Citation Nr: 1313469 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 11-08 773A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than January 14, 2009, for the grant of service connection for degenerative disc disease of the cervical spine. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from June 1943 to September 1945. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which, in part, granted service connection for degenerative disc disease of the cervical spine and assigned a 20 percent evaluation effective January 14, 2009. Jurisdiction of the case has since been transferred to the RO in Atlanta, Georgia. The Veteran appealed the effective date of the grant of service connection. On his April 2011 VA Form 9, Appeal to Board of Veterans' Appeals, the Veteran requested a hearing before a Veterans Law Judge. However, in a correspondence dated in October 2012, the Veteran indicated that he was withdrawing his request. Under these circumstances, the regulations consider the hearing request to have been withdrawn. 38 C.F.R. § 20.702(e) (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file to date reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal that the Board is adjudicating in this decision. Please note 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). FINDINGS OF FACT 1. The Veteran's initial claim for service connection for a cervical spine disability was filed at the RO on April 29, 1960. This claim was denied in a March 5, 1962, Board decision. 2. The Veteran filed to reopen his previously denied claim for service connection for a cervical spine disability on January 14, 2009. Service connection was subsequently granted, effective January 14, 2009. 3. There was no informal or formal claim, or written intent to file a claim for service connection for a cervical spine disability dated after the March 5, 1962, denial and prior to the January 14, 2009, claim to reopen. 4. The Veteran has not raised a claim of entitlement to revision of the March 1962 denial of service connection for a cervical spine disability based upon clear and unmistakable error (CUE). CONCLUSIONS OF LAW 1. The March 1962 Board decision is final. 38 U.S.C. § 4004 (b) (1958); 38 C.F.R. § 19.5 (1956). 2. The requirements for an effective date earlier than January 14, 2009, for the grant of service connection for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. §§ 5107, 5108, 5109A, 5110, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.1(p), 3.102, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in April 2009, prior to the June 2009 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The April 2009 letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's claim for an earlier effective date for the grant of service connection for cervical spine disability arises from his disagreement with the effective date assigned following the grant of entitlement to service connection. Once a claim is granted, it is substantiated and additional notice is not required. Thus, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Furthermore, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). In any case, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. The Veteran was provided with a VA examination, the report of which reflects that the examiner reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that the examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 CF.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has been accorded the opportunity to request evidence and argument in support of his claims. As noted above, he withdrew his present to present testimony before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. Earlier Effective Date The Veteran seeks an effective date earlier than the currently assigned January 14, 2009, for the grant of service connection for degenerative disc disease of the cervical spine. He contends that the effective date should be in 1960 when he initially filed for and was denied service connection for his cervical spine disability. The Veteran argues that the evidence that the RO relied on to grant his claim in June 2009 was of record in 1960. He indicated that the only new evidence was the February 2009 VA examination report. The effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase 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). 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) (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 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. Such an 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. 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 (1999). In this case, the basic facts are not in dispute. The Veteran initially filed for service connection for a cervical spine disability in April 1960. In an unappealed March 1962, the Board denied service connection for a cervical spine disability finding that the Veteran's cervical spine disability was not shown during active service. In January 2009, the Veteran filed an application to reopen a claim of service connection for a cervical spine disability. In the June 2009 rating decision, the RO granted service connection for a cervical spine disability effective January 14, 2009, the date of receipt of the Veteran's petition to reopen. Initially, the Board notes that in various correspondences, the Veteran asserts that he is entitled to an effective date for service connection for his cervical spine disability approximately in 1945 (but would settle for an effective date in 1960). The Board observes that he filed for and was granted service connection for a lumbar spine disability in September 1945 as the evidence demonstrated a lumbosacral strain incurred during service. However, he did not file for service connection for a cervical spine disability until 1960. Therefore, the Board will not discuss whether an effective date prior to 1960 is warranted. As noted above, the Board does not disagree that the Veteran first filed a claim for service connection for his cervical spine disability in 1960 and that the evidence relied upon by the RO to grant service connection was of record in 1960. However, the Board notes that the Veteran did not appeal the March 1962 Board decision, and he has not alleged CUE with respect to that decision. See 38 U.S.C.A. §§ 7105, 5109A (West 2002); Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that 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). Therefore, the March 1962 decision became final. 38 U.S.C. § 4004 (b) (1958); 38 C.F.R. § 19.5 (1956). Since a claim for service connection for a cervical spine disability was denied in the March 1962 final Board decision, the effective date of an award of service connection for a cervical spine disability is governed by the rules related to claims which are reopened with new and material evidence. See 38 U.S.C.A. § 7104 (West 2002). The effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(q) (1) (ii) (2012). In this case, the Board finds no evidence of an informal or formal claim for service connection for a cervical spine disability, or a written intent to file an application to reopen his previously denied claim filed after the March 1962 denial and prior to the January 14, 2009, application to reopen. The first evidence of an intention to reopen his previously denied claim after the March 5, 1962, denial was received in January 2009. Subsequent to the March 1962 decision denying service connection, it was not until January 14, 2009, that the Veteran submitted a statement alleging entitlement to service connection for a cervical spine disability. Thus, in this case, the only date that could serve as a basis for the award of service connection is the date of receipt of the Veteran's application to reopen his claim for service connection on January 14, 2009. There is no legal entitlement to an earlier effective date of service connection for a cervical spine disability. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (indicating that "[n]o 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"); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Because the Veteran's cervical spine disability was found to be related to service, service connection was established. It does not follow, however, that because service connection is warranted that the effective date of service connection be the date he filed his original claim (or any earlier) because doing so would render meaningless many of the provisions of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Indeed, in Sears, the Federal Circuit held that pursuant to 38 C.F.R. § 3.400(q) (1) (ii), which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C.A. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. Id. at 1332. Thus, under the law, there is no basis to assign an earlier effective date for service connection for the Veteran's cervical spine disability. In this case, the only cognizable date that could serve as a basis for the award of service connection is the date of receipt of the Veteran's claim on January 14, 2009. There is no legal entitlement to an earlier effective date. Accordingly, the Board finds that the January 14, 2009, effective date for the grant of service connection for degenerative disc disease of the cervical spine was proper as a matter of law. As the law and not the facts are dispositive, the benefit-of-the-doubt rule does not apply, and entitlement to an earlier effective date must be denied. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102; 3.400(q)(2) (2012). ORDER Entitlement to an effective date earlier than January 14, 2009, for the grant of service connection for degenerative disc disease of the cervical spine is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs