Citation Nr: 1307404 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-24 322 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to an effective date earlier than November 16, 2005, for the grant of service connection for arthritis of the left shoulder. 2. Entitlement to an effective date earlier than July 20, 2010, for the award of a 30 percent rating for degenerative changes of the right shoulder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty form July 1972 to October 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Appeals Management Center in Washington, D.C., which granted service connection for arthritis of the left shoulder, effective March 3, 2009. Although the AMC adjudicated the claim, the Veteran resides in Arkansas, and the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas, has jurisdiction in this case. In April 2010, the RO granted an earlier effective date of November 16, 2005, for the grant of service connection for arthritis of the left shoulder. The Veteran continues to pursue this appeal for an even earlier effective date. In November 2010, the RO awarded the Veteran a 30 percent rating for degenerative changes of the right shoulder, effective from July 20, 2010. He submitted a notice of disagreement later that same month. The Veteran testified before the undersigned Veterans Law Judge via videoconference in April 2011. A copy of the hearing transcript is of record and has been reviewed. The claim of entitlement to an effective date earlier than July 20, 2010, for the award of a 30 percent rating for degenerative changes of the right shoulder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The RO denied service connection for arthritis of the left shoulder in April 2000 and May 2002, which was confirmed by a January 2005 decision of the Board. The Veteran did not appeal or request reconsideration of the Board decision. 2. Thereafter, on November 16, 2005, the RO received the Veteran's application to reopen his service connection claim for arthritis of the left shoulder. There is no earlier pending, unadjudicated petition to reopen. CONCLUSION OF LAW The criteria for an effective date prior to November 16, 2005, for the award of service connection for arthritis of the left shoulder, are not met. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ('38 U.S.C.A.'); regulations published in the Title 38 of the Code of Federal Regulations ('38 C.F.R.') and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to 'Fed. Cir.') and the Court of Appeals for Veterans Claims (as noted by citations to 'Vet. App.'). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). I. 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In this case, following the award of service connection for left shoulder arthritis, and the Veteran's notice of disagreement (NOD) with the effective date assigned, the RO provided notice of the evidence necessary to substantiate a claim for an earlier effective date in an April 2010 statement of the case. The Court has held that, as in this case, once a NOD from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what 'evidence [is] necessary to establish a more favorable decision with respect to downstream elements....' Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). There is no duty to provide additional notice as to the issue on appeal. Further, no VCAA notice is necessary in this case because, as is more thoroughly explained below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the Veteran's VA claims folder. The Court has held that a Veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant). VA also has duty to assist Veterans in obtaining evidence necessary to substantiate their claims unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, the resolution of the Veteran's claim is dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits. As the outcome of this earlier effective date claim rests with evidence which is already in the claims folder, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). II. Legal Criteria - Earlier Effective Date Claim Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C.A. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In Sears, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term "new claim," as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show clear and unmistakable error (CUE) in the prior denial of the claim. 38 C.F.R. §§ 3.104(b), 3.105(a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be pain or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151(a). A claim is 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Appellate review of a rating decision is initiated by a NOD and completed Substantive Appeal after a SOC has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal in a timely fashion renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of CUE. 38 C.F.R. §§ 3.104(b), 3.105(a). If the Board issues a decision confirming the RO's decision, the Board's decision subsumes the RO's decision. 38 C.F.R. § 20.1104. If the Board's decision is not timely appealed it is final and binding based on the evidence then of record on the date it was stamped. 38 C.F.R. § 20.1100; see also 38 U.S.C.A. §§ 7103(a), 7104(b); Hayslip v. Principi, 364 F.3d 1321, 1326 (Fed. Cir. 2004). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) (Federal Circuit cases have not overruled the pending claim doctrine articulated in Norris); Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue SOC after valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability). III. Analysis The Veteran seeks an effective date earlier than November 16, 2005, for the grant of service connection for arthritis of the left shoulder. During his videoconference hearing, he testified that the effective date should be in 1993 because he experienced worsening left shoulder problems at that time, but acknowledged that he first filed a service connection claim for pertinent disability in 1999. The record shows that in May 1999, the Veteran filed an original service connection claim for left shoulder arthritis, as secondary to his service-connected right shoulder disability. In an April 2000 rating decision, the RO denied the Veteran's claim, and he perfected an appeal in June 2000. Moreover, after having received additional medical evidence, the RO again in a May 2002 rating decision, the RO continued the denial of the claim. Thereafter, in January 2005, the Board denied the service connection claim for arthritis of the left shoulder. A decision issued by the Board is final, unless appealed to the Court or another exception to finality applies (e.g., the Chairman of the Board orders reconsideration of the decision). 38 U.S.C.A. §§ 7103, 7104(a) (West 2002); 38 C.F.R. §§ 20.1100, 20.1104 (2012). If the Board issues a decision confirming the RO's decision, the Board's decision subsumes the RO's decision. 38 C.F.R. § 20.1104. Thus, in this case, because the Veteran did not appeal the Board decision and reconsideration was not ordered, the January 2005 Board decision is final and subsumes the prior RO decisions. 38 U.S.C.A. § 7104(b); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1100, 20.1104. The Board notes further that finality determinations contained within that decision or within other prior decisions that denied service connection for left shoulder disability can only be addressed through a claim of CUE as to those decisions. See 38 U.S.C.A. §§ 5109A, 7111 (West 2002); 38 C.F.R. §§ 3.104, 3.105, 20.1400 (2012). For the Board to address such finality determinations without a claim of CUE before it would be ultra vires (and act beyond the legal authority of the doer). See Juarez and Williams, supra. The issue of CUE in the final January 2005 Board decision has not been raised by the Veteran or his representative, and has not been adjudicated by the RO. Therefore the issue of CUE is not before the Board at this time. Subsequent to the final decision, the Veteran sought to reopen his service connection claim for a left shoulder disability on November 16, 2005. Thereafter, in the June 2009 rating decision, the RO granted service connection for arthritis of the left shoulder, effective March 3, 2009. The actual medical evidence supporting service connection was obtained in a March 2009 VA Compensation and Pension examination report, as well as an April 2009 private medical statement. The RO's June 2009 grant recognized the date of the VA examination as the effective date of service connection. However, as mentioned, the RO, in the April 2010 rating decision, assigned an even earlier effective date of November 16, 2005, finding that a claim of service connection for arthritis of the left shoulder had been pending since then. Notably, there is no objective evidence to support an even earlier effective date, nor is there any basis under the law to support an earlier effective date. Any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C.A. § 7104(c). Indeed, in Leonard v. Nicholson, the Court determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he 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"). Here, no correspondence was received from the Veteran mentioning the left shoulder and/or indicating an intent to apply for service connection for a left shoulder disorder between January 27, 2005, (the date of the Board decision denying service connection for a left shoulder disorder) and November 16, 2005, (the date of his claim to reopen). Consequently, there is no legal basis upon which to grant an effective date prior to November 16, 2005, for the grant of service connection for arthritis of the left shoulder. The claim is therefore denied. ORDER Entitlement to an effective date earlier than November 16, 2005, for the grant of service connection for arthritis of the left shoulder is denied. REMAND In November 2010, the RO awarded the Veteran a 30 percent rating for degenerative changes of the right shoulder, effective from July 20, 2010. He submitted a notice of disagreement later that same month. A statement of the case (SOC) is required when a claimant protests a determination. 38 C.F.R. § 19.26 (2012). To date, no SOC has been furnished regarding the above claim. Therefore, the issuance of an SOC is required for this issue. The Board must remand the issues for such an action. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, the case is REMANDED for the following action: Prepare a Statement of the Case in accordance with 38 C.F.R. § 19.29 (2012) regarding the issue of entitlement to an effective date earlier than July 20, 2010, for the award of a 30 percent rating for degenerative changes of the right shoulder. If, and only if, the Veteran files a timely substantive appeal should the issue be returned to the Board. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs