are not met. 38 U.S.C. §§ 5100, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. The criteria for an effective date prior to July 13, 2015, for the grant of service connection for right lower extremity radiculopathy, are not met. 38 U.S.C. §§ 5100, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400. 4. The criteria for an effective date prior to July 13, 2015, for the grant of service connection for left lower extremity radiculopathy, are not met. 38 U.S.C. §§ 5100, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1981 to June 1988. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified at a hearing before the undersigned Veterans Law Judge in August 2021. A copy of the hearing transcript is of record. Earlier Effective Date ClaimsLaws and Analysis The Veteran seeks effective dates earlier than July 13, 2015, for the grant of service connection for her lumbar spine and bilateral lower extremity radiculopathy disabilities. She essentially maintains that these disabilities existed prior to the currently assigned effective date. The effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of the receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(1)(ii), (r). The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). Here, the Veteran submitted a claim for entitlement to service connection for a back disability in July 1988. The RO denied the claim in a March 1989 rating decision. The Veteran subsequently submitted another claim for service connection for a spine disorder, which was denied in a January 2012 rating decision. Following receipt of additional evidence, the claim was again denied in a January 2014 rating decision. The Veteran did not initiate an appeal of the 1989 or 2014 decisions, nor did VA actually or constructively receive any new and material evidence within a year following the decisions; therefore, the decisions became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 3.156(b), 20.302, 20.1103. Thereafter, the Veteran submitted a claim for VA compensation benefits on July 13, 2015, again seeking service connection for degenerative arthritis of the thoracolumbar spine. In a November 2015 rating decision, the RO granted service connection for a lumbar spine disability and the associated radiculopathy of the right and left lower extremities. Effective dates for each disability were granted as of July 13, 2015, the date of the Veteran's claim for VA compensation benefits. As noted above, the Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). Therefore, the earliest effective date for the grant of entitlement to service connection for the spine and associated radiculopathy disabilities can be no earlier than the Veteran's claim to reopen, which was July 13, 2015. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran after the 1989 or 2014 rating decisions indicates an attempt to reopen his claim for service connection for a back disorder or radiculopathy. However, the Board finds that no other correspondence or communication received by VA before July 13, 2015 can be reasonably construed as an intent to file a formal or informal claim to reopen the previously denied claim of entitlement to service connection for a back disorder or associated radiculopathy. The Veteran has not identified any document in the claims file that she contends is a pre-July 2015 claim to reopen. The Board observes that the laws and regulations governing effective dates are clear. The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of the receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(1)(ii), (r). In this case, VA received the Veteran's claim for VA compensation benefits on July 13, 2015. The record contains no statement or communication from the Veteran prior to that date that could reasonably constitute a pending claim for service connection for a spine or radiculopathy disability. Based on the facts in this case, there is no legal basis for an effective date prior to July 13, 2015, for the award of service connection for the thoracolumbar spine disability and associated radiculopathy disabilities. Because the RO did not receive a formal or informal application for to reopen a claim of service connection prior to July 13, 2015, VA is precluded, as a matter of law, from granting an effective date prior to that date. As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law. As the preponderance of the evidence is against this claim, under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.