Citation Nr: 21008525 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-34 024 DATE: February 17, 2021 ORDER Entitlement to an earlier effective date prior to February 4, 2015 for the grant of service connection for glaucoma is denied. FINDINGS OF FACT 1. The Veteran filed a petition to reopen the claim for service connection for glaucoma in July 2004; the claim was denied in a September 2004 rating decision. 2. On February 4, 2015, the Veteran filed a petition to reopen the claim for service connection for glaucoma. CONCLUSION OF LAW The criteria for an earlier effective date prior to February 4, 2015 for the grant of service connection for glaucoma have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1969 to May 1999. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Subsequently, the Board remanded the matter for further development in November 2019. During the August 2019 Board hearing, the Veteran asserted there was clear and unmistakable error (CUE) in the April 2000, August 2001, and September 2004 rating decisions that denied service connection. In November 2019, the Board found that the RO had not adjudicated this issue and remanded the matter to have the RO adjudicate the CUE claim. Although the RO did comply with the November 2019 remand directives, the Board’s order was erroneous under applicable precedent, as the CUE claim is not inextricably intertwined with the earlier effective date claim adjudicated below. While both are methods by which the Veteran may obtain an earlier effective date, they are separate processes, each with distinct requirements for entitlement. See Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that a CUE motion and earlier effective date claim are not the same because while the effective-date element flows directly from the award of service connection, an assertion of CUE may be brought at any time and is premised upon an error in a prior final RO adjudication). Accordingly, the Board does not have full jurisdiction of the CUE claim at this time. The Board notes that the Veteran may file a notice of disagreement (NOD) with the October 2020 rating decision. Entitlement to an Earlier Effective Date The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, the Veteran submitted a claim to reopen his previously denied claim for glaucoma in July 2004. In a September 2004 rating decision, the claim was denied. The Veteran did not file a timely NOD with this decision, nor did he submit new and material evidence within one year of the decision. Thus, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. (The Board reiterates that the Veteran’s contention of CUE in the September 2004 rating decision is a separation issue and is not currently before the Board at this time.) On February 4, 2015, the Veteran filed a claim to reopen his previously denied claim for glaucoma. A May 2015 rating decision granted service connection for glaucoma and assigned an effective date of February 4, 2015. The Veteran filed the instant NOD contesting the effective date for the award of service connection. After review of the record, the Board does not find that an earlier effective date is warranted. The Veteran does not contend nor does the evidence reflect that the most recent claim to reopen was filed earlier than February 4, 2015. Additionally, there are no earlier communications in the record that can reasonably be interpreted to be an informal claim to reopen. Accordingly, the earliest effective date for the award of service connection is February 4, 2015. As discussed earlier, the Board is cognizant that the Veteran’s main contention is to challenge the April 2000, August 2001, and September 2004 rating decisions on the basis of CUE. However, that issue is not within the Board’s jurisdiction at this time.   While the Board is sympathetic to the Veteran’s claim, under the applicable earlier effective date regulations, February 4, 2015 is the earliest date for the award of service connection for glaucoma. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Because the preponderance of the evidence is against the claim for an earlier effective date, the benefit of the doubt doctrine is not for application, and the appeal is denied. 38 C.F.R. § 3.102. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.