Citation Nr: A25054792 Decision Date: 06/25/25 Archive Date: 06/25/25 DOCKET NO. 210222-142109 DATE: June 25, 2025 ORDER An effective date of August 16, 2011, but no earlier, for the award of a 20 percent rating for L3-L5 disc degeneration with posterior bulge and protrusion, degenerative arthritis of the spine (a low back disability) is granted. An effective date of August 16, 2011, but no earlier, for the award of service connection for right knee patellofemoral syndrome (a right knee disability) is granted. An effective date of August 16, 2011, but no earlier, for the award of service connection for left knee patellofemoral syndrome (a left knee disability) is granted. The issue of whether there was clear and unmistakable error (CUE) in an August 2013 rating decision that denied service connection for a right knee disability is dismissed without prejudice. The issue of whether there was CUE in an August 2013 rating decision that denied service connection for a left knee disability is dismissed without prejudice. FINDINGS OF FACT 1. In a June 2012 rating decision, service connection for a low back disability was granted and a noncompensable (zero percent) rating was assigned, effective August 16, 2011. The Veteran appealed this decision as to the rating assigned. 2. In a June 2015 rating decision, during the pendency of the appeal, an increased rating of 10 percent was granted for the low back disability, effective August 16, 2011. 3. In October 2017, the Board remanded the claim for an increased rating for a low back disability for additional development. 4. In August 2018, the Veteran chose to participate in the Department of Veterans Affairs' (VA's) Appeals Modernization Act (AMA) test program, the Rapid Appeals Modernization Program (RAMP), which transferred all of his pending appeals into the modernized appeals system. In a March 2019 RAMP decision, an increased rating for a low back disability was denied. 5. In April 2019, the Veteran submitted a supplemental claim seeking an increased rating for a low back disability. In a March 2019 rating decision, an increased rating for a low back disability was denied. In October 2019, the Veteran sought higher level review (HLR) of this decision; however, additional evidence was received, and the claim was assigned to the supplemental review lane. In a February 2020 rating decision, an increased rating for a low back disability was denied. 6. In March 2020, the Veteran submitted a supplemental claim seeking an increased rating for a low back disability. In a June 2015 rating decision, an increased rating of 20 percent was granted for the low back disability, effective August 14, 2020. In August 2020 the Veteran sought HLR of this decision as to the effective date assigned for the assignment of the 20 percent rating for the low back disability. In the January 2021 HLR decision on appeal, an earlier effective date for the award of a 20 percent rating for a low back disability was denied. 7. The increase in the low back disability actually occurred prior to the August 16, 2011, effective date for the award of service connection; therefore, the 20 percent rating is warranted for the entire period on appeal. 8. The Veteran's original claim for service connection for a left knee disability was denied in an August 1991 rating decision that became final. 9. Thereafter, the Veteran submitted an August 16, 2011, claim seeking service connection in both knees. This claim was denied in an August 2013 rating decision. 10. Within one year of the August 2013 rating decision, VA was in constructive possession of newly created VA treatment records regarding knee pain that prevented that rating decision from becoming final until VA determined whether such records were both new and material. That determination was implicitly made in the November 2017 rating decision that found that new and material evidence had not been received to reopen the previously denied claim for service connection for right and left knee disabilities, and notice of that decision was issued in May 2018. 11. Thereafter, the Veteran submitted an April 2019 supplemental claim seeking service connection for right and left knees, which was granted in a June 2019 rating decision. The June 2019 rating decision did not become final as the issue of entitlement to an earlier effective date for the award of service connection for right and left knee disabilities has been continuously pursued. 12. The August 2013 rating decision did not become final as to the issues of entitlement to service connection for right and left knee disabilities, which renders the Veteran's CUE motion moot. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 16, 2011, but no earlier, for the award of a 20 percent rating for a low back disability have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code (DC) 5242. 2. The August 2013 rating decision that denied service connection for a right knee disability was clearly and unmistakably erroneous, so it is revised to grant service connection for a right knee disability. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. § 3.105(a). 3. The criteria for the assignment of an effective date of August 16, 2011, but no earlier, for the award of service connection for a right knee disability are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156(b), 3.400, 3.2500. 4. The criteria for the assignment of an effective date of August 16, 2011, but no earlier, for the award of service connection for a left knee disability are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156(b), 3.400, 3.2500. 5. As the Veteran's CUE motion has been rendered moot, the motion must be dismissed without prejudice. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from September 1986 to September 1990, June 1994 to July 1994, from January 2005 to November 2005, from December 2007 to June 14, 2008, from June 16, 2008, to December 2008, and from February 2009 to May 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2021 and February 2021 rating decisions of a VA Regional Office (RO), the Agency of Original Jurisdiction (AOJ). In a February 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Board hearing docket. Therefore, the Board may only consider the evidence of record at the time of the August 2020 and February 2021 rating decisions that were subject to HLR, as well as any evidence submitted by the Appellant with, or within 90 days from the date of the Board hearing. 38 C.F.R. § 20.302. The Board cannot consider (1) evidence submitted during the period after the agency of original jurisdiction (AOJ) issued the August 2020 and February 2021 rating decisions and before the Board hearing was held, or (2) evidence submitted more than 90 days after the Board hearing was held. 38 C.F.R. § 20.302. If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in this decision. 38 C.F.R. § 20.300. Additionally, new evidence has not been considered in this decision regarding the claims for revision of the August 2013 rating decision based on CUE, because CUE decisions must be based upon the facts and law that existed at the time of the prior decision. See 38 C.F.R. § 20.301; but see 38 C.F.R. § 3.105(a)(1)(iii). The Veteran testified at a March 2023 Board virtual hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. As an initial matter, the Board notes that there has been some confusion as to whether the issue on appeal is entitlement to an earlier effective date for the award of a 20 percent rating for a low back disability, or whether there was CUE in the June 2012 rating decision that assigned an initial noncompensable rating for the low back disability. The Board finds that the issue on appeal is properly characterized as entitlement to an earlier effective date for the award of a 20 percent rating for a low back disability, as that was the issue adjudicated in the January 2021 HLR decision on appeal. Furthermore, the June 2012 rating decision that assigned an initial noncompensable rating for the low back disability is not final and is not subject to reversal or revision based on CUE. An assertion of CUE is a collateral attack on an otherwise final decision by the RO. See 38 C.F.R. § 3.105(a); see also Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). A rating decision is final as of the date it is mailed to the claimant if not appealed within one year. See 38 U.S.C. § 7105(c); see also 38 C.F.R. §§ 3.104(a), 20.200, 20.302(a) and (b), 20.1103. An assertion of CUE cannot be filed as to a matter that is still appealable or pending. May v. Nicholson, 19 Vet. App. 310, 320 (2005). As explained in more detail below, the June 2012 rating decision that is subject to the assertion of CUE is not final as the rating assigned was appealed, opted into AMA, and then continuously pursued, including as to the downstream issue the effective date assigned for the award of an increased rating, through the decision on appeal. Because the June 2012 rating decision did not become final, the Veteran need not show CUE in the June 2012 rating decision to achieve an effective date prior to August 14, 2020, for the award of a 20 percent rating for a low back disability. Instead, the proper issue currently before the Board and addressed herein is entitlement to an earlier effective date for the award of a 20 percent rating for a low back disability. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Earlier Effective Dates The effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall 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 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. 38 C.F.R. § 3.1(p). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). Regulations defining a "claim" were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Prior to March 24, 2015, a claim was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, for the period prior to March 24, 2015, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). Following the March 2015 amendment, a claim for benefits must be filed on a standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151. Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. Under AMA, an appellant can preserve an effective date by continuously pursuing a claim. This is accomplished by filing an appropriate administrative review option to an AMA decision as specified in 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision (or within the time specified in § 3.2500(f), as applicable to simultaneously contested claims), provided that any appeal to the United States Court of Appeals for Veterans Claims (Court) must be accepted as timely by that court. 38 C.F.R. § 3.2500(h)(1). If a claim is continuously pursued it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. §§ 3.400, 3.2500(c). The available review options to establish continuous pursuit depend on the type of decision that was issued. If the AOJ decision is an initial or supplemental claim, an appellant may submit a (i) supplemental claim, (ii) request for HLR, or (iii) VA Form 10182, Board appeal, to continuously pursue the appeal. If the decision is an AOJ decision on a HLR request, an appellant may submit a (i) supplemental claim or (ii) appeal to the Board to continuously pursue the appeal. The concept of continuous pursuit only applies to AMA decisions. Determining the appropriate effective date for an increased rating under the effective date statutes and regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received, and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. § 3.155, 3.400(o)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. VA is responsible for determining whether the evidence supports the claim or is in relative balance, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See?Lynch v. McDonough, 21 F.4th 776 (2021). 1. Entitlement to an effective date prior to August 14, 2020, for the award of a 20 percent rating for a low back disability. In this case, the Veteran asserts that an effective date of August 16, 2011, is warranted for the award of a 20 percent rating for a low back disability. By way of background, in a June 2012 rating decision, service connection for a low back disability was granted and a noncompensable (zero percent) rating was assigned, effective August 16, 2011. The Veteran appealed this decision as to the rating assigned. See November 2012 notice of disagreement. In a June 2015 rating decision, during the pendency of the appeal, an increased rating of 10 percent was granted for the low back disability, effective August 16, 2011. In October 2017, the Board remanded the claim for an increased rating for a low back disability for additional development. In August 2018, the Veteran chose to participate in the VA's AMA test program, the RAMP, thereby opting all of his pending appeals into the modernized appeals system. In a March 2019 RAMP decision, an increased rating for a low back disability was denied. In April 2019, the Veteran submitted a supplemental claim seeking an increased rating for a low back disability. In a March 2019 rating decision, an increased rating for a low back disability was denied. In October 2019, the Veteran sought higher level review (HLR) of this decision; however, additional evidence was received, and the claim was assigned to the supplemental review lane. In a February 2020 rating decision, an increased rating for a low back disability was denied. In March 2020, the Veteran submitted a supplemental claim seeking an increased rating for a low back disability. In a June 2015 rating decision, an increased rating of 20 percent was granted for the low back disability, effective August 14, 2020. In August 2020 the Veteran sought HLR of this decision as to the effective date assigned for the assignment of the 20 percent rating for the low back disability. In the January 2021 HLR decision on appeal, an earlier effective date for the award of a 20 percent rating for a low back disability was denied. As the Veteran appealed the rating assigned in the June 2012 rating decision, pursued that appeal until he opted into the modernized appeals system, and continuously pursued his claim for an increased rating for the low back disability, including the downstream issue of the effective date assigned for the increased rating of 20 percent that was eventually awarded, the earliest possible effective date for the award of a 20 percent rating for a low back disability is August 16, 2011. As explained above, determining the appropriate effective date for an increased rating under the effective date statutes and regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received, and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. § 3.155, 3.400(o)(2). Here, the relevant date of claim is August 16, 2011, the date of the Veteran's claim for service connection for a low back disability, since the June 2012 rating decision that granted service connection for the low back disability has not become final. However, the Board must also consider when the increase in the migraine headache disability actually occurred. