Citation Nr: 21025014 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 16-22 751 DATE: April 27, 2021 ORDER Entitlement to an earlier effective date prior to April 23, 2014 for the grant of service connection for shrapnel injury of the right upper extremity is denied. FINDINGS OF FACT 1. The January 1970 and February 2007 rating decisions are final as to the assigned disability rating for the Veteran’s right shoulder wound. 2. On April 23, 2014, the Veteran filed an informal claim regarding his right shoulder. CONCLUSION OF LAW The criteria for an earlier effective date prior to April 23, 2014 for the grant of service connection for shrapnel injury of the right upper extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1966 to June 1969. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Subsequently, the Board remanded the matter for further development in July 2020. During the May 2019 Board hearing, the Veteran asserted there was clear and unmistakable error (CUE) in the January 1970 rating decision in that the agency of original jurisdiction (AOJ) only adjudicated the claim for right shoulder scarring as opposed to a claim for right shoulder muscle or joint disability. In July 2020, the Board found that the AOJ had not adjudicated this issue and remanded the matter to have the AOJ adjudicate the CUE claim. The Board notes that the Veteran may file a notice of disagreement (NOD) with the November 2020 rating decision that denied CUE. Without the filing of an NOD on this issue, the Board finds that it does not have appellate jurisdiction to further consider the CUE claim. See Phillips v. Brown, 10 Vet. App. 25 (1997). The Board will proceed with consideration of the issue in appellate status, entitlement to an earlier effective date. Entitlement to an Earlier Effective Date The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, the Veteran filed a claim for a right shoulder disability in August 1969. A January 1970 rating decision granted service connection for a right shoulder wound, scar and awarded a 10 percent rating pursuant to Diagnostic Code 7804. At the time, the AOJ noted that a muscle group wound was not established and inasmuch as there was retained foreign body the disability was rated as equivalent to tender scar. In May 2006, the Veteran filed a claim for right shoulder pain. A February 2007 rating decision continued the 10 percent rating for the Veteran’s right shoulder wound, scar, noting that there was no evidence of deformity, swelling, atrophy, or neurological deficiency. The Veteran did not file a timely NOD with this decision, nor did he submit new and material evidence within one year of the decision. Thus, the decision became final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. (The Board reiterates that the Veteran’s contention of CUE in the January 1970 rating decision is a separate issue and is not currently before the Board at this time.) On April 23, 2014, the Veteran filed an informal claim; and on November 24, 2014, the Veteran filed a formal claim for right shoulder/upper arm and right triceps. A February 2015 rating decision granted service connection for shrapnel injury, right upper extremity (muscle group III) and shrapnel injury, right upper extremity (muscle group VI) and assigned an effective date of April 23, 2014. The Veteran filed the instant NOD contesting the effective date for the award of service connection. After review of the record, the Board does not find that an earlier effective date is warranted. The Veteran does not contend nor does the evidence reflect that the most recent claim was filed earlier than April 23, 2014. Additionally, there are no earlier communications prior to April 23, 2014 in the record that can reasonably be interpreted to be an informal claim. Moreover, considering the one-year period prior to the November 2014 formal claim, the medical evidence of record is negative for any ascertainable increase in disability of the Veteran’s right shoulder disability prior to April 23, 2014. Accordingly, the earliest effective date for the award of service connection for shrapnel injury to the right upper extremity affecting muscle group III and muscle group VI is April 23, 2014, the date of the Veteran’s informal claim. As discussed earlier, the Board is cognizant that the Veteran’s main contention is to challenge the January 1970 rating decision on the basis of CUE. However, that issue is not within the Board’s jurisdiction at this time. While the Board is sympathetic to the Veteran’s claim, under the applicable earlier effective date regulations, April 23, 2014 is the earliest date for the award of service connection for shrapnel injury of the right upper extremity. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, as the preponderance of the evidence is against the claim for an earlier effective date, the benefit of the doubt rule is not for application, and the appeal is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, 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.