Citation Nr: 1209321 Decision Date: 03/13/12 Archive Date: 03/28/12 DOCKET NO. 08-19 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an effective date earlier than August 7, 2003, for the granting of service connection for prostatitis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant had active military service from June 1968 to June 1970. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The record reflects that the claim originally came before the Board in September 2007. At that time, the issues that were listed on the front page of the action were: 1. Whether a substantive appeal submitted in August 2003 constitutes a timely appeal of a rating decision issued in May 2002. 2. Entitlement to an effective date earlier than August 7, 2003, for the granting of service connection for prostatitis. In a Decision/Remand, the Board found that the appellant had not submitted a timely appeal of the RO's rating action of May 2002, and as such, the appellant's claim was denied. Nevertheless, the Board also found that the appellant had submitted a notice of disagreement with respect to a rating action (again by the RO) that was issued in March 2005. Because the RO had not provided a statement of the case to the appellant in response to the notice of disagreement, the Board, upon assuming jurisdiction of the issue, remanded the claim in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). The remand was directed to the RO via the Appeals Management Center (AMC), in Washington, DC. Subsequent to the statement of the case being issued in May 2008, the appellant perfected his appeal and the claim has since been returned to the Board for review. Upon reviewing the development since September 2007, the Board finds there has been substantial compliance with its remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a remand by the Board confers on the appellant the right to compliance with the remand orders). Thus, the Board will proceed to review and decide the claim based on the evidence that is of record. The issue of entitlement to an increased rating for prostatitis, currently rated as 40 percent disabling, been raised by the record, but it has not been developed and adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The appellant submitted a claim for entitlement to service connection for prostatitis in February 2002, which was nearly thirty-two years after he was discharged from the United States Army. 2. The RO initially denied service connection for prostatitis via a rating action that was issued in May 2002. 3. The appellant did not timely perfect his appeal with respect to the May 2002 RO's decision. 4. On August 7, 2003, the appellant submitted to VA a request to reopen his claim for entitlement to service connection for prostatitis. 5. In a March 2005 rating decision, the RO reopened the appellant's claim, granted service connection for prostatitis, and assigned a 40 percent rating, effective date of August 7, 2003. CONCLUSION OF LAW An effective dater earlier than August 7, 2003, for the granting of service connection for prostatitis is not warranted. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. § 3.400 (2011); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant has come before the Board asking that the RO's decision of March 2005, that granted service connection for prostatitis and assigned an effective date of August 7, 2003, be deemed invalid and that an earlier effective date be assigned. The appellant has claimed that since he began suffering from prostatitis while he was on active duty, and continued to suffer from the condition after he was discharged, the effective date for his award should be the day after he was discharged from the United States Army, or June 23, 1970. The Board has thoroughly reviewed all the evidence in the appellant's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). Also, the Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the appellant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Because the application of the law to the undisputed facts is dispositive of the appellant's appeal regarding the effective date of his service-connected prostatitis disability, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). As to VA's duty to assist, the Board thus finds that all pertinent treatment and examination records have been obtain and thus there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a) and 5103A (West 2002 & Supp. 2011), or 38 C.F.R. § 3.159 (2011), and that the appellant will not be prejudiced by the Board's adjudication of his claim. The appellant asserts that an effective date in June 1970 should be assigned for the granting of service connection for prostatitis. He believes that since the condition has been determined to be the result of his service, the effective date of the grant of benefits should be the day after he ended his enlistment, or June 23, 1970. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claim and the appeal will be denied. Generally, the effective date of an evaluation and award of compensation based on an original claim or a claim to reopen after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2011). The effective date for a grant of service connection on the basis of the receipt of new and material evidence -- other than service department records -- 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 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400(q)(1)(ii) (2011). Following notification of an initial review and adverse determination by the RO, a notice of disagreement must be filed within one year from the date of notification thereof; otherwise, the determination becomes final and is generally not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2011). Following receipt of a timely notice of disagreement, the RO is to issue a Statement of the Case. 38 C.F.R. § 19.26 (2010). A Substantive Appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the Statement of the Case to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 C.F.R. § 20.302(b) (2011). Otherwise, the determination becomes final and is generally not subject to revision except on the receipt of new and material evidence. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2011). In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the United States Court of Appeals for Veterans Claims (Court) held that once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). The Court noted that any other result would vitiate the rule of finality. In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. As previously reported, the appellant was released from active duty in the US Army in June of 1970. The record does not show that he filed a claim for VA compensation benefits while on active duty. Moreover, the record does not show that he filed for VA compensation benefits for prostatitis within one year of his discharge from service. Instead, the record reveals that the appellant did not file for VA compensation benefits for prostatitis until February 2002. This was nearly thirty-two years after he was discharged from service. Following his application for benefits, the RO denied service connection for prostatitis through a rating action that was issued in May 2002. After receiving notification of the denial, the appellant filed a timely notice of disagreement in July 2002. A statement of the case addressing the matter was mailed to the appellant on December 17, 2002. The mailing included a copy of a substantive appeal form and instructions for how to fill out the form so the appeal would be perfected. The appellant had until May 14, 2003, to submit a timely response/substantive appeal. He did not request an extension for good cause, or submit any additional evidence, but instead submitted a substantive appeal in August 2003, months after the May 14, 2003 deadline. The claim was then forwarded to the Board that issued a decision on the timeliness of the appellant's substantative appeal. The Board, in the previously noted Decision/Remand of September 2007, found that the appellant's submission of his substantative appeal was not timely, and as such, the appellant's appeal failed. As a result of this action, the rating decision of May 11, 2000, became final. Additionally, the Board concluded that while the appellant's substantative appeal of August 7, 2003, would not be considered as timely filed, it could be recognized as a claim to reopen the appellant's claim for entitlement to service connection for prostatitis. After further development, the RO, nearly two years later, concluded that the evidence supported the appellant's claim for benefits. As such, service connection for prostatitis was granted via the rating action that was issued on March 10, 2005. A 40 percent disability rating was awarded and an effective date of August 7, 2003, was assigned. It was noted that the effective date of August 7, 2003, was assigned since this was the day that the appellant's request to reopen his claim was received. Initially, it is noted that the appellant has not alleged clear and unmistakable error in the Board Decision/Remand of September 2007 or the RO's rating action of May 2002. Accordingly, the appellant's claim for an effective date prior to August 7, 2003, for the grant of service connection must be dismissed. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (failure to timely appeal an original rating providing an effective date of an award renders the decision final as VA statutes and regulations do not provide for a "freestanding claim" for an earlier effective date to be raised at any time in the future. To explain it in a different manner, because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, 38 U.S.C.A. § 5110(a) (West 2002), only a request for revision premised on clear and unmistakable error could result in the assignment of an earlier effective date. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of [clear and unmistakable error, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("When a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."); see also Bingham v. Principi, 18 Vet. App. 470, 475 (2004). In this instance, the appellant has not claimed clear and unmistakable error. Thus, the assigned effective date was the first possible date of the claim to reopen, August 7, 2003. The claim is, therefore, dismissed. The Board would add that even if the Court had not issued Rudd et al, the appellant's claim would still fail. As previously reported, the Board concluded that the appellant did not timely perfect his appeal with respect to the RO's rating action of May 2002. The appellant did not request reconsideration of that action nor did he appeal to the appropriate federal court. As such, that decision became final. On August 7, 2003, the appellant's claim to "reopen" his request for service connection for prostatitis was received by the RO. There is no indication that the appellant filed a claim to reopen the claim for service connection prior to August 7, 2003. The claim was not received within one year of separation from service; therefore, the effective date is the date his claim to reopen was received by VA, which was August 7, 2003. No document received subsequent to the RO's denial in May 2002 and prior to August 2003 may be construed as a claim for service connection or to reopen his claim. Thus, the assignment of an effective date of August 7, 2003, for the granting of service connection for prostatitis in the March 2005 rating decision was proper. Because the appellant did not seek to set aside the Board's action of September 2007, the RO's decision of May 2002 that denied his claim is final. Thus, the date of the current claim to reopen the matter of service connection, which was filed on August 7, 2003, is the appropriate effective date for assignment for the grant of entitlement to service connection pursuant to 38 C.F.R. § 3.400 (2011), because that is the date of claim, even if later than the date entitlement arose. See 38 C.F.R. § 3.400 (2011). Accordingly, assignment of an effective date earlier than August 7, 2003, is not warranted. ORDER Entitlement to an effective date earlier than August 7, 2003, for the granting of service connection for prostatitis, is denied. ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs