Citation Nr: 1330732	
Decision Date: 09/25/13    Archive Date: 09/30/13

DOCKET NO.  10-09 494	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Manchester, New Hampshire



THE ISSUE

Entitlement to an effective date earlier than June 30, 2008 for the award of service connection for status-post surgical repair of labral tear, right shoulder (claimed as right shoulder condition) as secondary to the service-connected left shoulder disability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1992 to January 1995.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the RO, which granted service connection for the right shoulder disability and assigned a 10 percent evaluation effective on June 30, 2008.

In November 2010, the Veteran effectively withdrew his request for a Board hearing.

A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal.  A copy of the August 2013 appellate brief found on Virtual VA has been associated with the casefile.  


FINDING OF FACT

An effective date for the grant of service connection for status-post surgical repair of labral tear, right shoulder as secondary to the service-connected left shoulder disability is not assignable earlier than the date that the Veteran's petition to reopen the previously denied claim on June 30, 2008.


CONCLUSION OF LAW

The claim for an effective date prior to June 30, 2008 for the award of service connection for status-post surgical repair of labral tear, right shoulder as secondary to the service-connected left shoulder disability must be denied by operation of law.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.102, 3.104(a), 3.151, 3.155, 3.159, 3.400 (2012).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). 

The issue herein decided is the propriety of the effective date assigned for the original grant of service connection for a right shoulder disability.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). 

In this case, the record reflects that a letter sent to the Veteran in September 2008 notified him of what information and evidence is necessary to substantiate a claim for an earlier effective date, which information and evidence VA will obtain, and which information and evidence he is expected to provide.  The Board is therefore satisfied that the Veteran was provided appropriate notice as well as a meaningful opportunity to participate in the adjudicatory process and that there is no prejudice in the Board proceeding with a decision at this time. 

With regard to VA's duty to assist, it is noteworthy that determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points of time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding.  

In this case, VA has obtained the Veteran's service treatment records, service personnel records, and all of the identified post-service records and thus complied with its duty to assist.  The Board has carefully reviewed the record, to include the Veteran's statements in support of his claim, and concludes that there has been no identification of further available evidence not already of record that would be relevant to the current claim on appeal.  Thus, VA's duty to assist has been met.


Law & Analysis

Unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found, but cannot be earlier than the date of receipt of the claim for the compensation that was granted.  38 U.S.C.A. § 5110(a).  

The effective date of an award of disability compensation to a veteran is the day following separation from service if the claim for compensation was received within one year of separation.  38 U.S.C.A. § 5110(b)(1). 

There is no evidence or argument in this case that a claim OF service connection for a right shoulder disability was filed within a year of the Veteran's January 1995 separation from service, and 38 U.S.C.A. § 5110(b)(1) is therefore inapplicable. 

In this case, the claim that was reopened and granted -- service connection for a right shoulder disability as secondary to the service-connected left shoulder disability -- was received on June 30, 2008.  

The Veteran's original claim of service connection for a right shoulder disability was initially denied by the RO in a January 2003 rating decision and that denial was affirmed by the Board by way of a January 2005 decision.  See 38 C.F.R. § 20. 1104 (an agency of original jurisdiction that is affirmed by the Board is subsumed by the Board's decision)

Generally, if not appealed in a timely fashion, a Board decision is final unless the Chairman of the Board orders reconsideration.  See 38 U.S.C.A. §§ 7103(a), 7104(a); 38 C.F.R. § 20.1100(a).  The decisions of the Board are final on the date stamped on the face of the decision.  38 C.F.R. § 20.1100(a).  

This finality would normally require a claimant to file an application to reopen the claims, which, if granted, would generally result in an effective date of the application to reopen.  Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005).

The courts have interpreted the statute and regulation as generally prohibiting an effective date assigned in connection with the grant of an application to reopen prior to the date of the application to reopen.  See Leonard v. Nicholson, 405 F.3d 1333, 1336 (citing Sears v. Principi, 349 F.3d 1326, 1332 (Fed. Cir. 2003)); see also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) ("The earliest effective date for an award based on a veteran's request to reopen a final decision based on new and material evidence is generally the date that the application to reopen was filed").  There are exceptions to this general rule, but none are applicable in this case as shown hereinbelow.

A claim 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); 3.155 (2012).  Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim.  38 C.F.R. § 3.155(a).  

Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). 

When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits.  See Lalonde v. West, 12 Vet. App. 377, 380-381 (1999).

Additionally, in some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits, but that is not the case here.  38 C.F.R. § 3.157(b).

After the final Board denial of the claim of service connection for a right shoulder disability in January 2005, the Veteran's next communication to the RO involved matters that are not pertinent to this service connection claim.  Instead, the documents involved issues surrounding the entitlement of VA benefits based on the Veteran having dependents, to include removal of his ex-spouse as a dependent for VA benefits purposes.  

The Veteran does not dispute that his petition to reopen the claim of service connection for a right shoulder disability was submitted in June 2008.  In fact, in the representative's statement submitted in lieu of VA Form 646 (dated August 2010), the representative noted that the date of the claim was June 30, 2008 (not anything submitted earlier).  

Nevertheless, the Board has reviewed the claims file and observes that no communication was received from the Veteran prior to such date that might be construed as a claim for disability benefits with regards to a right shoulder disability.  

The Board notes that, in March 2010, the Veteran appears to be making the argument that he presented new and material evidence dated in 2008 that corroborates evidence that was considered at the time of the initial RO denial of service connection for a right shoulder disability.  

Furthermore, by way of the August 2013 appellate brief, the Veteran avers that based on newly submitted medical evidence (received in January 2011) suggesting that the Veteran had a right shoulder injury in or around 1999, the effective date for this appeal should go back to when he was granted service connection for his left shoulder disability on January 25, 1999.  

The Board notes that to the extent that the Veteran wishes to pursue a claim for clear and unmistakable error (CUE), he must properly follow filing requirements for a CUE motion before the Board; this issue is not currently before the Board at this juncture.  See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed.Cir.2005) ("[A]bsent a showing of CUE, [a veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date.").

Absent any indication that an informal or formal claim was received prior to June 30, 2008, the controlling law and regulations dictate that the award of disability compensation will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).  

Therefore, an effective date for the award of service connection cannot be earlier than the date of receipt of the Veteran's application to reopen the previously denied claim. 

It is well settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing.  See, e.g., MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006), discussing Brannon v. West, 12 Vet. App. 32, 35 (1998)).  See also 38 C.F.R. § 3.1(p).  

Thus, while the Board is sympathetic to the Veteran's claim, the effective date cannot be earlier than the date of receipt of his reopened claim by law  38 C.F.R. § 3.400.  

The Board has given the most favorable reading possible to the facts of this case, but finds that there is no interpretation of the facts of this case which will support a legal basis for favorable action with regard to the Veteran's claim.  

Accordingly, the Board finds no basis in law for an effective date for service connection for a right shoulder disability earlier than June 30, 2008.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  

Therefore, under the law and regulations pertaining to effective dates, the June 30, 2008, the date of the reopened claim is the earliest effective date for the grant of service connection for status-post surgical repair of labral tear, right shoulder (or right shoulder disability) that can be assigned.


ORDER

The claim for an effective date earlier than June 30, 2008 for the award of service connection for status-post surgical repair of labral tear, right shoulder (claimed as right shoulder condition) as secondary to the service-connected left shoulder disability is denied.



____________________________________________
STEPHEN L. WILKINS 
Veterans Law Judge, 
Board of Veterans' Appeals



Department of Veterans Affairs