Citation Nr: 1331529	
Decision Date: 09/30/13    Archive Date: 10/02/13

DOCKET NO.  03-37 208	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania



THE ISSUE

Entitlement to an effective date earlier than November 8, 2001, for the award of service connection for a right knee disability, a ganglion cyst of the left wrist and a disability of the left middle finger.



REPRESENTATION

Appellant represented by:	Virginia A. Girard-Brady, Esq.



ATTORNEY FOR THE BOARD

J. H. Nilon, Counsel

INTRODUCTION

The Veteran served on active duty from December 1978 to December 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an October 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania that in relevant part granted service connection for a right knee disability (residuals of a dislocated knee), a ganglion cyst of the left wrist and a disability of the left middle finger, with an effective date of July 19, 2002, for all three disabilities.

In November 2002 the RO assigned an effective date of November 8, 2001, for the three service-connected disabilities cited above, based on a finding that the Veteran's original claim for service connection was received on that date.  The Veteran contends on appeal that she filed an earlier request for service connection on August 20, 2001, and is entitled to service connection effective from that date.

The Board issued a decision in May 2005 that denied an earlier effective date.  The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court).  In August 2006 the Court granted a Joint Motion of the Parties to vacate the part of the Board's decision that had denied an earlier effective date of service connection.

In January 2007 the Board remanded the effective-date issues to the RO for additional development, which was performed.  In March 2012 the Board issued a decision that in relevant part again denied an earlier effective date.  The Veteran again appealed to the Court.  In April 2013 the Court once again issued an Order granting a Joint Motion for Partial Remand that vacated that part of the Board's decision that denied an earlier effective date for service connection and returned those issues to the Board for further consideration.

The Veteran's representative recently submitted evidence to the Board in the form of a formal claim for service connection that the representative submitted on the Veteran's behalf in August 2001; this evidence was the basis of the Joint Motion for Partial Remand.  In submitting the evidence to the Board, the representative specifically stated, "[the Veteran] therefore requests that the Board award her an earlier effective date of August 2001 for the grant of service connected benefits;" the Board construes this statement to constitute an effective waiver of RO jurisdiction.  Further, as the Board's decision below constitutes a full grant of the benefit claimed, there is no prejudice to the Veteran resulting from review of the evidence by the Board rather than by the RO.

The Board's action in March 2012 denied increased disability ratings for the service-connected left wrist scar and the service-connected disability of the left middle finger; the Veteran did not appeal those issues.  The Board's action in March 2012 also remanded the issues of entitlement to service connection for an acquired psychiatric disorder and entitlement to a total disability rating based on individual unemployability (TDIU) to the RO for further development; the RO has not yet returned those issues to the Board and they will not be considered below, but will be the subject of a later decision, if necessary.


FINDING OF FACT

Resolving all doubt in the Veteran's favor, a claim for service connection for a left wrist condition, a right knee condition and a left middle finger disability was received by the RO on August 20, 2001.


CONCLUSION OF LAW

The criteria are met for award of service connection for a right knee disability, a ganglion cyst of the left wrist and a disability of the left middle finger effective from August 20, 2001.  38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400 (2013). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

In the decision below, the Board grants the Veteran's request for an earlier effective date for service connection.  As this represents a complete grant of the benefit claimed, no discussion of VA's duty to notify and assist is necessary.

Applicable Legal Principles

The effective date for an award of service connection for claims received within 1 year after separation from service shall be the day following separation from service, or date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b).  

In order for benefits to be paid to any individual under the laws administered by VA, a specific claim in the form prescribed by the Secretary must be filed. 38 C.F.R. § 3.151(a) (2013).  A "claim" or "application" is defined by VA regulation 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) (2013).  An informal claim is "[a]ny communication or action, indicating an intent to apply for one or more benefits . . . ."  38 C.F.R. § 3.155(a) (2013).  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.  Id.

The Board has reviewed all the evidence in the record.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Evidence and Analysis

The earliest claim for service connection that was previously of record in the Veteran's claims file was date-stamped by the RO as having been received on November 8, 2001.  In response to the receipt of that claim, the RO advised the Veteran that no VA Form 21-526 had been submitted and that the Veteran needed to complete and return such form before any action could be taken.  A completed VA Form 21-526 was received at the RO in July 2002.  Service connection was ultimately granted effective from that the November 8, 2001 date of claim.

The Veteran's representative has presented new evidence in the form of a claim for service connection for disorders in including left wrist condition, right knee condition and left middle finger disability that was submitted by the representative on the Veteran's behalf by a letter dated August 16, 2001.  The letter enclosed a report of medical examination in service, the Veteran's DD Form 214, a list of treatment providers and VA Form 22a.  The Veteran's representative also submitted photocopies of a date-stamp showing RO receipt on August 20, 2001.

The Board finds it curious that it took 10 years from the filing of the notice of disagreement for the above evidence to be presented to support the effective date appeal, and notes that the photocopied date stamps reflect no true indication that such were affixed to the documents in question.  The Board also notes that the November 2001 claim prepared by the Veteran's representative made no reference to an earlier submission, and that the VA Form 21-22a appointing the representative was signed by the Veteran on November 1, 2001, rather than in August 2001.  It would seem that a newly signed form would not be necessary if one had already been signed in August 2001, especially since the August 2001 letter indicates a signed VA Form 21-22a was enclosed.  

Notwithstanding the concerns expressed above, the Board will resolve all doubt in favor of the Veteran and find that her claim for service connection for a right knee disability, a ganglion cyst of the left wrist and a left middle finger disability was received by the RO on August 20, 2001.  Accordingly, the Board finds that she is entitled to service connection effective from that date and the benefit sought on appeal is granted.  


ORDER

An effective date of August 20, 2001 for the award of service connection for a right knee disability, a ganglion cyst of the left wrist and a disability of the left middle finger is granted, subject to the rules and regulations governing the payment of VA monetary benefits.



____________________________________________
K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs