Citation Nr: 1005451 Decision Date: 02/05/10 Archive Date: 02/25/10 DOCKET NO. 07-26 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than February 2, 2005, for the grant of service connection for frostbite left foot and ankle and for frostbite right foot (referred to hereinafter collectively as "frostbite"). WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Flot, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1981 to September 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In November 2008, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the claims file. This case was previously before the Board in March 2009 when it was remanded for the RO to determine whether its April 1986 rating decision denying service connection for frostbite was the product of clear and unmistakable error (CUE) and, in light of that determination, to readjudicate the Veteran's claim of entitlement to an effective date earlier than February 2, 2005, for frostbite. In an October 2009 rating decision, the RO found no CUE. The Veteran has not appealed this decision. As such, his CUE claim is not currently on appeal. The RO also continued the denial of the Veteran's entitlement to an effective date earlier than February 2, 2005, for frostbite in an October 2009 supplemental statement of the case. This matter is properly returned to the Board for appellate consideration. FINDINGS OF FACT 1. The RO denied the Veteran's original claim of entitlement to service connection for frostbite in an April 1986 rating decision. The Veteran did not appeal that decision. 2. The Veteran's application to reopen his claim of entitlement to service connection for frostbite was received on February 2, 2005. CONCLUSIONS OF LAW 1. The RO's April 1986 rating decision denying the Veteran's claim of entitlement to service connection for frostbite is final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103 (2009). 2. The criteria for the assignment of an effective date earlier than February 2, 2005, for the grant of service connection for frostbite have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.1(p), 3.155(a), 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Here, the Veteran is challenging the effective date assigned following the grant of service connection. No discussion of VA's duties to notify and assist is necessary because the law, and not the evidence, is dispositive of this appeal. See Mason v. Principi, 16 Vet. App. 129 (2002); Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). II. Earlier Effective Date The Veteran seeks an effective date earlier than February 2, 2005, for the grant of service connection for frostbite. He contends that service connection should be effective as of 1985 when he first filed a compensation claim and underwent a VA medical examination for this condition because it has existed since then. The assignment of effective dates is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Generally, the effective date of an award of compensation is fixed in accordance with the facts found, but cannot be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a). For claims reopened after final disallowance, the effective date for an evaluation and award of compensation is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. VA regulations define "application" or "claim" 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 informal claim is further defined as any communication or action indicating an intent to apply for one or more benefits under the laws administered by the VA. 38 C.F.R. § 3.155(a). Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. Id. The basic facts in this case are not in dispute. The Veteran filed a claim of entitlement to service connection for frostbite on September 25, 1985. After affording the Veteran a VA medical examination regarding this condition in November 1985, the RO denied the claim in an April 1986 rating decision. The Veteran's next communication with VA about his claim did not come until February 2, 2005, the date VA received an application to reopen the claim. In a January 2006 rating decision, the RO granted service connection for frostbite effective February 2, 2005. The Board finds that there is no legal authority to assign an effective date earlier than February 2, 2005, for the grant of service connection for frostbite. The April 1986 rating decision became final because the Veteran did not appeal it. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. In this regard, the Board notes that while the Veteran contended in his substantive appeal on a VA Form 9 that he submitted an appeal, he subsequently testified at his November 2008 Travel Board hearing that he "didn't follow up" as required to appeal. Further, the claims file contains no indication that the Veteran submitted an appeal or any other documentation evidencing an intent to appeal the April 1986 rating decision. There also is no indication in the claims file that the Veteran acted to reopen his claim formally or informally between April 1986 and February 2, 2005, the date VA received his application to reopen the claim. VA therefore is precluded as a matter of law from granting an effective date earlier than February 2, 2005. The Board acknowledges the Veteran's contention that service connection should be granted effective as of 1985 because his condition has existed since then. Although the Board is sympathetic to this contention, an effective date is not based on when the Veteran's disability first became manifest after service. Rather, it is based on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). In granting the Veteran service connection effective from February 2, 2005, the day he filed his application to reopen his claim, the RO has already assigned the earliest possible effective date provided by law. The Board is constrained to follow the law and lacks authority to grant an earlier effective date on an equitable basis. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. 416, 425 (1992). Accordingly, the Veteran's claim of entitlement to an effective date earlier than February 2, 2005, is denied. ORDER Entitlement to an effective date earlier than February 2, 2005, for the grant of service connection for frostbite is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs