Citation Nr: 21077631 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 20-00 337A DATE: December 30, 2021 ORDER An effective date prior to February 23, 2018 for the grant of service connection for left upper extremity (LUE) radiculopathy is denied. FINDINGS OF FACT 1. The Veteran served on active duty from February 1981 to May 1985; he has been 100 percent disabled since December 2018 plus entitled to special monthly compensation. 2. Subsequent to a final November 1990 rating decision denying service connection for a left shoulder disorder, the Veteran did not file a claim to reopen until February 23, 2018. CONCLUSION OF LAW The criteria for an effective date earlier than February 23, 2018, for the grant of service connection for LUE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. § 3.400 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran testified before the undersigned Veterans Law Judge (VLJ) in December 2020. A copy of the transcript has been associated with the claims file. Importantly, to the extent that the Veteran has asserted clear and unmistakable errors (CUE) in any prior RO rating decisions at his Board hearing, the AOJ did not adjudicate the issues of CUE in any prior rating decisions. Therefore, the Board does not have jurisdiction over a CUE claim. If the Veteran wishes to file a claim for CUE, he must do so with specificity at the RO. As to the claim for an earlier effective date, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). An application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400(q); see Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Turning to the evidence of record, the Veteran asserts that an effective date of at least April 1996, the date of his last increase for a service-connected cervical spine disability, is warranted for the grant of service connection for LUE radiculopathy. Historically, the Veteran submitted a claim for a left shoulder disorder in January 1990 which was denied in a November 1990 rating decision. He did not appeal this decision and new and material evidence was not received within one year of the decision, and the November 1990 rating decision became final one year later. The Veteran submitted an intent to file on February 23, 2018, and later submitted a claim for service connection in April 2018 for a left shoulder disorder. A July 2018 rating decision granted service connection for LUE radiculopathy secondary to a service-connected cervical spine disability, and awarded an effective date of February 23, 2018, preserving the date that VA received the Veteran's intent to file. Importantly, the Veteran does not assert, and the record does not show, that there was a procedural error in that there was no missed, unadjudicated claim, or notice of disagreement. Specifically, after the initial claim in January 1990 was denied, there was no additional evidence or new claim received. Thus, the November 1990 rating decision is final, and there is no basis for an earlier effective date. Instead, the Veteran asserted on the January 2020 VA Form 9 and testified at the December 2020 Board hearing, that there was a CUE in the prior denial of his left shoulder disorder. Specifically, he asserts that several VA examiners found that he had LUE radiculopathy which was associated with his already service connected cervical spine disability. However, as noted, the issue of whether there was CUE in any prior rating decision has not been considered by the RO or previously raised with any degree of specificity prior to RO adjudication. As such, and since the AOJ has not adjudicated this matter, the Board does not have jurisdiction to review this matter. Thus, the November 1990 rating decision is final. The effect of this finality is to preclude an award of an earlier effective date for service connection based on that decision without a showing of clear and unmistakable error, which has not been properly adjudicated by the AOJ. As such, an effective date earlier than February 23, 2018, is not warranted for the grant of service connection for LUE radiculopathy. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yacoub, 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.