Citation Nr: 21023099 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-24 345 DATE: April 20, 2021 ORDER An effective date prior to July 11, 2014, for the grant of service connection for scar, status post left thoracotomy, is denied. FINDINGS OF FACT 1. The Veteran had active service from November 1982 to July 1983. 2. The Veteran filed an initial claim for service connection for scar, status post left thoracotomy in July 1983 but did not timely appeal the September 1983 rating decision which denied the claim. He submitted a claim to reopen service connection for the scar, status post left thoracotomy on July 11, 2014, which was ultimately granted and forms the basis of the current effective date. CONCLUSION OF LAW The criteria for an effective date earlier than July 11, 2014, for the grant of service connection for scar, status post left thoracotomy have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.157, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION As an initial matter, in a May 2016 VA form 9, the Veteran requested a hearing before a member of the Board. His hearing was scheduled for April 2019; however, in December 2019, he submitted correspondence withdrawing his request for a hearing. Thus, the hearing request is deemed withdrawn and there is no bar to proceeding with the appeal. Procedurally, in his May 2016 VA form 9, the Veteran also asserted that the 10 percent rating for his service-connected scar, status post left thoracotomy was “less than appropriate to the level and type of injury incurred.” The issues of a rating in excess of 10 percent for his service-connected scar, status post left thoracotomy have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction to decide this issue. If the Veteran wishes to further pursue this issue, he is advised to file a claim on the appropriate form at the AOJ. Turning to the relevant laws and regulations, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be 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. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). The record shows that the Veteran filed a claim for service connection for status post thoracotomy and excision, wedge biopsy, left lower lobe for congenital lobar emphysema, which was denied in September 1983. He did not appeal, and that decision became final. In February 1985, the Veteran filed a claim to reopen his claim for service connection for congenital lobar emphysema, status post left thoracotomy. The RO sent a letter in a September 1985 informing the Veteran that he did not appeal the September 1983 decision within one year and it became final and asking him to submit new and material evidence in order to reopen the claim. The Veteran did not respond to the letter or submit new and material evidence. The next document of record after the February 1985 notice letter is a July 2014 Report of General information (VA Form 27-0820, telephonic) showing that the Veteran filed a re-opened claim for disfiguring scars from his surgery in 1983. Additionally, the Veteran filed a VA Form 21-526EZ received on September 3, 2014 for chronic pain/irritation due to surgery. In August 2015, the AOJ granted service connection for scar, status post left thoracotomy and assigned a 10 percent rating effective date July 11, 2014, corresponding to the date when the Veteran filed an informal claim to reopen his previously denied claim for service connection for scar, status post left thoracotomy. He appealed the effective date, arguing that an effective date of September 1983 was warranted. Importantly, the Veteran’s main assertion seems to be that his effective date is preserved from filing a claim to reopen in February 1985. Specifically, in his October 2015 notice of disagreement, he alleged that the AOJ committed clear and unmistakable error (CUE) in not considering his claim to reopen, filed in February 1985. Unfortunately, as it stands, the issue of CUE must be separately filed with the AOJ in order to considered. In this regard, the Board does not currently have jurisdiction to assess the merits of a CUE without a required degree of specificity and consideration by the AOJ and the Veteran is welcome to file this claim separately for consideration. As the September 1983 decision was final, the date of that decision cannot be the basis of the grant of benefits. As such, July 11, 2014, is the earliest that he filed the subsequent claim which was ultimately granted. In this case, it is the latter date that is the appropriate effective date. Therefore, the current effective date, July 11, 2014, is correct and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. YACOUB Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Grzeczkowicz 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.