Citation Nr: A21020173 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200526-87746 DATE: December 17, 2021 ORDER Entitlement to an effective date prior to April 17, 2019 for a 10 percent disability rating for a painful scar status post stab wound is denied. Entitlement to an effective date prior to April 17, 2019 for service connection for degenerative arthritis of the cervical spine is denied. Entitlement to an effective date prior to April 17, 2019 for service connection for radiculopathy, left upper extremity is denied. FINDINGS OF FACT 1. The September 2000 rating decision which granted service connection and a noncompensable rating for the Veteran's scar is final. 2. The only claim for an increased rating for the scar is April 17, 2019. 3. The earliest effective date the Veteran is entitled to service connection for degenerative arthritis of the cervical spine is April 17, 2019. 4. The earliest effective date the Veteran is entitled to service connection for radiculopathy, left upper extremity is April 17, 2019. CONCLUSIONS OF LAW 1. The criteria for a 10 percent disability rating for a painful scar status post stab wound prior to April 17, 2019 have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400, 20.1104. 2. The criteria for an effective date prior to April 17, 2019 for service connection for degenerative arthritis of the cervical spine have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400, 20.1104. 3. The criteria for an effective date prior to April 17, 2019 for service connection for radiculopathy, left upper extremity have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400, 20.1104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to June 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Legal Criteria The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof. 38 U.S.C. § 5110(a). Analysis 1. Entitlement to an effective date prior to April 17, 2019 for service connection for painful scar status post stab wound. The Veteran contends that he is entitled to an effective date prior to April 17, 2019 for a 10 percent rating for painful scar, status post stab wound, specifically he wants a 10 percent rating from his date of discharge. Evidence of record shows that the Veteran initially filed a claim for service connection for a scar on March 30, 2000. Subsequently a September 2000 rating decision granted service connection for scar, status post stab wound effective March 30, 2000 with a noncompensable disability rating. This rating decision was final as there was no disagreement filed and no new and relevant evidence associated within one year of the rating decision. Subsequently, the Veteran filed an increased rating claim for the scar on April 17, 2019, adjudicated in an August 2019 rating decision, from which this appeal derives. The August 2019 rating decision granted a 10 percent disability rating for the scar based on a July 2019 VA examination. There is no evidence in the year look-back period prior to the Veteran's date of claim that his scar merited a 10 percent disability rating. As such, a compensable rating for a painful scar is not warranted prior to April 17, 2019. Regarding receiving compensation back to the Veteran's date of separation from active service, in Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court held that Appellants are prohibited from collaterally attacking a prior final rating decision by filing a freestanding earlier effective date claim. The Court specifically held that, once a rating decision has become final, as is the case here with the September 2000 rating decision, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an AOJ decision. The Court reasoned in Rudd that to allow such claims would vitiate the rule of finality. See Rudd, 20 Vet. App. at 299. Although there are numerous exceptions to the rule of finality and application of res judicata within the VA adjudication system, a new and distinct claim for an earlier effective date is not one of them. See Rudd, 20 Vet. App. at 300; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the Secretary). In DiCarlo, the Federal Circuit specifically held that, "Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded." Id., at pp. 55-56 (citations omitted). As such, the Veteran's earliest effective date of service connection under the applicable laws and regulations is March 30, 2000. See 38 C.F.R. § 3.400; see Rudd, 20 Vet. App. at 299-300. Entitlement to an effective date prior to April 17, 2019 for a compensable rating for a painful scar status post stab wound is denied. 2. Entitlement to an effective date prior to April 17, 2019 for service connection for degenerative arthritis of the cervical spine. The Veteran contends that he is entitled to an effective date of June 1980 for his service-connected degenerative arthritis of the cervical spine and a 20 percent disability rating. Notwithstanding the Veteran's contentions, the evidence of record shows that the Veteran initially filed for service connection for his cervical spine disability in an April 17, 2019 VA 21-526EZ, Fully Developed Claim. The effective date of a claim shall not be earlier than the date of receipt of the application. Here, there is no evidence that the Veteran filed a claim for entitlement to service connection for degenerative arthritis of the cervical spine prior to April 17, 2019 and thus the Veteran is not entitled to an effective date prior to April 17, 2019. Entitlement to an effective date prior to April 17, 2019 for service connection for degenerative arthritis of the cervical spine is denied. 3. Entitlement to an effective date prior to April 17, 2019 for service connection for radiculopathy, left upper extremity. The Veteran contends that he is entitled to an effective date of June 1980 for his service-connected radiculopathy of the left upper extremity and a 30 percent rating. There is no evidence that the Veteran filed a claim for entitlement to service connection for radiculopathy of the left upper extremity prior to April 17, 2019. The radiculopathy of the left upper extremity was service connected as secondary to the Veteran's cervical spine disability. As discussed the appropriate effective date for service connection for the cervical spine disability, and thus the radiculopathy of the left upper extremity is April 17, 2019, the date of claim. Entitlement to an effective date prior to April 17, 2019 for service connection for radiculopathy, left upper extremity is denied. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Wimbish, 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.