Citation Nr: 21006359 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 16-49 769 DATE: February 3, 2021 ORDER An effective date earlier than July 11, 2007 for the award of service connection for degenerative disc disease (DDD) of the cervical spine is denied. FINDINGS OF FACT 1. In April 1984, the Veteran separated from service; a claim for service connection for a disability of the neck was not received within one year of the date of discharge. 2. An unappealed January 2003 rating decision denied the Veteran’s claim for service connection for a neck disability. He was notified of that decision and apprised of his appellate rights but did not appeal. There was no new and material evidence received within one year of the issuance of that decision. 3. On July 11, 2007, VA received the Veteran’s claim for service connection for a neck disability. 4. There were no informal or formal claims, or written intent to file a claim for service connection for a neck disability, dated after the January 2003 denial and prior to the July 11, 2007 claim. CONCLUSION OF LAW The criteria for the assignment of an effective date earlier than July 11, 2007 for the award of service connection for a cervical spine disability are not met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1963 to April 1984 in the United States Marine Corps. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran testified before the undersigned during a videoconference hearing. A transcript of the hearing is included in the electronic claims file. In April 2020, the Board remanded the claim for further development. 1. An effective date earlier than July 11, 2007 for the award of service connection for DDD of the cervical spine is denied. Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). A claim is a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). VA amended its regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). Additionally, under 38 C.F.R. § 3.157(b), in effect for claims filed prior to March 24, 2015, a report of examination or hospitalization may be accepted as an informal claim for benefits if it meets the requirements of § 3.157(b). Section 3.157(b) provided that receipt of a VA outpatient or hospital examination or admission to a VA hospital could be accepted as an informal claim for increased benefits or an informal claim to reopen "[o]nce a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree." 38 C.F.R. § 3.157 (b). See also Sears v. Principi, 16 Vet. App. 244, 249 (2002). This provision is not applicable here. The Veteran seeks an effective date earlier than July 11, 2007, for the grant of service connection for his cervical spine disability. At the December 2019 hearing and in written correspondence, he reported that he should be assigned an earlier effective date because VA was in constructive possession of particular VA treatment records when his claim was previously denied. He reports that these VA treatment records, dated from 1984 and 1985, serve to establish service connection because they document the presence of arthritis of the cervical spine within one year of discharge, and that VA erred in not considering these records in the prior denials. In a February 2020 brief, the Veteran’s representative cited to Turner v. Shulkin, 29 Vet. App. 207 (2018), in further support of the arguments made at the hearing concerning constructive possession. As a matter of clarification, on questioning at the hearing, the Veteran stated that he is not contending that any relevant service department records were found subsequent to the final denials, but rather, that relevant VA treatment records were found which would have changed the outcome of the prior decisions. The file does not indicate otherwise. As such, this appeal does not involve the receipt of additional service records not considered in the prior final denials. See 38 C.F.R. § 3.156 (c). The Veteran separated from service in April 1984. A claim for service connection for a disability of the neck was not received within one year of the date of his discharge. In a July 2002 rating decision, the RO denied service connection for a neck condition. In the decision, the RO noted that the Veteran had failed to report to a VA examination for the claim. He responded, and requested that the examination be rescheduled. The rescheduled examination took place in November 2002. In a January 2003 rating decision, the RO again denied service connection for a neck condition. The Veteran was notified of his appellate rights. He did not appeal or submit new and relevant evidence within one year, and the January 2003 rating decision became final. The effect of that finality is to preclude an award of an effective date prior to that denial. Following the January 2003 rating decision, on July 11, 2007, VA received a request from the Veteran and his representative to reopen his claim for service connection for a neck disability, via VA Form 21-4138 (Statement in Support of Claim). In a June 2008 rating decision, the RO denied reopening the claim. In September 2008, the Veteran filed a statement expressing his disagreement with the June 2008 denial. The RO overlooked this filing and did not process an appeal of the claim. In December 2014, the Board remanded the matter of whether new and material evidence had been received to reopen the claim for service connection for a neck disability in order to provide the Veteran with a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). While an SOC was not issued in response to the Board’s remand, in the June 2015 rating decision on appeal, the RO granted the claim for service connection for a cervical spine disability. A 10 percent rating was assigned, effective July 11, 2007. Thereafter, the Veteran perfected a timely appeal of the effective date assigned. Because the current effective date of service connection was based upon the date his July 11, 2007 claim was received, the question before the Board is whether there are any earlier claims upon which an earlier effective date of service connection may be granted. On review of the record, however, the Board can point to no communication prior to the July 11, 2007 claim that could be interpreted as a claim for service connection for a disability of the neck. While the Veteran filed written correspondence pertaining to other disabilities, he made no mention of a neck disability or pertinent symptoms in any correspondence received prior to July 11, 2007. It was not until July 11, 2007 that he expressed any intent to apply for service connection for a disability of the neck. Thus, the only date that could serve as a basis for the award of service connection is the date of receipt of the July 11, 2007 claim for service connection. The exact date on which entitlement arose need not be ascertained in order to conclude that the July 11, 2007 date selected by the RO is the earliest possible effective date here. The reason for this is that, to the extent that entitlement arose prior to July 11, 2007, the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Any evidence showing that the entitlement occurred after July 11, 2007 would similarly not entitle the Veteran to an effective date earlier than that already assigned. The Board has considered the Veteran’s arguments concerning VA’s constructive possession of the VA treatment records dated from 1984 and 1985. In Turner, the Court held that for purposes of finality, VA treatment records dated during the appeal period are considered to be in VA's possession even if these records are not physically associated with the claims file at the time of the RO’s decision if the RO had sufficient knowledge of the existence of the records within the one-year appeal period. Recently, in Lang v. Wilkie, 971 F.3d 1348 (2020), the Federal Circuit overruled Turner in pertinent part, holding that VA medical records created within the appeal period following a decision of the agency of original jurisdiction are constructively received for the purposes of 38 C.F.R. § 3.156(b), regardless of whether the VA adjudicator had knowledge of their existence. In essence, as pertinent to a claim for an earlier effective date, VA records constructively received by the VA adjudicator prior to the expiration of the one-year appeal period may support the claim if they contain new and material evidence. Lang, for example, involved a situation where the veteran’s claim was denied by the RO in June 1996, but he continued to receive VA treatment from June 1996 to June 1997. The Federal Circuit held that the VA treatment records generated from June 1996 to June 1997 were in the possession of VA and constructively received by the VA adjudicator. The case was remanded to the Board for a determination of whether the VA treatment records dating from June 1996 to June 1997 constituted new and material evidence, thereby negating the finality of the June 1996 decision. Lang, 971 F.3d at 1355. Here, unlike in Lang, the VA treatment records at issue are dated from 1984 and 1985 and thus were constructively received by VA nearly two decades prior to the January 2003 final rating decision. As such, they cannot constitute new and material evidence to nullify the finality of the January 2003 rating decision. Rather, the Veteran’s argument regarding the 1984 and 1985 VA treatment records essentially amounts to an allegation that VA erroneously denied the claim in January 2003. This argument would be more properly raised as a motion asserting clear and unmistakable error (CUE) in the January 2003 rating decision. At present, a valid CUE claim has not been raised, and the matter of CUE in any prior final rating decision is not in appellate status and is not before the Board. To the extent the Veteran wishes seek revision of any prior final decision on the grounds of CUE, he should so notify the RO in writing, keeping in mind the requirement that the motion must be pled with specificity. Regulations pertaining to CUE challenges are found at 38 C.F.R. § 3.105(a). There is simply no legal entitlement to an earlier effective date for the award of service connection for the Veteran’s cervical spine disability. As such, the claim must be denied. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith, 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.