Citation Nr: 21005784 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 17-02 800 DATE: February 2, 2021 ORDER Entitlement to an effective date earlier than April 17, 2015 for the grant of service connection for a traumatic brain injury (TBI) is denied. Entitlement to an effective date earlier than April 17, 2015 for the grant of service connection for migraine headaches also is denied. FINDINGS OF FACT 1. The Veteran originally filed a claim for service connection for a TBI in October 2002, which was denied by the local regional office (RO) in an April 2003 rating decision. 2. The Veteran did not file a Notice of Disagreement (NOD) in response to that earlier decision to initiate an appeal of it; therefore, that April 2003 rating decision became final and binding based on the evidence then of record.   3. In April 2011, the Veteran again filed a claim for service connection for a TBI, also a claim for service connection for migraine headaches, both of which were denied in a June 2013 rating decision. 4. In July 2013, in response, he filed a NOD to initiate an appeal of that decision, and the RO resultantly provided him a Statement of the Case (SOC) in April 2014, but he did not then complete the steps necessary to “perfect” his appeal to the Board by also submitting a timely Substantive Appeal (VA Form 9 or written equivalent). 5. 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. 6. On April 17, 2015, so about a month later, the Veteran submitted a VA Form 21-526EZ, Fully Developed Claim (concerning these same disabilities), and his claims subsequently were granted in a December 2015 RO rating decision with an effective date coinciding with the date of receipt of his most recent claims for these disabilities (i.e., the date he re-filed these claims on VA Form 21-526EZ). CONCLUSION OF LAW The criteria are not met for an effective date earlier than April 17, 2015, for the grants of service connection for the TBI and migraines. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.400. See also 79 Fed. Reg. 57660 (Sept. 25, 2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1974 to November 1974 and from June 1979 to February 1981. In February 2020, in support of these claims for an earlier effective date for his TBI and migraines, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge of the Board (Travel Board hearing). A transcript of the proceeding is of record. In his hearing testimony, the Veteran argued that the effective date of his award should go back to when he filed his claim in April 2011 because he is “100 percent positive” he submitted the required Substantive Appeal (VA Form 9) to complete the steps necessary to perfect his earlier appeal to the Board. In the prior “legacy” system then in effect, an appeal to the Board consisted of the timely filing of a NOD but also, after receipt of a SOC, the timely filing of a Substantive Appeal (VA Form 9 or written equivalent). 38 C.F.R. § 20.200 (2011). For the reasons and bases that will be discussed, the Board finds that the existing effective date is correct according to the applicable statutes, VA regulations, and caselaw. There is no legal basis for granting any earlier effective date, especially absent the required timely filing of that earlier needed VA Form 9 or written equivalent. The effective date for an award of compensation based on an original claim 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. With respect to claims to reopen, an effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii); see also Jones v. Shinseki, 619 F.3d 1368, 1371 (Fed. Cir. 2010) (noting for an award based on a claim reopened after a final adjudication, the effective date is typically the date that the request to reopen was filed). There is no provision in either statute or VA regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error (CUE) was committed in a prior decision, or unless the new and material evidence resulted from receipt of additional relevant service department records. See 38 U.S.C. § 5110(i); 38 C.F.R. §§ 3.105, 3.156(c). Here, by way of relevant procedural history, the Veteran’s original claim of entitlement to service connection for a TBI was received in October 2002, but subsequently was denied in an April 2003 rating decision. He did not file a NOD in response to that decision to initiate an appeal of it; therefore, that April 2003 rating decision became final and binding based on the evidence then of record. In April 2011, the Veteran again filed a claim for service connection for TBI, also for service connection for migraines, both of which were denied in a June 2013 rating decision. In July 2013, in response, he filed a NOD to initiate an appeal of that decision, and the RO resultantly provided him a SOC in April 2014. However, although he steadfastly maintains that he then also submitted a timely VA Form 9 to complete the steps necessary to “perfect” that earlier appeal to the Board, the record is devoid of any confirmation this necessary document was received by VA within the time required. “Date of receipt” generally means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Also, notably, the Veteran did not present any new and material evidence within a year following issuance of that April 2014 SOC. Therefore, absent a “perfected” appeal, the RO’s June 2013 decision denying the claims became a final and binding determination based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.1103. It was not until April 17, 2015, when the Veteran submitted a VA Form 21-526EZ, Fully Developed Claim, requesting to reopen his claims for service connection for TBI and migraines. His claims eventually were granted in a December 2015 RO rating decision with an effective date of April 17, 2015, since the date he had filed his petition to reopen these claims.   Significantly, with just few exceptions, RO rating decisions are final when issued. 38 C.F.R. § 20.1103. Thus, the RO’s June 2013 rating decision denying service connection for TBI and migraines became final and binding on June 15, 2013, the date the RO issued that earlier decision, since, as mentioned, there is no evidence of record showing the Veteran filed the required timely Substantive Appeal, VA Form 9 or written equivalent, in response to the SOC, or alternatively presented any new and material evidence – including records concerning his service (e.g., military personnel records (MPRs) or service treatment records (STRs)) during the immediately ensuing year after receiving notification of the April 2014 SOC (meaning from April 2014 to April 2015) or that were not part of the file when the RO adjudicated his claims. Additional STRs were received in May 2015, but only after he had refiled his claims on April 17, 2015. Because of the “finality” (res judicata) of the June 2013 RO rating decision earlier considering and denying these claims, there is no legal authority for the Board to assign an effective date prior to April 17, 2015, for the eventual grants of service connection for the TBI and migraines. When there was a prior decision on the claims (here, the RO’s June 2013 rating decision), and it becomes final and binding, the effective date of a subsequent award of service connection is the date of receipt of the reopened claim, not instead the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). In Sears, the Court held that, “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” 16 Vet. App. at 248. The Board acknowledges the Veteran’s sincere belief that he submitted a timely VA Form 9 to perfect his appeal to the Board after the prior denial of his claims, and therefore the effective date of his awards should go back to that earlier point in time. But there is simply no evidence of record in support of this assertion. By law, with respect to claims to reopen, an effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii).   Accordingly, the earliest possible effective date for the grants of service connection for the TBI and migraines is April 17, 2015, since that is when the Veteran re-filed these claims (i.e., submitted the petition to reopen them). As there is no legal entitlement to an earlier effective date, the claims for same must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.