Citation Nr: 1537427 Decision Date: 09/02/15 Archive Date: 09/10/15 DOCKET NO. 09-02 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to December 28, 2006, for the grant of service connection for a right ankle disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran served on active duty from November 1988 to July 1990. This matter is on appeal from a December 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction over the appeal is currently with the RO in Waco, Texas. This appeal is comprised entirely of documents contained in the Virtual VA paperless claims processing system as well as the Veterans Benefits Management System (VBMS). Accordingly, any future documents should be incorporated in the Veteran's VBMS file. FINDING OF FACT On December 28, 2006, the RO received the Veteran's claim seeking entitlement to service connection for a right ankle disorder, and there is no communications within one year prior to this date reflecting the intent to file a claim. CONCLUSION OF LAW The criteria for the assignment of an effective date prior to December 28, 2006, for the grant of service connection for a right ankle disorder, have not been met. 38 U.S.C.A. §§ 1502, 1521, 5103, 5103A, 5110(a) (West 2014 & Supp. 2015); 38 C.F.R. §§ 3.1(r), 3.350, 3.351, 3.352, 3.400 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION VA Duty to Notify and Assist 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 2014 & Supp. 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required, and none is found by the Board. Indeed, the Veteran's claim arises from his disagreement with the initial rating following the grant of service connection. Once service connection is granted, the claim is substantiated. Therefore, additional notice is not required and any defect in notice is not prejudicial. See Shinseki v. Sanders, 556 U.S. 396 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2014 & Supp. 2015); 38 C.F.R. § 3.159 (2015). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the RO has obtained the Veteran's service treatment records and VA outpatient treatment records. Further, the Veteran submitted his own statements in support of his claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Effective Date In general, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(b)(1) (West 2014 & Supp. 2015); 38 C.F.R. § 3.400(b) (2015). For effective date purposes, a claim is a formal or informal written communication identifying and requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2015). 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 juris, may be considered an informal claim. 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 after 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 (2015); Norris v. West, 12 Vet. App. 413, 421 (1999). In this case, the Veteran submitted a claim seeking entitlement to service connection for a right ankle disability which was received by the RO on December 28, 2006. The Board determines that this is the date of the Veteran's formal claim. It is noted that the Veteran previously submitted a claim for a right ankle disorder that was received by the RO on September 27, 2004. This claim was denied by the RO in a March 2005 rating decision. While the Veteran submitted a notice of disagreement to this rating decision in April 2005, he disagreed with the denial of service connection for a left ankle disorder on that occasion. In fact, the Veteran did not disagree with the denial of service connection for a right ankle disorder until June 2005, and he received a statement of the case in response in November 2005. Along with the November 2005 statement of the case, he also received a letter specifically advising him that he needed to submit a VA Form-9 to perfect his appeal within 60 days of the decision. The evidence does not indicate that he ever submitted a VA-9 in response, nor did he submit any additional relevant evidence to support his claim. See Buie v. Shinseki, 24 Vet. App. 242 (2011). Therefore, that claim became final before his new claim was submitted and cannot represent an active formal claim. As a consequence, the Board finds that, for effective date purposes, the formal date of claim is December 28, 2006. The date of receipt of the claim having been established, the Board has also reviewed whether there is any evidence of the intent to file a claim for benefits prior to December 28, 2006. However, after a thorough review of the record, there are no communications indicating the desire to submit a claim after the prior final decision. Indeed, the Veteran's claims file was previously reviewed by the Board in July 2007, and there was no indication that a claim had been submitted prior to his formal claim. As such, the Board concludes that the effective date of the Veteran's service-connected right ankle disability is no earlier than December 28, 2006, and an effective date prior to this date is not warranted. ORDER An effective date prior to December 28, 2006, for the grant of service connection for a right ankle disorder is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs