Citation Nr: 21042833 Decision Date: 07/14/21 Archive Date: 07/14/21 DOCKET NO. 16-53 121 DATE: July 14, 2021 ORDER Entitlement to an effective date prior to June 7, 2013, for establishment of service connection for a left knee disability is denied. FINDINGS OF FACT 1. A March 2009 rating decision denied entitlement to service connection for a left knee disability. The Veteran did not appeal this decision or submit new and material evidence within the one-year appellate period, and the decision became final. 2. The Veteran submitted a request to reopen his claim for entitlement to service connection for a left knee disability that was received on June 7, 2013. 3. No document received prior to June 7, 2013, may be construed as a request to reopen a claim of entitlement to service connection for a left knee disability. CONCLUSION OF LAW The criteria for an effective date prior to June 7, 2013, for establishment of service connection for a left knee disability have not been met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156, 3.160(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from November 1996 to November 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran requested a hearing before a Veterans Law Judge in his substantive appeal. On March 31, 2021, however, the Veteran's representative contacted VA to withdraw his hearing request. As such, the Board will consider his hearing request withdrawn. As an initial matter, the Board notes that the Veteran filed an initial claim for service connection for a left knee disability that was denied in a March 2009 rating decision. The Veteran filed a claim to reopen his claim for service connection on June 7, 2013. This matter reached the Board after the Veteran appealed a May 2014 rating decision that granted service connection effective June 7, 2013, for his service-connected left knee disability on the basis that an earlier effective date was warranted. The record also reflects that in March 2021 the Veteran submitted a motion to revise the March 2009 rating decision that originally denied service connection based on the presence of clear and unmistakable error, or CUE. If granted, the practical impact of the motion to revise the March 2009 rating decision would be to award an effective date prior to June 7, 2013. However, the Board will not address the Veteran's contentions with respect to CUE in this decision, as the RO issued a rating decision denying the motion for revision in May 2021. VA notified the Veteran of this decision in a May 2021 letter that explained the RO's findings and his options for requesting review of the decision within one year. To date, the one-year appeal period has not expired, and the Veteran has not yet submitted a request for review of this decision. As such, the Board does not presently have jurisdiction over the motion to revise based on CUE, and these contentions will not be addressed herein. Although the ultimate outcome of the CUE motion has not yet been determined, the Board may proceed to evaluate his claim for an earlier effective date on its merits. An appeal of an effective date and a motion for revision of a prior rating decision based on CUE are separate processes with distinct legal requirements. See Phillips v. Brown, 10 Vet. App. 25, 33 (1997) (holding that jurisdiction over a claim for an earlier effective date appeal does not extend to an allegation of CUE in a prior final rating decision). Stated differently, whether an earlier effective date is warranted for establishing service connection and whether CUE is present in the March 2009 decision are two separate legal questions with separate legal standards. The Board's decision herein thus has no impact on the outcome of any future decision concerning whether the March 2009 rating decision contained CUE. Earlier Effective Date The Veteran asserts that he is entitled to an earlier effective date for the establishment of service connection for his left knee disability. He has not set forth any specific arguments or contentions with respect to his appeal. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended various regulations governing how to file a claim. The amended regulations require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.31(p), 3.151, 3.155). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). For claims received prior to March 24, 2015, a "claim" is defined 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), 3.155(a) (2014); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Any communication or action indicating an intent to apply for one or more VA benefits, including statements from a Veteran's duly authorized representative, may be considered an informal claim. 38 C.F.R. § 3.155(a) (2015). Here, having carefully reviewed the Veteran's claims file, the Board finds that the earliest effective date allowable by law has already been assigned. Although the Veteran previously filed a claim for service connection in 2008, his claim was denied in a March 2009 rating decision and he was notified of the decision in an April 2009 letter. He did not file a notice of disagreement with this decision, nor did he submit new and material evidence within one year. Moreover, the Veteran did not begin receiving medical care from VA until 2014. As such, the RO would not have been in constructive receipt of any relevant medical evidence generated by VA during the one-year appeal period. Accordingly, this rating decision became final. It was not until June 7, 2013, that VA received his new claim for a left knee disability. As set forth above, the effective date of an evaluation and award of compensation based on a claim reopened after a final disallowance is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. Moreover, there is simply no evidence of record indicating that there was any formal or informal claim to reopen his claim for service connection that was received prior to June 2013. To that end, the claims file does not indicate that VA received any documents from the Veteran after he was notified of the outcome of the March 2009 rating decision until the June 2013 claim to reopen was received. Ultimately, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The earliest effective date allowable by law for entitlement to service connection has already been assigned and, as such, the claim that an earlier effective date is warranted prior to June 7, 2013, must be denied. 38 U.S.C. § 5107(b). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.