Citation Nr: 0810836 Decision Date: 04/02/08 Archive Date: 04/14/08 DOCKET NO. 06-15 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to an effective date earlier than July 19, 2002, for the grant of service connection for a benign osteochondroma of the right ilium with residual tender scar. 2. Entitlement to service connection for bilateral pes planus. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael A. Pappas, Counsel INTRODUCTION The veteran (appellant) served on active duty from May 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2005, rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Los Angeles, California, that granted the veteran's claim of entitlement to service connection for a benign osteochondroma of the right ilium with residual tender scar, and assigned a 10 percent disability evaluation, effective from July 19, 2002. The veteran perfected an appeal as to the effective date of the grant of service connection. The veteran's claim was subsequently transferred to the RO in Phoenix, Arizona which issued a supplemental statement of the case in November 2007. In January 2008, the veteran testified at a travel Board hearing at the Phoenix, Arizona, RO before the undersigned Veterans' Law Judge. The transcript of that hearing has been associated with the claims file, and the case is now ready for appellate review. The issue of entitlement to service connection for bilateral pes planus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In August 1977, the Board denied the appellant's claim of entitlement to service connection for a benign osteochondroma of the right ilium. 2. Following the 1977 Board decision, the next statement from the appellant on the matter of entitlement to service connection for a benign osteochondroma of the right ilium was a claim received by VA on July 19, 2002. An RO decision dated January 3, 2005, implicitly found that new and material evidence had been received to reopen the previously denied claim, granted service connection with an effective date of July 19, 2002, and assigned a 10 percent rating. CONCLUSION OF LAW An effective date earlier than July 19, 2002, for the grant of service connection for a benign osteochondroma of the right ilium with residual tender scar, is not warranted. 38 U.S.C.A. §§ 1110, 5107, 5108, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.400(q)(ii), 20.1100 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is seeking an effective date earlier than July 19, 2002 for the grant of service connection for a benign osteochondroma of the right ilium with residual tender scar. He alleges that all of the information necessary to allow the claim of service connection was available to VA, and that it was a misinterpretation that lead to the denial. He believes that the decision should have been overturned in 1977, effective to 1974. In the interest of clarity, the Board will initially address the matter of whether this case has been appropriately developed for appellate purposes. Thereafter, the Board will analyze the appellant's claim. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice October 2002 regarding the veteran's threshold claim to reopen the previously denied claim of service connection, and provided additional notice in December 2004 (in a cover letter sent out in conjunction with the statement of the case), subsequent to the initial adjudication that assigned the effective date of the award. Given that the effective date claim represents a "downstream" issue from the increased rating claim, the foregoing notice came after the initial adjudication. While the notice was not provided prior to the initial adjudication, any defect in the timing of the notice has been cured in that the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in a November 2007 supplemental statement of the case, following the provision of notice. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. The requirements of the notice provisions of the VCAA have been met, and there is no outstanding duty to inform the veteran that any additional information or evidence is needed. Quartuccio, 16 Vet. App. at 187. As explained in detail below, the record is devoid of any evidence that the veteran had filed an earlier claim for service connection for a benign osteochondroma of the right ilium with residual tender scar that had not been finally adjudicated. All known and available records relevant to the issue on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. The veteran has not made the RO or the Board aware of any other evidence relevant to his appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the veteran in developing the facts pertinent to his claim of entitlement to an earlier effective date for the grant of service connection for benign osteochondroma of the right ilium with residual tender scar. The veteran is not prejudiced by a decision on the claim at this time. Analysis The appellant contends that he is entitled to retroactive service connection benefits earlier than July 19, 2002, based upon the establishment of service connection for a benign osteochondroma of the right ilium with residual tender scar. He argues that these benefits should date back to 1974, when he initially applied for service connection for the disability at issue, characterized as a benign osteochondroma of the right ilium. He argues that all of the information was available at that time in order to grant service connection, and that it was a misinterpretation by VA that led to the denial. At the January 2008 hearing before the Board, the veteran and his representative expanded on the argument and explained that the misinterpretation resulted from the incomplete characterization of the disability in question as a chondroma rather than as a sarcoma, which was the underlying pathology. In accordance with Title 38, United States Code, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed pursuant to the facts found, but shall not be earlier than the date of receipt of application therefor. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2007). Applicable regulations provide that the effective date of a benefit based on new and material evidence other than service department records received after final disallowance of a claim for the benefit shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(1)(ii) (2007). In April 1976, the veteran filed a claim of entitlement to service connection for a "tumor on the lower back." In July 1976 rating decision, the RO denied the appellant's claim. The veteran perfected an appeal of that decision. In August 1977, the Board denied the veteran's claim of service connection for a benign osteochondroma of the right ilium on the basis that there was no objective evidence that the tumor was incurred in service. The veteran was notified of that decision but did not file a timely appeal and it became final. 38 U.S.C.A. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Despite the finality of the prior adverse decision, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. Following the 1977 Board decision, the next statement from the appellant on the matter of entitlement to service connection for a benign osteochondroma of the right ilium was a claim received by VA on July 19, 2002. An RO decision dated January 3, 2005, found that new and material evidence (in the form of a physician's opinion providing a nexus to service) had been received to reopen the previously denied claim, granted service connection with an effective date of July 19, 2002, and assigned a 10 percent rating. The veteran ultimately perfected an appeal as to the effective date assigned for that grant of benefits. The effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(q)(1)(ii) (2007). There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision, or unless the new and material evidence resulted from correction of military records. See 38 U.S.C.A. § 5110(i) (West 2002); 38 C.F.R. § 3.105 (2007). The provision regarding correction of military records is not applicable in this case, as there is no evidence that such correction had been requested or granted. With respect to clear and unmistakable error (CUE) in prior decisions, the veteran appears to argue that there was CUE in those decisions by his assertion that all of the information was available in 1974, and that it was a misinterpretation by VA that lead to the prior denials. In terms of any claim of CUE in a prior rating decision, however, it is noted that the veteran's claim for service connection was last denied by the Board decision in 1977, and as such, any rating action issued prior to that Board decision was subsumed in that Board decision. see 38 U.S.C.A. § 7103(a); Herndon v. Principi, 311 F.3d 1121, 1125 (Fed. Cir. 2002). Thus, if the veteran wishes to challenge a prior decision based upon CUE, he would have to do so through an appropriate motion alleging CUE in the August 1977 Board decision, which has not been done in this case. See 38 C.F.R. §§ 20.1400-20.1404 (2007) (setting out procedures for claiming CUE in a Board decision). The Board is bound to apply applicable laws and regulations. See 38 U.S.C.A. § 7105 (West 2002). The Board's decision in November 1977 on the issue of entitlement to service connection for benign osteochondroma of the right ilium is, by law, final. The effective date of the grant of service connection for benign osteochondroma of the right ilium with residual tender scar cannot, by regulation, be earlier than the date of the appellant's new claim for the benefit filed after the final disallowance of his earlier claim. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii) (2007). Finally, it is noted that the veteran and his representative have asserted that there was a mischaracterization of the disability at issue, apparently arguing that it should have been characterized as a malignant sarcoma rather than the benign osteochondroma that was service-connected. To the extent that they are arguing that an earlier effective date should be awarded on this basis, the Board must point out that between the last final denial of the veteran's claim for service connection for the disorder at issue in November 1977 and the veteran's claim to reopen in July 2002, there were no claims for any disorder filed. Thus, there would be no basis to award an earlier effective date based upon the current claim regardless of how the disability in question was characterized. Nevertheless, the basis of the 1977 Board denial was lack of objective evidence relating the tumor, however characterized, to service. The Board sympathizes with the veteran's position. Under the circumstances of this case, however, the record presents no basis under applicable laws and regulations to allow an effective date earlier than July 19, 2002, the date of receipt of the request to reopen a previously denied claim which had become final. As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and an earlier effective date is not warranted. ORDER An effective date prior to July 19, 2002, for the grant of entitlement to service connection for benign osteochondroma of the right ilium with residual tender scar, is denied. REMAND During the pendency of this appeal, the veteran filed a claim in March 2005 for entitlement to service connection for bilateral pes planus which was denied in a June 2005 rating decision. Within one year of the denial of that claim, the veteran filed a statement through his representative in May 2006 that must be construed as a notice of disagreement with the June 2005 denial of service connection for bilateral pes planus. When there has been an initial RO adjudication of a claim and a notice of disagreement has been filed as to its denial, the appellant is entitled to a statement of the case (SOC), and the RO's failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, this case is REMANDED for the following: Issue a statement of the case to the veteran and his representative, addressing the issue of entitlement to service connection for bilateral pes planus. The veteran and his representative must be advised of the time limit in which he may file a substantive appeal. 38 C.F.R. § 20.302(b) (2007). Then, only if the appeal is timely perfected, the issue should be returned to the Board for further appellate consideration, if otherwise in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by VA. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs