Citation Nr: 21013942 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-10 386 DATE: March 10, 2021 ORDER Entitlement to an effective date prior to April 14, 2017, for the award of service connection for cervical spine degenerative disc disease (DDD), is denied. Entitlement to an effective date prior to April 14, 2017, for the award of service connection for right shoulder degenerative arthritis, is denied. FINDINGS OF FACT 1. VA received the Veteran’s original claim for service connection for a cervical spine disability and a right shoulder disability on February 9, 2010, which was denied in a rating decision issued on March 24, 2011. The Veteran filed a notice of disagreement and a statement of the case was issued in August 2014, but the Veteran withdrew his pending appeal in September 2014. 2. VA received the Veteran’s claim to reopen claims for service connection for a cervical spine disability and a right shoulder disability on April 14, 2017, and service connection for both disabilities was granted in a rating decision issued in September 2017. 3. Prior to the April 14, 2017, claim, there were no pending requests for service connection for a cervical spine disability or a right shoulder disability that remained unadjudicated, nor were new and relevant service department records associated with the file at any point after the August 2014 statement of the case. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 14, 2017, for the award of service connection for cervical spine DDD, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400. 2. The criteria for an effective date prior to April 14, 2017, for the award of service connection for right shoulder degenerative arthritis, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1, 1991, to January 30, 1998. The Veteran had additional service from January 31, 1998, to March 20, 2009. However, in an August 2010 administrative decision, VA determined that the Veteran’s period of service from January 31, 1998, to March 20, 2009, was dishonorable, and therefore compensation benefits may not be awarded based on that period of service. 38 C.F.R. § 3.12. As such, the Board will focus only on the Veteran’s period of honorable service from October 1, 1991, to January 30, 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in September 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) in October 2020. A transcript of the hearing is of record. The Board notes that during the pendency of the current appeal, the Veteran and his representative stated that they believed the RO committed clear and unmistakable error (CUE) in a March 2011 rating decision where the RO denied service connection for cervical spine and right shoulder disabilities. CUE claims are distinct claims involving separate legal provisions and considerations. See Phillips v. Brown, 10 Vet. App. 25, 30 (1997); see also Nacoste v. Brown, 6 Vet. App. 439, 442 (1994). When there is an allegation of CUE in a RO decision, absent a specific adjudication of a CUE claim by the RO and a subsequent perfection of an appeal of that adjudication to the Board, the Board cannot take jurisdiction of the matter. See Jarrell v. Nicholson, 20 Vet. App. 326, 332–33 (2006). Here, the RO has not adjudicated a claim of CUE in the March 2011 rating decision, instead only addressing the Veteran’s contentions that an earlier effective date is warranted. As the Board does not have jurisdiction over a claim of CUE in the March 2011 rating decision, the Board will not address the allegations of CUE here. If the Veteran wishes to file a CUE claim with respect to the March 2011 rating decision, he is invited to do so. Finally, as CUE claims are considered wholly separate claims, any future CUE claim is not prejudiced by the Board proceeding to address the effective date claims herein. Effective Date Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(r) (2018). If, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant service department records that existed and had not been associated with the file at the time of the prior decision, VA will reconsider the claim de novo. 38 C.F.R. § 3.156(c)(1). “Relevant” means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 1341–43 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. An award made based either entirely or in part on such service department records will be effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c)(3). This exception does not apply to records that VA could not have obtained when it decided the claim originally because the records did not exist at the time of the original decision or because the claimant failed to provide sufficient information for VA ot identify and obtain the records from the appropriate sources. 38 C.F.R. § 3.156(c)(2). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. Under the law prior to the amendment, a claim was defined as 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) (2014) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2014) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, in cases involving previously denied claims reports of examination or hospitalization from VA or a uniformed service or private medical records may constitute informal claims to reopen. 38 C.F.R. § 3.157(b). Upon receipt of an informal claim for benefits, if a formal claim for benefits had not been filed, VA was required to provide the Veteran with a formal claim form for the Veteran to complete and return. 38 C.F.R. § 3.155(a) (2014). If a formal claim for benefits was then filed within one year of the date the formal claim form was sent to the Veteran, the formal claim was considered to have been filed as of the date of receipt of the informal claim. Id. Following the March 2015 amendment, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151 (2017). A veteran may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b) (2017). Upon receipt of the intent to file a claim, VA must provide the claimant with the appropriate claims form. Id. If a complete application for benefits on the form prescribed by the Secretary is received by VA within one year of receipt of the intent to file, VA will consider the formal claim to have been filed as of the date the intent to file a claim was received. Id. An intent to file a claim must be submitted using one of three approved methods and must identify the general benefit and the claimant. Id. Entitlement to earlier effective dates for the awards of service connection for cervical spine DDD and right shoulder degenerative arthritis. As an initial matter, as the facts and analysis for the Veteran’s two effective date claims are essentially identical, the Board will address them together for the purposes of brevity. The facts of the instant appeal are generally not in dispute. VA received an informal claim for service connection for a bilateral shoulder disability and a neck disability on February 9, 2010, and the Veteran then filed a formal claim for service connection for both disabilities on March 9, 2010. 38 C.F.R. § 3.155(a). In a rating decision issued in March 2011, the RO denied service connection for both disabilities. The Veteran filed a notice of disagreement on March 24, 2011, and a statement of the case was issued on August 13, 2014. On September 17, 2014, the Veteran submitted a signed, prepared statement stating that in light of a decision to grant several issues he wished to withdraw all remaining issues contained any statements of the case or supplemental statements of the case, and that he wished for the RO to discontinue all development on those issues. 38 C.F.R. § 20.204 (2014). The Veteran did not subsequently submit a timely substantive appeal in response to the statement of the case. 38 C.F.R. §§ 20.200, 20.202, 20.204, 20.302. As the Veteran withdrew his pending appeal of the denials of service connection for cervical spine DDD and a right shoulder disability, and thus did not fully perfect an appeal to the Board, the March 2011 rating decision is final. 38 C.F.R. §§ 20.204, 20.1103. The Veteran subsequently filed a claim to reopen service connection for a cervical spine disability and a right shoulder disability that was received on April 14, 2017. The RO then reopened and granted both service connection claims in a September 2017 rating decision. During the period between the August 2014 statement of the case and the April 2017 claim to reopen, no correspondence was received from the Veteran which expressed any intent to apply for benefits generally or for service connection for either disability specifically. See Sellers v. Wilkie, 30 Vet. App. 157, 162–64 (2018); see also Shea v. Wilkie, 926 F.3d 1362, 1369–70 (Fed. Cir. 2019). No intent to file forms were received within the one year prior to the Veteran’s April 14, 2017, formal claim to reopen. Based on the foregoing, the appropriate date of claim in this case is April 14, 2017, the date of the Veteran’s claim to reopen the previously denied claims for service connection for cervical spine DDD and a right shoulder disability. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(r). In support of his claim for an earlier effective date for the award of service connection for both disabilities, the Veteran argued in his September 2017 notice of disagreement that he submitted new, relevant service department records which warranted an effective date as of his original, previously denied claim for compensation. 38 C.F.R. § 3.156(c)(3). The Board notes that in April 2017, along with his claim to reopen, the Veteran submitted copies of service treatment records. The September 2017 rating decision then referenced these service treatment records in its decision to reopen and then grant service connection for cervical spine DDD and a right shoulder disability. 38 C.F.R. § 3.156(c). However, in this case the records received on April 2017 were not new as they were considered in the August 2014 statement of the case. The statement of the case notes that service treatment records from October 1991 to March 2009 were reviewed, and a review of several packets of service treatment records associated with the file in May 2011 reflect that the records submitted in April 2017 were included in those packets. Specifically, the records uploaded in May 2011 included the submitted record from Weed Army Community Hospital, the nine records from Darnall Army Community Hospital, the two records from the physical therapy clinic at Fort Hood, the April 2001 MRI report, and the two physical profile forms. Indeed, in the Veteran’s subsequent October 2020 hearing, the Veteran and his representative conceded that the records were previously considered, and instead argued that the RO committed CUE in not awarding service connection based upon them, stating that the RO must have missed them in its initial adjudication. As the records submitted in April 2017 were considered by VA at the time of its prior adjudication of the claims for service connection for cervical spine DDD and a right shoulder disability, they are not new and therefore an earlier effective date is not warranted based on them. 38 C.F.R. § 3.156(c)(3). While the September 2017 rating decision noted that these records were new and material evidence, this does not constitute a finding that they were new and relevant within the meaning of 38 C.F.R. § 3.156(c). Indeed, the RO clearly determined that they were not new and relevant as they did not assign an effective date for the awards of service connection as of the date of the previously denied claim. Further, such a finding even if made would not be binding on the Board in adjudicating the current appeal. As such, the Board finds that the service treatment records associated with the file in April 2017 are not new, and therefore the assignment of the date of the Veteran’s previously denied claim as the effective date for the awards of service connection is not warranted. 38 C.F.R. § 3.156(c). Finally, the Board notes that during the hearing before the undersigned, the Veteran and his representative exclusively argued that the RO committed CUE in the prior March 2011 rating decision. However, as noted in the introduction, assertions of CUE in RO decisions are separate claims which must be first adjudicated by the RO and subsequently appealed to the Board. As the issue of whether revision of the March 2011 rating decision on the basis of CUE has not been perfected to the Board, the Board may not address the assertions of CUE herein. Should the Veteran wish to attempt to gain an earlier effective date for the awards of service connection for the cervical spine DDD and the right shoulder disability on the basis of CUE, he must file a CUE claim with the RO. (Continued on the next page)   Based on the foregoing, an earlier effective date for the awards of service connection for cervical spine DDD or a right shoulder disability is not warranted in this case. As stated, the effective date for the award of benefits based on a previously denied claim which is reopened is to be fixed in accordance with the facts found, but may be no earlier than the date of claim. Here, the appropriate date of claim is April 14, 2017, the date the Veteran’s claim to reopen service connection for both disabilities was received. 38 U.S.C. § 5110(a). Use of the Veteran’s previously denied February 2010 claim is not warranted as the Veteran has not submitted new service department records. 38 C.F.R. § 3.156(c). As such, an effective date prior to the already assigned date of April 14, 2017, the date of the claim to reopen service connection for cervical DDD and a right shoulder disability, is not possible. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c), 3.400. For these reasons, the claims for effective dates earlier than April 14, 2017, are denied. Jenna Brant Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wendell, 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.