Citation Nr: 0716112 Decision Date: 05/31/07 Archive Date: 06/11/07 DOCKET NO. 05-11 193 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date prior to February 23, 2004, for service-connected residuals of a broken nose with deviated nasal septum. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD Jonathan B. Kramer, Counsel INTRODUCTION The veteran served on active duty service from January 1960 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which denied the veteran's claim on appeal. FINDINGS OF FACT 1. The veteran's initial claim seeking entitlement to service connection for residuals of a broken nose with deviated nasal septum was received by VA on February 23, 2004. 2. By a rating decision in June 2004, the RO granted the veteran's claim of entitlement to service connection for residuals of a broken nose with deviated nasal septum, effective February 23, 2004. CONCLUSION OF LAW The criteria for entitlement to assignment of an effective date prior to February 23, 2004, for service-connected residuals of a broken nose with deviated nasal septum, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The record shows that veteran's initial claim of entitlement to service connection for the residuals of a broken nose with deviated nasal septum was date-stamped as received by VA on February 23, 2004. The RO rendered a rating decision in June 2004 granting the veteran service connection for the residuals of a broken nose with deviated nasal septum, and awarding a disability rating of 10 percent effective February 23, 2004, the date the claim was received. The veteran claims that he should be awarded an earlier effective date because he was not previously aware that he could receive compensation for the in-service injury to his nose. He also claims that at the time of his discharge, the Navy doctor told him that if he did not apply for compensation benefits, then he would receive an honorable discharge. As a general rule, the date of an award based upon an original claim can be no earlier than the date or receipt of the application for the award in question. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. An exception applies where a claim is received within one year of discharge from service. In such a case, the effective date is the day following separation from service. 38 C.F.R. § 3.400(b)(2)(i). However, as the veteran was discharged from service in 1961 and did not file his service connection claim for a broken nose with deviated nasal septum until February 23, 2006, this exception does not apply. A "claim" is defined in the VA regulations as "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) (2006). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2005). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date. Id. at 200. In this case there is no evidence of formal or informal communications of record prior to February 23, 2004, indicating the veteran's desire to seek service connection for the residuals of a broken nose with deviated nasal septum. The fact that the veteran was unaware or did not believe that he could have sought service connection earlier, for whatever reason, is not a factor in determining an effective date. Based on the evidence of record and the circumstances of this case in conjunction with the applicable laws and regulations, the assignment of an effective date prior to February 23, 2004, must be denied as a matter of law. Where the law and not the evidence is dispositive, the claim should be denied because of the absence of legal merit or lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Based on the foregoing, the Board finds that the preponderance of the evidence is against the veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In rendering this decision, the Board has considered the Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2006). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2005); 38 C.F.R. § 3.159(b) (2006); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the pendancy of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; (3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman, 19 Vet. App. 473. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the veteran was not appraised of a specific notice letter as to effective dates until March 2006, when the agency of original jurisdiction (AOJ) set a letter to the appellant providing such notice pursuant to the Dingess/Hartman decision. However, the September 2004 Statement of the Case (SOC) provided the veteran with the specific laws and regulations specific to effective dates. Hence, the veteran had actual knowledge of what was required to establish a claim for an earlier effective date. Moreover, the veteran has never asserted that he in fact filed a claim for service connection for this disability prior to that received by VA on February 23, 2004. Given that it is uncontested that a claim was not filed earlier than the effective date now assigned for this disability, as the AOJ previously determined and the Board has affirmed herein, there is no basis in law or fact that would provide for the veteran to be assigned an earlier effective date for service-connected residuals of a broken nose with deviated nasal septum. Thus, the Board finds no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). Since the veteran is not entitled to an earlier effective date as a matter of law, the issue of proper notice concerning the effective date is moot. The Board therefore concludes that any defect in notice, if it were held to exist, would be rendered harmless in the present case because of the legal bar that prohibits the veteran from receiving the benefit sought. Mayfield v. Nicholson, 19 Vet. App. 103 (2005) rev'd on other grounds, No. 05-7157 (Fed. Cir. Apr. 5, 2006); Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). ORDER Entitlement to an effective date prior to February 23, 2004, for service-connected residuals of a broken nose with deviated nasal septum, is denied. ____________________________________________ STEVEN L. KELLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs