Citation Nr: 1127513 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 06-34 225A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an effective date earlier than April 18, 2005 for a grant of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than April 18, 2005 for a grant of service connection for residuals of a radical prostatectomy with impotence. 3. Entitlement to an effective date earlier than April 18, 2005 for a grant of special monthly compensation. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD E. D. Anderson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1963 to May 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. Jurisdiction is currently with the RO in San Diego, California. The Veteran requested and was scheduled for a video conference hearing before a member of the Board, but failed to appear for his scheduled hearing. In November 2010, the Board remanded this matter to the RO via the Appeals Management Center (AMC) in Washington, D.C. to schedule the Veteran for a hearing before a Veterans Law Judge. The action specified in the November 2010 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT The Veteran's original claim for entitlement to service connection for PTSD and prostate cancer, including impotence, was not received prior to April 18, 2005. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than April 18, 2005 for a grant of service connection for posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). 2. The criteria for entitlement to an effective date earlier than April 18, 2005 for a grant of service connection for residuals of a radical prostatectomy with impotence have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). 3. The criteria for entitlement to an effective date earlier than April 18, 2005 for a grant of special monthly compensation have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS 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 it shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(i)(2) (2010). 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 it shall be the date of receipt of the claim, or date entitlement arose, whichever is later. C.F.R. § 3.400(b)(2)(ii) (2010). 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). The Veteran was granted service connection for status post radical prostatectomy with impotence, special monthly compensation for loss of use of a creative organ, and posttraumatic stress disorder in a December 2005 rating decision and assigned an effective date of April 18, 2005, the date the Veteran's claim for service connection was received by the RO. In March 2006, the Veteran filed a statement expressing clear disagreement with the effective date assigned. The Veteran has asserted in multiple statements that he first filed a claim for benefits in June 2004. In support of this contention, the Veteran has submitted a VA Form 21-22 Appointment of Veterans Service Organization as Claimant's Representative signed June 22, 2004 which is of record. Very importantly, the VA Form 21-22 submitted by the Veteran has no date stamp indicating receipt by VA, while the copy of the VA Form 21-22 signed by the Veteran in June 2004 that is associated with the Veteran's claim folder was date stamped April 2005, the same time the Veteran filed his formal claim for prostate cancer and PTSD. Such a record provides highly probative evidence against this claim, clearly indicating that while the Veteran may have signed the appointment on June 22, 2004, it did not get to the VA until April 2005. Based on the above, VA assigned an effective date of April 18, 2005 in this case because the Veteran's April 2005 formal claim was the first claim for entitlement to service connection they had of record. The Board finds credible the assertions of the Veteran and his spouse that the Veteran sought assistance from a veterans' service organization in June 2004 with "the intent" of filing a claim for benefits and believes that the Veteran may have, or may have not, filled out all the necessary paperwork at that time. However, 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 it shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(i)(2) (2010). For purposes of granting an effective date, it does not matter when the Veteran first completed the necessary paperwork to file his claim, only when that claim was filed with the VA. Here, the preponderance of the evidence weighs against a finding that the Veteran's claim for service connection was received by VA earlier than April 2005. The Veteran has testified that he believed that the VA Form 21-22 was faxed to VA on June 22, 2004 and that he believed that his claim was mailed by his representative to VA that same day. He has also testified that after speaking with a VA Patient Advocate, N.S., he believed that his claim had been received and was in the system. However, he has presented no evidence that can establish that VA ever received his claim or the VA Form 21-22 in June 2004. In fact, the evidence he has submitted (VA Form 21-22) and when it was date stamped clearly provides evidence against this claim. Additional records provide evidence against these claims. The Veteran's claim file also contains private medical records from 2004 that are dated stamped April 2005 and were provided to VA along with the Veteran's April 2005 claim for prostate cancer and PTSD. There is no evidence of record (such as statements from the Veteran or medical records date stamped in 2004) that would suggest that the Veteran filed a claim in June 2004. The fact that all of these records are date stamped in April 2005 provides highly probative evidence against these claims. The record is very clear. Beyond the above, a long line of case law establishes a presumption of regularity that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption of regularity in the administrative process may be rebutted by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption. Id. The Court has specifically held that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity afforded VA operations. Jones v. West, 12 Vet. App. 98, 100, 102 (1998). The presumption of regularity attaches to "all manner of VA processes and procedures." See Woods v. Gober, 14 Vet. App. 214, 220 (2000). Thus, it follows that the presumption is applicable to the government processing of applications for benefits. Absent clear evidence to the contrary, VA is entitled to the presumption that they properly date stamp and process each claim for benefits when it is received- not a year later. Here, the Veteran has failed to present clear evidence that his claim was received by VA in June 2004, but lost or misplaced. Based on the above evidence, the Board concludes that VA did not receive an informal or formal claim for benefits from the Veteran in June 2004. Consequently, assignment of an earlier effective date is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b) (2010); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159. 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 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 elements of the claim, including notice of what is required to establish service connection. The veteran must also be informed that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The VCAA duty to notify, other than as to how VA assigns disability ratings and effective dates, was satisfied prior to the RO's rating decision by way of a letter sent to the Veteran in April 2005 that informed him of what evidence was required to substantiate his claim and of the Veteran's and VA's respective duties for obtaining evidence. In April 2006 the RO sent the Veteran a letter explaining how VA assigns disability ratings and effective dates. However, this notice was not provided to the veteran prior to the initial rating 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 a supplemental statement of the case, is sufficient to cure a timing defect). Although the April 2006 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. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a statement of the case issued in November 2006, after the notice was provided in April. For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. VA also 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). 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 The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs