Citation Nr: 21042507 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 18-41 784 DATE: July 13, 2021 ORDER Entitlement to an effective date earlier than July 18, 2017 for the grant of service connection for lumbosacral strain (claimed as lower back pain) is denied. FINDINGS OF FACT 1. The Veteran was denied service connection for lumbosacral strain in a November 2011 rating decision for failure to report for a VA examination. The Veteran was informed of this action under correspondence dated that same month. 2. The Veteran did not appeal the November 2011 rating decision or submit new and material evidence within the requisite appeal period. Therefore, that rating decision became final. 3. In September 2017, the Veteran was granted service connection for lumbosacral strain at 20 percent disabling, effective July 18, 2017, the date his of petition to reopen his claim. CONCLUSION OF LAW The criteria for an effective date earlier than July 18, 2017 for the grant of service connection for lumbosacral strain have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1990 to July 2010. This matter is on appeal to the Board of Veterans' Appeals (Board) from a September 2017 rating decision by the RO. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012. 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. §§ 3.102, 3.156(a), 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that the March 2011 and November 2011 letters sent to the Veteran satisfy the duty to notify. The VCAA also requires the VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). The Veteran underwent a VA examination for his back disability in September 2017. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 556 U. S. 396, 129 S. Ct. 1696 (2009). Entitlement to an earlier effective date for the grant of service connection for lumbosacral strain. The Veteran did not appeal the November 2011 rating decision that denied service connection for his back disability or submit new and material evidence within one year of the rating decision. Therefore that rating decision became final. The record does not show, nor does the Veteran assert, that he filed a formal or informal claim for his back disability after the November 2011 rating decision but before February 3, 2015. On February 3, 2015, the Veteran submitted a Statement in Support of Claim, noting his intent to file a new claim. VA responded in a February 19, 2015 letter, acknowledging the Veteran's claim as an informal claim for benefits and informing him that he needed to reply within a year. However, the record does not contain any evidence of that a claim was filed by February 3, 2016. On July 18, 2017, the Veteran submitted a petition to reopen the claim for service connection for his back disability. In the rating decision on appeal, the RO granted service connection for his back disability with an effective date of July 18, 2017. The effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will 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 for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"); aff'd Sears v. Principi, 349 F.3d 1326 (2003). Even if entitlement arose prior to the date of his petition to reopen, his effective date will be the date of his reopened claim. The only way the Veteran could prevail over the finality of the November 2011 rating decision date is to argue that there was a clear and unmistakable error (CUE) in the final rating decision. The RO addressed CUE in its March 2018 Statement of the Case (SOC). The Veteran believes the effective date should have been in 2010 because he was not properly notified about his VA examination in 2011. At his hearing he testified that he did not receive notice of the VA examination. He stated that he was living in Maryland and was in the process of moving back to Maine, and he thought the notice got lost in the mail forwarding process. On November 10, 2011 a VA examination notice was sent to the Veteran's last known address on record, informing him that his examination was scheduled to take place in Togus on November 28, 2011. The record shows that a phone call between VA and the Veteran took place on November 15, 2011. The report of contact notes that, "[t]his veteran called to cancel his rating exam as he is out of state. H[e] states his wife and kids are in Maine, but would like to have the exam where he is. He will not be back in Main for another month." A November 16, 2011 report of contact notice states that the "Veteran called to request his medical examination be rescheduled. Veteran states he attempted to reschedule the appointment and was told to contact his RO by the medical facility. The Veteran states he will not return to M[aine] until 12/22/2011. Please reschedule Veteran if possible." A written notation on the form dated November 29, 2011 stated, "no new exam[,] no just cause." Six years later, in his September 2017 Notice of Disagreement, was the first time the Veteran raised the issue of failure to receive a timely 2011 VA examination notice as grounds for an earlier rating decision effective date. He said he was not aware of the 2011 VA examination appointment notice until July 2018. However, as noted above, the record contradicts this. The reports of contact where the Veteran spoke with VA employees show that he was aware that an examination had been scheduled, because he requested that it be rescheduled. His assertion that he did not receive notice of the examination is not credible because contacted VA about it and requested it be rescheduled. An RO staff member found that this was not needed. Even if this was an incorrect determination, the Veteran is essentially arguing that the VA failed to discharge its duty to assist by providing him with an examination. A prior final RO rating decision must be reversed or revised where evidence establishes clear and unmistakable error. See 38 U.S.C. § 5109A(a); 38 C.F.R. § 3.105(a). There is a three-pronged test to determine whether CUE was present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be undebatable such that had it not been made, would have manifestly changed the outcome at the time that it was made; and (3) a determination that there was CUE must be made based on the record and law that existed at the time of the prior adjudication in question. Bouton v. Peake, 23 Vet. App. 70 (2008); see also Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); Damrel v. Brown, 6 Vet. App. 242, 245 (1994). However, VA's breach of its duty to assist cannot form a basis for a claim of CUE. See Tetro v. Gober, 14 Vet. App. 100, 109 (2000). "VA's breach of the duty to assist cannot form a basis for a claim of CUE because such a breach creates only an incomplete rather than an incorrect record." Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). For these reasons, the effective date of service connection was correctly determined to be July 18, 2017, the date of his petition to reopen his previously denied claim. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kathleen M. Fiorillo, 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.