Citation Nr: 22010108 Decision Date: 02/22/22 Archive Date: 02/22/22 DOCKET NO. 18-16 988 DATE: February 22, 2022 ORDER Entitlement to an effective date earlier than November 8, 2010 for service connection for folliculitis of the upper right back (claimed as a skin disorder) is denied. Entitlement to an effective date earlier than November 8, 2010 for service connection for acne of the face, head, and neck (claimed as a skin disorder) is denied. FINDINGS OF FACT 1. The Veteran's claim for service connection for a skin disorder, including a face rash, was most recently denied in March 2007; the Veteran did not appeal this denial, nor was any relevant evidence received within a year following notification of the rating decision. 2. The Veteran did not file his petition to reopen his claim for service connection for a skin disorder until November 8, 2010. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to November 8, 2010 for the award of service connection for folliculitis of the upper back (claimed as a skin disorder) have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date prior to November 8, 2010 for the award of service connection for acne of the face, head, and neck (claimed as a skin disorder) have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from October 1988 to March 1989, April 1990 to August 1990 and December 1990 to May 1991. Service records show he had active service in the southwest Asia theater of operations from January 1991 to April 1991. This matter comes to the Board of Veterans Appeals (BVA) from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in which service connection was granted for folliculitis of the upper back (claimed as a skin disorder) and acne of the face, head and neck (claimed as a skin disorder), effective November 8, 2010. The Veteran has appealed the effective dates assigned. The Veteran testified before the undersigned Veterans Law Judge in May 2021. A transcript of the hearing is associated with the claims file. The Veteran testified that he believes the facts of his claim have not changed since he first filed for service connection in 1997. The Veteran is encouraged to file a claim for clear and unmistakable error in the prior decisions denying service connection, should he wish to do so. Effective Date The Veteran argues that an effective date earlier than November 8, 2010 is warranted for the grant of service connection for his skin disorders. Generally, the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, 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). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. The United States Court of Appeals for Veterans Claims (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a 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. § 5110(a); 38 C.F.R. § 3.400. The effective date upon receipt of new and material evidence after a final disallowance will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). For cases where an appellant seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447 (2004), "aff'd Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Lapier v. Brown, 5 Vet. App. 215 (1993). The Board notes that the Veteran's most recent claim to entitlement to service connection for a skin disorder prior to the November 2010 claim that resulted in the September 2013 grant, was received on April 25, 2006. In a March 2007 rating determination, the RO denied service connection for a facial rash. The Veteran was notified of this decision in March 2007. The Veteran did not file a timely appeal of this decision nor was evidence received which would have allowed the claim to remain open. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. The Veteran argues that he filed documents including evidence that would have prevented the previous decisions from becoming final. However, close review of the record shows that no communication from the Veteran was received between notice of the March 2007 denial and the November 2010 claim that can be construed as a claim to reopen the previously denied claim for service connection for a skin rash. (Continued on the next page) In fact, the next document received after the March 2007 notification of denial that can be construed as a claim to reopen the denied claim for service connection for a skin disorder was received on November 8, 2010. This is the effective date for which service connection has been granted for folliculitis of the upper back and service connection for acne of the face, head, and neck. For cases where an appellant seeks to reopen a claim for entitlement to an earlier effective date under 38 C.F.R. § 3.156, even assuming the presence of new and material evidence, reopening of a claim for entitlement to an earlier effective date cannot result in the actual assignment of an earlier effective date, because an award granted on a reopened claim may not be made effective prior to the date of the reopened claim. The effective date currently assigned is the date of the reopened claim request. As such, the Veteran's claims of entitlement to earlier effective dates for service connection for folliculitis of the upper back (claimed as a skin disorder), and for service connection for acne of the face, head, and neck (claimed as a skin disorder) are denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.