Citation Nr: 1315628 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 09-04 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an effective date prior to February 28, 2007 for the award of service connection for right (major) shoulder strain. 2. Entitlement to an effective date prior to February 28, 2007 for the award of service connection for left hip strain. 3. Entitlement to an effective date prior to February 28, 2007 for the award of service connection for lumbar strain. 4. Entitlement to an effective date prior to February 28, 2007 for the award of service connection for bilateral tinnitus. 5. Entitlement to an effective date prior to February 28, 2007 for the award of service connection for pes planus. 6. Entitlement to an effective date prior to February 28, 2007 for the award of service connection for left lateral leg scar residuals. 7. Entitlement to an effective date prior to February 28, 2007 for the award of service connection for post-operative pilonidal cyst removal scar residuals. 8. Entitlement to an effective date prior to February 28, 2007 for the award of service connection for psoriasis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. T. Hutcheson, Counsel INTRODUCTION The Veteran is the appellant in the instant appeal. He had active service from April 2000 to February 2006. This matter came before the Board of Veterans' Appeals (Board) on appeal from an August 2007 rating decision of the Seattle, Washington, Regional Office (RO) which, in pertinent part, established service connection for right (major) shoulder strain, left hip strain, lumbar strain, bilateral tinnitus, pes planus, left lateral leg scar residuals, post-operative pilonidal cyst removal scar residuals, and psoriasis and effectuated the awards as of February 28, 2007. The Board has reviewed both the physical claims file and his "Virtual VA" file so as to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran had active service from April 12, 2000 to February 26, 2006. 2. The Veteran's formal claim for service connection for right shoulder strain, left hip strain, lumbar strain, bilateral tinnitus, pes planus, left lateral leg scar residuals, post-operative pilonidal cyst removal scar residuals, and psoriasis was electronically filed and received by the Department of Veterans Affairs (VA) on February 28, 2007. 3. A claim for service connection was not received within one year of service separation. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 28, 2007 for the award of service connection for right (major) shoulder strain have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2012). 2. The criteria for an effective date prior to February 28, 2007 for the award of service connection for left hip strain have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2012). 3. The criteria for an effective date prior to February 28, 2007 for the award of service connection for lumbar strain have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2012). 4. The criteria for an effective date prior to February 28, 2007 for the award of service connection for bilateral tinnitus have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2012). 5. The criteria for an effective date prior to February 28, 2007 for the award of service connection for pes planus have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2012). 6. The criteria for an effective date prior to February 28, 2007 for the award of service connection for left lateral leg scar residuals have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2012). 7. The criteria for an effective date prior to February 28, 2007 for the award of service connection for post-operative pilonidal scar removal residuals have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2012). 8. The criteria for an effective date prior to February 28, 2007 for the award of service connection for psoriasis have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and to Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473(2006), which held that 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. VA has issued several VCAA notices to the Veteran including a March 2007 notice which informed him of the evidence generally needed to support a claim of service connection and the assignment of an evaluation and effective date for an initial award of service connection; what actions he needed to undertake; and how VA would assist him in developing his claim. The March 2007 VCAA notice was issued to the Veteran prior to the August 2007 rating decision from which the instant appeal arises. The Veteran's appeal of the effective date was readjudicated in the December 2008 statement of the case and the March 2012 supplemental statement of the case issued to him; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Moreover, because this appeal arises from the Veteran's disagreement with the effective date following the grant of service connection, no additional notice is required regarding this downstream element of the service connection claim. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the United States Court of Appeals for Veterans Claims (CAVC) have similarly held that regarding the downstream element of initial rating that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (noting that, once an initial VA decision awarding service connection and assigning a disability evaluation and effective date has been made, 38 U.S.C. § 5103(a) notice is no longer required); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of NOD). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA. As will be explained below, the law, and not the facts, is dispositive of the effective date in this case; therefore, the duty to assist imposed by the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). In February 2009, the Veteran requested a Board hearing before a Veterans Law Judge. In March 2013, the Veteran was scheduled for an April 2013 Board videoconference before a Veterans Law Judge. The Veteran failed to appear for the scheduled hearing. A review of the record does not reflect that the Veteran sought to reschedule the hearing. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no issue as to the substantial completeness of the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Effective Date for Awards of Service Connection The Veteran had active service from April 12, 2000 to February 26, 2006. The service treatment records reflect that right shoulder strain, left hip strain, lumbar strain, bilateral tinnitus, pes planus, left lateral leg scar residuals, post-operative pilonidal cyst removal scar residuals, and psoriasis originated during active service. On February 28, 2007, the Veteran electronically submitted a Veteran's Application for Compensation or Pension (VA Form 21-526) in which he sought service connection for a hip disorder, a back disorder, ringing of the ears, psoriasis, and a number of other disabilities. His claim was marked as having been received that day by the RO. The Veteran answered "no" to the question "Have you ever filed a claim with VA?" In August 2006, the RO, in pertinent part, established service connection for right (major) shoulder strain, left hip strain, lumbar strain, bilateral tinnitus, pes planus, left lateral leg scar residuals, post-operative pilonidal cyst removal scar residuals, and psoriasis, and effectuated the awards as of February 28, 2007, the date of receipt by VA of the Veteran's claims for service connection. The Veteran asserts that earlier effective dates than February 28, 2007 are warranted for the awards of service connection for right (major) shoulder strain, left hip strain, lumbar strain, bilateral tinnitus, pes planus, left lateral leg scar residuals, post-operative pilonidal cyst removal scar residuals, and psoriasis. Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a). Title 38 of the Code of Federal Regulations (2012) clarifies that an award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall be the date of receipt of the appellant's claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Right shoulder strain, left hip strain, lumbar strain, bilateral tinnitus, pes planus, left lateral leg scar residuals, post-operative pilonidal cyst removal scar residuals, and psoriasis have been shown to have originated during active service. Therefore, the question to be determined is the date of receipt of the Veteran's claim for service connection. The Veteran's original claim for service connection was electronically filed and received by VA on February 28, 2007, a date one year and 2 days after his separation from service; therefore, the appropriate effective date for the award of service connection for right shoulder strain, left hip strain, lumbar strain, bilateral tinnitus, pes planus, left lateral leg scar residuals, post-operative pilonidal cyst removal scar residuals, and psoriasis is February 28, 2007, the date of receipt of the original claim for service connection. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). In his February 2008 notice of disagreement, the Veteran advances that "the date at which the VA received my claim is later than I initiated my claim." The Board observes the relevant date in calculating the effective date for the award of service connection is the date of receipt of the claim by VA, not when the claim may have been initiated by the appellant. In his August 2012 Statement of Representative in Appeals Case, the Veteran's representative stated that "a report of an examination or hospitalization will be accepted as an informal claim for benefits under existing law if the reports relates to a disability which may establish entitlement" and that the Veteran underwent a service separation examination aboard the USS Abraham Lincoln (CVN 72) on January 23, 2006. The representative advanced that the physical examination for service separation could be construed as an informal "pre-separation" because it refers to disorders that were conditions that were later service connected. The Board observes that the accredited representative's argument tacitly addresses the provisions of 38 C.F.R. § 3.157(b)(1) (2012), which provides that, once a formal claim for compensation has been allowed or disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a VA or uniformed services hospitalization or examination report will be accepted as an informal claim for increased benefits or an informal claim to reopen, and the date of such record will be accepted as the date of receipt of a claim; however, as the claim in issue is the Veteran's original claim for service connection which was granted, the informal claim provisions of 38 C.F.R. § 3.157 do not apply in this case. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. In this case, the undisputed facts show that the Veteran separated from active service on February 26, 2006; did not file a claim for service connection within one year of service separation; and first filed an original claim for service connection on February 28, 2007. As the original claim for compensation was first received at VA on February 28, 2007, a date over one year after service separation, the effective date law and regulation provide that the date of receipt of the original claim for compensation is the proper effective date for the grant of service connection. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). On these facts, because the earliest effective date legally possible has been assigned, and no effective date for the award of service connection earlier than February 28, 2007 is assignable, the appeal for an earlier effective date is without legal merit and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For these reasons, the Board concludes that effective dates prior to February 28, 2007 for the award of service connection for right (major) shoulder strain, left hip strain, lumbar strain, bilateral tinnitus, pes planus, left lateral leg scar residuals, post-operative pilonidal cyst removal scar residuals, and psoriasis are not warranted. ORDER An effective date prior to February 28, 2007 for the award of service connection for right (major) shoulder strain is denied. An effective date prior to February 28, 2007 for the award of service connection for left hip strain is denied. An effective date prior to February 28, 2007 for the award of service connection for lumbar strain is denied. An effective date prior to February 28, 2007 for the award of service connection for bilateral tinnitus is denied. An effective date prior to February 28, 2007 for the award of service connection for pes planus is denied. An effective date prior to February 28, 2007 for the award of service connection for left lateral leg scar residuals is denied. An effective date prior to February 28, 2007 for the award of service connection for post-operative pilonidal cyst removal scar residuals is denied. An effective date prior to February 28, 2007 for the award of service connection for psoriasis is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs