Citation Nr: A25035503 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 210601-163183 DATE: April 17, 2025 ORDER Entitlement to an earlier effective date than August 24, 2010, for the award of service connection of lumbar spine degenerative arthritis, degenerative disc disease, and spondylolisthesis (hereinafter referred to as a lumbar spine disability) is denied. FINDING OF FACT The evidence of record does not show any formal or informal service connection claims for a lumbar spine disability after the last final denial in the September 2006 rating decision and prior to August 24, 2010. CONCLUSION OF LAW The criteria for an earlier effective date than August 24, 2010, for the award of service connection for a lumbar spine disability, degenerative disc disease, and spondylolisthesis (hereinafter referred to as a lumbar spine disability) have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from September 1980 to August 1989. This matter come before the Board of Veterans' Appeals (Board) on appeal from a March 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office under the review system known as AMA (Appeals Modernization Act). By way of background, the matter stems from a July 2020 rating decision that awarded service connection for the Veteran's lumbar spine disability from August 24, 2010. The Veteran requested higher level review of the assigned effective date, and the AOJ denied the matter in a February 2021 rating decision. Thereafter, the Veteran submitted a supplemental claim, again requesting an earlier effective date for service connection of his lumbar spine disability, and the March 2021 rating decision on appeal was issued, denying entitlement to an earlier effective date than August 24, 2010, for the award of service connection for the Veteran's lumbar spine disability. In June 2021, the Veteran timely appealed the March 2021 rating decision with submission of VA Form 10182, Decision Review Request: Board Appeal, and elected to submit evidence for review. Under the Evidence Review docket, the Board may consider the evidence of record at the time of the March 2021 rating decision, as well as evidence submitted within 90 days following receipt of the Board appeal. 38 C.F.R. § 20.303. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and award of 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 latter. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). Effective March 24, 2015, VA amended its regulations to 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. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). In cases involving prior final decisions, where evidence other than service department records is received within the relevant appeal period or prior to the issuance of the appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400. Where the evidence is received after the final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. Id. While the instant claim is under the Appeals Modernization Act appeals system, the relevant laws include those concerning legacy appeals, which are applicable to the period when the original claim was received. Under the legacy system, appellate review is initiated by the filing of a notice of disagreement (NOD) within one year of the date on the claim decision letter and completed by the filing of a VA Form 9 after a Statement of the Case (SOC) has been issued. Facts and Analysis The Veteran contends he is entitled to an effective date prior to August 24, 2010, for the award of service connection for his lumbar spine disability, specifically asserting that he continuously pursued his claim for service connection since the original denial in an April 2005 rating decision. See March 2006 VA Form 21-4138, Statement in Support of Case; see also November 2021 Appellate Brief. The evidentiary record shows the Veteran was initially denied service connection for a lumbar spine disability in an filed an informal claim for original disability claim seeking service connection for a lumbar spine disability in a February 2006 rating decision. In August 2006, the Veteran filed a Notice of Disagreement with the February 2006 rating decision, and an April 2007 Statement of the Case was issued. The Veteran did not perfect an appeal with submission of a VA Form 9 (Appeal to the Board of Veterans' Appeals), and the February 2006 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.302, 20.1103. Following the receipt of new evidence (in May 2006) related to the Veteran's service connection claim for a lumbar spine disability, a September 2006 rating decision confirmed and continued the denial of service connection. Importantly, the rating decision indicated that the rating action was not part of the Veteran's pending appeal. The Veteran did not appeal the September 2006 rating decision, and it is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.302, 20.1103. The Veteran next filed a service connection claim for the lumbar spine disability on August 24, 2010, when he listed the issue on his unemployability claim form. See VA Form 21-8490, Veteran's Application for Increased Compensation Based on Unemployability. Relevant herein, and as noted above, a July 2020 rating decision awarded service connection for the Veteran's lumbar spine disability with an effective date of August 24, 2010, based on the date VA received his VA Form 21-8940 with the claim for a back condition because the claim had been continuously pursued. Based on above and review of the evidentiary record, the Board finds that the evidence does not show that the Veteran filed any formal or informal service connection claim for his lumbar spine disability after the last final denial in the September 2006 rating decision and prior to August 24, 2010. Therefore, the Veteran's entitlement to an earlier effective date than August 24, 2010, for the award of service connection for a lumbar spine disability is not warranted. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gipson, Natalie E. 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.