Citation Nr: 1311155 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 10-13 607 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an effective date prior to November 7, 2008, for the award of service connection for posttraumatic stress disorder (PTSD) and thoracic and lumbar strain. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran served in the Army National Guard with periods of active duty from September 2004 to February 2005, and from October 2005 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in August 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. In November 2010, the Veteran presented testimony at a personal video conference hearing conducted between the RO and the Board Central Office. This hearing was held before Kathleen K. Gallagher, a Veterans Law Judge (VLJ) who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c) (West 2002) and who will render the determination in this case. A transcript of this personal video conference hearing is in the Veteran's claims file. FINDINGS OF FACT 1. The Veteran separated from active service on August 24, 2007. 2. The Veteran's claim for service connection for PTSD and for thoracic and lumbar strain was received by VA on November 7, 2008. 3. There is no evidence that VA received a claim for service connection for either PTSD, or thoracic and lumbar strain prior to November 7, 2008. CONCLUSION OF LAW The criteria for an effective date prior to November 7, 2008, for the grant of service connection for PTSD and thoracic and lumbar strain have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. With respect to the Veteran's claim for an earlier effective date, the Board notes that such notice is unnecessary in this case because the Veteran is challenging the effective date for service connection for PTSD and thoracic and lumbar strain granted by way of the August 2009 rating decision. In cases where service connection has been granted, and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008); Dingess, 19 Vet. App. at 484. Further, the Veteran has neither alleged nor demonstrated that he has been prejudiced by defective notice. Goodwin, 22 Vet. App. at 136; Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Therefore, the duty to notify the Veteran has been met. The Board also notes that adjudication of the claim for an earlier effective date in this case is based upon evidence already in the claims file. The resolution of the claim depends upon when certain documents were either received by VA and/or promulgated to the Veteran. Consequently, there is no additional development that can be conducted, nor any other records that can be obtained, which would substantiate the Veteran's claim. For example, any additional medical examination would only document the current severity of the Veteran's service-connected disabilities, and not whether he satisfied the criteria for an effective date earlier than November 7, 2008. Therefore, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate, to include providing testimony at the November 2010 hearing. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). Any communication or action, indicating 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. This informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155. The Veteran contends that the appropriate effective date for the award of service connection for PTSD and for thoracic and lumbar strain should be the date following his August 24, 2007, separation from active service. He argues that because he submitted his service connection claim to his representative within one year of his separation from active service, he should be considered to have filed his claim during that time frame, despite the representative's failure to file his claim with VA in a timely fashion. The Veteran's VA Form 21-526 is clearly signed by the Veteran on August 6, 2008, which is indeed within one year of his separation from service. However, as reflected on the date stamp, the claim was received by VA on November 7, 2008, which is not within one year of his separation from active service. There are no additional documents of record that could be construed as a claim for service connection received prior to November 7, 2008. Thus, the first document asserting a claim for service connection for PTSD and thoracic and lumbar strain was received by VA on November 7, 2008, which is more than one year following the Veteran's separation from active service. While the Board does not doubt that the Veteran submitted his claim to his representative in a timely fashion, the date of claim is determined by the date the claim is received by VA, which in this case was November 7, 2008. In light of these facts, an effective date prior to November 7, 2008, is not supported by the record. As reflected by the above, the Veteran's first and only claim for service connection was received by VA as of that date. The Board acknowledges the Veteran's arguments with regard to when he took action to file his claim; however, determination of the appropriate effective date for a grant of service connection is dependent solely on the filing of claims with VA by the Veteran and adjudication of those claims by VA. The Board finds that the appropriate effective date for the award of service connection for PTSD and thoracic and lumbar strain is November 7, 2008, the date the claim was received by VA. An earlier effective date is not authorized by law. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in this case. See generally Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Consequently, an effective date prior to November 7, 2008, for the grant of entitlement to service connection for PTSD and thoracic and lumbar strain is denied. ORDER An effective date prior to November 7, 2008, for the grant of service connection for PTSD and thoracic and lumbar strain is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs