Citation Nr: 21010918 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-43 986 DATE: February 26, 2021 ORDER Entitlement to an earlier effective date prior to April 21, 2017, for service connection of decreased lung capacity, shortness of breath, residuals of pneumonia is denied. FINDING OF FACT 1. The Veteran’s claim of entitlement to service connection for decreased lung capacity, shortness of breath, residuals of pneumonia, was denied in November 1989. 2. The Veteran neither appealed the November 1989 rating decision by submitting a notice of disagreement, nor did he submit new and material evidence within one year after notice of the decision. 3. The Veteran filed to reopen the claim for service connection, and in a September 2013 decision, the RO declined to reopen the claim. 4. The Veteran neither appealed the September 2013 decision by submitting a notice of disagreement, nor did he submit new and material evidence within one year after notice of the decision. 5. The VA received the Veteran’s claim to reopen the claim for service connection for a lung disability on April 21, 2017. 6. In February 2018, the RO reopened the claim for service connection for decreased lung capacity, shortness of breath, residuals of pneumonia, and granted service connection, assigning an effective date of April 21, 2017. 7. There were no pending, unadjudicated claims for service connection prior to April 21, 2017. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date than April 21, 2017, for the grant of service connection for decreased lung capacity, shortness of breath, residuals of pneumonia have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1987 to August 1989, and May 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, a Video Conference Board hearing was held before the undersigned. A transcript of the hearing is associated with the Veteran’s claims file. Entitlement to an earlier effective date for service connection of decreased lung capacity of shortness of breath, residuals of pneumonia Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). Appellate review of a rating decision is initiated by a NOD and completed substantive appeal after a SOC has been furnished. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3104(b), 3.105(a). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (“the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed”). In the Sears case, the Court explained that the statutory framework did 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. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. Under VA regulations, a claim includes 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Turning to the facts of this case, in November 1989 the RO issued a decision denying service connection for a lung condition. The Veteran was notified and did not submit a notice of disagreement. Thus, the November 1989 rating decision became final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(b). Then in July 2012, the Veteran filed a claim to reopen service connection for a lung condition, and the RO denied the claim in a September 2013 decision. Again, the Veteran was notified and did not submit a notice of disagreement, hence this decision also became final. In December 2015, the Veteran filed a VA Form 21-0966 (Intent to File [a claim for compensation]). In January 2016, VA sent him a notification letter stating that if he filed a completed application for benefits within a year of the date the intent to file was received, he would be entitled to an effective date of the date of the receipt of the intent to file. This notice also specifically described what would happen if the Veteran’s completed application for benefits was not filed within a year of the intent to file—any awarded VA benefits would be effective the date of claim. On April 21, 2017, the Veteran submitted a claim to reopen service connection for a lung condition. This is more than one year following the receipt of his Intent to File, received in December 2015. The April 21, 2017 application was the next communication from the Veteran requesting to reopen his claim of entitlement to service connection for a lung condition. In February 2018 the RO reopened the claim for service connection, and granted service connection for decreased lung capacity and shortness of breath, residuals of pneumonia, effective April 21, 2017—the date of the claim to reopen. As such, the effective date of the award of compensation, is April 21, 2017—the date of claim to reopen service connection, after a final disallowance. Again, the Veteran never filed a completed application to reopen within one year of his December 2015 Intent to File. Therefore, the April 21, 2017 date is the only possible effective date based upon the facts of this Veteran’s appeal. The Board acknowledges the Veteran’s sincere contention that his effective date should be from the time of the July 2012 filing to reopen his claim, but the law is clear. He did not file a timely substantive appeal within a year of the September 2013 rating decision, which became final, and filed his claim to reopen his claim for service connection on April 21, 2017. The effective date of compensation will not be earlier than the date of receipt of the claimant’s application to reopen. An effective date earlier than April 21, 2017, for the grant of service connection for decreased lung capacity and shortness of breath, residuals of pneumonia is denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Skiouris, 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.