Entitlement to an effective date of April 21, 2021, but no earlier, for the grant of service connection for the right shoulder acromioclavicular separation is granted.

Citation Nr: A26069978 Decision Date: 07/30/26 Archive Date: 07/30/26 DOCKET NO. 220412-235059 DATE: July 30, 2026 ORDER Entitlement to an effective date of April 21, 2021, but no earlier, for the grant of service connection for the right shoulder acromioclavicular separation is granted. FINDING OF FACT 1. In an unappealed September 2015 rating decision the Veteran was denied service connection for right shoulder acromioclavicular separation. 2. The Veteran submitted an intent to file a claim that was received by the Department of Veterans Affairs (VA) on April 21, 2021. 3. Within one year of VA's receipt of the Veteran's formal intent to file a claim, the Veteran filed a supplemental claim that was received on July 1, 2021, related to the denial of service connection for the right shoulder acromioclavicular separation in 2015. CONCLUSION OF LAW The criteria for an effective date of April 21, 2021, but no earlier, for the grant of service connection for right shoulder acromioclavicular separation have been met. 38 U.S.C. § 5110 (2024); 38 C.F.R. §§ 3.155, 3.156(c), 3.400 (2025). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from October 1993 to May 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2022 Higher-Level Review (HLR) rating decision issued by a VA Regional Office (RO). In a March 2022 rating decision, the agency of original jurisdiction (AOJ) found that the decision to not grant service connection for right shoulder acromioclavicular prior to July 1, 2021, was not shown to be a clear and unmistakable error (CUE). In March 2022, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review in regard to the effective date for his claimed right shoulder condition that was addressed in the March 2022 rating decision. The April 2022 HLR rating decision on appeal was issued in response to that request. In the April 2022 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. The Veteran testified before the undersigned Veterans Law Judge on October 6, 2025. A transcript of that hearing is of record. Therefore, the Board may only consider the evidence before the agency of original jurisdiction (AOJ) at the time of the March 2022 rating decision, which was subsequently subject to HLR, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the March 2022 rating decision, which was subsequently subject to HLR, and prior to the hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801. 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 - Right Shoulder Acromioclavicular Separation The Veteran asserts that he is entitled to an effective date prior to July 1, 2021, for the grant of service connection for his claimed right shoulder condition. In general, the effective date of an evaluation and an award for compensation under VA regulations is the date that a claim is received or the date that entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(q)(2), the effective date of an award based on new and relevant evidence or other service department records received after the final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(r), the effective date based on a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). Date of receipt means the date on which VA received a claim, information, or evidence. 38 C.F.R. § 3.1(r). The Board acknowledges that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014). Prior to March 24, 2015, however, VA recognized formal and informal claims. For VA compensation purposes, the essential elements for any claim, whether formal or informal, are an "(1) intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). A formal claim is one that has been filed on the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by the VA, from a claimant may be considered an informal claim. 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. The effective date provisions regarding revision of a decision based on a supplemental claim are addressed in 38 C.F.R. § 3.2500. Under 38 C.F.R. § 3.2500(h)(1), the effective date will be fixed in accordance with the date or receipt of the initial claim or the date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision. If a claim is continuously pursued, it will be considered 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). In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006) the United States Court of Appeals for Veterans Claims (Court) held that once a rating decision that established an effective date for an award becomes final, the only way that such decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. In other words, the Court found that there is no valid freestanding claim for an earlier effective date. An assertion of CUE is an independent claim, not a theory of entitlement that can be considered part of another claim. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). The Board does not have jurisdiction to review a CUE claim in the first instance. Andre v. Principi, 301 F.3d 1354, 1361 (Fed. Cir. 2012); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). In this case, the Veteran originally filed a claim for entitlement to service connection for a right shoulder condition in June 1997. In a July 1997 rating decision, the AOJ denied the Veteran's claim for entitlement to service connection for a right shoulder acromioclavicular separation. The Veteran did not appeal that decision and it became final. In April 2015, the Veteran filed another VA Form 21-526EZ and requested service connection for a right shoulder impairment. In a June 2015 rating decision, the Veteran's claim for entitlement to service connection for right shoulder, acromioclavicular separation, was denied. Later, in June 2015, the Veteran filed a VA Form 21-526EZ for entitlement to service connection for a right shoulder impairment. In a September 2015 rating decision, the AOJ again denied the Veteran's claim for service connection for the right shoulder acromioclavicular separation. The Veteran did not appeal the September 2015 rating decision, and it became final. The Veteran submitted an intent to file a claim that was received by the VA on April 21, 2021. In July 2021, the Veteran filed a VA Form 20-0995 Supplemental Claim application at which time he alleged CUE in the denial of service connection for the right shoulder acromioclavicular separation from the June 2015 rating decision. In a September 2021 rating decision, the AOJ denied service connection for right shoulder, acromioclavicular separation, on the basis that the evidence submitted was not new and relevant. In September 2021, the Veteran submitted a VA Form 20-0996, Decision Review Request: HLR, in regard to the claim for entitlement to service connection for right shoulder acromioclavicular separation addressed in the September 2021 rating decision. In response to that HLR request, an October 2021 rating decision was issued at which time a duty to assist error was discovered in regard to the issue of entitlement to service connection for right shoulder acromioclavicular separation. In an October 2021 VA Form 20-0999, HLR return, it was noted that the HLR would only address the issue of entitlement to service connection for right shoulder acromioclavicular separation, based on the issue that was rated in the rating decision from September 2021, since that was the only issue under HLR jurisdiction at that time. Additionally, the HLR return noted that the issue of whether there was a CUE in a previous rating was not under HLR jurisdiction at that time since a rating decision had not been completed on whether or not CUE was made in a previous decision from 2015. In a November 2021 rating decision, based on a review conducted of the Veteran's file, the AOJ found that the decision not to grant service connection for right shoulder acromioclavicular separation in the June 8, 2015, rating decision was not shown to be CUE. In a February 2022 rating decision, based on the September 2021 HLR request, the AOJ initially noted that a duty to assist error was discovered and the Veteran's claim was being rated under the Supplemental Claim lane as of October 27, 2021. The AOJ also granted the Veteran entitlement to service connection for a right shoulder acromioclavicular separation and assigned a 40 percent disability rating effective July 1, 2021. Later, in February 2022, the Veteran filed a VA Form 20-0996, HLR request in regard to the effective date assigned for the grant of service connection in the February 2022 rating decision. Subsequently, in February 2022, the Veteran also submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and alleged CUE in the effective date assigned for the right shoulder condition in the February 2022 rating decision. At that time, the Veteran stated that VA overlooked favorable medical opinions in the original decision. In a March 2022 rating decision, based on the February 2022 supplemental claim, the AOJ found that the decision not to grant service connection for a right shoulder acromioclavicular separation prior to July 1, 2021, was not shown to be CUE. Later, in March 2022, the Veteran filed a VA Form 20-0996 and listed the issue as the effective date for the right shoulder condition addressed in the March 2022 rating decision. During the April 2022 HLR informal conference, the Veteran asserted that the effective date for the right shoulder should go back to the date of filing in 2015 because the veteran submitted a private opinion that the right shoulder's onset was due to military service. In an April 2022 HLR rating decision, the AOJ found that entitlement to an earlier effective date of service connection for right shoulder acromioclavicular separation was not shown due to CUE, and that the 40 percent evaluation was continued from July 1, 2021. In the April 2022 VA Form 10182, the Veteran elected the hearing option in regard to the issue of the effective date assigned for the grant of service connection for the right shoulder acromioclavicular separation that was addressed in the April 2022 rating decision. During the October 2025 Board hearing, the Veteran, through his representative, asserted that the 2022 decision was made based on all the evidence that had been in place since the original 1994 x-ray showing acromioclavicular separation. The Veteran, through his representative, also stated that the nurse practitioner's medical opinion, in 2015, failed for many reasons, to include that she looked at the wrong x-ray and stated that post-separation there were no records to show a persistent disability. In this case, the Board initially finds that the Veteran's assertions related to whether there was CUE in the June 2015 rating decision that denied service connection for a right shoulder acromioclavicular separation are not within the Board's jurisdiction. In this regard, the Board reiterates that jurisdiction over an earlier effective date appeal does not extend to an allegation of CUE in a prior final rating decision. See Phillips v. Brown, 10 Vet. App. 25, 33 (1997). Rather, such a CUE motion must be adjudicated by the AOJ in the first instance and separately appealed to the Board. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006). Therefore, as the Veteran and his attorney failed to submit a Board appeal for the November 2021 rating decision, which specifically addressed whether there was CUE in the June 2015 denial of service connection for right shoulder acromioclavicular separation, the Board will not address whether a CUE existed in that decision. The Board finds that the sole issue on appeal is whether the Veteran is entitled to an effective date earlier than July 1, 2021, for the grant of service connection for a right shoulder acromioclavicular separation that was addressed in the April 2022 HLR rating decision. The Board emphasizes that as the April 2022 HLR rating decision is part of a continuously pursued claim and, as such, there cannot be a valid assertion of CUE for the issue of entitlement to an effective date earlier than July 1, 2021, for the grant of service connection for a right shoulder acromioclavicular separation. Based on the above, the Board finds that the Veteran's July 2021 supplemental claim, which was construed as a request to reopen his claim for service connection for right shoulder acromioclavicular separation, was filed within one year of the intent to file that was received on April 21, 2021. As such, the Veteran preserved the earlier date the intent to file was received. See 38 C.F.R. § 3.155(b). Therefore, the date of claim in this case is the date VA received the April 21, 2021, intent to file a claim. It is well established that the effective date of service connection is the date of claim, or the date entitlement arose, whichever is later (emphasis added). 38 C.F.R. § 3.400. As discussed above, the date of claim in this case is April 21, 2021, the date of receipt of the intent to file a claim. While there is medical evidence in the record indicating that the Veteran's complaints of right shoulder pain following an injury that occurred during service as well as a diagnosis of acromioclavicular joint separation, which predated the April 21, 2021, intent to file a claim, there was no claim prior to that date after the final September 2015 rating decision. As such, the appropriate effective date in this case would be the date of claim. Accordingly, the Board finds that the accurate effective date is April 21, 2021, which is the later of the preserved date of claim and the date entitlement arose. Therefore, the Board finds that an effective date of April 21, 2021, but not earlier, for the grant of entitlement to service connection for right shoulder acromioclavicular separation is warranted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Randall 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.