Citation Nr: 18154206
Decision Date: 11/30/18	Archive Date: 11/29/18

DOCKET NO. 16-48 945
DATE:	November 30, 2018
ORDER
An effective date prior to November 24, 2014 for service connection for irritable bowel syndrome (IBS) is denied.
FINDINGS OF FACT
1.  Entitlement to service connection for IBS was first denied in a September 24, 2012 rating decision; the Veteran did not submit a notice of disagreement for this issue, and new and material evidence was not received during the one-year appeal period following the notice of this decision. 
2.  The first communication from the Veteran that can be considered a new claim for service connection for IBS was received on November 24, 2014; a December 2014 rating decision granted entitlement to service connection for IBS on the basis of this claim, and assigned an effective date based on the date of receipt of that claim. 
CONCLUSIONS OF LAW
1.  The September 24, 2012 rating decision that denied entitlement to service connection for IBS is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.105(a), 3.156(b), 20,1103 (2017). 
2.  The criteria for an effective date prior to November 24, 2014 for service connection for IBS have not been met.  38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(q)(2), (r) (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Entitlement to an effective date prior to November 24, 2014 for service connection for IBS. 
The Veteran contends that he is entitled to an effective date of March 6, 2011 for service connection for his IBS.  He notes that this is the day he submitted his original claim for service connection.  
Generally, for an original claim or a claim reopened after final adjudication, the effective date can be no earlier than the date of the claim.  38 U.S.C. § 5110(a); see 38 C.F.R. § 3.400 (stating that 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 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). 
The effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of claim, or date entitlement arose, whichever is the later.  38 C.F.R. § 3.400 (b)(2)(i) (2017); see 38 U.S.C. § 5110(a) (2012); Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.").  If a claimant does not appeal an RO or Board decision assigning an effective date for service connection, the decision becomes final.  See Person v. Brown, 5 Vet. App. 449, 450 (1993); see also DiCarlo v. Nicholson, 20 Vet. App. 52, 55 (2006) ("Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded.").  
The effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400(q)(2), (r).
A review of the record confirms that the Veteran’s original claim for service connection for IBS was received on March 6, 2011. 
However, the record also shows that entitlement to service connection for IBS was then denied in a rating decision dated September 24, 2012.  The Veteran was notified of this decision in a September 26, 2012 letter.  This letter also notified the Veteran of his appellate rights and included information regarding how to initiate an appeal.  
Thereafter, in the year following September 26, 2012, the claims file does not contain any communication from the Veteran that can be interpreted as disagreement with the denial of service connection for IBS.  Although numerous communications were received from the Veteran pertaining to a claim for disability of the toes, there was no mention of his IBS.  Furthermore, no new and material evidence pertaining to IBS was received within this year.  The only medical evidence added to the record within this year were either duplicates of the 
VA examinations considered in the September 2012 rating decision or did not include treatment or opinions pertaining to the IBS.  Therefore, the September 2012 rating decision is final and is not subject to revision on the same factual basis.  38 U.S.C. § 7105; 38 C.F.R. §§ 3.105(a), 3.156(b).
Further review of the record shows that the first communication from the Veteran received after September 26, 2012 that addresses his IBS is a new claim for service connection for IBS.  It was noted under a heading of “Reopened Disabilities.” 
VA received this VA Form 21-526EZ on November 24, 2014.  
Subsequently, entitlement to service connection for IBS was granted in a December 2014 rating decision.  This decision assigned an effective date of November 24, 2014 for service connection for IBS.  
Based on these facts, the Board must find that November 24, 2014 is the earliest effective date for service connection for IBS that can be assigned.  Although the Veteran’s original claim was received on March 6, 2011, this claim was denied in the September 24, 2012 rating decision, which became final when the Veteran failed to initiate an appeal by submitting a notice of disagreement within a year of his notice of this decision or filing new and material evidence.  
At this juncture, the Board acknowledges receipt of the “Rated Disabilities” form that was submitted by the Veteran with his October 2016 VA Form 9, Appeal to Board of Veterans’ Appeals.  This letter states that a decision on the evaluation for IBS was deferred.  However, as this sheet also refers to the November 2014 claim, it was clearly generated well after the September 24, 2012 rating decision became final and December 2014 rating decision granted service connection.  In fact, 
the December 2014 rating decision that states decisions as to a potential entitlement to a higher evaluation or potential entitlement to an earlier date were deferred.  
The record does not show that the original September 24, 2012 rating decision deferred a decision on service connection.  In fact, the third page of the September 26, 2012 notice letter clearly states that “We determined that the following conditions were not related to your military service, so service connection couldn’t be granted:”  Thereafter, the second condition listed was “Irritable bowel syndrome”, and then provided as a denial reason “The evidence does not show an event, disease or injury in service.”  There is no mention in either the September 24, 2012 rating decision or the September 26, 2012 notice letter of a deferred decision.  The reference to deferral in the December 2014 rating decision has no effect on the September 24, 2012 decision.  The Veteran does not allege that the September 24, 2012 rating decision contains clear and unmistakable error, and it remains final.  
Regulations provide that the effective date of service connection based on a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400(q)(2), (r).  In this case, the medical evidence confirms that the Veteran had a diagnosis of IBS at the time his second claim was received on November 24, 2014.  The December 2014 rating decision assigned an effective date of service connection for IBS of November 24, 2014 on that basis of that claim.  Therefore, as the date of receipt of this new claim is after the date entitlement arose, the Board finds that the effective date based on the date of receipt of the claim is correct.  It follows that the criteria for an effective date prior to November 24, 2014 have not been met, and that this is the earliest possible effective date for service connection for IBS.  
 
Paul Sorisio
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. L. Prichard, Counsel 

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