Citation Nr: 1318442	
Decision Date: 06/06/13    Archive Date: 06/11/13

DOCKET NO.  11-33 176	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to an effective date earlier than December 29, 2006, for the grant of service connection for peripheral vascular disease of the hands and feet as a residual of frostbite.  


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

S. Coyle, Counsel

INTRODUCTION

Pursuant to 38 C.F.R. § 20.900(c), the appeal has been advanced on the Board's docket. 

The Veteran served on active duty from December 1951 to August 1954. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision by the Cleveland, Ohio Regional Office (RO) of the Department of Veterans Affairs (VA).  

A hearing on this matter was held before the undersigned Acting Veterans Law Judge on April 12, 2013.  A copy of the hearing transcript has been associated with the claims folder.  

On several occasions, including during the April 2013 hearing, the Veteran alleged that there was clear and unmistakable error (CUE) in March 1955 and June 1959 rating decisions that denied service connection for frostbite residuals, including peripheral vascular disease.  In October 2009 and November 2010, the Board referred the issue to the RO for appropriate disposition.  Despite the Board's referrals, the matter has still not been taken up by the RO.  Thus, the matter is again referred to the RO, with a reminder that the current claim has been advanced on the docket because of the Veteran's age.  

The Veteran contends that the issue on appeal and the unadjudicated CUE claim are inextricably intertwined, and that remand, not referral, is the appropriate outcome.  However, "requests for revision of an RO decision based on CUE must first be submitted to and adjudicated by the RO before the Board can attain jurisdiction over the request."  Bowen v. Shinseki, 25 Vet. App. 250, 255 (2012), citing Jarrell v. Nicholson, 20 Vet.App. 326, 334 (2006) (en banc).  As the CUE claim has not yet been adjudicated by the RO, the Board does not have jurisdiction over this claim and may not adjudicate it in the first instance.  


FINDINGS OF FACT

1.  In a rating decision dated in June 1959, the RO confirmed a previous denial of entitlement to service connection for residuals of frostbite.  Although notified of the determination and of his appellate rights, the Veteran did not initiate an appeal within one year of being notified.   

2.  No further claim for service connection for residuals of frostbite, to include peripheral vascular disease of all extremities, was received until December 29, 2006.

CONCLUSION OF LAW

The criteria for assignment of an effective date earlier than December 29, 2006, for the grant of service connection for peripheral vascular disease of the bilateral hands and feet as a residual of frostbite, are not met.  38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duty to Notify and Assist

The appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for peripheral vascular disease.  Once service connection is granted, the claim is substantiated; additional notice is not required, and any defect in the notice is not prejudicial and will not be discussed.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).   

The Veteran's service and post-service treatment records have been obtained to the extent possible.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  There is no indication in the record that any additional evidence relevant to the issue on appeal exists.  

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991).   No VA examination has been conducted in connection with the claim for an earlier effective date, but none is required because the salient issue in this case is when the Veteran filed his claim for benefits.  As such, a medical examination would in no way assist the Veteran in establishing his claim.  

The Veteran has been afforded a hearing before an AVLJ in which he presented oral argument in support of his claim for an earlier effective date.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court of Appeals for Veterans Claims (the Court) held that 38 C.F.R. § 3.103(c)(2) requires the AVLJ who chairs a hearing fully explain the issues and suggest the submission of evidence that may have been overlooked.  Here, the 
AVLJ identified the issue to the claimant and asked specific questions directed at identifying whether the Veteran met the criteria for an earlier effective date.  Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran provided testimony relevant to those elements.  As such, the Board finds the Veteran is not prejudiced by a decision at this time and that no further action pursuant to Bryant is necessary.


The available evidence is sufficient for an adequate determination.  There has been substantial compliance with all pertinent VA law and regulations.  Thus, the Board is satisfied that the duties to notify and assist have been met.  

Analysis

The Veteran contends that he is entitled to an effective date earlier than December 29, 2006, for the grant of service connection for peripheral vascular disease of the bilateral hands and feet, as a residual of frostbite.  

The provisions of the law governing effective date of awards of benefits are clear. The effective date of an award is generally the date of receipt of a claim (or informal claim where appropriate), or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  More specifically, the effective date of an award of disability compensation for direct service connection is the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).

If a Veteran files an application for service connection with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board.  See 38 U.S.C.A. §§ 7104, 7105.  If he does not initiate an appeal within one year, or if he initiates a timely appeal and the appeal is denied, the disallowance becomes final.  See 38 C.F.R. §§ 20.302, 20.1100, 20.1103.  With exceptions not here applicable, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application.  See 38 C.F.R. § 3.400(q), (r).  

Generally, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA.  See 38 C.F.R. § 3.151(a).  However, 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.  Such 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 1 year from 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.  

VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  If VA fails to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim must be accepted as the date of claim for purposes of determining an effective date.  Servello, 3 Vet. App. at 200.

The Veteran applied for service connection for unspecified residuals of frostbite in February 1955.  In a March 1955 rating decision, the RO denied the claim.   The Veteran was notified of this decision and did not appeal.  

The Veteran petitioned to reopen the claim in December 1958, this time specifically referencing a disorder affecting his hands and feet.  During the development of the claim, the Veteran was diagnosed with peripheral vascular disease of the hands and feet.  In a June 1959 rating decision, the RO confirmed the previous denial.  Again, the Veteran was notified of this decision and did not appeal.  

On December 29, 2006, the Veteran filed an application to reopen the previously denied claims of entitlement to service connection for residuals of frostbite and peripheral vascular disease.  In a June 2007 rating decision, the RO declined to reopen the previously denied claims.  The Veteran perfected a timely appeal.  

In an October 2009 decision, the Board recharacterized the claim as an application to reopen a claim of service connection for residuals of frostbite, to include peripheral vascular disease.  The Board reopened the claim and remanded the merits for further development.  In a November 2010 decision, the Board granted service connection for residuals of frostbite, to include peripheral vascular disease.  In a December 2010 rating decision, the RO assigned a disability evaluation of 30 percent to each extremity affected by peripheral vascular disease, effective December 29, 2006, the date of the Veteran's claim.  

Applying the foregoing principles to the facts of the present case, the Board finds that the assignment of an effective date earlier than December 29, 2006, for the grant of service connection for PTSD is not warranted.  The RO last denied the Veteran's claim for service connection in June 1959.  Although notified of the determination and of his appellate rights, the Veteran did not initiate an appeal of the denial.  As a result, the decision is final.  Review of the file does not reveal, nor does the Veteran allege, a subsequent claim for service connection, formal or informal, filed until December 29, 2006.  Under applicable law, therefore, the effective date of the subsequent award of service connection for peripheral vascular disease can be no earlier than December 29, 2006.  

The Board is bound by the evidence in the record as well as the pertinent laws and regulations.  Thus, the appeal for an effective date earlier than December 29, 2006, for the grant of service connection for peripheral vascular disease must be denied.   


ORDER

Entitlement to an effective date earlier than December 29, 2006, for the grant of service connection for peripheral vascular disease of the hands and feet is denied. 



____________________________________________
M.N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs