Citation Nr: 21012869 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-01 777 DATE: March 5, 2021 ORDER Entitlement to an effective date before July 22, 2011, for the award of service connection for neuroforaminal stenosis of the lumbar spine, is denied. Entitlement to an effective date before July 22, 2011, for the award of service connection for left knee patellar tendonitis, is denied. Entitlement to an effective date before July 22, 2011 for the award of service connection for right knee patellar tendonitis, is denied. Entitlement to an effective date before July 22, 2011, for the award of service connection for a right eyebrow scar, is denied. FINDINGS OF FACT 1. The August 2006 rating decision that denied entitlement to service connection for neuroforaminal stenosis, left and right knee patellar tendonitis, and a right eyebrow scar is final. 2. The Veteran filed a claim to reopen his previously denied service connection claim for neuroforaminal stenosis, left and right knee patellar tendonitis, and a right eyebrow scar on July 22, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date before July 22, 2011, for the award of service connection for neuroforaminal stenosis of the lumbar spine have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 2. The criteria for an effective date before July 22, 2011, for the award of service connection for left knee patellar tendonitis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 3. The criteria for an effective date before July 22, 2011, for the award of service connection for right knee patellar tendonitis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 4. The criteria for an effective date before July 22, 2011, for the award of service connection for a right eyebrow scar have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1994 to June 1998. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a January 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the Board remanded the Veteran’s claims to schedule him for a hearing. The following May, he testified at a hearing before the Board. A transcript of the hearing is in the Veteran’s claims file. In the interim, the Veterans Law Judge (VLJ) who conducted the hearing retired. In November 2020, VA sent the Veteran a letter asking whether he wanted a new hearing in conjunction with this appeal. It informed the Veteran that if he did not respond within 30 days, the Board would assume that he did not want another hearing. As the Veteran did not respond, the Board will proceed accordingly. In December 2017, the Board remanded the Veteran’s claim for additional development. The case is once again before the Board. Effective Date Absent a statutory exception, the effective date for disability compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Before March 2015, a “claim” could be either “a formal or informal communication.” 38 C.F.R. § 3.1(p) (2014). A formal claim is one that has been filed in the form prescribed by the Secretary. Norris v. West, 12 Vet. App. 413, 416 (1999). An informal claim is “[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant, [or] his or her duly authorized representative.” 38 C.F.R. § 3.155(a); see also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Thus, in determining the appropriate effective date, the Board must identify the earliest nonfinal claim. In May 2006, the Veteran filed a formal claim for service connection for a right eyebrow scar, chronic lower back pain, and a bilateral knee condition, among other disabilities. The following August, the RO denied all four claims, finding no nexus to service, and the Veteran timely disagreed. In January 2007, the RO prepared a Statement of the Case (SOC), confirming and continuing the August 2006 denial. From there, the Veteran must file a Substantive Appeal within 60 days of the date the RO mails the SOC to the Veteran, “or within the remainder of the 1 year period from the date of mailing of the notification of the determination being appealed, whichever period ends later.” 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.302(b)(1). This means the Veteran had until August 2007 to file a Substantive Appeal. When he failed to do so, the August 2006 rating decision became final. 38 C.F.R. § 20.1103. Between the January 2007 SOC and the Veteran’s July 22, 2011, informal claim to reopen, there are no “formal or informal communication[s]” in the Veteran’s claims folder. Accordingly, the Board finds the earliest, nonfinal claim is July 22, 2011. However, there are exceptions to overcoming finality when new and material evidence or service department records are involved. By regulation, when new and material evidence is received within an appeal period, “[t]he effective date will be as though the former decision has not been rendered.” 38 C.F.R. § 3.400(q). New and material evidence can include post-decision medical records that were constructively received by the VA adjudicator before the expiration of the one-year appeal period. Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020). Here, the Veteran submitted no new evidence during the one-year appeal period and the earliest post-decision VA medical records are from August 2012—well after the one-year appeal period expired. As such, the Board finds that 38 C.F.R. § 3.156(b) does not apply to the Veteran’s case. The other exception to finality is found in 38 C.F.R. § 3.156(c), which provides that VA will reconsider a claim after a final decision if it receives “relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.” 38 C.F.R. § 3.156(c)(1). If an award is made based all or in part on the newly associated service records, the effective date is the date VA received the previously decided claim. Id. (c)(3). Here, additional service department records were associated with the claims file in May 2012. Despite being relevant, these records were listed as evidence and expressly considered by the RO when it denied the Veteran’s claims in August 2006. As such, the Board finds these records “had . . . been associated with the claims file when VA first decided the claim.” See id. (c)(1). The only other legal avenue for pursuing an earlier effective date is to file a motion to revise the prior decision based on clear and unmistakable error (CUE). 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. During the May 2016 hearing, the Veteran raised such a claim with the August 2006 rating decision. In December 2017, the Board remanded the case and directed the RO adjudicate the issue. In September 2020, the RO complied and found no CUE in the August 2006 rating decision. To date, the Veteran has not disagreed with the decision. To summarize, the Board makes the following findings: (1) the August 2006 rating decision is final, (2) the earliest nonfinal claim is July 22, 2011, and (3) 38 C.F.R. § 3.156(b) and (c) do not apply. Therefore, the preponderance of the evidence is against the award of an effective date before July 22, 2011, for the award of service connection for neuroforaminal stenosis of the spine, left and right knee patellar tendonitis, and a right eyebrow scar. As a preponderance of the evidence is against the award of an earlier effective date, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Canedy, 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.