Citation Nr: 1308245 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 10-41 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an effective date prior to June 9, 2008 for service connection for residuals of a fracture of the mid-shaft of the left tibia and fibula (left leg disability). WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from December 1982 to April 1983; he also had service in the Army Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office in Indianapolis, Indiana (RO), which granted service connection for left leg disability and assigned a 10 percent rating effective June 9, 2008. The Veteran and his wife testified at a videoconference hearing before the undersigned in March 2011, and a transcript of the hearing is of record. FINDINGS OF FACT 1. The Veteran incurred a fracture of the left tibia and fibula while in the Army Reserves in September 1989. 2. He was discharged from the service due to permanent physical disability in March 1992. 3. A claim for service connection for left leg disability was received by VA on June 9, 2008. CONCLUSION OF LAW The criteria for an effective date earlier than June 9, 2008 for the award of service connection for a left leg disability have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.160(c), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided herein. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in June 2008, prior to adjudication, which informed him of the requirements needed to establish entitlement to service connection for a left leg disability. Service connection was subsequently granted for a left leg disability by rating decision in September 2008. A subsequent VCAA letter was sent to the Veteran in June 2009. Although the Veteran was not notified of the requirements to establish an earlier effective date for service connection until later, the VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as a claim for an earlier effective date following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The appropriate notice has been given in this case with respect to the earlier effective date issue. In accordance with the requirements of VCAA, VA letters in June 2008 and June 2009 informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Private medical evidence was received by VA in July 2008. No additional private evidence was subsequently added to the claims file after the June 2009 letter. In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was informed in both of the letters of the criteria for assignment of a disability rating, and effective date, in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (2012). However, in this case, a current evaluation is not relevant to the issue on appeal. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claim, including at his March 2011 videoconference hearing. All general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). As part of its present decision, the Board has reviewed the record in regard to whether the Veteran was afforded his due process rights in the development of evidence through testimony. At the March 2011 hearing, the Veteran was afforded an extensive opportunity to present testimony, evidence, and argument. The transcript reveals an appropriate colloquy between the Veteran and the Veterans Law Judge, in accordance with Stuckey v. West, 13 Vet. App. 163 (1999) and Constantino v. West, 12 Vet. App. 517 (1999) (relative to the duty of hearing officers to suggest the submission of favorable evidence). The transcript also reflects that the Veterans Law Judge conducted the hearing in accordance with the statutory duties to "explain fully the issues and suggest the submission of evidence which the claimant may have overlooked and which would be of advantage to the claimant's position," pursuant to 38 C.F.R. § 3.103(c)(2), as recently explained by the Court in Bryant v. Shinseki, 23Vet. App. 488 (2012). Analysis of the Claim The Veteran served on active duty from December 1982 to April 1983. After active duty service, he served in the Army Reserves. According to hospital records from Clark County Memorial Hospital, the Veteran had been treated for a fracture of the left tibia and fibula incurred while playing football. A VA letter was sent to the Veteran in August 1991 in which it was noted that VA had been informed that the Veteran had left the Selected Reserves on January 9, 1991. The Veteran was told that if he had been discharged from the Selected Reserves because of a disability, he should notify VA of the circumstances of his discharge and the nature of the disability for which he was discharged. Upon receipt of this evidence, his claim would be reviewed to determine if he was eligible for continued benefits. According to a letter to the Veteran from the Department of the Army, dated March 31, 1992, he was removed from the Temporary Disability Retired List and discharged from the service, as of March 31, 1992, because of permanent physical disability. He was also notified in the letter that the percentage of his disability was 10 percent and that he was entitled to severance pay provided he had completed over 6 months service. A claim for service connection for a left leg disability was received by VA from the Veteran on June 9, 2008. A September 2008 rating decision granted entitlement to service connection for left leg disability and assigned a 10 percent rating effective June 9, 2008. The Veteran timely appealed this effective date. The Veteran and his wife have contended, including at the March 2011 videoconference hearing, that the effective date should be retroactive to the date of discharge from the Reserves because the Veteran was unaware until 2008 that he was entitled to compensation benefits from VA. The Board would note, however, that the Veteran was sent a letter by VA in August 1991 informing him that he might be entitled to VA benefits if he had left the Reserves due to disability. According to the applicable regulations, the date of entitlement to an award of service connection is 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 is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As this claim was not received within the year after discharge, the effective date would be the later of the date of receipt of the claim or the date entitlement arose. Consequently, the effective date of June 9, 2008 for service connection for a left leg disability is, as the date of claim, the correct date even if the disability began a number of years earlier. ORDER An effective date prior to June 9, 2008 for service connection for left leg disability is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs