Citation Nr: 1324018	
Decision Date: 07/29/13    Archive Date: 08/07/13

DOCKET NO. 10-48 375	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUE

Entitlement to an effective date earlier than May 15, 2001, for the grant of service connection for lumbar spondylosis with degenerative changes of the thoracic spine.


REPRESENTATION

Appellant represented by:	Lori Chism, Attorney


ATTORNEY FOR THE BOARD

C. Bruce, Counsel




INTRODUCTION

The Veteran had active military service from November 1968 to June 1970.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

1. The Veteran's petition to reopen a claim for service connection for lumbar spondylosis with degenerative changes of the thoracic spine was received by VA on May 15, 2001. 

2. In February 2008, the Board reopened the claim and granted service connection for lumbar spondylosis with degenerative changes of the thoracic spine. 

3. In March 2010 the RO assigned an effective date of May 15, 2001.


CONCLUSION OF LAW

The criteria for an effective date earlier than May 15, 2001 for the grant of service connection for lumbar spondylosis with degenerative changes of the thoracic spine have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.157, 3.159, 3.400 (2012).




REASONS AND BASES FOR FINDINGS AND CONCLUSION

In this decision the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet.App.").

The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet.App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts.

The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet.App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet.App. 518 (1996).




Duties to Assist and Notify

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In Dingess v. Nicholson, 19 Vet.App. 473 (2006), the Court of Appeals for Veterans Claims (the Court) found that the VCAA notice requirements applied to all elements of a claim.

In this case, following the award of service connection, and the Veteran's notice of disagreement with the effective date assigned, the RO provided notice of the evidence necessary to substantiate a claim for an earlier effective date in a November 2010 Statement of the Case (SOC). The Court has held that, as in this case, once a NOD from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet.App. 128, 137 (2008). There is no duty to provide additional notice as to the issue on appeal.

Further, no VCAA notice is necessary in this case because, as is more thoroughly explained below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the Veteran's VA claims folder. The Court has held that a veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet.App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet.App. 143, 149 (2001) (VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant).


VA also has duty to assist veterans in obtaining evidence necessary to substantiate their claims unless no reasonable possibility exists that such assistance would aid in substantiating the claim. In this case, the resolution of the Veteran's claim is dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits. As the outcome of this earlier effective date claim rests with evidence which is already in the claims folder, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet.App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet.App. 143 (2001); Smith v. Gober, 14 Vet.App. 227, 231-32 (2000); see also Livesay v. Principi, 15 Vet.App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law).

The Merits of the Claim

The Veteran contends that his claim for service connection for lumbar spondylosis with degenerative changes of the thoracic spine should be granted back to his original claim for service connection for a back condition which was received in November 1971. Having carefully considered the claim in light of the record and the applicable law, the Board must deny the appeal. 

The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012). Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 ; 38 C.F.R. § 3.400 (2012). Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155(a).


A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought. An "application" is defined as 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999).

The Veteran was initially denied service connection for a back condition in a January 1972 rating decision. The Veteran appealed that decision and the claim was denied by the Board in an October 1972 decision. The Veteran sought to reopen the claim in May 2001. The RO denied reopen of the claim in a March 2002 rating decision. The Veteran then appealed the denial of reopening and claimed that both the initial denial in January 1972 and the March 2002 denial were clearly and unmistakably erroneous (CUE). 

In a May 2005 decision, the Board denied CUE in the January 1972 and March 2002 rating decisions and the claim for revision based on CUE is no longer at issue. The Board also remanded the issue of reopen for the claim for service connection for a back condition. In a February 2008 decision the Board reopened the claim and granted service connection for the back disorder. In a March 2010 rating decision the RO assigned an effective date of May 15, 2001, based on receipt of the Veteran's application to reopen his claim.

Through his former representative, the Veteran argues that the effective date of service connection should be November 1971, and he alleges that he did not receive any letter notifying him of the prior denials of his claim.

The Veteran's assertion is without merit. First, there are no letters of record which indicate that any communications sent to the Veteran were returned as undeliverable. 


The "presumption of regularity" operates, under which it is presumed that government officials "have properly discharged their official duties." Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992), citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). 

While the Ashley case dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the United States Court of Appeals for Veterans Claims (the CAVC) applied this presumption of regularity to procedures at the RO. A copy of a letter dated in October 1972 and noting the Board's denial is of record in the claims file. The letter was addressed to the Veteran's address of record. There is also no record of any attempts made by the Veteran to seek an update with regard to status on his claim. There is no contact from the Veteran at all regarding his claim for a back condition until receipt of his May 15, 2001 application to reopen the claim. 

The Veteran's allegation alone that he did not receive notice of the denial would not rise to the level of "clear evidence to the contrary" as required to rebut the presumption of regularity. See Butler v. Principi, 244 F.3d. 1337, 1340 (Fed. Cir. 2001); see also Ashley, supra. Thus, the Board finds that the Veteran received notice of the October 1972 Board denial, and there is no basis for the granting of any earlier effective date.

Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 ; 38 C.F.R. § 3.400 (2012).





ORDER

Entitlement to an effective date earlier than May 15, 2001, for the grant of service connection for lumbar spondylosis with degenerative changes of the thoracic spine is denied.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs