Citation Nr: 21005564 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 18-01 950 DATE: February 2, 2021 ORDER An effective date earlier than November 27, 2015, for the grant of service connection for loss of use of the lower extremities is denied. An effective date earlier than November 27, 2015, for the grant of a higher level of special monthly compensation (SMC), at the R-1 rate, also is denied. FINDING OF FACT The earliest claim for loss of use of the lower extremities was received on November 27, 2015. CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than November 27, 2015, for the grant of service connection for loss of use of the lower extremities. 38 U.S.C. §§ 5101, 5107(b); 38 C.F.R. §§ 3.155, 3.157, 3.159, 3.400. 2. The criteria are not met for an effective date earlier than November 27, 2015, for the grant of SMC at the R-1 rate. 38 U.S.C. §§ 5101, 5107(b); 38 C.F.R. §§ 3.155, 3.157, 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran had active military service from September 1972 to September 1975. Effective Date Generally, the effective date of an award of disability compensation based on an original claim 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. If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). If, instead, a claim was not filed within a year of discharge from service, then the earliest possible effective date is when a claim eventually was filed. Contrastingly, for a claim for an increased rating for a disability already determined to be service connected, the effective date is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred – if a complete claim or intent to file a claim is received within 1 year from that date; otherwise, the date of receipt of the claim with be the effective date or the date of entitlement if not shown until after the filing of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year “grace period” for filing a claim following an increase in severity of a service-connected disability). When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection previously has been established. 38 C.F.R. § 3.400(o)(2). Also consider that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implemented the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57660 (Sept. 25, 2014). 1. An effective date earlier than November 27, 2015, for the grant of service connection for loss of use of the lower extremities is denied. 2. An effective date earlier than November 27, 2015, for the grant of a higher level of SMC, at the R-1 rate, also is denied. The earliest date the Veteran filed a claim for loss of use of his lower extremities was on November 30, 2015, when he filed a VA-Form 21-0966 Intent to file for Compensation and/or Pension. Within one year prior to the receipt of that form, there was no correspondence received from him requesting service connection or a “downstream” increased rating for loss of use of his lower extremities or medical records tending to indicate an increase in disability. Moreover, the effective date for an award of service connection is not based on the earliest medical evidence demonstrating diagnosis and/or a causal connection to service, but instead on the date of receipt of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Medical evidence reflecting treatment for and diagnosis of a condition does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155(a) "because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek" service connection for that condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006).   By way of relevant procedural history, in an earlier June 2007 rating decision, the Veteran was granted service connection for a motor neuron injury of his right and left lower extremity. Following that rating decision, in January 2009, he was granted SMC at the S1/2 level. He did not appeal either of those rating decisions. The next correspondence received from him related to a claim for increased rating or service connection for a lower extremity disability was not received until November 30, 2015, when he filed the VA-Form 21-0966. Accordingly, an earlier effective date cannot be assigned for either the grant of service connection for loss of use of his lower extremities or for the award of SMC at the higher R-1 rate. The higher-level SMC rate was granted based on a finding of loss of use of his lower extremities and consequent need for regular aid and attendance (A&A), beginning on November 30, 2015, so coinciding with receipt of his claim. The Board has considered the Veteran’s contention that he had loss of use of both lower extremities earlier than November 30, 2015, specifically, dating back to 2006 or 2007. However, even if true, that does not provide legal grounds for granting an earlier effective date in this instance – especially given the “finality” (res judicata) of the earlier June 2007 and January 2009 rating decisions. A claim for an earlier effective date in this circumstance is not a freestanding claim and, therefore, the ratings assigned in the previous final rating decisions cannot be disturbed. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). In cases, as here, where a prior decision assigning an effective date for an award of service connection or an increased rating has become final and binding, such as because it was not appealed, the method for overcoming the finality of that decision is by collateral attack – meaning a request for revision based on clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). Otherwise, 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 unappealed decision. Rudd, 20 Vet. App. at 300. The Veteran has not alleged CUE in those prior rating decisions, certainly not with the required specificity to suggest they were fatally flawed or egregious or undebatably wrong. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). Accordingly, as there is no indication of a claim for a higher level of SMC or for service connection or increased rating based on the loss of use of the lower extremities prior to November 30, 2015, the claims for an earlier effective date must be denied. See Hillyard v. Shinseki, 24 Vet. App. 343 (2011). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Erdheim 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.