Citation Nr: 1003145 Decision Date: 01/21/10 Archive Date: 02/01/10 DOCKET NO. 06-11 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an effective date earlier than January 4, 2002, for a grant of service connection for right hip disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Esquire ATTORNEY FOR THE BOARD N. Rippel, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to April 1955. This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In a June 2007 decision, the Board denied the claim. The Veteran, in turn, appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In May 2009, the Court issued a memorandum decision that vacated the Board's June 2007 denial and remanded the matter to the Board for action in compliance with that memorandum decision. The Court has ordered that the Board address whether an October 1995 statement from the Veteran constituted an informal claim for service connection for right hip disability. FINDINGS OF FACT 1. Service connection for right hip disability was denied in an unappealed rating decision of March 1970. 2. A claim to reopen the claim for service connection for right hip disability was received on October 13, 1995. 3. The Veteran's reopened claim for service connection for right hip disability reopened on the basis of new and material evidence, other than service department records. 4. Service connection for right hip disability was granted on the basis of service aggravation. CONCLUSION OF LAW Entitlement to an effective date of October 13, 1995, but not earlier, for the grant of service connection for right hip disability is established. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.150, 3.151, 3.155, 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2009), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2009), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The Court further held that VA failed to demonstrate that, "lack of such a pre-AOJ-decision notice was not prejudicial to the appellant, see 38 U.S.C. § 7261(b)(2) (as amended by the Veterans Benefits Act of 2002, Pub. L. No. 107-330, § 401, 116 Stat. 2820, 2832) (providing that "[i]n making the determinations under [section 7261(a)], the Court shall . . . take due account of the rule of prejudicial error")." Id. at 121. The timing requirement enunciated in Pelegrini applies equally to the effective-date element of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the case at hand, the record reflects that the Veteran was provided adequate VCAA notice in a letter mailed in August 2009. Although this letter was mailed after the initial adjudication of the claim, the Board finds that there is no prejudice to the veteran in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that no additional evidence was submitted or identified in response to the August 2009 letter. Therefore, there is no reason to believe that the ultimate decision of the originating agency would have been different had complete VCAA notice been provided at an earlier time. The disposition of this appeal depends upon when the Veteran's claim to reopen was received. Neither the Veteran nor his attorney has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Moreover, in the Court's decision vacating the Board's June 2007 denial, no deficiency in the notice or assistance provided to the Veteran was cited. Therefore, the Board concludes that any procedural errors in the development and consideration of this claim by the originating agency were not prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Accordingly, the Board will address the merits of the claim. Analysis Under the applicable criteria, the effective date of an award of disability compensation based on an original claim for direct service connection or a claim reopened after final disallowance shall be the date following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Any communication or action from a claimant, which indicates intent to apply for one or more benefits under the laws administered by VA, may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Where evidence requested in connection with a claim to reopen is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation shall not commence earlier than the date of filing of the new claim. 38 C.F.R. § 3.158. The record shows that the Veteran's initial claim of entitlement to service connection for right hip disability was denied in a March 1970 rating decision on the basis that the Veteran's right hip disability existed prior to service and was not aggravated by service. Although the Veteran filed a notice of disagreement with this decision and was provided a Statement of the Case in response thereto, he did not perfect his appeal with the submission of a timely substantive appeal. Pursuant to 38 U.S.C.A. § 5108 (West 2002), a finally disallowed claim, such as the veteran's, may be reopened when new and material evidence is presented or secured with respect to that claim. The Veteran submitted a VA Form 21-526 in May 1994 seeking nonservice-connected pension. He listed his disabilities as being of the right and left hips, as well as the right hand. His attorney has argued that the May 1994 claim should be construed as a claim to reopen the previously denied claim for service connection for right hip disability. The Board disagrees. In that form, the Veteran only completed the portions of the form required to claim entitlement to pension purposes. He indicated that the portions of the form for claiming service connection were not applicable. He did not complete those sections. Therefore, it is clear that he was not attempting to reopen his claim for service connection for right hip disability at that time. The Veteran submitted a claim to reopen his previously disallowed claim of entitlement to service connection right hip disability on January 4, 2002. By rating action in February 2005, the RO granted reopening of the claim on the basis of new and material evidence other than service department records. The RO then granted service connection for right hip disability on the basis of service aggravation, effective January 4, 2002. The Court has ordered that the Board address whether a statement received by VA on October 13, 1995, should be considered an informal claim. The Board has considered the statement and has determined through a liberal reading of the statement that it does constitute an informal claim to reopen. Therefore, the proper effective date for the award of service connection on the basis of service aggravation is October 13, 1995. ORDER Entitlement to an effective date of October 13, 1995, but not earlier, for a grant of service connection for right hip disability, is granted, subject to the criteria applicable to the payment of monetary benefits. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs