Citation Nr: 1333991 Decision Date: 10/28/13 Archive Date: 11/06/13 DOCKET NO. 10-31 952 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an effective date earlier than March 13, 1995, for the award of service connection for degenerative changes of the acromioclavicular joint of the right shoulder. 2. Entitlement to an effective date earlier than March 13, 1995, for the award of service connection for degenerative changes of the left knee. 3. Entitlement to an effective date earlier than March 13, 1995, for the award of service connection for patellofemoral syndrome of the right knee. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had active duty service from November 1986 to November 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). A notice of disagreement was received in June 2009, a statement of the case was issued in July 2010, and a substantive appeal was received in July 2010. A Board hearing was conducted in March 2012. The following four issues are not before the Board: (1) entitlement to service connection for a left shoulder disability (because the Veteran did not file a substantive appeal after the RO issued a statement of the case in July 2006); (2) entitlement to increased ratings for a service-connected cervical spine disability (because a July 2008 United States Court of Appeals for Veterans Claims (Court) memorandum decision affirmed a May 2006 Board denial of that claim); (3) entitlement to an earlier effective date for the award of service connection for chronic headaches (because the Veteran did not file a substantive appeal after the RO issued a statement of the case in February 2009); and (4) entitlement to an increased rating for a service-connected lumbar spine disability (because the Veteran withdrew his appeal for that claim in May 2011). The Board notes that it has reviewed both the Veteran's physical claims file and Virtual VA to ensure that the complete record is considered. FINDINGS OF FACT 1. On December 3, 1990, the Veteran filed original claims for service connection for a right shoulder disability, a left knee disability, and a right knee disability. In an April 1991 rating decision, the RO denied the claims. After filing a timely appeal, the Board denied the claims in an October 1994 decision. 2. The Veteran did not appeal the October 1994 Board decision to the Court, and there are no communications of record from the Veteran evidencing any intent to file a request for reconsideration, a request to vacate, or a clear and unmistakable error (CUE) motion with regard to the October 1994 Board decision. 3. On March 13, 1995, the Veteran filed a request to reopen his previously denied claims for service connection for a right shoulder disability, a left knee disability, and a right knee disability. In a February 2009 rating decision, the RO granted service connection for degenerative changes of the acromioclavicular joint of the right shoulder, degenerative changes of the left knee, and patellofemoral syndrome of the right knee, with all three awards effective March 13, 1995. CONCLUSIONS OF LAW 1. The October 1994 Board decision, which denied the Veteran's claims for service connection for a right shoulder disability, a left knee disability, and a right knee disability, is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2013). 2. An effective date earlier than March 13, 1995, is not warranted for the award of service connection for degenerative changes of the acromioclavicular joint of the right shoulder. 38 U.S.C.A. §§ 5101, 5107, 5110, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2013). 3. An effective date earlier than March 13, 1995, is not warranted for the award of service connection for degenerative changes of the left knee. 38 U.S.C.A. §§ 5101, 5107, 5110, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2013). 4. An effective date earlier than March 13, 1995, is not warranted for the award of service connection for patellofemoral syndrome of the right knee. 38 U.S.C.A. §§ 5101, 5107, 5110, 7104, 7105 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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, 3.326(a) (2013). Duty to Notify Upon receipt of a complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the Veteran with pre-adjudication notice by letter dated in August 2006. The notification complied with Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence. The notification also complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006), identifying the five elements of a service connection claim. Since the issue in this case (entitlement to assignment of an earlier effective date) is a downstream issue from a claim of service connection (for which a VCAA letter was duly sent in August 2006), another VCAA notice is not required. VAOPGCPREC 8-2003 (Dec. 22, 2003). It appears that the United States Court of Appeals for Veterans Claims has also determined that the statutory scheme does not require another VCAA notice letter in a case such as this where the Veteran was furnished proper VCAA notice with regard to the claim of service connection itself. See Dingess v. Nicholson, 19 Vet. App. 473, 491 (2006). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claims being decided, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Duty to Assist VA has obtained service, VA, and private treatment records, reviewed the Veteran's Virtual VA file, assisted the Veteran in obtaining evidence, and afforded the Veteran a pertinent VA examination as recently as October 2008. The Board notes that the record contains a September 2002 decision awarding Social Security Administration (SSA) benefits to the Veteran due to numerous disabilities, including his left knee, with an alleged disability onset date of November 1, 1998. The Board also acknowledges that an application for SSA benefits and any underlying records upon which such decision was based are not contained in the claims file. As a rule, the Board's duty to assist includes obtaining records from SSA. See Murincsak v. Derwinski, 2 Vet. App. 363 (1992). However, in the current case, VA awarded service connection for the Veteran's degenerative changes of the left knee effective from March 13, 1995, and he now seeks an effective date earlier than March 13, 1995 for that award. On the other hand, the SSA awarded benefits (with consideration of his left knee disability) effective only from November 1, 1998, which post-dates the service connection award. Therefore, the Board nothing in the SSA records would be relevant to the question of earlier effective dates for the disabilities at issue for purposes of VA compensation. A remand for SSA records would result only in an unnecessary delay and therefore should not occur in this case. See, e.g., Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). All other known and available records relevant to the issues being decided on appeal have been obtained and associated with the Veteran's claims file, and the Veteran and his representative have not contended otherwise. VA has complied with the notice and assistance requirements, and the Veteran is not prejudiced by a decision on the claims for an effective date earlier than March 13, 1995, for the awards of service connection for degenerative changes of the acromioclavicular joint of the right shoulder, degenerative changes of the left knee, and patellofemoral syndrome of the right knee at this time. Laws and Regulations A specific claim in the form prescribed by the Secretary 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), 3.160. The term "claim" or "application" means 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 under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits 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. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a veteran shall be the day following the date of discharge or release. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation states that 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). Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim; if so, the claim is denied. If the evidence is in support of the claim, or is in equal balance, the claim is allowed. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran contends that the effective date for the awards of service connection for his degenerative changes of the acromioclavicular joint of the right shoulder, degenerative changes of the left knee, and patellofemoral syndrome of the right knee should be based on the date that his original claims for service connection were filed in December 1990. The Veteran was discharged from active service in November 1990. On December 3, 1990, the Veteran filed original claims for service connection for a right shoulder disability, a left knee disability, and a right knee disability. In an April 1991 rating decision, the RO denied the claims. After filing a timely appeal, the Board denied the claims in an October 1994 decision. A notice letter attached to this October 1994 Board decision notified the Veteran of his options, including appealing such decision to the Court, filing a motion for reconsideration of such decision, or filing a request to reopen the claims. With regard to the Veteran's argument (most recently contended at his March 2012 hearing) that he had consistently appealed the April 1991 RO rating decision denying his original claims for service connection, the Board notes that the Veteran did not appeal the October 1994 Board decision (which affirmed the denials in the April 1991 RO rating decision) to the Court, and there are no communications of record from the Veteran evidencing any intent to file a request for reconsideration, a request to vacate, or a CUE motion with regard to the October 1994 Board decision. Therefore, the October 1994 Board decision is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. On March 13, 1995, the Veteran filed a request to reopen his previously denied claims for service connection for a right shoulder disability, a left knee disability, and a right knee disability. In a May 1995 letter, the RO notified the Veteran of the finality of the October 1994 Board decision and the evidence required to reopen the claims denied therein. In a February 2009 rating decision, the RO granted service connection for degenerative changes of the acromioclavicular joint of the right shoulder, degenerative changes of the left knee, and patellofemoral syndrome of the right knee, with all three awards effective March 13, 1995. The Board finds that the earliest possible effective date for the awards of service connection for degenerative changes of the acromioclavicular joint of the right shoulder, degenerative changes of the left knee, and patellofemoral syndrome of the right knee, is March 13, 1995, the date on which the Veteran filed a request to reopen the previously denied claims. Because the Veteran's original claims filed on December 3, 1990 were denied in a final October 1994 Board decision, the effective date of the awards must be the date of receipt of his reopened claims (i.e., March 13, 1995). 38 U.S.C.A. §§ 5110(a); 38 C.F.R. § 3.400(r). Therefore, the benefit of the doubt doctrine does not apply, and the claims must be denied. ORDER Entitlement to an effective date earlier than March 13, 1995, for the award of service connection for degenerative changes of the acromioclavicular joint of the right shoulder, is not warranted. Entitlement to an effective date earlier than March 13, 1995, for the award of service connection for degenerative changes of the left knee, is not warranted. Entitlement to an effective date earlier than March 13, 1995, for the award of service connection for patellofemoral syndrome of the right knee, is not warranted. The appeal is denied as to all issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs