Citation Nr: 21031881 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 17-31 920 DATE: May 24, 2021 ORDER An effective date prior to January 29, 2015, for the grant of service connection for a right knee disorder, is denied. An effective date prior to January 29, 2015, for the grant of service connection for a left knee disorder, is denied. FINDINGS OF FACT 1. In unappealed December 2000 and June 2006 rating decisions, the Veteran was denied service connection for a bilateral knee disorder. The Veteran did not appeal the decisions, and they became final. 2. After the June 2006 rating decision, the first communication from the Veteran evidencing an intent to reopen the claim of service connection for a bilateral knee disorder was received by VA on January 29, 2015. 3. A March 2021 rating decision denied the Veteran's motions alleging clear and unmistakable error (CUE) in the December 2000 and June 2006 rating decisions; the Veteran has not appealed this determination. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 29, 2015, for the grant of service connection for a right knee disorder, are not met. 38 U.S.C. §§ 5101, 5100, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2020). 2. The criteria for an effective date prior to January 29, 2015, for the grant of service connection for a left knee disorder, are not met. 38 U.S.C. §§ 5101, 5100, 7105; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January1980 to March 2000. These matters are before the Board of Veterans' Appeals (Board) on appeal from the April 2015 and June 2015 rating decisions of a VA Regional Office (RO). The Veteran testified before the undersigned in a July 2019 Travel Board hearing, the transcript of which is included in the claims file. By way of procedural background, the Veteran was awarded service connection for his left knee disability in an April 2015 rating decision. He was granted service connection for the right knee disability in a June 2015 rating decision. The Veteran was assigned an effective date of January 29, 2015 for both knee disabilities. In January 2016, the Veteran filed a Notice of Disagreement (NOD) with the effective dates assigned for his right and left knee disabilities. Statements of the Case (SOC) were issued in May 2017. The Veteran submitted a timely substantive appeal in June 2017 as it pertained to the effective dates assigned for his right and left knee disabilities. As explained in the Board's November 2019 remand, the Veteran's representative first raised contentions of CUE with respect to the claims for earlier effective dates for the awards of service connection for the knee disabilities during the July 2019 Board hearing. See Hearing Transcript at pg. 4. Because the contentions of CUE regarding earlier effective dates had not yet been adjudicated by the AOJ in the first instance, the Board found that it did not have jurisdiction over those claims at that time. See November 2019 Board Remand at pg. 2. As such, the Board remanded these matters for initial adjudication by the AOJ. The Board again remanded these issues in March 2021 as a rating decision had not been issued by the AOJ as to whether there was CUE in the prior December 2000 and June 2006 decisions. Following the Board's 2021 remand, the AOJ issued a rating decision in March 2021, finding that CUE was not shown in either the December 2000 or June 2006 rating decision. As of the date of this decision, the Veteran has not appealed this determination. Earlier Effective Date ClaimsLaws and Analysis As noted above, the Veteran was awarded service connection for his left knee disability in an April 2015 rating decision. He was granted service connection for the right knee disability in a June 2015 rating decision. The Veteran was assigned an effective date of January 29, 2015 for both knee disabilities. In January 2016, the Veteran filed a Notice of Disagreement (NOD) with the effective dates assigned for his right and left knee disabilities. Statements of the Case (SOC) were issued in May 2017. The Veteran submitted a timely substantive appeal in June 2017 as it pertained to the effective dates assigned for his right and left knee disabilities. As such, the Board will consider whether effective dates prior to January 29, 2015 are warranted. In order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by the Secretary must be filed. 38 C.F.R. § 3.151 (a). During the pendency of this appeal, a "claim" or "application" was defined by VA regulation 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). An informal claim is "[a]ny communication or action, indicating an intent to apply for one or more benefits...." 38 C.F.R. § 3.155 (a). 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. Id. The general rule with regard to the effective date to be assigned for an award based on an original claim for VA benefits is that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110 (a). See 38 C.F.R. § 3.400. Further, 38 C.F.R. § 3.400 (q)(2), provides that the effective date of the grant of service connection after the receipt of new and material evidence following a final disallowance is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. If a veteran files an application for service connection with VA, and the claim is disallowed, he has the right to appeal the disallowance to the Board. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302. If he does not initiate an appeal within one year, however, the decision becomes final. See 38 C.F.R. §§ 20.302 (a), 20.1103. With exceptions not applicable here, any award based on a subsequently filed application for benefits which is reopened based on new and material evidence can be made effective no earlier than the date of the new application. See 38 U.S.C. §§ 5108, 5110(a); 38 C.F.R. § 3.400 (q)(2). In this case, the Veteran was initially denied service connection a bilateral knee disorder in a December 2000 rating decision. The claim was denied because there was no diagnosed disability and the evidence did not show that any knee condition was incurred in service or otherwise caused by service. The Veteran was notified of the determination but did not appeal the denial, and new and material evidence was not received within one year of the notice of that rating decision. 38 U.S.C. § 7105; 38 C.F.R. §20.1103. In September 2005, VA received the Veteran's claim to reopen service connection for a bilateral knee disorder. In subsequent June 2006 rating decision, the AOJ denied reopening the claim as new and material evidence had not been submitted. The Veteran was notified of the determination but did not appeal the denial, and new and material evidence was not received within one year of the notice of that rating decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On January 29, 2015, VA received the Veteran's claim to reopen service connection for a bilateral knee disorder. In subsequent April 2015 and June 2015 rating decisions, the RO granted service connection and assigned an effective date of January 29, 2015. After having carefully reviewed the evidence of record, the Board finds that the evidence does not support entitlement to an effective date earlier than January 29, 2015, for the grant of service connection for the right or left knee disabilities. As discussed above, the Veteran did not file a notice of disagreement or new, relevant evidence within one year of the December 2000 or June 2006 rating decisions; as such, the rating decisions became final. On January 29, 2015, the Veteran filed a claim to reopen the previously denied claim for service connection for a knee disorder. The Veteran's claim was subsequently granted, and an effective date of January 29, 2015 was assigned, which the AOJ explained was the date the claim to reopen was received. As explained above, under 38 U.S.C. § 5110 (a), the effective date of an award cannot not be earlier than the date of receipt of the claimant's application. Although previous final determinations may be overturned with evidence of clear and unmistakable error, a review of the record shows that the Veteran's CUE claims have been denied by the AOJ. See March 2021 rating decision. The Veteran has not appealed this determination. Thus, because service connection for both the Veteran's bilateral knee disorder was established from the date his application to reopen was received, it is not possible to grant an earlier effective date for either claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.