Citation Nr: 0814644 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-08 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to an effective date earlier than March 11, 2004, for the grant of service connection for a lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran (Appellant) ATTORNEY FOR THE BOARD N. Snyder, Associate Counsel INTRODUCTION The veteran had active service from October 1984 to March 1997. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of August 2006 by the Department of Veterans Affairs (VA) Little Rock, Arkansas, Regional Office (RO), which granted service connection for a lumbar spine disability (degenerative joint disease and degenerative disc disease), and assigned an effective date for the grant of service connection of March 11, 2004 (date of receipt of reopened claim). In September 2006, the veteran entered a notice of disagreement with the effective date assigned. FINDINGS OF FACT 1. A July 1997 rating decision denied service connection for muscular low back pain; this decision was issued on August 22, 1997; and the veteran did not enter a notice of disagreement within one year of issuance of notice of this decision. 2. On March 11, 2004, the RO received the veteran's request to reopen service connection for a lumbar spine disability. 3. There was no pending claim prior to March 11, 2004 pursuant to which service connection for a lumbar spine disability could have been awarded. CONCLUSION OF LAW The criteria for an effective date prior to March 11, 2004 for the award of service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 5107, 5110 (West. 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist 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). The appellant was provided notice regarding effective date requirements in a letter dated in August 2006. In this case, the earliest possible date permitted by the effective date regulations has been granted, so that an earlier effective date is not legally possible. In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to meet the duty to assist a claimant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004. Entitlement to an Earlier Effective Date In an unappealed July 1997 rating decision, the RO denied service connection for a lumbar spine disability. Notice of the decision was issued on August 22, 1997, and the veteran did not enter a notice of disagreement with this decision within one year of notice. For this reason, the July 1997 rating decision became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38. C.F.R. §§ 3.104, 20.302, 20.1103 (2007). On March 11, 2004, the veteran filed an application to reopen service connection for a lumbar spine disability. This application was denied by a September 2004 rating decision, and notice of this decision was issued on October 13, 2004. In March 2005, the veteran submitted additional evidence for his application to reopen. Subsequently in March 2005, the RO informed the veteran that the evidence was duplicates of documents already considered. The RO also informed the veteran that he had until October 13, 2005 to submit new and material evidence to protect his entitlement to benefits from the earliest possible date. In June 2005, the veteran provided additional evidence. The RO issued another rating decision in July 2005 continuing denial of reopening of service connection for muscular low back pain. In July 2005, the veteran entered a notice of disagreement with the denial of reopening of service connection. As this notice of disagreement was received within the remaining one year period from issuance of the October 2004 rating decision denial of reopening, the claim to reopen had been continued since the veteran's March 11, 2004 claim to reopen. Subsequently, in the August 2006 Rating Decision on appeal, RO granted service connection for a lumbar spine disability, and assigned March 11, 2004, the date of receipt of the veteran's application to reopen, as the effective date of service connection for the lumbar spine disability. In September 2006, the veteran entered a notice of disagreement with the effective date assigned for the grant of service connection for lumbar spine disability. The veteran contends that the effective date of the grant of service connection should be earlier because he attempted to file a claim to reopen service connection for a back disorder in approximately 1999, but the RO was of no assistance to him, and that he was confused as to what he needed to submit to have his claim reopened. While the Board is sympathetic to the veteran's assertion that he intended, and perhaps even attempted, to file a claim to reopen in 1999, the record contains no evidence that can be construed as either a formal or an informal claim to reopen prior to March 11, 2004. See 38 C.F.R. §§ 3.1(p) and 3.155(a) (2007). Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii). As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which as noted above was received by VA on March 11, 2004. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). In this case, the veteran's claim to reopen was received on March 11, 2004, which is the earliest possible effective date possible for the grant of service connection based on the reopened claim. There is simply no legal basis for an effective date earlier than March 11, 2004 for the grant of direct service connection for a lumbar spine disability. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim should be denied on the basis of the absence of legal merit). For these reasons, the Board finds that the criteria for an earlier effective date than March 11, 2004 for the grant of service connection for lumbar spine disability have not been met, and the appeal for an earlier effective date for service connection must be denied. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i). ORDER An effective date earlier than March 11, 2004 for the grant of service connection for a lumbar spine disability is denied. ____________________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs