Citation Nr: A21019158 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 200708-101998 DATE: December 1, 2021 ORDER Entitlement to an effective date prior to January 12, 2018, for the grant of service connection for costochondritis is denied. FINDINGS OF FACT 1. An August 1994 rating decision denied the Veteran's claim for service connection for chest pain. He was notified that same month, but did not appeal that decision within one year, nor was new and material evidence submitted within one year. As a result, that decision became final. 2. The Veteran's intent to file a claim was received on January 12, 2018. In May 2018, VA received his claim to reopen service connection for chest pain. CONCLUSION OF LAW The criteria for an effective date prior to January 12, 2018, for the grant of service connection for costochondritis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1984 to December 1983. The rating decision on appeal was issued in October 2019; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. The Veteran timely appealed this decision to the Board and requested a hearing, which was held by the undersigned in January 2021. As the Veteran requested the hearing lane, the Board may consider evidence at the time of the October 2019 rating decision and evidence submitted at the January 2021 Board hearing, including the Veteran's testimony, and any evidence submitted within 90 days thereafter. During the hearing, testimony was taken on the issue addressed herein, as well as issues regarding service connection for depression, anxiety, bilateral hearing loss, tinnitus, a neck disability, cholesterol and hypertension, and increased ratings for bilateral knee and foot disabilities. The Board notes that a July 2021 Board decision granted service connection for posttraumatic stress disorder (claimed as anxiety and depression). The claims for service connection for a neck disability, cholesterol and hypertension are separately docketed, and, therefore, the Veteran will receive a decision on those issues at a later time. However, the claims for service connection for bilateral hearing loss and tinnitus, and increased ratings for bilateral knee and foot disabilities are not before the Board. Specifically, the Veteran's claim pertaining to his left knee stems from a June 2018 rating decision, and the claims pertaining to bilateral hearing loss, tinnitus, and right knee and foot disabilities stem from a December 2018 rating decision. Of these issues, only a Notice of Disagreement was filed for bilateral hearing loss and tinnitus, in June 2019. While a Statement of the Case was issued in March 2020 addressing bilateral hearing loss and tinnitus, the Veteran did not perfect an appeal within 60 days of the Statement of the Case. Accordingly, none of the aforementioned issues are on appeal before the Board. Entitlement to an Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance 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. There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant military records. See 38 U.S.C. § 5110 (i); 38 C.F.R. §§ 3.105, 3.156(c). Here, the Veteran's claim for chest pain was originally denied in June and August 1994 rating decisions. While a VA examination noted chest pain, the Agency of Original Jurisdiction (AOJ) found that there was no chronic disability related to chest pain. The Veteran did not submit a timely Notice of Disagreement nor was new and material evidence received within the remainder of the appeal period. Thus, the August 1994 rating decision is final. See 38 U.S.C. § 7105 (c); 38 C.F.R. § 3.156, 20.200, 20.202, 20.1103. The effective date currently assigned, January 12, 2018, is the date VA received the Veteran's VA Form 21-0996 Intent to File a Claim. In May 2018, VA received the Veteran's formal claim for chest pain, diagnosed as costochondritis. The Veteran's argument is essentially that he was misdiagnosed at the time of the August 1994 denial. Even assuming, for the sake of argument, that his condition was misdiagnosed then, a misdiagnosis does not void the finality of a prior denial and cannot entitle the Veteran to an earlier effective date for the grant of service connection. Given that the August 1994 rating decision is final, it is not subject to revision absent clear and unmistakable error (CUE) in the decision. 38 U.S.C. § 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than that of a final decision). In this regard, while "CUE" was written by the Veteran's representative on his VA Form 10182, CUE has not been alleged with any specificity, as is required. The Veteran's statements address problems with his early medical treatment, specifically, his contention that he was misdiagnosed. His statements do not reasonably raise allegations that the correct facts as they were known at the time of the decision were not before the AOJ or that the AOJ improperly applied legal provisions then in effect. Accordingly, a claim of CUE has not reasonably been raised, and the prior August 1994 final rating decision is a legal bar to an earlier effective date for the grant of service connection for costochondritis. Accordingly, an effective date prior to January 12, 2018, is not warranted. In this regard, given the finality of the August 1994 rating decision, the effective date of the grant of service connection cannot, by regulation, be earlier than the date of the Veteran's new claim for the benefit filed after the last, final disallowance of his earlier claim. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(1)(ii). The effective date currently assigned, January 12, 2018, is the date VA received the Veteran's VA Form 21-0996 Intent to File a Claim. While the Board is sympathetic to the Veteran, it is bound by the applicable statutes and regulations. 38 U.S.C. § 7104 (c). Therefore, an effective date prior to January 12, 2018, for the grant of service connection for costochondritis is not warranted. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.