Citation Nr: 1311527 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-23 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to October 19, 2009 for the grant of service connection for residuals of right arm radial head fracture with degenerative joint disease. ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. FINDINGS OF FACT 1. A claim for service connection for residuals of right arm radial head fracture with degenerative joint disease was received on October 19, 2009. 2. No document prior to October 19, 2009 may be construed as an informal claim of entitlement to service connection for residuals of right arm radial head fracture. CONCLUSION OF LAW The criteria for an effective date prior to October 19, 2009 for the award of service connection for residuals of right arm radial head fracture have not been met. 38 U.S.C.A. § 5110 , 5107(b) (West 2002); 38 C.F.R. §§ 3.155 , 3.157, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As provided for by 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 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the AOJ, in this case the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, a November 2009 letter advised the Veteran of the evidence required to substantiate the claim for service connection for residuals of right arm radial fracture. A December 2009 rating decision granted service connection for residuals of right arm radial fracture with degenerative joint disease. The letter also informed the Veteran of how disability ratings and effective dates are determined. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Where, as here, service connection has been granted and the effective date has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Additional VCAA notice regarding the evidence required to substantive the claim for an earlier effective date for the grant of service connection was sent to the Veteran in January 2013. The claim was readjudicated in a February 2013. Any defect as to the timing of the VCAA notice was cured because the RO readjudicated the claim in a February 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). The record indicates that the RO obtained all information relevant to the Veteran's claim. The service treatment records, post-service VA treatment records and private records identified by the Veteran have been associated with the claims file. The Veteran has not identified any outstanding records that are pertinent to this claim. For these reasons, the Board finds that VA as fulfilled the duties to notify and assist the Veteran. II. Analysis of Claim In general, the effective date of an evaluation and award of pension, compensation, or dependency, and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date for direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). "Claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits 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(a) (2012). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Veteran had active duty service from April 1967 to October 1967. The Veteran did not submit a claim for service connection for residuals of right arm radial head fracture within one year of separation from service. A claim for service connection for a right arm condition was initially received on October 19, 2009. A report of contact dated October 19, 2009 reflects that the Veteran contacted the RO by telephone and indicated that he would like to file a claim for compensation for a right arm condition (radial bone was fractured). While the Veteran did pursue other claims, beginning in December 2008, none of the claims or correspondence pertained to the claimed residuals of a right arm radial head fracture. The Veteran asserts that the effective date of service connection should date back to service because his right arm fracture occurred during service in 1966. Under 38 C.F.R. § 3.157, a VA report of examination or hospitalization, and evidence from a private physician or layman, will be accepted as an informal claim for benefits. The provisions of 38 C.F.R. § 3.157 only apply, however, once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Here, the Veteran's October 2009 claim was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157(b) , and, as such, that regulation does not afford a basis for finding that a claim, be it formal or informal, of entitlement to service connection for a right arm conidian, was of record earlier than October 9, 2009. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 3 (1993). In sum, a claim for service connection for residuals of right arm radial head fracture was received on October 19, 2009. There is no evidence indicating that a formal or informal claim was received prior to that date. Accordingly, the Board concludes that an effective date prior to October 19, 2009 is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (1990). ORDER An effective date prior to October 19, 2009 for the grant of service connection for residuals of right arm radial head fracture with degenerative joint disease is denied. ___________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs