Citation Nr: 1301377 Decision Date: 01/14/13 Archive Date: 01/23/13 DOCKET NO. 10-31 055 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to an effective date prior to October 31, 2007 for the grant of service connection for degenerative arthritis of the right knee. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from October 1981 to February 1990. This matter is on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran testified before the undersigned Veteran's Law Judge in September 2011; a transcript of the hearing is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). Before addressing the merit of this claim, a review of its procedural history is necessary for clarification purposes. In a June 2008 decision, the Veteran was granted service connection for arthritis of the knee, with two separate 10 percent ratings based on limitation of extension and limitation of flexion. See 38 C.F.R. § 4.71a, DCs 5260 and 5261; see also VAOPGCPREC 09-04 (allowing separate ratings based on limitation of extension and limitation of flexion). In September 2008, the Veteran submitted a timely Notice of Disagreement with both the ratings and the effective date. These claims were denied upon readjudication, and he was issued a statement of the case (SOC) in April 2009. The Veteran did not submit a timely VA Form-9 in response to this SOC, and this appeal was never perfected. See 38 C.F.R. § 20.302(b) (a substantive appeal must be filed within 60 days of the SOC or within the remainder of the 1-year period from the original rating decision, whichever is later). In November 2009, the Veteran submitted additional evidence in support of his effective date claim. Since the previous appeal had expired, the RO treated this as a new claim for an early effective date, which it denied via rating decision in December 2009. The RO's handling of the November 2009 submission was incorrect, as it would be contrary to the principle of finality set forth in 38 U.S.C.A. § 7105. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (free-standing claims for earlier effective dates vitiate the rule of finality, and only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). The Veteran's submissions to the RO in December 2009 further complicated the procedural history. First, he submitted a Notice of Disagreement, presumably to the December 2009 rating decision (although it arrived at the RO only three days after the rating decision was sent), and then he also submitted a VA Form-9, which was not in response to any particular SOC. In fact, the first SOC addressing the earlier effective date issue since the December 2009 rating decision was not until May 2010. While an untimely VA Form-9 was submitted in April 2011, the claims were readjudicated in the May 2011 supplemental statement of the case (SSOC). No response was received to the May 2011 SSOC. Thus, in addition to the fact that it was incorrect to adjudicate an earlier effective date claim as a free standing claim, one could also argue that it was never perfected. However, in order to prevent prejudice to the Veteran, the Board will view the December 2009 rating decision as a SSOC to the earlier effective date claim and, as a VA Form-9 was submitted later that month, an appeal of the June 2008 rating decision has been perfected on this issue. Although the ratings he received for his knee were also mentioned in the September 2008 Notice of Disagreement, these issues were never perfected and are not on appeal. Moreover, while the disability rating for his right knee was increased in a June 2010 rating decision, this was issued by the RO on its own accord and it is not in response to any specific claim. Indeed, the Veteran clarified in March 2010 that he had no desire to pursue any claim regarding the disability ratings he receives for his right knee. Therefore, the only issue on appeal is entitlement to an earlier effective date, as is characterized above. FINDINGS OF FACT 1. By a letter dated March 7, 1990, the Veteran was advised that his February 26, 1990 application for compensation for service connection for a right knee disorder was invalid, because it was not signed; no response was received. 2. On October 31, 2007, the RO received a claim for entitlement to service connection for a right knee disorder; no communications within the year prior to this date that indicated an intent to file a claim. CONCLUSION OF LAW The criteria for an effective date prior to October 31, 2007 for the grant of service connection for degenerative arthritis of the right knee have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Rather, the Veteran's claim arises from his disagreement with the effective date following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA. Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, 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). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted statements and documents in support of his claim. Finally, the Veteran was also afforded a hearing before the undersigned Veterans Law Judge in September 2011. This hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), which consist of (1) fully explaining the issue and (2) suggesting the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Notably, the Veteran was specifically asked about the information he submitted in support of his claim, such as where and when he sent his initial claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist 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). Earlier Effective Date In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b) (2012). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2012). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012); Norris v. West, 12 Vet. App. 413, 421 (1999). In this case, the record indicates that the Veteran submitted a claim seeking service connection for a right knee disorder that was received by the RO on February 26, 1990. However, on March 7, 1990, the RO responded with a letter to the Veteran that it could not act on the claim, because the Veteran had not signed it. The RO returned the Veteran's claim form to him and requested that he sign and return it. According to the evidence available in the claims file from that time, the RO did not receive any response from the Veteran, and it took no further action on the claim. On October 31, 2007, the RO received a new claim from the Veteran, again seeking service connection for a right knee disorder. On this occasion, service connection was granted in a June 2008 rating decision, effective October 31, 2007, the date of his claim. In September 2008, he submitted a Notice of Disagreement arguing, as relevant here, that the effective date should be "backdated to 3-4 years" from his discharge. More recently, however, he has argued that he returned a signed copy of his original claim in 1990, and that his effective date should reach back to his original March 7, 1990 claim or, in the alternative, the day after he left active duty on February 21, 1990. Thus, the salient issue is whether the Veteran's February 26, 1990 application for compensation should be regarded as the formal claim, rather than the claim on October 31, 2007. In support of his claim, the Veteran asserted in December 2009 that he received the RO's request that he return a signed claim, and states that he returned the signed claim on April 2, 1990. He further explained that, when he received $22,256.00 in benefits shortly after leaving active duty, he thought that this was from VA (although it instead appears to have been sent by the Department of Defense). As a result, he assumed that he had been service connected for his right knee disability with a 10 percent disability rating. In addition to his assertions, he has also submitted a copy of the March 1990 claim, now signed, that he contends he returned to the RO. The Board recognizes the Veteran's assertions that he returned the unsigned claim in 1990. However, this assertion alone is insufficient to establish that the February 26, 1990 application was valid. As an initial matter, despite the Veteran's assertions that he sent a signed copy of the claim to the RO, it is clear in the record that there is not a signed copy of his February 1990 application in the claims file. Moreover, it is presumed that government officials "have properly discharged their official duties." See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (a "presumption of regularity"). As such, if the Veteran asserts that he sent the signed claim to the RO, the Board will presume that it would have been received by the RO and incorporated into the claims file absent affirmative evidence to the contrary. Such evidence has not been shown. The Board stresses that, by statute, "a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary." 38 U.S.C.A. § 5107 (2012). Moreover, the United States Court of Appeals for Veterans Claims has held that, while VA has a duty to assist a veteran in developing a claim, it is ultimately the veteran's responsibility to ensure that the all the requirements have been met to obtain benefits. See 38 C.F.R. § 3.159 (2012); see also Wood v. Derwinski, 1 Vet. App. 190 (1991) (the duty to assist is not a "one-way street"). Here, although the Veteran maintains that he signed and returned the February 26, 1990 application, it is ultimately his responsibility to ensure that the RO received it. To be sure, there may be a reasonable amount of time that passes until a veteran may suspect that something may be amiss with his claim. However, in this case, the Veteran here did not have any communication with VA for over 17 years. If he had honestly believed that he had been service connected for his right knee disorder in 1990, as he stated was the case in December 2009, it is simply unreasonable to believe that he would not have inquired at least once over this very long period of time. See 38 C.F.R. § 3.158(a) (2012) (abandonment of claims). The Board is also swayed by the fact that, when he finally did submit his current claim in October 2007, he made no mention of the previous claim, and in fact had explicitly denied ever having submitted a prior claim. Moreover, if he had believed that he was already service connected for his right knee disorder, it follows that his claim in October 2007 would have been a claim for an increased rating rather than for service connection. Even though he was provided a notice letter in October 2007 establishing that it was a claim for service connection, as opposed to an increased rating claim, the Veteran still did not indicate that this was incorrect. Finally, in his September 2008 Notice of Disagreement, the Veteran never asserted that he had previously submitted a claim, nor did he even assert that the effective date should be the date of the prior application, but instead asked that it be "3-4 years" after his discharge. The Board is cognizant of the Veteran's assertions that he sent a signed claim to the RO in 1990. However, the fact remains that a copy of this is not of record, and his lack of effort to ensure that the RO received it for 17 years was in effect a failure of the expected reasonable diligence in pursuit of benefits. Moreover, unlike medical evidence, the Board is not required to accept his assertions without other corroborating evidence. Compare Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) with Bardwell v. Shinseki, 24 Vet. App. 36 (2010). Therefore, despite his assertions to the contrary, the Board concludes that the February 26, 1990 application was not valid, and October 31, 2007 is the date of his formal claim. The date of receipt of the claim having been established, the Board will review the evidence submitted by the Veteran prior to October 31, 2007, in order to consider whether there was an intent to file a claim for benefits in the year prior to the date of the formal claim. In this regard, a review of the record fails to show receipt of any claim or informal written communication, wherein the Veteran requests a desire to seek service connection for a right knee disorder. In fact, it does not appear that there are any communications submitted at all during this period of time. Therefore, the Board concludes that the effective date the Veteran's service-connected right knee disability is no earlier than October 31, 2007, and his claim of entitlement to an effective date prior to October 31, 2007 for the grant of service connection for a right knee disability must be denied. (CONTINUED ON NEXT PAGE) ORDER An effective date prior to October 31, 2007 for the grant of service connection for degenerative arthritis of the right knee is denied. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs