Citation Nr: 1326982 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 09-17 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an earlier effective date than September 27, 2007 for a grant of service connection for degenerative disc disease (DDD) of the lumbar spine. 2. Entitlement to an earlier effective date than September 27, 2007 for a grant of service connection for coccydynia. REPRESENTATION Appellant represented by: Agnes S. Wladyka, Attorney at Law ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had honorable active service from April 1953 to April 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for the disabilities on the cover page and assigned an effective date of September 27, 2007. The Board remanded the issue for adjudication of an inextricably intertwined issue in August 2010. The Veteran had claimed clear and unmistakable error (CUE) in two prior rating decisions that, if granted, may have affected the effective date of service connection. In a July 2012 rating decision, the RO denied the CUE claims. The Veteran did not appeal the decision. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 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. A December 1981 rating decision denied service connection for a back condition; the Veteran did not appeal that decision and no new and material evidence was submitted within the applicable appeal period. 2. In an August 1997 letter, the Veteran's request to reopen the claim for service connection for a back condition was denied; the Veteran did not appeal that decision and no new and material evidence was submitted within the applicable appeal period. 3. The next claim for service connection for a back condition was received by VA on September 27, 2007. 4. On September 27, 2007, the Veteran submitted an original claim for entitlement to service connection for coccydynia, claimed as damage to the coccyx. CONCLUSIONS OF LAW 1. The August 1997 decision declining to reopen the claim for service connection for a back condition is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. The criteria for an effective date prior to September 27, 2007, for the award of service connection for DDD of the lumbar spine have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 3. The criteria for an effective date prior to September 27, 2007, for the award of service connection for coccydynia have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The appeal for an earlier effective date for service connection of DDD of the lumbar spine and coccydynia arises from a disagreement with the initial effective date assignment following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice regarding the appeal of a downstream issue is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is needed under VCAA regarding that issue. Earlier Effective Date Under VA laws and regulations, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if a claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i); see also Wright v. Gober, 10 Vet. App. 343, 347 (1997) (holding that § 5110(b)(1) "applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran's separation"). The effective date of an evaluation and an award of compensation based on a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(r) (2012). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. 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). Any communication or action indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Board notes that the Veteran was originally denied service connection for a back condition in December 1981. The Veteran did not submit a notice of disagreement regarding the December 1981 rating decision within one year from the date of the notification of the rating decision to appeal the denial of the claim, nor was any new and material evidence submitted within the applicable appeal period. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Subsequently, the RO continued the December 1981 denial in a June 1984 decision. Again, the Veteran did not submit a notice of disagreement regarding the June 1984 rating decision within one year from the date of the notification of the rating decision to appeal the denial of the claim, nor was any new and material evidence submitted within the applicable appeal period. Therefore, that decision became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). Most recently, he filed a request to reopen his claim for service connection for a back condition in March 1997. A May 1997 letter advised him of the need to submit new and material evidence. In an August 1997 letter, the claim was denied because new and material evidence had not been submitted. He did not appeal that decision nor submit any new and material evidence within one year of that denial. Therefore, the decision became final. Id. The Board notes that the Veteran claimed CUE in the December 1981 and June 1984 decisions. The RO denied the Veteran's CUE claims in a July 2012 rating decision. The Veteran did not appeal that denial. Thereafter, in May 2002, the Veteran submitted a statement requesting copies of certain documents from his claims file and identified the specific documents he wished to have copies of. The attached cover sheet from the Veteran's representative at that time noted that the enclosure from VA Form 21-4138 pertained to a request for records. A July 2006 letter from the Veteran's representative reflects that a VA Form 21-22 was being submitted to authorize their representation of the Veteran. The next correspondence in the record is the September 2007 claim requesting service connection for his low back condition with damage to coccyx. With respect to coccydynia, the claim for service connection was submitted more than one year after service; thus, the effective date cannot be earlier that the date of receipt of claim. Here, the claim for damage to the coccyx was received on September 27, 2007. Accordingly, the proper effective date by law is September 27, 2007, the date of claim. With respect to the reopened claim for service connection for a back condition, the last final denial of a claim for service connection was the August 1997 letter. To the extent that any prior claims for service connection for a back condition remained pending at that time, the August 1997 decision served as a denial of any such pending claims for a back disability. See Ingram v. Nicholson, 21 Vet. App. 232, 243 (2007) ("a reasonably raised claim remains pending until there is . . . an explicit adjudication of a subsequent 'claim' for the same disability"). The Board further notes with respect to both claims that neither the May 2002 VA Form 21-4138 nor the July 2006 letter from the Veteran's representative constitutes a claim for compensation for his back disability or coccydynia. The May 2002 document was merely a request for the RO to provide copies of specific documents to the Veteran and only identified the specific documents he wished to have copies of. Moreover, the cover sheet from the Veteran's representative at that time noted that the enclosure pertained to a request for records. Similarly, the July 2006 letter from the Veteran's representative made no reference to a claim for service connection for a back disability or coccydynia. Rather, it merely submitted the form authorizing their representation of the Veteran. It is clear from the record prior to May 2002 that the Veteran was knowledgeable of file a claim. Clearly, the service organization representatives were likewise aware of how to properly file a claim for service connection. Thus, these documents are not claims for service connection for a back disability or coccydynia, and may not serve as the basis for an earlier effective date for the award of service connection. See 38 C.F.R. §§ 3.1(p), 3.155. The Veteran's current representative, an attorney who has been representing the Veteran during the majority of this claim, has simply argued that an earlier effective date is warranted because the medical evidence pre-dates the effective date of the award of service connection. In essence, she is arguing that the effective date should be based on the date the Veteran's disabilities arose. While the disabilities may have arisen earlier, as noted above, the law provides that the effective date is the date of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2) (2012). Clearly, the date of claim is the later of the two dates. Accordingly, the proper effective date for service connection for his back disability and coccydynia is the date of claim, September 27, 2007. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to an earlier effective date than September 27, 2007 for a grant of service connection for DDD of the lumbar spine is denied. Entitlement to an earlier effective date than September 27, 2007 for a grant of service connection for coccydynia is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs