Citation Nr: 1335343	
Decision Date: 11/04/13    Archive Date: 11/13/13

DOCKET NO.  09-31 986	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California


THE ISSUE

Entitlement to an effective date earlier than January 28, 2009, for the award of VA benefits based on service connection for diabetes mellitus and erectile dysfunction and special monthly compensation based on loss of use of a creative organ. 


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. Kirscher Strauss, Counsel



INTRODUCTION

The Veteran served on active duty from March 1966 to March 1969.

This matter came to the Board of Veterans' Appeals (Board) from a May 2007 rating decision and March 2009 letter of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California.  


FINDINGS OF FACT

1.  A December 2006 VCAA letter, which asked the Veteran to complete and return the signature page from his claim for VA benefits, was properly addressed to the Veteran's address of record and was not returned to the RO as undeliverable.

2.  The RO provided assistance to the Veteran before a substantially complete application for benefits was received, addressed to itself a May 2007 letter notifying the Veteran of a May 2007 rating decision and the need to submit a signed signature page, and took no action to verify the Veteran's address when the letter was returned.


CONCLUSION OF LAW

With resolution of all reasonable doubt in the Veteran's favor, the criteria for an effective date of September 26, 2006, for the award of VA benefits based on service connection for diabetes mellitus and erectile dysfunction and special monthly compensation based on loss of use of a creative organ have been met.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.159, 3.400 (2013).





REASONS AND BASES FOR FINDINGS AND CONCLUSION

Criteria & Analysis

Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002 & Supp. 2013)); see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a) (2013), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).

The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  Except as otherwise provided, the effective date of an evaluation and an award of compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.

Upon receipt of a complete or substantially complete application for benefits, VA has particular duties to notify and assist a claimant regarding evidence necessary to substantiate the claim.  38 C.F.R. § 3.159(b),(c).  A substantially complete application means an application containing the claimant's name; sufficient service information for VA to verify the claimed service, if applicable; the benefit claimed and any medical condition(s) on which it is based; and the claimant's signature.  38 C.F.R. § 3.159(a)(3).  If VA receives an incomplete application for benefits, it will notify the claimant of the information necessary to complete the application and will defer assistance until the claimant submits this information.  38 U.S.C.A. §§ 5102(b), 5103A(a)(3); 38 C.F.R. § 3.159(b)(2).  Assistance may include providing a veteran with a VA examination.  38 C.F.R. § 3.159(c)(4).

In this case, the Veteran's claim for service connection for diabetes mellitus was received on September 26, 2006, via the Veterans On-Line Application Program (VONAPP).  In a December 2006 VCAA letter mailed to the address provided by the Veteran on his application, the RO enclosed the signature page from the VONAPP application form and asked him to complete and return the form.  The RO also asked the Veteran to provide treatment records from R. Bond, M.D., which the Veteran identified on his application.  The VCAA letter was not returned to the RO as undeliverable; however, the Veteran did not respond to the letter, return the signature page, or provide treatment records or other evidence to support his claim.

After the Veteran was afforded a VA fee-basis examination in January 2007 to evaluate his claimed disability, the RO granted service connection in a May 2007 rating decision for diabetes mellitus and erectile dysfunction and special monthly compensation based on loss of use of a creative organ.  The assigned effective date for these VA benefits was September 26, 2006, the date the claim was received.  A separate letter dated in May 2007 enclosed a copy of the rating decision and notified the Veteran that the RO could not process the decision because he did not sign his application for VA benefits.  The RO enclosed another signature page and asked the Veteran to sign and return the form as soon as possible.  

The May 2007 letter listed the address of the RO rather than the Veteran's address.  Of course, the letter was returned as "insufficient address" on May 17, 2007.  It appears from the claims file that the RO took no action to attempt to verify the Veteran's correct address or resend the letter and rating decision.

A January 28, 2009, report of contact reflects that the Veteran called to RO regarding the status of his claim.  The VA representative confirmed that there was a decision letter with award, dated May 7, 2007, but there was no payment screen.  The signed signature page was received from the Veteran on February 26, 2009.  In a March 2009 letter, the RO informed the Veteran that even though service connection was granted effective September 26, 2006, the award did not become effective until January 28, 2009.  The RO explained that the December 2006 letter notified the Veteran that a signed application was required and that he had one year from the date of that letter to make sure that the RO received the information and evidence requested.  Because more than one year passed since the RO originally requested a signature page, the award became effective on January 28, 2009, the date the Veteran called the RO.

In his March 2009 notice of disagreement, the Veteran asserted that he never received the December 2006 VCAA letter and emphasized that the May 2007 letter from the RO was addressed the Federal Building.

With resolution of reasonable doubt in the Veteran's favor, the Board concludes that an effective date of September 26, 2006, is warranted for the award of VA benefits based on service connection for diabetes mellitus and erectile dysfunction and special monthly compensation based on loss of use of a creative organ.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2013).  Here, the Board observes that the December 2006 VCAA letter was properly addressed to the Veteran's address of record and was not returned to the RO as undeliverable.  As a result, there does not appear to be any fault by the RO regarding the assertion that the Veteran did not receive that letter.  However, even if the Veteran did receive the December 2006 VCAA letter and ignored the request to return the form or inadvertently did not notice the request to return the form, the RO, in fact, assisted the Veteran with his claim by providing an examination despite the fact that federal regulation requires VA to defer assistance until the claimant submits a substantially complete application, which includes a signature.  The Veteran was not informed that benefits were granted and that the consequences of his failure to complete the application had significantly changed.  The inattention on the part of the RO to properly address the May 2007 letter and to correct the mistake when the letter was returned, further warrants resolving reasonable doubt in favor of the Veteran and allowing an effective date for VA benefits from the date his claim was received.







	(CONTINUED ON NEXT PAGE)



ORDER

Entitlement to an effective date of September 26, 2006, is allowed for the award of VA benefits based on service connection for diabetes mellitus and erectile dysfunction and special monthly compensation based on loss of use of a creative organ.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs