Citation Nr: 21031163 Decision Date: 05/20/21 Archive Date: 05/20/21 DOCKET NO. 18-28 493A DATE: May 20, 2021 ORDER Entitlement to an effective date prior to November 23, 2004 for the grant of service connection for a lumbar spine disability is denied. FINDING OF FACT The claim upon which the grant of entitlement to service connection for diabetic nephropathy was based was filed on November 23, 2004, and no document that can be construed as a claim of entitlement to service connection for this disability was received between the prior final denial in June 2000, and this date; the July 1982 claim became final after it was denied in the April 1996 decision. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to November 23, 2004, for the grant of service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1 (p), 3.155, 3.156(b), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1962 to April 1981. This matter comes to the Board on appeal from a September 2014 Regional Office (RO) decision, which granted service connection for the Veteran's lumbar spine disability and assigned an effective date of November 23, 2004. The Veteran testified at a virtual hearing before the undersigned in March 2021; a transcript of the hearing is of record. Entitlement to an effective date prior to November 23, 2004 for the grant of service connection for a lumbar spine disability is denied. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim 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. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). "Claim" is defined broadly to include 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 an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Here, the Veteran filed a claim for service connection for phlebitis in July 1982. Service treatment records show treatment for phlebitis in the legs in June 1982. The Veteran's claim was denied in October 1982. In August 1983, the Veteran submitted a statement to the VA indicating that he wished to reopen his claim for service connection, and that his previously denied claim for phlebitis has subsequently been diagnosed as spinal stenosis, and that he was recently treated at Bethesda Naval Hospital for the condition from August 2, 1983 to August 12, 1983. He asked VA to obtain those records for reported his back surgery. No action was taken on the Veteran's request, until he filed a claim for service connection for a back injury in February 1996. At that time, the Veteran again reported his treatment at the Naval Hospital and provided releases for VA to obtain the records. An April 1996 response from the Naval Hospital stated that no records were available. Service connection for a back disability was denied in an April 1996 rating decision, and the Veteran did not appeal that denial. The matter was again denied in unappealed rating decision in June 2000. The Veteran submitted a statement asking to reopen his claim on November 23, 2004, and the matter was denied in February 2005 and June 2005 rating decisions due to a lack of new and material evidence. The Veteran submitted another claim in December 2006 and the matter was again denied in a March 2007 rating decision which was ultimately appealed to the Board, resulting in a reopening of the Veteran's claim in a May 2014 remand. That decision notably found that the June 2005 denial was final. The Veteran was granted service connection for a low back disability in a September 2014 rating decision which is the subject of the current appeal. He was given an effective date of November 23, 2004, the day he requested a reopening of the final June 2000 denial. The Veteran contends that the effective date of his grant of service connection should precede November 23, 2004, specifically asserting that his effective date should reflect the date of his claim in 1982 or 1983. Generally, when granting entitlement to service connection for a disability in response to an application to reopen a claim that had previously been denied, VA cannot assign an effective date earlier than the date of receipt of the application to reopen. See 38 U.S.C. § 5110 (a); see also 38 C.F.R. § 3.400 (r) (effective date of reopened claim is date of receipt of claim or date entitlement arose, whichever is later); Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) ("The earliest effective date for an award based on a veteran's request to reopen a final decision based on new and material evidence is generally the date that the application to reopen was filed"). The Veteran asserts that the July 1982 claim, and subsequent denial in October 1982, remained open and did not become final, as no action was taken on his August 1983 statement. Thus, he asserts, the effective date of the grant of service connection for his back disability should be the date of his July 1982 claim, as it remained open until the grant of service-connection. The Board disagrees. A pending claim is addressed when a subsequent claim for the same disability is explicitly adjudicated. Myers v. Principi, 16 Vet. App. 228, 229 (2002). If there is no final denial of the original claim prior to the granting of a subsequent "claim," then as part of the appeal of the effective date of the grant, the claimant can raise the fact that he or she filed the original claim for the disability on a date earlier than that of the claim that was subsequently granted. Ingram, 21 Vet. App. at 243. If a claim is left pending, it can be addressed when a subsequent "claim" is processed. Ingram v. Nicholson, 21 Vet. App. 232, 240-41 (2007). While the Veteran is correct that his July 1982 claim was not promptly adjudicated, as discussed above, the RO later adjudicated the service connection claim in the April 1996 rating decision. Thus, his initial July 1982 claim remained pending until the April 1996 denial. As reflected in the April 1996 rating decision, the RO considered the evidence of record at that time, which included attempts to obtain the records referenced by the Veteran in his August 1983 communication, and determined that service connection for a back disorder was not warranted. The Veteran did not appeal the April 1996 rating decision, and that rating decision is final. As the April 1996 rating decision is final, there is no basis to grant an effective date back to July 1982 for the award of service connection in this case, and the argument in support of such fails. Moreover, the record does not contain any statements or evidence during the June 2000 final denial and the November 23, 2004 statement to constitute a claim. Therefore, the Board finds that the effective date for his service-connected back disability can be no earlier than November 23, 2004. 38 C.F.R. § 3.158 (a); Sabonis v. West, 6 Vet. App. 426 (1994); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board is sympathetic to the Veteran's situation; however, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. In the absence of any claim, either formal or informal, of entitlement to service connection for a back disability since the June 2000 final rating decision and the Veteran's November 23, 2004 statement, there is no basis under law to assign an earlier effective date. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the Board finds that the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Baker, 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.