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran is in receipt of an initial 10 percent disability rating for a low back disability prior to August 14, 2020, and a 20 percent rating thereafter. His low back disability is rated under 38 C.F.R. § 4.71a, DC 5242. He seeks an effective date of August 16, 2011, for the award of a 20 percent rating for a low back disability. During the pendency of this claim, the criteria for rating disabilities of the spine in the VA Schedule for Rating Disabilities was revised. Effective February 7, 2021, VA revised the criteria for rating spine disorder, including DC 5242 for degenerative arthritis and DC 5243 for IVDS. 85 Fed. Reg. 76460 (November 30, 2020). The Board may not apply the new rating criteria to a period prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Board will only consider herein whether a 20 percent rating for a low back disability was warranted for the period prior to August 14, 2020 under the rating criteria that were in effect prior to the February 7, 2021 amendments. Prior to February 7, 2021, DC 5242 provided that a 10 percent rating was warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating was warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, for the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. In addition, Note 2 provided that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, DC 5242 (2020). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). Moreover, the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). Turning to the evidence, a March 2013 VA examination report indicated that, on examination, forward flexion of the thoracolumbar spine was 65 degrees, with painful motion beginning at 50 degrees. An August 2020 VA examination report indicated that, on examination, forward flexion of the thoracolumbar spine was 65 degrees, with pain noted on examination with forward flexion and causing functional loss. The VA examiner opined that pain and weakness caused functional loss with repeated use over time and during flare-ups, such that forward flexion was limited to 60 degrees. On review, the Board finds that the evidence weighs persuasively in favor of a finding that the criteria for a 20 percent rating for a low back disability have been met since August 16, 2011. Both of the VA examinations of record, date March 2013 and August 2020, reflect that the Veteran's forward flexion of the thoracolumbar spine was additionally limited by pain, such that forward flexion was greater than 30 degrees but not greater than 60 degrees. This evidence is competent and highly probative, as it is based on examination of the Veteran and consideration of his descriptions of his low back disability and resulting functional impairment. For these reasons, the Board finds that the criteria for a 20 percent rating for the low back disability are met since August 16, 2011, based on evidence of forward flexion of the thoracolumbar spine that was greater than 30 degrees but not greater than 60 degrees For these reasons, the appropriate effective date for the award of a 20 percent rating for a low back disability is August 16, 2011, the date of the Veteran's claim for service connection that led to the claim for an increased rating. Therefore, the appeal is granted. 2. Entitlement to an effective date prior to March 17, 2016, for the award of service connection for a right knee disability. 3. Entitlement to an effective date prior to March 17, 2016, for the award of service connection for a left knee disability. In this case, the Veteran asserts that an effective date of August 16, 2011, is warranted for the awards of service connection for right and left knee disabilities. Turning to the relevant procedural history in this case, the Veteran's original claim for service connection for a left knee disability was denied in an August 1991 rating decision. The Veteran was properly notified of that decision and did not appeal that decision, nor did he submit new and material evidence within one year of receiving notice of the August 1991 rating decision. Therefore, the August 1991 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 3.160, 19.55, 20.202, 20.205, 20.1103 (2024). Thereafter, the Veteran submitted an August 16, 2011, claim seeking service connection in both knees. This claim was denied in an August 2013 rating decision. The Veteran did not appeal this decision or submit a new claim within one year of the August 2013 rating decision; however, the record reflects that the Veteran continued to receive treatment at a VA facility, which generated additional treatment records relevant to the Veteran's bilateral knee condition within one year of the notification of the August 2013 rating decision. See May 2014 VA Treatment Records, added to the Veteran's claims folder in May 2015. In Bell v. Derwinski, 2 Vet. App. 611, 613 (1992), the Court held that VA treatment records concerning a claimant which are not literally before a VA adjudicator are nevertheless constructively apart of the claimant's record as these documents are generated by VA and are within the Secretary's control. This rule of constructive possession was reaffirmed by the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Lang v. Wilkie. 971 F.3d 1348 (Fed. Cir. 2020). Thus, the May 2014 VA treatment records regarding the Veteran's bilateral knee condition were constructively before the Agency of Original Jurisdiction (AOJ) within one year of the August 2013 rating decision, even though they were not associated with the claims folder until May 2015. Despite VA's constructive possession of these VA treatment records, the AOJ did not determine whether the evidence was "new and material" until the November 2017 rating decision that listed those VA treatment records as evidence considered in its determination that new and material evidence had not been received to reopen the previously denied claim for service connection for right and left knee disabilities, thereby implicitly also finding that the same evidence was not new and material evidence received within one year of the August 2013 rating decision. 38 C.F.R. § 3.156(a)(b); see also Pickett v. McDonough, 64 F.4th 1342 (Fed. Cir. 2023). Notice of the November 2017 rating decision was issued in May 2018. However, the finality analysis regarding the August 2013 rating decision does not end with the November 2017 rating decision. In April 2019, less than a year after the May 2018 notice was issued regarding the November 2017 rating decision, the Veteran submitted a supplemental claim seeking service connection for the right and left knees. In a June 2019 rating decision, the RO granted service connection for the right and left knees and assigned 10 percent ratings, effective April 16, 2019. Thereafter, the Veteran properly filed a March 2020 supplemental claim as to the knees, which was denied in a July 2020 rating decision. In August 2020, the Veteran requested higher level review of the July 2020 rating decision, and specifically stated that he was seeking an earlier effective date for the award of service connection for his right and left knees. In the February 2021 rating decision on appeal, the RO, in pertinent part, denied entitlement to an earlier effective date for the awards of service connection for the right and left knee disabilities. For these reasons, the August 2013 rating decision did not become final. 38 C.F.R. §§ 3.156(b), 3.160(b), 3.2500; Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014); Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). In sum, the Board finds that there has been no final rating decision on the issue of service connection for the right and left knee disabilities since the August 16, 2011, claim was filed. As explained above, the August 2013 and November 2017 decisions on those issues in the legacy system did not become final, and the Veteran has continuously pursued entitlement to an earlier effective date for the award of service connection for the right and left knee disabilities pursuant to 38 C.F.R. § 3.2500 since the June 2019 rating decision that granted service connection for the right and left knee disabilities. Thus, the earliest possible effective date for the awards of service connection for the right and left knee disabilities is August 16, 2011, the date he submitted a claim for service connection for the right and left knee disabilities because there has been no final decision on the issue since that time. The appeal is therefore granted with an effective date of August 16, 2011, but no earlier, for the award of service connection for the right and left knee disabilities. 4. Whether there was CUE in the August 2013 rating decision that denied service connection for right and left knee disabilities. In this case, the RO in an August 2013 rating decision denied service connection for right and left knee disabilities. The Veteran contends that this decision should be revised because it contains CUE. A CUE claim under 38 C.F.R. § 3.105(a) only applies to decisions that are final. A CUE claim "cannot lie as to a decision that is still open to direct review." May v. Nicholson, 19 Vet. App. 310, 317 (2005). A CUE claim cannot be filed as to a matter that is still appealable or pending. Id. at 320. As explained above, the August 2013 rating decision did not become final, as the RO did not consider whether VA treatment records that were created within a year subsequent to the August 2013 rating decision and within VA's constructive possession constituted new and material evidence for 38 C.F.R. § 3.156(b) purposes until such determination was implicitly made in the November 2017 rating decision that denied reopening of the previously denied claim for service connection for right and left knee disabilities. The Veteran was notified of that decision in May 2018 and filed a supplemental claim as to that decision in April 2019. In a June 2019 rating decision, as revised by the December 2019 CUE decision, service connection for the right and left knee disabilities was granted, effective March 17, 2016. The Veteran has continuously pursued entitlement to an earlier effective date for award of service connection for the right and left knee disabilities since the June 2019 rating decision. As such, the August 2013 rating decision has not become final. For these reasons, the Board finds that the August 2013 rating decision that denied service connection for right and left knee disabilities is not final. Thus, the Veteran's CUE motion is rendered moot, and dismissal, without prejudice to refiling, is warranted. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 3.105(a). LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thomas, 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.