Citation Nr: 21010709 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 18-05 947 DATE: February 25, 2021 ORDER Entitlement to an effective date earlier than April 29, 2013 for the grants of service connection for degenerative joint disease (DJD), i.e., arthritis of the left and right shoulders is denied. FINDINGS OF FACT 1. The Veteran filed an initial claim of entitlement to service connection for left and right shoulder disabilities on September 11, 2007. A February 2009 rating decision, however, considered and denied those claims, and that decision became final and binding based on the evidence then of record when she did not appeal it. 2. She later filed a petition to reopen these claims on April 29, 2013, and the effective date of her eventual award of service connection for these disabilities was made retroactive to that date when she had filed her petition to reopen these claims. 3. No communication – either prior to September 11, 2007, or in the interim before April 29, 2013, was received that could be construed as an informal or a formal claim of entitlement to service connection for a bilateral (left and right) shoulder disability. CONCLUSION OF LAW The criteria are not met for entitlement to an effective date prior to April 29, 2013, for the grants of service connection for the left and right shoulder disabilities. 38 U.S.C. §§ 1155, 5110, 5107 (2012); 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from December 1981 to December 1985 and from March to August 1988. This appeal to the Board of Veterans’ Appeals (Board) is from a December 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that increased the ratings for the Veteran’s left and right shoulder disabilities from 10 to 20 percent retroactively effective as of April 29, 2013, so as of the date she had re-filed these claims (i.e., had requested to reopen them) to show they were service-connected disabilities. Her appeal is for an earlier effective date for the grant of service connection for these disabilities – primarily predicated on her filing earlier claims for these same disabilities. The Veteran recently testified in support of this claim for an earlier effective date during a hearing in December 2020 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. Entitlement to an effective date earlier than of April 29, 2013 for the grants of service connection for the left and right shoulder disabilities The Veteran contends that she is entitled to an earlier effective date, specifically, the date her original claim was filed – albeit denied, sometime in the 1995-1997 timeframe or thereabouts. See March 2014 Notice of Disagreement (NOD) and transcript of her December 2020 hearing testimony. However, as will be discussed, she did not file a formal or informal claim for these left and right shoulder disabilities until more recently, in September 11, 2007, and even then she did not appeal that prior decision considering and denying her claims, so the earliest possible effective date she may receive is when she later re-filed these claims (meaning filed the petition to reopen them). And this is the effective date the RO assigned for her award, so the correct effective date. In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance 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). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her 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. 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, 421 (1999). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim providing that "[a]ny communication or action, indicating an intention to apply for one or more benefits . . . [s]uch informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a)(2014). VA then will send a claimant a formal application in response to the informal claim. If the formal application form is returned within 1 year from the date it was sent to the claimant, the effective date for the award of service connection "will be the date of the informal claim." Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (discussing 38 U.S.C. § 5103(a); 38 C.F.R. § 3.155).   The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that a claim for an earlier effective date is a “downstream” element of a grant of service connection and that adjudication of a “free-standing” claim for an earlier effective date violates the rule of finality (res judicata). See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). According to the holdings in Rudd, as the Veteran cannot make a free-standing claim for an earlier effective date without making an assertion of clear and unmistakable error (CUE) in a prior decision, any free-standing claim for an earlier effective date for the assigned rating is not a valid claim. Here, by way of relevant background, the RO first received a formal claim from the Veteran on September 11, 2007. In a February 2008 rating decision, the claim was denied. In November 2008, she filed a request to reopen the claim, but, in a February 2009 rating decision, the claim again was denied. A February 2009 letter sent to her explained the appeal process, in terms of what she needed to do if she disagreed with that decision and wanted to appeal it to this Board and how long she had to do that. She did not in response, however, file an appeal or submit any new and material evidence within the one-year appeal period. As such, that February 2009 rating decision became final and binding on her based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. It was not until well more than a year later, on April 29, 2013, when the Veteran submitted a new claim for service connection for her left and right shoulder disabilities, i.e., a petition to reopen these claims that had been previously considered, denied, and not appealed. She later was granted entitlement to service connection for this bilateral (left and right) shoulder disability in a March 2014 decision. Her left and right shoulder disabilities initially were assigned 10 percent ratings as of April 29, 2013, when she filed her petition to reopen these claims, but, as already alluded to, the ratings since were increased to 20 percent in the more recent December 2017 rating decision – but with the same effective date of April 29, 2013, so again coinciding with the date of receipt of her petition to reopen these claims.   When, as here, claims have been previously considered, denied, and not appealed in an earlier decision, 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. See Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). The Veterans Court (CAVC) held in Sears at 248 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.” Rather, for the Veteran to be awarded an effective date based on an earlier claim, the Veteran must show clear and unmistakable error (CUE) in the prior denial of the claim. See Flash v. Brown, 8 Vet. App. 332, 340 (1995). The Veteran did not appeal the February 2009 rating decision previously considering and denying her original claim of entitlement to service connection for bilateral (left and right) shoulder disability. Thus, an effective date based on that earlier claim since that prior decision became final and binding would require a collateral attack on that prior decision by showing it involved CUE. The Veteran has not alleged CUE in that prior February 2009 rating decision, certainly not with the required specificity or by showing that decision was fatally flawed or egregious (based on the evidence then of record, not more recently submitted or obtained) and that, but for the error, that decision would have been manifestly different. In order to reasonably raise a claim of CUE, the Veteran must provide some degree of specificity as to what the alleged error is. See Simmons v. Principi, 17 Vet. App. 104, 114 (2003); Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). This specific allegation must assert more than merely disagreement with how the facts of the case were weighed or evaluated. In other words, to present a valid claim of CUE, the Veteran cannot simply request that the Board reweigh or reevaluate the evidence. See Crippen v. Brown, 9 Vet. App. 412 (1996). To show that CUE occurred, the evidence must show that the law was incorrectly applied to the facts as they were known at the time and that, had the error not occurred, the decision would have been manifestly different. See Bustos v. West, 179 F.3d 1378 (Fed. Cir. 1999).   There simply is not this required showing here or even, as mentioned, the required specific allegation. If a Veteran fails to adequately plead a CUE claim, the proper remedy is to dismiss the challenge without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). The unfortunate consequences of not appealing the earlier February 2009 decision were explained to the Veteran at length during her December 2020 hearing before this Board, including in terms of the detrimental result on her claim for an earlier effective date. The date of receipt of her claims having been established (i.e., as when she petitioned to reopen these claims on April 29, 2013), the Board next turns to considering whether there is any evidence of an intent to file these claims prior to September 14, 2007, the date of her original claims, or at any point prior to refiling them on April 29, 2013. The Veteran claims that she filed a claim for service connection for her shoulder disabilities in 1995 or 1997, but there is no such indication in the evidence of record. To the contrary, a review of the record shows there was no proper formal or even informal claim for service connection for a bilateral shoulder disability filed earlier than in September 11, 2007. The Veteran did submit claims for service connection for headaches, hearing loss, earaches, dermatitis, and cervical spine disabilities; however, she did not additionally indicate any intention that her bilateral shoulder disability should also be included in those prior claims for service connection. Consequently, there is otherwise no evidence of any earlier formal or informal claim for this bilateral shoulder disability, including any written correspondence that could be reasonably interpreted as an informal claim for service connection for a bilateral shoulder disability. The Board has considered the Veteran’s contention that, since 1990, she has received treatment and had limitations owing to her shoulder disabilities. But 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); see also 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). There equally is no suggestion of any claim – formal or informal – after the February 2009 decision denying the claims and before the Veteran re-filed them on April 29, 2013. Accordingly, her claim for an effective date earlier than April 29, 2013 for the grant service connection for her left and right shoulder disabilities must be denied. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hamm, 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.