Citation Nr: 1603748 Decision Date: 02/03/16 Archive Date: 02/11/16 DOCKET NO. 15-08 412 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date prior to July 11, 2011, for the grant of service connection for a back condition. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ashley Martin, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1952 to May 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. A September 2008 rating decision determined that new and material evidence had not been submitted to reopen the Veteran's claim for service connection for a back condition; he did not appeal this decision and it is final. 2. An application to reopen a claim of entitlement to service connection for a back condition was received at the RO on July 11, 2011. There was no claim to reopen service connection for a back condition subsequent to the September 2008 rating decision and prior to July 11, 2011. CONCLUSION OF LAW The criteria for an effective date prior to July 11, 2011, for the grant of service connection for a low back condition, have not been met. 38 U.S.C.A. §§ 5101, 5110, 7104 (West 2014); 38 C.F.R. §§ 3.1(p), 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties 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). This appeal arises from the Veteran's 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); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to VA's duty to assist, all evidence relevant to the Veteran's claim has been secured. VA has obtained service treatment records, VA treatment records, private treatment records, and a VA examination report. Notably, determinations regarding effective dates of awards are based essentially on what was shown by the record at various points in time and application of governing law to those findings. Generally, further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding. The Veteran has not identified any other pertinent evidence that remains outstanding. Thus, VA's duty to assist is met. II. Earlier Effective Date 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 the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The Veteran initially filed a claim for entitlement to service connection for a back injury in September 1959. The claim was denied in a December 1959 rating decision. The Veteran did not appeal this decision or submit new and material evidence within one year of that decision and it became final. The Veteran filed a claim to reopen in May 1995. The RO declined to reopen the Veteran's back claim in a May 1995 rating decision. The Veteran filed a notice of disagreement (NOD) and a statement of the case (SOC) was issued in August 1995. Subsequently, the Veteran submitted a request for copies of his medical records. However, he did not file a substantive appeal nor did he submit new and material evidence within a year of the rating decision. Thus, the May 1995 rating decision became final. A claim to reopen was received in August 1999. However, no further action was taken by the RO. In March 2008, the Veteran submitted an application to reopen his service connection claim for a back condition. In a September 2008 rating decision, the RO determined that new and material evidence had not been submitted to reopen the Veteran's claim. The Veteran did not file a NOD nor did he submit new and material evidence within a year of the decision. Thus, the September 2008 rating decision became final. The Veteran submitted a claim to reopen on July 11, 2011. In a February 2012 rating decision, the RO granted service connection for a back condition, effective July 11, 2011, the receipt date of the claim. The Veteran contends that he is entitled to an effective date of May 1995, the recepit date of his prior claim to reopen. He argues that the 1995 denial was "in error." According to the Veteran, he was misdiagnosed with spina bifida (a congenital condition) in service. He further claims that he "never had spina bifida" and that the medical evidence shows a diagnosis of degenerative changes of the lumbar spine. The Board acknowledges the arguments set forth by the Veteran and is sympathetic to his contentions. Under the law, however, the effective date for a grant of service connection based on a claim to reopen is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Here, the Veteran's claim to reopen was received on July 11, 2011. Indeed, the Veteran filed previous claims in May 1995 and March 2008. However, rating decisions denying those claims were issued in May 1995 and September 2008. The Veteran did not appeal the decisions, and they became final. Further, there was no new and material evidence received prior to the expiration of the appeal period. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). There is no evidence that the Veteran submitted a claim, formal or informal, concerning his back condition between the September 2008 denial and his July 2011 claim. The effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244 (2002). Therefore, the RO assigned the earliest possible effective date for his service connection claim and the Board is precluded from granting an effective date prior to July 11, 2011. Accordingly, the preponderance of the evidence is against the Veteran's claim, and the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date prior to July 11, 2011, for the grant of service connection for a back condition is denied. ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs