Citation Nr: 1615170 Decision Date: 04/14/16 Archive Date: 04/26/16 DOCKET NO. 13-13 446 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date prior to April 20, 2012 for the award of service connection for right knee torn medial meniscectomy and osteoarthritis with limitation of flexion and degenerative arthritis of the right knee (a right knee disability). REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from June 1981 to February 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. FINDINGS OF FACT 1. The Veteran filed his initial claim for service connection for a right knee disability on April 20, 2012. 2. In an August 2012 rating decision, the Veteran was granted service connection for a right knee disability rating, and awarded a 30 percent disability for right knee torn medial meniscectomy and osteoarthritis with limitation of flexion and a 10 percent disability rating for degenerative arthritis of the right knee, both effective April 20, 2012. CONCLUSION OF LAW The criteria for an effective date earlier than April 20, 2012, for the award of service connection for bilateral right knee torn medial meniscectomy and osteoarthritis with limitation of flexion and degenerative arthritis of the right knee have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.159, 3.400(2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duties to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper notice from VA must inform the claimant of any information and 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 C.F.R. § 3.159(b)(1). This notice should be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The current appeal is for an earlier effective date for the award of service connection for bilateral right knee torn medial meniscectomy and osteoarthritis with limitation of flexion and degenerative arthritis of the right knee. Earlier effective date issues are generally considered to be "downstream" issues. See 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement). With regard to the appeal for an earlier effective date, the Board finds that no VCAA notice is necessary because the earlier effective date issue depends exclusively on documents that are already contained in the record, and on the undisputed facts of the case. As explained below, the earliest possible effective date has already been granted, that is, the date of receipt of the informal claim for service connection on April 20, 2012. See 38 C.F.R. § 3.400 (2015). No additional development could alter the evidentiary or procedural posture of this case. The Court has held that an appellant claiming an earlier effective date is not prejudiced by the failure to provide VCAA notice of the laws and regulations governing effective dates if, based on the undisputed facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) (VCAA notice is not required where there is no reasonable possibility that additional development will aid the claimant). VA satisfied any duty to assist the Veteran in the development of the appeal. As will be explained below, the law, and not the facts, is dispositive of the effective date in this case; therefore, the duty to assist imposed by the VCAA is not applicable. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also VAOPGCPREC 5-2004. The notice and duty to assist provisions have no effect on an appeal where the law, and not the underlying facts or development of the facts, are dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-43 (2002). Earlier Effective Date Claim The Veteran contends that the effective date of the award of service connection for a right knee disability should be February 15, 1990, the day after separation from service. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) 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(a) (West 2014); 38 C.F.R. § 3.400 (2015). If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. After a careful review of the relevant evidence of record, the Board has determined, based upon the evidence of record, that an effective date prior to April 20, 2012, for the grant of service connection for a right knee disability is not warranted. The Veteran separated from service in February 1990. Although he indicated that he requested disability benefits during his Air Force exit interview, he failed to file either a formal or informal claim for service connection with VA at that time. VA received his initial claim for service connection on April 20, 2012. Following receipt of this initial claim for service connection, the RO granted service connection for his right knee disability and assigned an effective date of April 20, 2012, the date of the initial claim. Prior to April 20, 2012, there was no pending, unadjudicated claim or petition to reopen the claim for service connection for a right knee disability of any sort. The applicable regulation is clear that the appropriate effective date for the award of service connection in this case is the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2015). Although the Veteran contends that his right knee disability began during service, thereby providing an earlier date of entitlement, there was no claim for service connection for a right knee disability filed prior to the April 20, 2012 claim. Therefore, the award of service connection may only be effective as of the date of the initial claim for service connection, which is April 2012. Accordingly, despite the Veteran's contentions that his right knee disability began prior to April 20, 2012, as there was no pending, unadjudicated claim for service connection for a right knee disability of any sort before the April 20, 2012 claim, the proper effective date for the award of service connection under 38 C.F.R. § 3.400 can be no earlier than the April 20, 2012 effective date assigned. ORDER Entitlement to an effective date prior to April 20, 2012 for the award of service connection for right knee torn medial meniscectomy and osteoarthritis with limitation of flexion and degenerative arthritis of the right knee is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs