Citation Nr: 1135697 Decision Date: 09/22/11 Archive Date: 10/03/11 DOCKET NO. 06-03 829A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUES 1. Entitlement to an effective date prior to January 23, 2002, for service connection for residuals of injury, status-post total hip replacement. 2. Entitlement to an effective date prior to January 23, 2002, for service connection for pelvic asymmetry with a mechanical short left leg. 3. Entitlement to an effective date prior to January 23, 2002, for Dependents' Education Assistance (DEA) under 38 U.S.C.A. Chapter 35. 4. Entitlement to an effective date prior to January 23, 2002, for special monthly compensation based on loss of use of the right lower extremity. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD Helena M. Walker, Counsel INTRODUCTION The Veteran had active service from January 1942 to November 1945. The appeal comes before the Board of Veterans' Appeals (Board) from a December 2004 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO), granting service connection for residuals of injury, status post total hip replacement, with an evaluation of 90 percent and an effective date of May 6, 2002; granting service connection for pelvic asymmetry with a mechanical short left leg, with an evaluation of 10 percent and an effective date of November 16, 2004; granting eligibility for DEA effective from November 16, 2004; and granting special monthly compensation based on loss of use of the right lower extremity effective from May 6, 2002. In July 2005, the RO granted an effective date of January 23, 2002, for all of these service-connected disabilities, evaluations, and entitlements; and the Veteran continued his appeal as to these issues. In January 2010, these claims were remanded so the Veteran could be afforded a hearing. In March 2010, the Veteran appeared and testified at a videoconference hearing at the Albuquerque RO. The transcript is of record. Entitlement to earlier effective dates for the issues noted above was denied in an April 2010 Board decision. The Veteran appealed his claims to the United States Court of Appeals for Veterans Claims (Court), and in a June 2011 Memorandum Decision, the Court vacated the Board's decision denying the above-requested earlier effective dates. Of note, the Court affirmed the Board's decision to deny the Veteran's clear and unmistakable (CUE) claim for an unidentified VA decision. This was mischaracterized in the Memorandum Decision as a motion for revision or reversal of a VA decision, nevertheless, the Court affirmed the Board's finding that there was no CUE in an unidentified VA decision. The earlier effective date issues were remanded to the Board for adjudication consistent with the Court's decision. In an August 2011 letter, the Veteran reiterated his contentions regarding his entitlement to earlier effective dates for the issues on appeal. Under 38 C.F.R. § 20.1304 (2010), if the Board receives pertinent evidence that was not initially considered by the RO, the evidence must be referred for review unless the claimant waives this procedural requirement. 38 C.F.R. § 20.1304(c) (2010). Although no waiver was received in this case, the arguments contained in the Veteran's August 2011 letter are cumulative of those previously considered by the RO. Thus, this additional argument is not pertinent and a remand for the RO to reconsider these duplicative arguments is unnecessary. Id. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. In an unappealed July 1974 rating decision, service connection for a right leg/hip disorder was originally denied, and subsequent rating and Board decisions declined to reopen this previously denied claim-most recently in a July 2000 Board decision. 3. The Veteran's most recent request to reopen his previously denied claim of service connection for a right leg/hip disorder was received on January 23, 2002. CONCLUSIONS OF LAW 1. Criteria for assignment of an effective date earlier than January 23, 2002, for the grant of service connection for residuals of a right leg/hip injury have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.155 (2010). 2. Criteria for assignment of an effective date earlier than January 23, 2002, for the grant of service connection for pelvic asymmetry with mechanical left leg shortening have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.155 (2010). 3. Criteria for assignment of an effective date earlier than January 23, 2002, for entitlement to basic eligibility for DEA benefits have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.155 (2010). 4. Criteria for assignment of an effective date earlier than January 23, 2002, for the grant of SMC for loss of use of the right lower extremity have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.400, 3.155 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010), must be examined. As the claim before the Board is for earlier effective dates based on the general legal provisions governing assignment of effective dates and not on the basis of CUE, the Board finds that the provisions of the (VCAA), are not applicable because adjudication of such a claim turns on a matter of law and not on the underlying facts or development of the facts. See Manning v. Principi, 16 Vet. App. 534, 542 (2002). The VCAA can have no effect on appeals that are decided on an interpretation of the law as opposed to a determination based on fact. See Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The Board therefore finds that any deficiency in VA's VCAA notice or development action in relation to the Veteran's earlier effective date claim is harmless error. Earlier Effective Date In regards to the Veteran's appeal for an earlier effective date for the grant of service connection for right hip/leg disorder, pelvic asymmetry with left leg shortening, basic eligibility of DEA benefits, and SMC for loss of use of the right lower extremity, he seeks an effective date of 1974 for these issues. The Board notes that the assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. A "claim" means 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 any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. The communication may be from the claimant, his or her representative, a Member of Congress, or anyone acting as next friend of a claimant who is not sui juris. 38 C.F.R. § 3.155. When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2010). As noted above, a July 1974 rating decision originally denied the Veteran's claim of service connection for residuals of a right leg/hip injury. Subsequent requests to reopen this previously denied claim were denied and his request to reopen was most recently denied in a July 2000 Board decision-this is the last final decision. On January 23, 2002, VA received the most recent claim to reopen, and service connection was granted for a right leg/hip disorder and pelvic asymmetry with mechanical left leg due to the right leg/hip disorder, effective January 23, 2002. The ancillary benefits of basic eligibility to DEA benefits and SMC due to loss of use of the right lower extremity were also awarded an effective date of January 23, 2002. As the issues of service-connected pelvic asymmetry, DEA benefits, and SMC are secondary and/or ancillary to the service-connected right leg/hip disorder, the Board will focus its discussion on the right leg/hip disorder. The Veteran has submitted numerous statements alleging that he should be awarded an effective date in 1974 for his claims. He alleged that he has continuously sought service connection for this right leg/hip disorder and now that service connection has been granted, it should be effective the date of his original claim. To reiterate, the effective date of an award of benefits will generally depend on the date a claim for such benefits was filed, and the Board must consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date. The Board is "required to review all the communications in the file . . . that could be interpreted to be a formal or informal claim for benefits." Lalonde v. West, 12 Vet. App. 377, 381 (1999). The Court has held that, "[w]hile the Board must interpret the appellant's submissions broadly, the Board is not required to conjure up issues that were not raised by the appellant." Brannon v. West, 12 Vet. App. 32, 35 (1998), Lalonde, 12 Vet. App. at 382 (holding that the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA). The Board finds, however, that the record does not contain an earlier formal or informal claim to reopen the previously denied claim of service connection for a right leg/hip disorder than the claim received in January 23, 2002, following the prior final decision. Again, the Veteran's most recent final decision was a July 2000 Board decision. Thus, according to 38 U.S.C.A. § 5110(a), the effective date cannot be earlier than the current designation of January 23, 2002. Namely, there is no document, reflecting an intent to file a claim to reopen dated prior to January 23, 2002. Although the Veteran and his representative contend that service connection should be awarded from the date of the Veteran's original claim, there is no legal justification offered for this theory, and the Board finds that the law does not provide for such benefit. The Veteran's January 2002 claim constituted a claim to reopen based upon the most recent final Board decision in July 2000 which declined to reopen his claim. Finally, the July 2000 Board decision is considered the most recent final decision, and there is no evidence of record suggesting that the Veteran attempted to appeal that decision, and CUE was denied in the April 2010 Board decision. In its remand, the Court indicated that the Board failed to address whether the Veteran's May 2001 VA treatment record constituted an informal claim to reopen his service connection claim for a right leg/hip disorder. See 38 C.F.R. § 3.157(b) (2010). Section 3.157(b) provides in pertinent part that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a VA examination or hospitalization report will be accepted as an informal claim for increased benefits or an informal claim to reopen. Id. Indeed, the date of outpatient or hospital examination or date of admission will be accepted as the date of claim. 38 C.F.R. § 3.157(b)(1). Although the Court directs the Board's attention to Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006) (the mere existence of medical records generally cannot be construed as an informal claim for VA benefits, but rather there must be some intent by the claimant to apply for benefits) in its memorandum decision, the Veteran does not meet the threshold criteria as described in 38 C.F.R. § 3.157(b). Namely, a formal claim for pension or compensation had not been allowed (or denied because the disability was noncompensable). The Veteran has never been in receipt of compensation until service connection was granted for these disabilities. Thus, the May 2001 VA treatment record could not be considered a claim under 38 C.F.R. § 3.157(b)(1). Ultimately, the evidence of record does not support the Veteran's contentions. The date of receipt of the claim to reopen is controlling under the applicable law. Although the Board is sympathetic to the Veteran's contentions, the evidence is against an effective date earlier than January 23, 2002, for the grant of service connection for a right leg/hip disorder and the secondary or ancillary benefits associated with that grant of service connection. The Veteran's appeal must, therefore, be denied. ORDER An effective date prior to January 23, 2002 for the grant of service connection for a right leg/hip disorder is denied. An effective date prior to January 23, 2002 for the grant of service connection for pelvic asymmetry with mechanical left leg shortening is denied. An effective date prior to January 23, 2002 for basic eligibility of DEA benefits is denied. An effective date prior to January 23, 2002 for SMC for loss of use of the right lower extremity is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs