Citation Nr: 1324012 Decision Date: 07/29/13 Archive Date: 08/07/13 DOCKET NO. 10-01 353 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an earlier effective date, prior to October 28, 2002, for the grant of service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The veteran served on active duty from November 1990 to August 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2008 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center in Washington, DC, which, in pertinent part, granted service connection for a low back disability, effective October 28, 2002, the date of the filing of the Veteran's most recent application to reopen the previously denied claim for service connection. This matter arises from the Veteran's disagreement with the October 28, 2002 effective date assigned for the granting of service connection for his low back disability. Due to the Veteran's place of residence, subsequent development was performed by the VA Regional Office (RO) in Roanoke, Virginia. The Veteran did not request a hearing before the Board. FINDING OF FACT The Veteran filed an application to reopen a previously denied claim for service connection for a low back disability on October 28, 2002. CONCLUSION OF LAW The criteria for an earlier effective date, prior to October 28, 2002, for the grant of service connection for a low back disability have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans 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, 3.326(a) (2012). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), that the VCAA 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) the veteran's status; (2) the existence of a disability; (3) a connection between the veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. The Court held that 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 veteran 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. Id. at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. The Veteran was provided with a proper VCAA notice letter, regarding his claim for service connection for a low back disability, in August 2007, prior to the issuance of the March 2008 rating decision granting his claim. Because this appeal arises from the Veteran's disagreement with an effective date assigned following the granting of service connection for a low back disability, no additional notice was required other than that provided to the Veteran prior to the granting of his claim for service connection. The Court and the United States Court of Appeals for the Federal Circuit (Federal Circuit) have held 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); 38 C.F.R. § 3.159(b)(3)(i) (stating that there is no duty to provide VCAA notice upon receipt of a Notice of Disagreement (NOD)). The earliest possible effective date permitted by the effective date regulations (date of receipt of the most recent application to reopen) has been granted, and the granting of an earlier effective date is not legally possible. In cases such as this, where a claim cannot be substantiated because there is no legal basis for the claim, or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to meet the duty to assist a claimant. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (holding that where the law is dispositive, the claim must be denied due to a lack of legal merit); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Mason v. Principi, 16 Vet. App. 129 (2002); see also VAOPGCPREC 5-2004 (stating that VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). The record contains copies of the Veteran's service treatment records, post-service treatment records, and VA medical examination reports. As the appeal deals only with the Veteran's claim for an earlier effective date for a low back disability, and not the granting of service connection itself, a discussion of VA's provision of medical examinations to determine the nature and etiology of the Veteran's low back disability is not relevant. VA has therefore fulfilled its duties to notify and assist the Veteran. Adjudication without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Earlier Effective Date for a Low Back Disability 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 the 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 the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). The effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). The RO received the Veteran's original claim for service connection for a low back disability on August 17, 1993, the day after the Veteran's discharge from service. In a December 1993 rating decision, the RO, in pertinent part, denied the claim. As the Veteran did not file a timely NOD, the December 1993 rating decision became final in December 1994. 38 U.S.C.A. § 5107. The Veteran filed an application to reopen his claim of service connection for a low back disability in April 1997 and, in a January 1999 rating decision, the RO denied the application to reopen. Again, the Veteran did not file a timely NOD and the January 1999 rating decision, denying the application to reopen service connection for a low back disability, became final in January 2000. Id. On October 28, 2002, the Veteran filed his most recent application to reopen his claim of service connection for a low back disability. In a March 2003 rating decision, the RO granted reopening of the claim for service connection and denied the reopened claim. The Veteran appealed the March 2003 rating decision to the Board. In January 2009, the Board granted reopening of the claim for service connection and remanded the reopened claim to the AMC for further development. In the March 2008 rating decision from which this appeal arises, the AMC granted service connection for a low back disability, effective October 28, 2002, the date of the filing of the Veteran's most recent application to reopen the claim for service connection. Under VA regulations, this is the earliest effective date that may be awarded for such a grant of service connection. 38 C.F.R. § 3.400(q)(1)(ii). The Veteran through his representative argues that the Veteran claimed that his disorder began during service and that an October 1993 VA medical examination, provided within the Veteran's first year of service, indicated that the Veteran experienced pain in his back, despite having a full range of motion. Therefore, citing the case of Banks v. Principi, 3 Vet. App. 418 (1992), the Veteran argues that the Veteran's claim for an earlier effective date should be granted. Banks v. Principi is not applicable in this matter. The case before the Board involves the issue of the earliest possible effective date for the granting of service connection for a disorder, which is determined by applying the regulations noted earlier in this decision. Banks, by contrast, involved a claim for an earlier effective date for the granting of a higher initial rating for an already-service connected disorder. In Banks, a veteran appealed a decision in which the Board denied his claim for an earlier effective date for a staged rating of 10 percent for a lumbosacral strain, following the initial grant of service connection for that disability. The Veteran in Banks argued that he was entitled to a 10 percent initial rating dating back to the date of the granting of service connection, as he had experienced pain upon motion of his lower back throughout the entire initial rating period. The Court in Banks found that the Board's findings were clearly erroneous due to the evidence of painful motion of the back throughout the initial rating period, and vacated and remanded the Board's decision. 3 Vet. App. 418, 418-19 (1992). The Banks decision, relying as it does on the presence or lack of presence of low back disorder symptomatology at the time of the granting of a claim for service connection, is inapplicable in this instance. As explained thoroughly above, under VA regulations, the effective date of a claim received after a final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). Therefore, the earliest effective date allowed by law and regulation for the grant of service connection for the Veteran's low back disability is October 28 2002, the date of filing of the Veteran's most recent application to reopen service connection for a low back disability. For the reasons stated above, the Veteran's claim for an effective date, prior to October 28, 2002, for the grant of service connection for a low back disability is denied. 38 C.F.R. § 3.400(b)(2)(i). ORDER An earlier effective date, prior to October 28, 2002, for the grant of service connection for a low back disorder is denied. ____________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs