Citation Nr: 22015593 Decision Date: 03/18/22 Archive Date: 03/18/22 DOCKET NO. 17-36 318 DATE: March 18, 2022 ORDER Entitlement to an effective date earlier than June 11, 2012, for service connection for degenerative disc disease & spondylosis L4-5 and L5-S1 is denied. FINDINGS OF FACT 1. The Regional Office (RO) issued a Statement of the Case (SOC) in August 2004 and the Veteran did not file a timely Substantive Appeal (VA Form 9) as to the issue of entitlement to service connection for a back disability, and the claim for service connection for a back disability was not perfected as an appeal to the Board of Veterans' Appeals (Board). 2. The Veteran filed petitions to reopen the claim for entitlement to service connection for a back disability in June 2009, that was denied by the RO in an October 2009 rating decision. The Veteran did not file a timely NOD with the October 2009 rating decision or otherwise express disagreement with the denial of the back disability claim 3. The Veteran filed petitions to reopen the claim for entitlement to service connection for a back disability on June 11, 2012. 4. Prior to the receipt of the June 2012 claim there were no pending requests for service connection that remained unadjudicated. CONCLUSION OF LAW The criteria for an effective date earlier than June 11, 2012, for the award of service connection for degenerative disc disease & spondylosis L4-5 and L5-S1have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U. S. Army from January 2002 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) from a January 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Effective Date Entitlement to an effective date earlier than June 11, 2012, for service connection for degenerative disc disease & spondylosis L4-5 and L5-S1 The Veteran contends that his grant of entitlement to service connection for degenerative disc disease & spondylosis L4-5 and L5-S1 warrants an effective date earlier than June 11, 2012. The Veteran filed an original claim for service connection for a back disability within one year of his separation from service, in September 2003, and this was denied in a January 2004 rating decision. The Veteran submitted a notice of disagreement (NOD) in May 2004 and a statement of the case (SOC) was issued in August 2004. The Veteran did not timely appeal. The Veteran filed petitions to reopen the claim for entitlement to service connection for a back disability in June 2009, that was denied by the RO in an October 2009 rating decision. He did not file a timely NOD with the October 2009 rating decision or otherwise express disagreement with the denial of the back disability claim. The Veteran filed the current service connection claim on appeal on June 11, 2012 ("date of claim"). If a claim is finally denied and later reopened and granted based on the submission of new and material evidence, the effective date of benefits will be the date that the claimant filed the application to reopen or the date that entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2). The terms "claim" and "application" mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). Rating actions are final and binding based on evidence on file at the time the Veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The Veteran has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.201, 20.302(a). In July 2013 correspondence, the Veteran stated that following his March 2004 NOD to the January 2004 rating decision, he never received the August 2004 SOC. Under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice by VA. See Boyd v. McDonald, 27 Vet. App. 63, 71-72 (2014) (holding that under the presumption of regularity, if notice is sent to the claimant's last known address of record, it will be presumed that VA properly discharged its official duties) (citing Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007)); see also United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). This presumption may only be rebutted with "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Such evidence includes "clear evidence that VA did not follow its regular mailing practices or that its practices were not regular." Boyd, 27 Vet. App. at 72 (quoting Crain v. Principi, 17 Vet. App. 182, 186 (2003)). The mere assertion that the notice was not received does not by itself constitute clear evidence rebutting the presumption. Id. However, the presumption of regularity may be rebutted where there is evidence that (1) VA used an incorrect address on the mailing in question or (2) the mailing was returned as undeliverable and "there were other possible and plausible addresses available to VA" at the time. Id. at 72. There is no evidence that the August 2004 SOC was sent to an incorrect address or an indication that the letter was returned as undeliverable. The SOC address was the same as the Veteran reported in a statement earlier in July and August. The Veteran's assertion that he did not receive the mailings are insufficient to rebut the presumption of regularity in the administrative process. Furthermore, the RO accepted June 2009 correspondence from the Veteran as a petition to reopen his claim for entitlement to service connection for a back disability. The RO issued a rating decision declining to reopen the claim for service connection in October 2009. The Veteran did not file a timely NOD or otherwise express disagreement with the October 2009 decision. The Veteran does not claim otherwise. Thus, the October 2009 rating decision is final. In his June 5, 2012, VA Form 21-526b, the Veteran acknowledged that he was seeking to reopen the previously denied claim for the back disability. There are only two exceptions to the rule of finality of VA decisions, that is, challenges based on clear and unmistakable error (CUE) in a prior, final decision (38 U.S.C. §§ 5109A, 7111), and reopened claims based on new and material evidence (38 U.S.C. § 5108). Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). Effective date claims do not allow the Board to "reach back" to address prior decisions that were not timely appealed, only a clear and unmistakable error (CUE) claim can possibly provide an effective date that reaches to prior unappealed decisions and claim dates. The Veteran has not raised any argument that amounts to an allegation of CUE. In Fugo v. Brown, 6 Vet. App. 40 (1993), the Court stated that CUE is a very specific and rare kind of error and if the Veteran wishes to reasonably raise CUE there must be "some degree of specificity as to what the alleged error is and, unless it is the kind of error...that, if true, would be CUE on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Thus, as a threshold matter, the Veteran must plead CUE with sufficient particularity. Id. The Court in Fugo also held that allegations that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Id. Here, it is clear the Veteran never with any specificity alleged CUE with the past rating decisions, but instead argued that he did not receive the August 2004 SOC. As explained above, the Board finds that VA discharged its duties by following its regular mailing practices and the presumption of regularity in the administrative process has not been rebutted. As noted above, the effective date for a grant of service connection for an initial claim or on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. Thus, June 11, 2012, is the earliest effective date possible under the relevant laws and regulations for the Veteran's back claim and the claim must be denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.