Citation Nr: 1336082	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  11-15 595	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an earlier effective date, earlier than September 30, 2002, for the grant of a 10 percent disability rating for chronic sprain and strain, low back with facet arthropathy of L4-L5.


REPRESENTATION

Appellant represented by:	Mississippi Veterans Affairs Commission


ATTORNEY FOR THE BOARD

E. I. Velez, Counsel


INTRODUCTION

The Veteran served on active duty March 1969 to March 1973. 

This case comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. 


FINDINGS OF FACT

1.  An April 1973 rating decision granted service connection for a lumbar spine disability, with a noncompensable rating; July 1975, May 1976, December 1985, December 1988, May 1990, October 1996 and June 2002 rating decisions denied an increased rating for the lumbar spine disability.  The Veteran did not timely appeal these decisions.

2.  The Veteran's claim of entitlement to an increased rating for a lumbar spine disability was received on November 29, 2007. 

3.  In July 2008, the RO granted an increased rating to 10 percent for chronic sprain and strain of the lumbar spine based limitation of motion of forward flexion to 70 degrees.  

4.  In July 2009, the RO granted an earlier effective date of September 30, 2002, for the 10 percent disability rating.  


CONCLUSION OF LAW

The criteria for an effective date prior to September 30, 2002 for the grant of a 10 percent evaluation for chronic sprain and strain, low back with facet atrophy of L4-L5, have not been met.  38 U.S.C.A. §§ 1155, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.400 (2012). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). 

The United States Court of Appeals for Veterans Claims has held that when the law, and not the underlying facts or development of the facts are dispositive in a matter, the VCAA can have no effect on the appeal.  Manning v. Principi, 16 Vet. App. 534, 542 (2002); Smith v. Gober, 14 Vet. App. 227 (2002) (VCAA has no effect on appeal limited to interpretation of law); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (VCAA not applicable where law, not factual evidence, is dispositive); Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); see also VAOPGCPREC 
5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit).  Because the law and not the evidence is dispositive with regard to the claim of entitlement to an earlier effective date for the grant of a 10 percent evaluation for chronic sprain and strain of the low back, additional factual development would have no bearing in the ultimate outcome.  Accordingly, VCAA can have no effect on this appeal.  See Manson v. Principi, 16 Vet. App. 129, 132 (2002) (VCAA not applicable "because the law as mandated by statute and not the evidence is dispositive of the claim.").  Therefore, the Board finds that no further action is necessary under the VCAA for the earlier effective date claim. 

Nevertheless, even if the VCAA were applicable, the record reflects that the originating agency provided the Veteran with the required notice, to include notice with respect to the effective-date element of the claim, by a letter mailed in December 2007, prior to the initial adjudication of his claim. In short, the record indicates the Veteran received appropriate notice pursuant to the VCAA. 

Based on the foregoing, the Board concludes that VA has satisfied any duty to notify the Veteran of the evidence and information necessary to establish entitlement to the benefits sought. 

With respect to the duty to assist, VA has obtained all pertinent medical records referenced by the Veteran.  There no duty to provide an examination because the pertinent matter to be decided involves the Veteran's level of disability prior to July 2009; thus a current examination would not be relevant to this claim.

Legal Criteria and Analysis

Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C.A. § 5110(a). 

The effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.  However, the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C.A. § 5110(b)(2);38 C.F.R. § 3.400(o)(2) ; see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues).

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) (West Supp. 2005); 38 C.F.R. § 3.151(a) (2012).  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) (2012).

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) (2012).

In the current case, the Board finds that the Veteran's claim for an earlier effective date must be denied.  In July 2008, the RO granted an increased rating of 10 percent for the service-connected disability, effective November 29, 2007, the date of the receipt of claim.  The Veteran disagreed with the effective date assigned and thereafter perfected an appeal.  In July 2009, the RO granted an earlier effective date to September 30, 2002 for the grant of the 10 percent evaluation.  The Veteran is not satisfied with the September 2002 effective date assigned and argues that the effective date should be granted back to 1973, or in the alternative, 2001.

The Board notes that service connection for a back disability was established in an April 1973 rating decision, with a 0 percent evaluation assigned effective March 9, 1973, the day following discharge from service.  The Veteran did not appeal that decision and it became final.  See 38 C.F.R. § 20.302 (2012).  Rating decisions of July 1975, May 1976, December 1985, December 1988, May 1990, and October 1996 denied higher evaluations. Again, the Veteran did not appeal the decisions and they became final. 

In June 2002, the RO denied an increased disability rating for the low back disability.  The Veteran was notified of the decision later that same month.  In July 2002, the Veteran appealed the denial of an increased disability rating.  A Statement of the Case was issued in April 2003.  The Veteran submitted an untimely VA Form 9 in September 2003.  In an October 2003 letter, the RO informed the Veteran his appeal as to the denial of an increased disability rating was not timely as it had been received over a year after he had been notified of the June 2002 decision.  The Veteran was informed that he could reopen his claim for an increased disability rating at any time, or if he disagreed with the decision that his appeal was untimely, he could appeal that decision within a year of the letter.  The Veteran did not appeal that decision regarding the timeliness of his appeal.  Therefore, the decision became final.  

The Board observes that the Veteran has not alleged clear and unmistakable error in the June 2002 rating decision or October 2003 decision regarding timeliness; thus, these decisions are final and the effective date for any grant of a higher rating necessarily must be after the date of the most recent final denial.  See 38 C.F.R. §§ 3.105, 3.400.

The next communication from the Veteran was his claim for an increased rating for his chronic sprain and strain of the low back received on November 29, 2007.  

Review of the record reveals no evidence of any communication from the Veteran or an accredited representative from the Veteran between the June 2002 decision and his November 2007 claim that can be construed as either a formal or informal claim for an increased rating for his service-connected back disability.

Per 38 C.F.R. § 3.400(o)(2), the effective date should be the earliest date as of which it was factually ascertainable that an increase in disability had occurred. Furthermore, an effective date may be awarded earlier than the date of claim if it is fully ascertainable from the medical and lay evidence that a disability was worse at any point in the year prior to the date the claim was received.   In this date, the Veteran the July 2009 rating decision awarded the 10 percent rating for more than one year prior to the date of claim with the assignment of a 10 percent rating for the low back disability under Diagnostic Code 5237, effective September 30, 2002, the effective date of the change to the Rating Schedule that provided for a 10 percent disability rating based on limitation of motion or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or spinal contour.  38 C.F.R. § 4.118.  Prior to September 30, 2002, the rating criteria provided a compensable rating only upon showing limitation of motion.  See 38 C.F.R. § 4.118, Diagnostic Code 5295 (as in effect prior to September 30, 2002).

The Veteran essentially contends that the effective date of the 10 percent rating should go back to the day following his discharge from service, because he had symptoms of the condition since that time.  However, as noted above, the Veteran did not appeal the 1973 rating decision that assigned the noncompensable rating, nor the multiple rating decisions thereafter.  While he appealed the June 2002 rating decision which denied an increased disability rating, the denial was untimely.  He was notified of the finding that the appeal was untimely and he did not appeal that decision.  There is nothing in the record to show that a new claim to reopen was received following the June 2002 denial until November 2007.  


Accordingly, an effective date prior to September 30, 2002, for the award of the 10 percent rating, is denied as a matter of law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). 


ORDER

Entitlement to an effective date prior to September 30, 2002 for the grant of a 10 percent evaluation for chronic sprain and strain of the low back with facet atrophy of L4-L5 is denied.



____________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs