Citation Nr: 1336384 Decision Date: 11/07/13 Archive Date: 11/13/13 DOCKET NO. 05-24 892 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an effective date earlier than October 31, 2001, for a grant of service connection for a low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran had active military service from April 1943 to April 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In an October 2006 decision, the Board denied entitlement to an effective date earlier than October 31, 2001, for a grant of service connection for a low back disability. At that time, the Board also determined that RO rating decisions dated in April 1946, June 1946, September 1946 and January 1947, which denied entitlement to service connection for a low back disability, did not contain clear and unmistakable error (CUE). In June 2007, the Veteran filed a Notice of Appeal (NOA) from the Board's October 2006 decision with the United States Court of Appeal for Veterans Claims (Court). In a March 2009 Memorandum Decision, the Court dismissed the Veteran's appeal because the NOA was untimely as it was not received within 120 days. See 38 U.S.C.A. § 7266(a) (West 2002). In June 2009, the Veteran appealed the Court's decision to the United States Court of Appeals for the Federal Circuit (Federal Circuit). After the Supreme Court of the United States issued its decision in Henderson v. Shinseki, 131 S.Ct. 1197 (2011), the Federal Circuit granted a motion in May 2011 to vacate the Court's decision dismissing the Veteran's appeal with the Court because the 120-day deadline for filing an appeal with the Court under section 7266(a) is not jurisdictional. Thereafter, in a September 2012 Order, the Court withdrew its March 2009 decision and determined that the Veteran's NOA was timely filed after the doctrine of equitable tolling was applied to his case. After the Veteran's appeal to the Court was docketed, the Veteran's representative with the Court and VA's General Counsel filed a Joint Motion for Partial Remand (JMR) in June 2013. The parties agreed that the Board's October 2006 decision should be vacated as to the issue of entitlement to an effective dater earlier than October 31, 2001, for a grant of service connection for a low back disability. The parties also agreed that the part of the Board's decision that denied the Veteran's request to revise the four prior RO rating decisions on the basis of CUE should be affirmed. In an Order dated later in June 2013, the Court granted the JMR. The appeal as to the CUE issue was dismissed and the earlier effective date issue was remanded for action consistent with the terms of the JMR. Thus, the issue of entitlement to an effective date earlier than October 31, 2001, for a grant of service connection for a low back disability, is the sole issue on appeal to the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran did not submit an application for review on appeal of RO decisions in April 1946, June 1946, September 1946 or January 1947, in which entitlement to service connection for a low back disability was denied. 2. No claim of service connection for a low back disability was thereafter received prior to October 31, 2001. CONCLUSIONS OF LAW 1. A rating decision in January 1947, which confirmed and continued a denial of entitlement to service connection for a low back disability, is final. Veterans Regulation No. 2(a), Part II (July 28, 1933). 2. The criteria for an effective date earlier than October 31, 2001, for a grant of service connection for a low back disability, have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all notification action needed to make a decision as to the issue on appeal has been accomplished. Through July 2002, October 2002, March 2003 and March 2006 notice letters, the RO notified the Veteran of the information and evidence needed to substantiate his underlying claim of service connection for a back condition. The March 2006 letter provided the Veteran with the general criteria for assigning disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Although the complete notice was not provided until after the RO initially adjudicated the Veteran's claim, the effective date issue was properly re-adjudicated in an April 2006 supplemental statement of the case, which cured any timing deficiency. See Prickett v. Nicholson, 20 Vet. App. 370, 376-77 (2006). In any case, once a veteran disagrees with an initial determination, other provisions apply to the remainder of the adjudication process, particularly those pertaining to the issuance of rating decisions and statements of the case. See 38 U.S.C.A. §§ 5104(a), 7105(d) (West 2002); 38 C.F.R. §§ 3.103(b)(1), 19.29 (2013); Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Consequently, further notification of how to substantiate the earlier effective date issue is not necessary. There is no indication that any additional action is needed to comply with the duty to assist in connection with the issue on appeal. The Veteran's service treatment records have been obtained and associated with the claims file, as have post-service VA and private treatment records. Additionally, the Veteran was afforded a hearing before the RO in November 2005 and before the Board in September 2006, the transcripts of which are of record. In September 2013, the Veteran indicated that he did not have anything else to submit and requested that the Board re-adjudicate the appeal. Moreover, the issue of whether an earlier effective date is warranted in this case turns on whether a prior RO decision is final and when the present claim was filed. The record in this regard is complete; thus, VA has properly assisted the Veteran in obtaining any relevant evidence. II. Analysis Background The Veteran separated from service on April 5, 1946. Shortly thereafter, he filed an application for benefits with VA, which was received on April 15, 1946. The application included a claim of service connection for a back (lower) condition. Later in April 1946, the RO denied entitlement to service connection for a lower back condition. The Veteran was notified of the decision by letter dated later that month. He was informed that he had one year to appeal and how to do so. The Veteran submitted a statement to the RO in May 1946. In a June 1946 rating decision, after receiving additional service records, the RO, in part, confirmed and continued the April 1946 decision. In a letter dated later in June 1946, the Veteran was notified of the decision and was told that his claim of service connection for a back condition remained in disallowed status. He was informed that he had one year to appeal. In September 1946, the Veteran submitted two statements along with a statement from a fellow service member and a prescription for an x-ray of the sacro lumbar. Later in September 1946, the RO issued a rating decision confirming and continuing the April 1946 and June 1946 decisions. In a letter dated later that month, the Veteran was told that submitted statements should be properly notarized and to submit any x-rays. The RO stated that further consideration would be given when all the evidence was received. After the Veteran submitted a statement in January 1947 in which he questioned whether submitting evidence would affect his job opportunities, the RO responded later that month that it would not do so. Later in January 1947, the Veteran resubmitted his September 1946 statements, which were now typed and notarized. Still in January 1947, the RO again confirmed and continued the denial even with consideration of the notarized affidavits. The Veteran was sent a letter notifying him that the claim remained in disallowed status and that he had one year from the date of the letter to appeal. In February 1947, the Veteran requested that all the evidence that he sent in on his claim be returned to him and he noted that he was sorry to have bothered VA. The RO sent the Veteran a letter, dated later that month, which noted that the evidence had not contained sufficient evidence for the claim to be granted and that the evidence would remain in the claims file. Between February 1947 and October 2001, the record does not contain correspondence from the Veteran pertaining to a claim of service connection for a low back disability. The documents from that time period primarily pertain to subsistence allowance, claims file transfer slips and dental ratings. On October 31, 2001, an informal claim was received by the RO from the Veteran's representative. The claim was for service connection for a back condition, which was ultimately granted in the February 2004 rating decision and characterized as L5 disc herniation with lumbar spinal stenosis and degenerative joint disease, status post L3-S1 fusion. The effective date of the award of service connection was set as October 31, 2001. Through submitted statements and hearing testimony, the Veteran appeals for an earlier effective date on the basis that the prior RO denials, which denied entitlement to service connection for a low back disability, are not final and the claim has been pending since that time. Finality An essential question of the issue on appeal is whether the Veteran appealed any of the RO decisions from April 1946, June 1946, September 1946 or January 1947, or whether the January 1947 decision (the last denial prior to the claim in October 2001) is final; thereby making the October 2001 service connection claim a claim to reopen. In the October 2006 decision, the Board found that the earlier decisions were final and that the Veteran had not appealed them. In the June 2013 JMR, the parties agreed that the Board had not adequately addressed whether the May 1946 statement from the Veteran is a notice of disagreement (NOD) with the April 1946 decision. The JMR indicates that additional reasons and bases are necessary. Current law and regulations provide that an appeal consists of a timely filed NOD in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2013). At the time of the earlier RO decisions, the law in effect was different. The Board must analyze whether the Veteran appealed the earlier decisions based on the law in effect at that time. See, e.g., Myers v. Principi, 16 Vet. App. 228 (2002) (analyzing whether a 1959 letter was an application for review on appeal based on the law then in effect). The law at the time of the earlier decisions required that an application for review on appeal be filed rather than an NOD. Veterans Regulation No. 2(a), Part II, Par. III (July 28, 1933). The application for review on appeal shall be filed within one year from the date of mailing of notice of the result of initial review or determination. If no application for review on appeal is filed, the action taken on initial review or determination shall become final. Id. In each application for review on appeal, the name and service of the veteran on account of whose service the claim is based must be stated, together with the number of the claim and the date of the action from which the appeal is taken. The application must clearly identify the benefit sought. Id. at Par. VII. Each application for review on appeal should contain specific assignments of the alleged mistake of fact or error of law in the adjudication of said claim, and any application for review on appeal insufficient in this respect may be dismissed. Id. at Par. VIII. In the April 1946 decision, the RO denied the claim because it was determined that a lower back condition was not shown by the evidence of record. In the Veteran's May 1946 letter, he listed his name and claim number. He stated: Dear Sir, I received you letter in reply to my claim application which I took out at Great Lakes, Ill. You said my service record did not reveal any existence of a back injury; well, it all happened in Camp Perry, Va. I hurt my back from lifting in the galley, [and] ever since that time I have tried to get some sort of treatment for it [and] time [and] place I would come in contact with a doctor I would ask him of its causes [and] etc. So every time I would go to the dispensary, I came out with an unsatisfactory conclusion as to just what was the trouble. I've had heat treatments [and] x-rays [and] urine tests [and] every other likeable thing but every [doctor] would say: 'you're okay,' but I can't see why it doesn't show on my record! Surely if I have complained of a back injury, why hasn't it been stated so? If you refer to the "Battalion Sick Bay Record Books" you'll see my name on those pages pretty near a hundred times, if you do once. Naturally, they wouldn't put it in my record then, if they figured they didn't know or too lazy to find out what was the matter. If you were even in the service, you'd know what I mean. But if it's absolutely necessary, I can obtain many witnesses as to what happened [and] to verify the fact that I do have a back injury. This May 1946 statement met some of the technical requirements for an application for review on appeal. It contained the Veteran's name, claim number and was received within one year of notification of the April 1946 decision. The statement did not list the date of the action, so it was not completely in compliance with the technical requirements. More importantly, the statement did not clearly identify the benefit being sought, or contain specific assignments of the alleged mistake of fact or error of law. There was no indication that the Veteran was requesting service connection or compensation for a low back disability, only that he believed sick bay service records should have included his name. Additionally, the statement failed to specifically identify a mistake of fact or error of law so as to form the basis of an appeal. Thus, any potential application for review on appeal may have permissibly been dismissed as insufficient. In consideration of the evidence of record, the Board finds that the May 1946 statement from the Veteran did not meet the criteria for an application for review on appeal of the April 1946 decision under then-existing law. See Veterans Regulation No. 2(a), Part II. The June 2013 JMR notes that correspondence under a similar fact scenario was determined to be an application for review on appeal by the Court in Myers. That case is distinguishable as the governing law was from over 10 years later in 1958. Additionally, the Court noted in the decision that, unlike here, the Board had already concluded that the correspondence met the criteria for an application for review on appeal. Myers, 16 Vet. App. at 232. Thus, Myers is not dispositive of the Veteran's case. In the June 1946 decision, the RO confirmed and continued the denial of service connection for a back condition. As noted previously, in September 1946, the Veteran submitted two statements along with a statement from a fellow service member and a prescription for an x-ray of the sacro lumbar. Similar to the May 1946 statement, the September 1946 statements met some of the technical requirements for an application for review on appeal. They contained the Veteran's name, claim number and were received within one year of notification of the June 1946 decision, but again did not list the date of the action potentially in question. More importantly, the statements contained similar language as the May 1946 statement and did not clearly identify the benefit being sought, or contain specific assignments of the alleged mistake of fact or error of law. There was no indication that the Veteran was requesting service connection or compensation for a low back disability, again only that he believed sick bay service records should have included his name. Furthermore, the statements failed to specifically identify a mistake of fact or error of law so as to form the basis of an appeal. Thus, any potential application for review on appeal may have permissibly been dismissed as insufficient. In consideration of the evidence of record, the Board finds that the September 1946 statements from the Veteran did not meet the criteria for an application for review on appeal of the June 1946 decision under then-existing law. See Veterans Regulation No. 2(a), Part II. In the September 1946 decision, the RO confirmed and continued the prior rating decisions. As noted previously, the Veteran submitted a statement in January 1947 in which he questioned whether submitting evidence would affect his job opportunities, and the Veteran resubmitted his September 1946 statements, which were now typed and notarized. As previously discussed, the September 1946 statements did not meet the criteria for an application for review on appeal; thus, the resubmitted statements in January 1947, now pertaining to the September 1946 decision, did not meet the criteria. See Veterans Regulation No. 2(a), Part II. Additionally, the Veteran's January 1947 statement pertaining to job opportunities did not meet the criteria for an application for review on appeal as it did not clearly identify the benefit being sought, or contain specific assignments of the alleged mistake of fact or error of law. Id. Finally, in the January 1947 decision, the RO again confirmed and continued the denial of service connection for a back condition. As noted previously, in February 1947, the Veteran requested that all the evidence that he sent in on his claim be returned to him and he noted that he was sorry to have bothered VA. The February 1947 statement also did not clearly identify the benefit being sought, or contain specific assignments of the alleged mistake of fact or error of law. In fact, the Veteran appeared to be withdrawing pursuit of any claim. Thus, the statement did not meet the criteria for an application for review on appeal. See Veterans Regulation No. 2(a), Part II. Because no application for review on appeal was timely filed after the January 1947 RO decision, the action taken on initial review or determination became final. Id. Effective Date Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2013); 38 C.F.R. § 3.400 (2013). The effective date of a reopened claim is the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). Because the most recent prior RO decision in January 1947 is final, the claim by which the Veteran was granted service connection for a low back disability, and which led to this appeal, is a claim to reopen a previously denied claim. The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995).) As noted previously, between February 1947 and October 2001, the record does not contain correspondence from the Veteran pertaining to a claim of service connection for a low back disability. The documents from that time period primarily pertain to subsistence allowance, claims file transfer slips and dental ratings. Thus, October 31, 2001 is the date of the claim to reopen. Regardless of when entitlement arose, the effective date may be no earlier than the date of claim to reopen. Thus, the already assigned effective date of October 31, 2001, for the grant of service connection for a low back disability, is the earliest possible effective date. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). The June 2013 JMR notes that, in Juarez, the Court stated that "Myers stands for the proposition that once an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board." See Juarez, 21 Vet. App. at 543. As discussed previously, the Veteran's case is distinguishable from the facts of Myers. Instead, his case is similar to the facts in Juarez where it was determined that there was no NOD (or application for appeal on review) and that the effective date was to be assigned based on a claim to reopen. See id. In sum, as the January 1947 RO decision is final, and the date of claim to reopen the claim of service connection for a low back disability was received on October 31, 2001, an effective date earlier than October 31, 2001 for the grant of service connection is not warranted. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER An effective date earlier than October 31, 2001, for a grant of service connection for a low back disability is denied. ____________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs