Citation Nr: 1330402 Decision Date: 09/23/13 Archive Date: 09/30/13 DOCKET NO. 10-09 877 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut THE ISSUES 1. Entitlement to an effective date earlier than June 5, 2006, for the grant of service connection for degenerative joint disease, toes and mid foot, right foot (claimed as residuals of right foot injury). 2. Entitlement to an effective date earlier than December 5, 2007, for the grant of service connection for degenerative disc disease, lumbar spine (claimed as low back condition). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.N. Moats, Counsel INTRODUCTION The Veteran had active duty for training from April 1975 to July 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision in which the RO granted service connection for residuals of right foot injury, effective June 5, 2006, and low back condition, effective December 5, 2007. The Veteran appealed the effective dates assigned. The issues of higher initial ratings for degenerative joint disease of the right toes and mid foot and degenerative disc disease of the lumbar spine were also on appeal and the RO issued a statement of the case in November 2010. However, the Veteran did not submit a substantive appeal with respect to these issues. As such, they are no longer in appellate status. The Veteran's Virtual VA electronic record has also been reviewed and includes an August 2013 brief from the Veteran's representative. However, the remaining documents are either duplicative of records already in the claims file or are not pertinent to the issues on appeal. FINDINGS OF FACT 1. A claim for service connection for a right foot disability was most recently denied in a June 2003 rating decision because new and material evidence had not been received to reopen the claim; the Veteran, through her representative, filed a notice of disagreement to this decision in March 2004, which was subsequently withdrawn in May 2004: new and material evidence was not received within one year of the June 2003 determination. 2. The Veteran did not file a formal or informal claim to reopen a claim for entitlement to service connection for a right foot disability prior to June 5, 2006. 3. The Veteran did not file a formal or informal claim for entitlement to service connection for a low back disability prior to December 5, 2007. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date prior to June 5, 2006, for the grant of service connection for degenerative joint disease, toes and mid foot, right foot (claimed as residuals of right foot injury), have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). 2. The criteria for assignment of an effective date prior December 5, 2007, for the grant of service connection for degenerative disc disease, lumbar spine (claimed as low back condition), have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's 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 claimants 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 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim. Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the Veteran's claims arise from an appeal of the initial effective dates assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice 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. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service records and post-service VA and private treatment records. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Further, the Board notes that relevant medical evidence was reviewed by the RO in connection with the adjudication of the Veteran's service connection claim. However, pertinent to the effective date claims, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of her original claim or claim to reopen for service connection, and her arguments on appeal are limited to her interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claims. VA's General Counsel has held that in cases 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 provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). Accordingly, the Board finds that all reasonable efforts have been undertaken by VA with respect to the instant appeal, and no further development is required under these circumstances. For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Analysis The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA 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. 38 C.F.R. § 3.155(a). Degenerative Joint Disease, Toes and Mid Foot, Right Root The Veteran is seeking an earlier effective date for the grant of service connection for her right foot disability. Essentially, she asserts that the effective date should be the date she filed her original claim for service connection in March 1993. By way of background, the Veteran filed an original claim for service connection for a right foot disability that was date-stamped received in March 1993, which was denied by the RO in a May 1993 rating decision. She subsequently filed numerous claims to reopen, which were again denied by the RO in May 1993, March 1994 and April 1998 rating decisions. The Veteran appealed the April 1998 rating decision to the Board. The Board denied the Veteran's claim in a January 2000 decision. Subsequently, the Veteran filed a claim to reopen, which was received at the RO in February 2003. Again, the RO denied the claim in June 2003 as new and material evidence had not been submitted. The Veteran, through her representative, submitted a notice of disagreement in March 2004. However, at that time, there appeared to be some mistake as the Veteran had indicated she was already service-connected for a right foot disability and was seeking an increase for her disability. She also asserted that her back condition was secondary to her service-connected right foot disability. Subsequently, this notice of disagreement was withdrawn by the Veteran's representative in May 2004 in accordance with 38 C.F.R. § 20.204 as evidenced by a handwritten date and signature on the document. No other valid notice of disagreement was filed within the one year period. See 38 C.F.R. §§ 20.300, 20.302. Nevertheless, the Board observes that if new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156(b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). The Federal Circuit, in determining the correct interpretation of the "new and material" evidence language found in § 3.156(b), found that definition for the phrase "new and material" contained in § 3.156(a) applies to § 3.156(b). Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). The Federal Circuit stated that both subsections fall under the general heading "[n]ew and material evidence." Id. In light of this, it was found logical that the terms "new" and "material" have the same meaning throughout the entire section. Id. Under 38 C.F.R. § 3.156(a), new evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision, and must raise a reasonable possibility of substantiating the claim. The Board notes that the Veteran received VA treatment for her right foot the year following the June 2003 rating decision, and VA medical records are considered constructively of record. See 38 C.F.R. § 3.159; Bell v. Derwinski, 2 Vet. App. 611 (1992). Nevertheless, these records, while new, cannot be considered material, as they do not provide any additional evidence showing that the Veteran's right foot disability was related to her service. Significantly, the records essentially show continuing treatment for the Veteran's right foot and reiterate the Veteran's assertion that her currently disability began in service. The records are essentially redundant of treatment records already in the claims file prior to the June 2003 rating decision. The record also contains a statement from a private physician with the initials C.D. that was received in March 2004. Again, however, this document simply noted the existence of a current disability - there was no suggestion of any relationship to military service. As such, the provisions of 38 C.F.R. § 3.156(b) with respect to the submission of new and material evidence are not applicable. Accordingly, based on the above analysis, the RO's June 2003 rating decision is final. 38 U.S.C.A. § 7105. Thus, when the Veteran filed her claim of service connection for right foot disability on June 5, 2006, it was a claim to reopen since there was a prior final disallowance of his claim in June 2003. There is no evidence that indicates any intent on the part of the Veteran to apply for compensation after the June 2003 rating decision until the June 5, 2006 claim. Again, the March 2004 notice of disagreement was clearly withdrawn by the Veteran's authorized representative. Significantly, the next submission by the Veteran in the claims file after the June 2003 rating decision is the June 5, 2006, claim to reopen. With the exception of the withdrawn March 2004 notice of disagreement, there is no documentation in the claims file in the interim. Again, VA treatment records dating back to June 2003 were subsequently associated with the claims file. However, while these records continue to document treatment for a right foot disability as well as the Veteran's medical history of an injury in service, these records showed no indication of any intent on the part of the Veteran to file a claim to reopen. Importantly, VA is not required to conjure up issues not raised by the claimant. Brannon v. West, 12 Vet. App. 32, 35 (1998). In a March 2011 brief, the Veteran's representative appears to assert that additional service records were added the file since the last prior final rating decision, which would require VA to reconsider the claim under 38 C.F.R. § 3.156(c) and allow for a possible earlier effective date back to the original claim. The Board observes that on numerous occasions, the Veteran has submitted copies of April 1975 service treatment records. However, these records were clearly in the claims file and reviewed in association with the prior final rating decisions. In this regard, the Board's January 2000 decision summarizes these records. No other additional pertinent service records have been identified or associated with the record. As such, the provisions of 38 C.F.R. § 3.156(c) are not applicable. The assigned effective date of June, 5 2006, is the date of receipt of the Veteran's current claim to reopen. The Veteran has asserted that the effective date should be date of her original claim filed in March 1993. However, because the June 2003 rating decision is final, the claim upon which that decision was based (as well any prior claims) cannot serve as the basis for assignment of an effective date for a subsequent award of service connection. The Veteran's claim to reopen was date-stamped as received by VA on May 5, 2006, which is the date that was assigned by the RO as the effective date for the grant of service connection for right foot disability. Absent an allegation and finding of clear and unmistakable error in the RO decisions (the presence of which has not been alleged) the desired earlier effective cannot be assigned. The effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). In sum, the earliest date of receipt of a reopened claim for service connection for left shoulder disability is June 5, 2006, the date the RO received the Veteran's claim to reopen his claim. While the Board is sympathetic to the Veteran's beliefs that an earlier effective date is warranted, under the circumstances, the Board is precluded by statute and regulation from assigning an effective date prior to June 5, 2006 for the granting of service connection for right foot disability. Accordingly, the preponderance of the evidence is against the claim for an effective date earlier than June 5, 2006. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). Degenerative Disc Disease, Lumbar Spine The Veteran filed an informal claim for compensation for her low back disability, which was date-stamped as received by the RO on December 5, 2007. At that time, the Veteran claimed that her low back condition was secondary to her right foot condition. VA treatment records prior to this date have been reviewed. However, there is nothing in these records indicating an intent on the part of the Veteran to file a claim for service connection for a low back disorder. Again, VA is not required to conjure up issues not raised by the claimant. Brannon v. West, 12 Vet. App. 32, 35 (1998). The Veteran has asserted that an earlier effective date is warranted because an April 1998 VA letter mentioned the back in association with her right foot disability. Moreover, the March 2004 notice of disagreement also claimed that the Veteran's low back disability was secondary to her right foot. Nevertheless, again, the March 2004 statement was withdrawn by the Veteran's representative with no indication of any intent to continue any claim. Moreover, importantly, service connection for the Veteran's low back disability was awarded as secondary to the Veteran's right foot disability. As discussed above, the appropriate effective date for the Veteran's right foot disability has been determined to be June 5, 2006. As such, the effective date for the Veteran's low back disability could not be before this date as this was the date entitlement arose. See 38 C.F.R. § 3.310. In other words, service connection cannot be granted for a secondary disability prior to the award of the primary disability. Further, there is simply no evidence from the June 5, 2006 effective date for the service-connected right foot disability until the December 5, 2007 claim for low back disability of any intent on the part of the Veteran to file a claim for low back disability as secondary to her right foot. In this regard, the June 2006 claim was silent with respect to any back disability and no other statements or claims were submitted by the Veteran until the December 2007 claim. Based on the analysis above, after reviewing the totality of the evidence, the Board must find that the RO did not receive an application for compensation benefits for a low back disability prior to the informal claim submitted in December 2007. The Board has reviewed the claims file, including the VA treatment records, and there is simply no indication on the part of the Veteran of any intent to file a claim for service connection prior to the December 2007 claim. Again, while sympathetic to the Veteran's belief that an earlier effective date is warranted; for the reasons outlined above, the Board is precluded by statute from assigning an effective date prior to December 5, 2007, for the granting of service connection for the low back disability. Accordingly, the preponderance of the evidence is against the claim for an effective date earlier than December 5, 2007. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER An effective date prior to June 5, 2006, for the grant of service connection for degenerative joint disease, toes and mid foot, right foot, is denied. An effective date prior to December 5, 2007, for the grant of service connection for degenerative disc disease, lumbar spine, is denied. ____________________________________________ B. R. MULLINS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs