Citation Nr: 0820972 Decision Date: 06/26/08 Archive Date: 06/30/08 DOCKET NO. 05-37 095 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than January 14, 1992, for the award of service connection for right cervical radiculopathy. (The issue of entitlement to an effective date earlier than January 14, 1992, for the award of service connection for degenerative joint disease of the right hip and knee is addressed in a separate decision.) REPRESENTATION Veteran represented by: Robert W. Legg, Attorney at Law ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The veteran served on active duty from January 1969 to October 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision, which awarded the veteran service connection for right cervical radiculopathy, effective from January 14, 1992. The veteran perfected a timely appeal as to the effective date awarded, asserting that an effective date in 1978 should be assigned. The veteran's attorney asserts that if a 1978 date cannot be assigned; an effective date of October 1983, representing the date that a letter the veteran wrote to his United States Senator was associated with his VA claims file, should be assigned. FINDINGS OF FACT 1. The Board denied service connection for a cervical spine disorder manifested by pain in the right arm in a March 1979 decision. 2. In the October 1983 letter to his United States Senator, the veteran clearly evidenced his belief in his entitlement to VA disability compensation for pain in his leg and arms and for a pinched nerve. 3. The presence of C7 radiculopathy is demonstrated for the record in 1978, prior to the receipt of the veteran's 1983 informal claim for entitlement to service connection for pain in his arms and a pinched nerve. CONCLUSIONS OF LAW 1. The Board's March 1979 decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2007). 2. The October 1983 letter to the veteran's United States Senator was an informal claim for service connection for pain in his leg and arms and for a pinched nerve. 38 U.S.C.A. §§ 501, 5110 (West 2002); 38 C.F.R. § 3.155 (2007). 3. October 27, 1983, the date VA received the veteran's letter to his Senator is the earliest possible effective date which may be assigned to the award of service connection for right cervical radiculopathy. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(q)(2) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran asserts that the evidence required to support his claim for entitlement to service connection for cervical radiculopathy has been in his file since as early as 1978. He therefore requests that an effective date of 1978 be assigned to represent this. His attorney asserts that if a 1978 date cannot be assigned; that alternatively, a letter he wrote to his United States Senator in 1983 should be accepted as an informal claim to reopen a previously-denied claim for entitlement to service connection for disability caused by cervical radiculopathy, thereby supporting the grant of an earlier effective date for that benefit. Duties to notify and assist 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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). This notice should be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the veteran was provided with such a notification letter in November 2003. However, in his April 2008 written argument, the veteran's attorney cites case law to the effect that any notice deficiency is less likely to be prejudicial to an appellant when the appellant is represented by counsel, and explicitly waives any requirement for further notice, requesting that no Board remand be promulgated based solely upon any deficiency in the notice provided to the veteran thus far. The Board accepts this waiver and will proceed with review of this appeal, assuming that the veteran, as advised by his attorney, is fully cognizant of the law governing his appeal and of the type of evidence that is necessary to substantiate his claim. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The current effective date of January 14, 1992, was assigned because that date is when a pertinent statement from a fellow serviceman was received by VA. The VA accepted this statement as an informal claim for entitlement to service connection for cervical radiculopathy. In general, the effective date of a grant of service connection is based upon a variety of factors, including the date of claim, date entitlement arose, and the finality of prior decisions. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Following the veteran's discharge from service in October 1969, he filed a claim in October 1978 for service connection for a pinched nerve that caused pain in his right arm. He asserted that the pinched nerve must have been caused by "the fall that I had in the service during training for the obstacle course." The RO denied this claim in an October 1978 rating decision. The veteran appealed this denial to the Board. In a March 1979 decision, however, the Board denied the appeal. The Board's decision is final and thus an effective date prior to that decision is precluded. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In October 1983, the veteran wrote a letter to his United States Senator, in which he expressed his frustration with the VA's denial of his claims, making specific reference to problems with his "leg and arms." The Senator's office forwarded the veteran's letter to the RO, where it was received on October 27, 1983. The RO did not interpret this letter as a claim to reopen, but sent a letter to the Senator's office, explaining that the veteran's claim for service connection for a "cervical spine disorder manifested by pain in the right arm" had been denied by the Board in 1979. No further correspondence or other contact was received from the veteran until the January 1992 statement which was interpreted as an informal claim, and provided the basis for the currently-assigned effective date. The date of entitlement to an award of service connection based upon the submission of new and material evidence is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2) [emphasis added]. The applicable statutory and regulatory provisions require that VA look to all communications from the appellant which may be interpreted as applications or claims--formal and informal--for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 511; 38 C.F.R. §§ 3.1(p), 3.400(b)(2), 3.155(a). See Servello v. Derwinski, 3 Vet. App. 196, 198- 200 (1992). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). We note that the provisions of 38 C.F.R. § 3.1(p) and 3.155(a) have remained the same since 1983. In this case, the only communication from the veteran between the date of the final March 1979 Board decision and the January 1992 statement consists of the 1983 correspondence with the veteran's Senator. The veteran and his attorney argue persuasively that this letter should be considered an informal claim for service connection for right cervical radiculopathy, asserting that although the veteran did not explicitly indicate a desire to reopen his claim, a plain reading of the letter reflects the veteran's belief in his entitlement to disability compensation. Upon review, the Board agrees. Review of the letter shows that the veteran believed he had been injured in service and continued to suffer from "problems with [his] leg and arms," ever since the original injury. He specifically identified pain resulting from a pinched nerve in the letter. Therefore, the Board holds that the 1983 letter to the veteran's Senator may properly be considered an informal claim for service connection for pain in his leg and arms and for a pinched nerve. Next the Board must establish the date that entitlement to the benefit sought arose, so that we may determine which is the later date. Review of the veteran's contentions shows that he did not complain of neck problems per se during service or for many years thereafter. However, his contentions reflect complaints of right shoulder and arm pain throughout the time period after service. Review of the medical evidence of record shows that private medical testing in June 1978 revealed C7 radiculopathy, with denervation of the affected shoulder and arm muscles. Service connection for the veteran's right cervical radiculopathy has already been granted, based upon an informed medical opinion on the matter. Applying the regulatory guidance, therefore, yields the conclusion that the later of the two dates, the date of receipt of the new claim or the date entitlement arose, is the date of receipt of the new claim. The medical evidence shows that the veteran had C7 radiculopathy at least as early as June 1978 and the informal claim for service connection for pain in his arms and a pinched nerve was received in October 1983. Thus, the evidence supports an award of an effective date of October 27, 1983, for service connection for right cervical radiculopathy. The veteran's appeal is therefore granted. ORDER An effective date of October 27, 1983, for the award of service connection for right cervical radiculopathy is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs