Citation Nr: 1338051	
Decision Date: 11/20/13    Archive Date: 12/06/13

DOCKET NO.  13-08 907	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUE

Entitlement to an effective date earlier than February 17, 2010, for the award of service connection for coronary artery disease.


REPRESENTATION

Appellant represented by:	Wisconsin Department of Veterans Affairs


ATTORNEY FOR THE BOARD

S. Coyle, Counsel






INTRODUCTION

The Veteran served on active duty from July 1965 to July 1967, including service in the Republic of Vietnam from February 1966 to February 1967. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.

In a March 2013 statement, the Veteran due to his disabilities he was unable to work on a full-time basis, which raises the issue of entitlement to a total disability rating based on individual unemployability (TDIU).  The issue is therefore referred to the agency of original jurisdiction for disposition.  


FINDING OF FACT

The Veteran did not submit a claim, either formal or informal, for service connection for heart disability until February 17, 2010.


CONCLUSION OF LAW

Entitlement to an effective date prior to February 17, 2010, for the grant of service connection for heart disability, is not warranted.  38 U.S.C.A. §§ 5101, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.1(p), 3.400, 3.816 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran's heart disability claim arises from his disagreement with the effective date following the grant of service connection.  Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  Further, because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary.  See Mason v. Principi, 16 Vet. App. 129 (2002).  

The basic facts are not in dispute.  As the RO noted, the Veteran's initial application for service connection for heart disability was filed with VA on February 17, 2010, and indeed, the Veteran does not contend otherwise.

Unless specifically provided otherwise in the statute, 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.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2).

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  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 veteran or his representative, may be considered an informal claim.  Such informal claim must identify the benefit 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 veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155.

Here, the RO granted service connection and a 30 percent evaluation effective the date the Veteran's original claim of service connection for heart disability was filed with VA.  An effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.  Lalonde v. West, 12 Vet. App. 377, 382 (1999).  Because the Veteran did not file a formal or informal application for service connection prior to February 17, 2010, VA is precluded, as a matter of law, from granting an effective date prior to February 17, 2010, for service connection for heart disability.  In addition, as the RO explained, the provisions of 38 C.F.R. § 3.816 (2013) are not applicable to this claim.  As such, this appeal must be denied because the RO has already assigned the earliest possible effective date provided by law.  


ORDER

An effective date earlier than February 17, 2010, for the award of service connection for coronary artery disease is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs