Citation Nr: 1333775 Decision Date: 10/25/13 Archive Date: 11/06/13 DOCKET NO. 11-25 081 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date prior to April 24, 2009 for the grant of service connection for lumbar spine disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Amanda Christensen, Associate Counsel INTRODUCTION The Veteran had active military service from June 2006 to September 2006. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran provided sworn testimony in support of his appeal during a hearing before the undersigned Veterans Law Judge in May 2013; the hearing transcript has been associated with the file and has been reviewed. The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's notice of disagreement with the April 2009 rating decision denying service connection for lumbar strain was not timely filed and no new evidence was received within the appeal period, therefore the rating decision became final. 2. The Veteran filed an informal claim to reopen his claim for service connection for lumbar strain on April 24, 2009. CONCLUSION OF LAW The criteria for an effective date prior to April 24, 2009 for the grant of service connection for lumbar strain have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends he is entitled to an effective date earlier than April 24, 2009 for the grant of service connection for lumbar strain. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the 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 active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). To appeal a rating decision, a claimant must timely file a notice of disagreement and substantive appeal. 38 C.F.R. § 20.302. In general, rating decisions that are not timely appealed become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. For a notice of disagreement to be timely, a claimant or his representative must file the notice of disagreement with the agency of original jurisdiction (AOJ) within one year from the date that the agency mails the notice of determination to the claimant. If a notice of disagreement is not timely filed, the determination becomes final. 38 C.F.R. § 20.302(a). In this case, the Veteran's original claim for service connection for lumbar strain was denied in an April 2007 rating decision, notice of which was mailed to the Veteran on April 21, 2008. The Veteran's notice of disagreement with the rating decision was received by the AOJ on April 24, 2009. The Veteran testified at his May 2013 Board hearing that he faxed his signed notice of disagreement to his representative on April 20, 2009, the hand-written date reflected on the form. However, his representative did not send the notice of disagreement to the AOJ until April 24, 2009. In June 2009 the Veteran filed to reopen his claim based on new and material evidence. In a January 2010 rating decision, the RO granted service connection for the Veteran's lumbar strain with an effective date of April 24, 2009, the date the RO received the Veteran's notice of disagreement with the April 2008 rating decision, which the RO explained it accepted as an informal claim as it was untimely as a notice of disagreement. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(r). The Board finds that April 24, 2009 is the proper effective date for grant of service connection for lumbar strain. While the Board understands the Veteran's explanation for the date of filing of his April 2008 notice of disagreement, the Board nonetheless must find that the notice of disagreement was not timely filed with the AOJ and thus the April 2008 rating decision became final. In addition, it is important to note that the issue of whether a notice of disagreement has been timely filed is a separately appealable issue. Here, following receipt of his untimely notice of disagreement, in May 2009, the Veteran was advised by the RO of his right to appeal its determination. He did not do so. Therefore, the proper effective date of the grant of service connection is the date of the Veteran's claim to reopen. Although the Veteran contends that it was his representative, and not the Veteran himself, who actually untimely filed the April 2008 notice of disagreement with the AOJ, 38 C.F.R. § 20.302(a) is clear that either the claimant or his representative must file a notice of disagreement with the AOJ within one year of the date the agency mails the notice of determination to the claimant. In this case, the notice of determination was mailed on April 20, 2008, but the Veteran's notice of disagreement was not filed until April 24, 2008, several days too late. Therefore, the April 2008 rating decision became final. A review of the record shows no other informal claim to reopen or new and material evidence was received by the RO prior to April 24, 2008. Therefore, April 24, 2008 is the date of receipt of the new claim and the proper effective date for service connection under 38 C.F.R. § 3.400. As the preponderance of the evidence is against the Veteran's claim for an earlier effective date, the benefit of the doubt doctrine does not apply and the Veteran's claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). This appeal arises from the Veteran's disagreement with the effective date assigned following the grant of service connection for degenerative disc disease of the lumbar spine. So the claim, as it arose in its original context, has been granted. Therefore, additional VCAA notice concerning a "downstream" issue such as the effective date assigned for this grant is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nonetheless, the Board notes that the Veteran was provided VCAA notice in August 2009 after filing his claim to reopen that discussed how effective dates are assigned in the event that service connection is established. Instead of issuing an additional VCAA notice letter with regard to downstream issues, the provisions of 38 U.S.C.A. § 7105(d) require that if the disagreement is not resolved, the VA issue a Statement of the Case (SOC) concerning the downstream issue. Here, the RO provided this necessary SOC in June 2011, wherein the applicable statutes and regulations concerning the issue on appeal were cited and the reasons and bases for not assigning an earlier effective date were discussed. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the Board. In Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the May 2013 Board hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the proper effective date of the Veteran's claim for service connection. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim for an earlier effective date. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The VA has obtained or associated with the claims file all relevant records pertinent to the issue of the proper effective date. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. ORDER An effective date prior to April 24, 2009 for the grant of service connection for lumbar spine disability is denied. ____________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs