Citation Nr: 0814431 Decision Date: 05/01/08 Archive Date: 05/12/08 DOCKET NO. 04-23 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Entitlement to an effective date earlier than April 28, 1999 for grant of service connection for lumbar spine degenerative arthritis with disc extrusion. 2. Entitlement to an effective date earlier than June 9, 1999 for grant of a total disability rating based on unemployability due to service connected disabilities (TDIU). REPRESENTATION Appellant represented by: Darla J. Lilley, Esq. ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The veteran served on active duty from December 1970 to April 1974. The issue of entitlement to an earlier effective date for grant of service connection for the veteran's lumbar spine disability comes to the Board of Veterans' Appeals (Board) on appeal from a September 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas that granted service connection for that disability. As explained in the REASONS AND BASES section of this decision, the issue of an earlier effective date for grant of a TDIU has not previously been before the Board. In a June 2006 decision, the Board adjudicated the veteran's appeal as to claims for higher evaluations for service- connected depression and service-connected knee disabilities. At that time, the Board remanded to the RO the issues of whether new and material evidence had been submitted to reopen a claim for entitlement to service connection for a hip disorder and whether a higher evaluation was warranted for service connected degenerative arthritis of the lumbar spine with disc extrusion at L4-5. These issues are still before the RO. The Board did not address whether an earlier effective date for grant of service connection for the veteran's lumbar spine disorder was warranted or whether an earlier effective date for grant of a TDIU was warranted. The veteran subsequently appealed the June 2006 Board decision to the United States Court of Appeals for Veterans Claims (Court). In an ORDER dated in October 2007, the Court granted a joint motion of the veteran and VA's General Counsel to remand the June 2006 Board decision to the extent that it failed to adjudicate the issue of whether earlier effective dates are warranted for service connection for the veteran's lumbar spine disorder and for a TDIU. The issue of entitlement to an earlier effective date for grant of a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an April 1975 rating decision, the RO denied service connection for residuals of low back strain. The veteran was notified of that decision and of his appellate rights. He did not appeal. 2. At the time of the April 1975 decision, the preponderance of medical evidence showed that the veteran had no back disability. 3. The first claim to reopen a claim of entitlement to service connection for a low back disorder was received by VA on April 28, 1999. 4. In May 2001, the Board issued a decision finding that the April 1975 decision was final and that new and material evidence had been submitted to reopen the claim of entitlement to service connection for a low back disorder. CONCLUSIONS OF LAW 1. The April 1975 RO decision that denied service connection for residuals of low back strain is final. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1104 (2007). 2. The May 2001 Board decision, that determined the April 1975 decision to be final, is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. § 20.1100 (2007). 3. The criteria for an effective date prior to April 28, 1999, for grant of service connection for lumbar spine degenerative arthritis with disc extrusion, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for lumbar spine degenerative arthritis with disc extrusion was established in a September 2002 rating decision, with an effective date of November 1, 1999. In a statement of the case issued in March 2004, the RO changed the effective date to April 28, 1999. In documents dated in July 2003 and August 2003, the veteran, through counsel, contended that an effective date earlier than that assigned by the RO is warranted for grant of service connection for a low back disorder. He based his disagreement on two theories. First, he argues that he was never informed of an April 1975 decision that denied an October 1974 claim for low back pain and, thus, that decision did not become final and his grant of service connection should depend on that October 1974 claim. Second, he argues that the April 1975 decision denied service connection for residuals of low back strain, but failed to address whether service connection was warranted for degenerative disc disease of his low back and, thus, that the date of a claim for service connection for degenerative disc disease precedes the April 1975 decision. As to his first argument, he has failed to rebut the presumption that VA officers properly discharged their official duties by timely sending him copy of the April 1975 decision and his appellate rights. Additionally, the finality of the April 1975 decision was decided in a May 2001 Board decision, hence litigation of that issue is procedurally barred absent a finding that the May 2001 decision was clearly and unmistakably erroneous. As to his second argument, the Board finds that there was no separate claim for degenerative disc disease at the time of the April 1975 decision. The veteran did not file such a claim. Beyond this fact, affirmative medical evidence at that time demonstrated that the veteran did not have degenerative disc disease, or any other disability of his low back disability at that time. The effective date of a grant of service connection is governed by 38 U.S.C.A. § 5110 as implemented by 38 C.F.R. § 3.400. 38 U.S.C.A. § 5110(a) states, "unless specifically provided otherwise in this chapter, 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 in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(b)(1) states that "the effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefore is received within one year from such date of discharge or release." The regulation implementing 38 U.S.C.A. § 5110 provides that the effective date of an evaluation and award of compensation based on direct service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from active service; otherwise the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(i)(2) (2007). Similarly, the effective date of an evaluation and award of compensation based on presumptive service connection, by application of 38 C.F.R. § 3.307 and §3.309, shall be the date entitlement arose, if the claim is received within one year of separation from active duty; otherwise the date of receipt of claim, or date entitlement arose, whichever is later. C.F.R. § 3.400(b)(2)(ii) (2007). The effective date of a final claim, reopened based on submission of new and material evidence, where that evidence is other than service department records, will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q),(r). A claim, or application, is defined 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). An RO decision becomes final unless the claimant files a notice of disagreement within one year of the date of VA's mailing of notice of the decision. 38 U.S.C.A. § 7105(b). Final RO decisions may not thereafter be reopened or allowed, except as otherwise provided by regulations. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. 20.1103. Of record is a DD Form 214 showing that the veteran was separated from active duty in April 1974. An application for VA benefits was first received in October 1974. As the nature of sickness disease or injuries claimed by the veteran, he stated "[l]eft knee is sore. Received floting bones bodies while in Active Service. Had periods of problem with lower back pain. Right side of Stomach give little support Due to tenderness." In April 1975, an RO issued a decision finding service connection warranted for a left knee disability but denying service connection for the other claims, specifically noting that there were no residuals of a low back strain shown on the veteran's separation examination or by VA examination conducted in December 1974. The record does not contain a copy of the letter notifying the veteran of that decision and of his appellate rights. It is this absence of such a letter that the veteran hinges his contention that he was not notified of the April 1975 decision. However, as explained below, the veteran was notified of the April 1975 decision by letter dated April 25, 1975. The veteran did not initiate an appeal of that decision and the decision became final. Regulations in effect at the time of the April 1975 decision provided that a claimant will be notified of all decisions affecting payment of benefits or granting relief, such notice to include the reason for the decision, the date the decision was effectuated, the right to a hearing, and the right and time period with which he can appeal the decision. 38 C.F.R. § 3.103(e) (1975). This regulation thus imposed an official duty on VA to notify the veteran of the April 1975 decision and of his appellate rights. There is a presumption of regularity that government officials have properly discharged their official duties. See Woods v. Gober, 14 Vet. App. 214, 220 (2000) (presumption of regularity attaches to "all manner of VA processes and procedures"); see also Chemical Foundation, Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 6, 71 L.Ed. 131 (1926) (emphasis added). This presumption of regularity has been consistently applied to VA procedures. The Court has found that a Board decision is presumed to have been mailed on the date shown on the decision. See Sandine v. Derwinski, 1 Vet. App. 26 (1990); see also Rosler v. Derwinski, 1 Vet. App. 241 (1991). Similarly the Court has held that the presumption of regularity applies to the mailing of an SOC "in the same manner that it apples to the BVA [Board] mailing a decision. YT v. Brown, 9 Vet. App. 195, 199 (1996). Clear evidence to the contrary is required to rebut the presumption. Ashley v. Derwinski, 2 Vet. App. 307 (1992); see also United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). An assertion that the notice was not received does not constitute such clear evidence. Ashley at 309. Examples of clear evidence to rebut the presumption of regularity include mailing a Board decision to an incorrect address, Piano v. Brown, 5 Vet. App. 25, 26-27 (1993), and a Board decision mailing returned as undeliverable coupled with other possible and plausible addresses available to the Secretary at the time of the decision. See Cross v. Brown, 9 Vet. App. 18, 19-20 (1996). The veteran has not provided clear evidence to rebut the presumption of regularity. Rather, the veteran has only pointed out that the claims file does not contain a copy of a notice letter and contends that he was not properly notified of the decision. The Board finds that the mere absence of a notification letter from the veteran's claims file, or for that matter, his assertion that he did not receive notice, does not rise to the standard of clear evidence that VA failed to properly discharge its official duties as to notifying the veteran of the April 1975 decision and of his appellate rights. Hence, VA is presumed to have mailed the decision and timely informed the veteran of his appellate rights. Moreover, even without relying on the presumption of regularity, the preponderance of evidence indicates that VA timely informed the veteran of the April 1975 decision and of his appellate rights. Evidence demonstrating that VA properly carried out its duties in this regard is provided by two VA forms of record. A VA FORM 20-822 CONTROL DOCUMENT AND AWARD LETTER, dated April 25, 1975, refers to a VA FORM 21-6782 and indicates that a copy was sent to the veteran's representative, Disabled American Veterans. VA FORM 21-6782 was a form entitled Original Disability Compensation, which specified the disorders for which service connection had been established. See Lozano v. Dersinski, 1 Vet. App. 184 (1991). VA FORM 21-6782 contained instructions for appealing VA decisions. The April 25, 1975 VA FORM 20-822 contains the veteran's address, which is the same address that he listed in correspondence received by VA from him in April 1980, indicating that VA sent notice to the correct address. Execution of the VA FORM 20-822 was part of VA's administrative process and thus is evidence that VA officials carried out their official duties, including properly notified the veteran and his representative of the April 1975 decision and of his appellate rights. Also associated with the claims file is a VA-FORM 21-6798, entitled DISABILITY AWARD, and dated April 23, 1975. This document indicates that the denial of claims for residuals of low back strain and a stomach disability, and indicates that there was an original and four copies of this form, with copies to the holder of power of attorney, and INSURANCE - VAC. This was also part of the administrative process carried out by VA with regard to this veteran and is more evidence that VA officials properly carried out their duties, including sending proper notification to the veteran. The veteran's own writings to VA also provide evidence that VA properly notified him of the decision and his rights. On April 28, 1999, the RO received a writing from the veteran stating in its entirety: Please be advised that I would like to reopen my claim for [service connection] on a back condition. I filed back in 1974 for this condition but was denied because of no treatment form my service medical records." I now wish to submit the below records which you should have used previously as they were taken out of my "C" file. In any event, please reconsider my claim [and] schedule a C&P exam for rating purposes. This language shows that the veteran was aware that VA had denied his 1974 claim. He specifically asked that VA "reopen" his claim and stated his understanding of why the claim was denied. This is strong evidence that VA did properly carry out its administrative duties to timely notify the veteran of the April 1975 decision and of his appellate rights. Importantly, it also provides evidence against the veteran's overall credibility with the VA. Simply stated, the Board finds that the veteran is not an accurate historian. Also of note is that VA sent the veteran a copy of his rating decision in July 1989. This was in response to a June 1989 letter from the veteran requesting a copy of his "Compensation and Disability Rating Factor" with regard to his application for employment with the U.S. Postal Service. Thus, even if the veteran had not been apprised of the April 1974 rating decision contemporaneous to that decision, he was given a copy of the decision in July 1989. The Court has stated that, even if VA fails to mail a document to a claimant, tolling a statutory or regulatory time period to respond to that document, a subsequent mailing cures the defect and starts the clock as to such response. See Matthews v. Principi, 19 Vet. App. 23 (2005). In Matthews, the appellant argued that he had not received a statement of the case from the RO and therefore, the time period had never began to run for filing a substantive appeal. Id. However, some time after the appellant's notice of disagreement with the decision, VA provided a copy of the appellant's claims file, which included a copy of that statement of the case, to the veteran's attorney. Id. The Court found that this action by VA cured any defect in mailing, and, that even if the veteran was not previously provided the statement of the case, the period for filing a substantive appeal ran out 60 days after the claims file was provided to his attorney. Id. Similarly, in the instant case, even if the veteran was not provided with a copy of the April 1975 decision contemporaneous to that decision, such defect was cured by the July 1989 mailing. The veteran did indicate any disagreement with that decision within one year of July 1989. In short, the veteran has not provided clear evidence to rebut the presumption of regularity that VA officials carried out their official duties by mailing timely mailing to him and his representative a copy of the April 1975 rating decision and his appellate rights. Even had he rebutted the presumption, the preponderance of the evidence shows that VA officials carried out their duties to properly notify the veteran. Finally, the veteran was again sent a copy of his rating decision in July 1989, curing any possible defect in mailing the decision earlier (which the Board does not concede) and failed to respond to that mailing within one year. Hence, the Board finds that the veteran was properly notified and the April 1975 decision is final. Furthermore, although the Board has explained why the April 1975 decision became final prior to the veteran's April 28, 1999 claim to reopen, his current appeal fails on separate and independent grounds. Irrespective of the details surrounding the April 1975 decision, the veteran is procedurally barred from arguing that the April 1975 decision because the May 2001 Board decision has already decided that issue. In May 2001, the Board issued a decision in which the Board specifically concluded that the April 1975 decision was final and that new and material evidence had been submitted to reopen the claim. That Board decision is final. See 38 C.F.R. § 20.1100 (2007). Under the doctrine of the law of the case, questions settled on former appeal of the same case are no longer open for review. See Browder v. Brown, 5 Vet. App. 2168, 270 (1993). Such settled questions will not generally be reviewed or reconsidered. Id. The Board notes that if the veteran wishes to dispute the finality of the April 1975 decision, he must first overcome the May 2001 Board decision. Since that decision did not disallow a claim, overcoming that decision cannot be accomplished by submission of new and material evidence. See 38 U.S.C.A. § 5108 (stating that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim). (emphasis added). The only avenue open to the veteran, to overcome the May 2001 Board decision, is to show that the May 2001 decision contained clear and unmistakable error. The Board now turns to the veteran's second argument. In a statement dated in July 2003, the veteran argued through his attorney that his service records contained a diagnosis of lumbar disc disease but that VA had not denied service connection for this particular disorder or informed him that service connection had been denied for this disorder. He argues that there was a claim for service connection for degenerative disc disease of his back which was never adjudicated. From this, he concludes that the date of grant for a low back disorder should be effective based on the October 1974 claim. In the Brief to the Court, the veteran's attorney cites Best v. Brown, 10 Vet. App. 322 (1997) in support of this argument. Reliance on the case is misplaced by counsel for the appellant. In Best the claimant filed a claim seeking service connection for residuals of pneumonia, shrapnel wounds, a foot condition, and a nervous disorder. Id. at 523. Four months later the RO issued a decision granting service connection for tinea pedis and residuals of shell fragment wound, but did not mention the nervous disorder. Id. A VA examination followed 14 months later, resulting in diagnoses of generalized anxiety disorder, alcohol abuse, adjustment reaction, and a mixed personality disorder. Id. Four months after that examination, the RO issued a rating decision denying service connection for generalized anxiety disorder, with personality disorders and adjustment reaction. Id. at 323. That decision explained the reasons why the claims for a personality disorder, adjustment reaction, and alcohol abuse were denied, but did not explain the reason for denying service connection for a generalized anxiety disorder. Id. In a letter sent to that claimant, the RO told him that service connection had been denied for a personality disorder, adjustment reaction, and alcohol abuse but made no mention of denying a claim for generalized anxiety disorder. Id. The Court in Best determined that there was no evidence to show that the RO finally adjudicated a claim for a generalized anxiety disorder and had thus committed a procedural error by failing to adequately notify the claimant that it was denying service connection of all diagnosed disorders, including a generalized anxiety disorder. In Best, at the time of the RO's issuance of the rating decision the claimant was diagnosed with generalized anxiety disorder. There was no dispute that the veteran had a generalized anxiety disorder. Generalized anxiety disorder clearly fell within the claim for a nervous disorder. By informing the veteran of denials for other disorders for which he had a current diagnosis, all of which reasonably fell under the umbrella of a nervous condition, but not even mentioning the reason for denying service connection for a generalized anxiety disorder and informing him in a letter of the denial of all but the generalized anxiety disorder, one could not but assume that VA had not decided whether generalized anxiety disorder warranted service connection. Under the facts of Best, a reasonable person would be left unsure as to whether service connection for a generalized anxiety disorder had been denied, particularly given that initial claimed disabilities had already been the subject of more than one decision. Simply stated, Best does not support the argument because the instant case is clearly distinguishable from Best. In the July 2003 statement, the veteran's attorney stated that the veteran was diagnosed with lumbar disc disease during service. In so doing, she ignores most of the record. The only reference to a disc is found in an April 1971 entry which states "Pt. L.P.B _ ? disc [an illegible entry which could be 'disease'] - discharged to d [illegible ] ago - still having some problem - wants light duty excuse-." This is followed by a May 1971 orthopedic consult report with an impression that the veteran had back pain, probably muscular strain, now almost entirely resolved. All other references in the service medical records are to back strain. In December 1974, the veteran underwent VA examination, including x-rays of his lumbar spine. The x-ray report stated in pertinent part "normal disc spacing - no arthritic or disc degenerative disease - no spurring or lipping of the bodies - normal outline of the sacroiliac joints - negative study." Diagnoses rendered by the physician who conducted the examination included "No abnormal clinical findings, low back. (Negative X-ray) - Lumbo-sacral strain by history." The instant case is clearly distinguishable from Best in that the veteran's March 1974 separation from service medical examination clinically evaluated the veteran's spine as normal and the December 1974 VA examination not only did not diagnose a back disorder, including lumbar disc disease, but affirmatively found by medical evidence, including x-rays, that the veteran did not have disc disease or any back disorder. There was no claim, either asserted by the veteran or inferred from medical evidence, for lumbar disc disease. Furthermore, the April 1975 decision adjudicated all of the claims that the veteran had filed; there were no multiple decisions to leave the veteran wondering if more were to come. Hence, there was no reason to question whether service connection had been decided as to a disc disorder of the veteran's low back. The April 1975 rating decision addressed the claim filed by the veteran in October 1974 and the evidence of record. The veteran had no current diagnosis of disc disease at the time of that decision and there is no pending claim for a disc disorder of the veteran's back. In summary, the veteran's October 1974 claim stated in pertinent part, "[h]ad periods of lower back pain." No disorder of the veteran's low back was diagnosed pursuant to current examinations. The RO adjudicated this claim in April 1975. No more is required, the regulations do not require that the RO's rating decision discuss all notations in the service medical record and that somehow failure to do so leaves claims unadjudicated. If the veteran believed his claim to have been wrongly denied, or believed that the RO did not address his claim, the remedy was to file a timely notice of disagreement. This the veteran did not do. In conclusion, the veteran's claim for a low back disorder was denied by the RO in a rating decision dated in April 1975. It is presumed that VA notified him of the decision and his appellate rights. That presumption has not been rebutted. Even without operation of the presumption the preponderance of the evidence shows that VA fulfilled its duty to notify the veteran of the April 1975 decision and his appellate rights and that decision is final. Independently, absent a finding that the May 2001 Board decision contained clear and unmistakable error, litigation of the finality of the April 1975 decision is barred. On April 28, 1999 the Board received the veteran's claim to reopen the previously denied claim for a low back disorder. Prior to April 28, 1999, there was no separate claim for degenerative disc disease of the low back. Thus, the effective date of the grant of service connection for a low back disorder can be no earlier than April 28, 1999. The preponderance of the evidence, as described above, is against the veteran's claim for an effective date earlier than April 28, 1999 for grant of service connection for a low back disability. Hence his claim must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2007). Duties to notify and assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a 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. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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 must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case the veteran filed his claim to reopen in April 1999 and the RO initially denied his claim in December 1999, prior to enactment of the VCAA in November 2000. The Court also made it clear that where, as in this case, notice was not mandated at the time of the initial RO rating decision in January 1999 the RO did not err in not providing such notice. Pelegrini at 120, VAOPGCPREC 7-2004. The Court did state that the veteran does have the right to VCAA content- complying notice and subsequent VA process In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 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, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran's claim which ultimately led to this appeal was a claim to reopen a previously disallowed claim. In Kent v. Nicholson, 20 Vet. App. 1 (2006), the U.S. Court of Appeals for Veterans Claims clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. The purpose of the VCAA notice specified in Kent is to provide the veteran with information to help the veteran substantiate that portion of his claim, that is, to aid him in reopening his previously denied claim. Here, the veteran's claim has been reopened and service connection has been granted, so the need for the notice in this case no longer exists. For this reason, to the extent that VA failed to provide him with the notice specified in Kent, such error is harmless and results in no prejudice to the veteran. Here, the duty to notify was not satisfied prior to the initial unfavorable decision on the claim by the RO. Under such circumstances, VA's duty to notify may not be "satisfied by various post-decisional communications from which a claimant might have been able to infer what evidence the VA found lacking in the claimant's presentation." Rather, such notice errors may instead be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to the RO's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the RO) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In this case, the VCAA duty to notify was partially satisfied subsequent to the initial RO decision by way of a letter sent to the veteran in October 2001 that fully addressed all four notice elements but did not address assignment of disability ratings and effective dates. The letter informed the veteran of what evidence was required to substantiate the claim and of the veteran's and VA's respective duties for obtaining evidence. The veteran was also asked to submit evidence and/or information, which would include that in his possession, to the RO. Although the notice letter was not sent before the initial RO decision in this matter, the Board finds that this error was not prejudicial to the veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. The Board realizes that this notice is without practical benefit at this point because the notice only applied to establishing service connection, which has been accomplished. VCAA notice as to assignment of effective dates and disability ratings has not been provided in this case. However, the veteran, through counsel, has demonstrated considerably greater actual knowledge of how VA assigns disability ratings and effective dates than VCAA notice would have provided. Hence, the absence of notice as to assignment of disability ratings and effective dates is not prejudicial to the veteran. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the veteran has been advised by counsel. He has argued caselaw interpreting the assignment of effective dates and disability ratings in far greater detail than VCAA notice would have apprised him. Thus, the Board finds that he has actual knowledge of that notice would have provided. For this reason, the Board finds that any lack of VCAA notice in this case is not prejudicial to the veteran. VA has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records. The veteran has submitted relevant records of private treatment from "M.K.", M.D. and "T.H.", Ph.D. Appropriate VA examinations of the veteran's spine were afforded the veteran in April 2002 and August 2006. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER An effective date earlier than April 28, 1999 for grant of service connection for lumbar spine degenerative arthritis with disc extrusion is denied. REMAND The veteran contends that he is entitled to an effective date earlier than June 9, 1999 for grant of a TDIU. This issue comes to the Board through the October 2007 Order of the Court which granted the parties' joint motion. The basis of the joint motion is very unclear. Importantly, in addressing the joint motion and Court order, one of the matters the Board must also address is which issue or issues are properly before it at this time. Under 38 U.S.C.A. § 7105(a), an appeal to the Board must be initiated by a notice of disagreement and completed by a substantive appeal after a statement of the case (SOC) is furnished to the veteran. In essence, the following sequence is required: There must be a decision by the RO; the veteran must timely express disagreement with the decision; VA must respond by issuing a statement of the case that explains the basis for the decision to the veteran; and finally the veteran, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed substantive appeal. 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.203. See also 38 U.S.C.A. § 7104; 38 C.F.R. §§ 19.4, 20.101 (the Board has jurisdiction to resolve questions as to its own jurisdiction). See also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996) (it is a well-established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each case before adjudicating the merits, and that a potential jurisdictional defect may be raised by the court or tribunal, sua sponte or by any party at any stage in the proceedings, and, once apparent, must be adjudicated). Simply stated, a joint motion does not grant the Board jurisdiction of a claim. In a rating decision dated in October 1999, the RO granted a TDIU, effective June 9, 1999. The next communication received from the veteran or any of his representatives that mentions the TDIU or an effective date was received in May 2003 from the veteran's attorney. No statement of the case has been issued with regard to this issue. Indeed, the claims file is absent for any indication that the RO has considered whether a timely notice of disagreement has been received as to the effective date of the grant of a TDIU. Nor has the RO considered whether the veteran's contention is a freestanding claim for an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Based on the above, the joint motion appears to be asking the Board to adjudicate or "address" a claim that was not before the Board in June 2006, though this is very unclear in light of the joint motion language that the Board's decision of June 2006 "arguably" failed to address these claims. See October 2007 Joint Motion at page one. The Joint Motion appears instead to ask the Board to "discuss" whether this issue was raised (see Joint Motion at page five) notwithstanding the history of this case. In short, the claims file is absent for any evidence that the veteran has initiated an appeal of the decision that granted a TDIU or that the RO has considered the issue of an earlier effective date for a TDIU. Hence, the Board is without jurisdiction to render a decision on this issue at this time. However, in light of the Court's order, which must be obeyed, the RO must consider the matter in the first instance as well as ensuring that the veteran has received all necessary VCAA notice. Accordingly, the case is REMANDED for the following action: 1. Send the veteran a VCAA notice letter regarding the issue of an earlier effective date for grant of a TDIU. This letter should include the notice clarified in Dingess v. Nicholson, 19 Vet. App. 473 (2006) as to the five elements of a service connection claim, including assignment of disability ratings and effective dates. 2. Then, adjudicate the issue of whether an effective date earlier than June 9, 1999 is warranted for a grant of a TDIU. To the extent that the provisions of 38 U.S.C.A. § 7104, § 7105(a), and Rudd v. Nicholson, 20 Vet. App. 296 (2006), are applicable, such should be addressed. 3. If, and only if, the veteran appeals the adjudication, ensure that a statement of the case is issued and, if, and only if, the veteran timely perfects an appeal to the Board, return the matter to the Board for appellate consideration. 4. All actions requested by the Board in the June 2006 Board remand should be undertaken. 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). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs