Citation Nr: 1638076 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 12-18 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an effective date prior to January 14, 2009, for service connection for degenerative disc disease of the lumbosacral spine. 2. Entitlement to an effective date prior to January 14, 2009, for service connection for left lower extremity radiculopathy. 3. Entitlement to an effective date prior to January 14, 2009, for service connection for right knee degenerative arthritis. 4. Entitlement to an effective date prior to January 14, 2009, for service connection for a left shoulder disability. 5. Entitlement to an effective date prior to January 14, 2009, for service connection for a right shoulder disability. 6. Entitlement to an effective date prior to January 14, 2009, for service connection for tinnitus. 7. Entitlement to an effective date prior to January 14, 2009, for service connection for a left hip disability. 8. Entitlement to an effective date prior to January 14, 2009, for service connection for a right hip disability. 9. Entitlement to an effective date prior to January 14, 2009, for service connection for allergic rhinitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1984 to December 1987 and from December 1989 to September 2006. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Board notes that the resolution of the Veteran's claims for entitlement to earlier effective dates for the grant of service connection for a back disability, left lower extremity radiculopathy, right knee arthritis, bilateral shoulder disability, tinnitus, bilateral hip disability, and allergic rhinitis involves the application of identical law to the same facts. As such, the issues will be addressed together. The record before the Board consists solely of electronic records within Virtual VA and the Veterans Benefits Management System. FINDING OF FACT The Veteran's initial claims of entitlement to service connection for a back disability, left lower extremity radiculopathy, right knee arthritis, bilateral shoulder disability, tinnitus, bilateral hip disability, and allergic rhinitis were received by VA less than one year after he separated from active service; and the foregoing disabilities originated while he was serving on active duty. CONCLUSION OF LAW The criteria for entitlement to an effective date of October 1, 2006, for the award of service connection for a back disability, left lower extremity radiculopathy, right knee arthritis, bilateral shoulder disability, tinnitus, bilateral hip disability, and allergic rhinitis have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Assist As a preliminary matter, the Board notes that the evidence currently of record is sufficient to substantiate the Veteran's claims. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2014) or 38 C.F.R. § 3.159 (2016). Legal Criteria The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection or a claim reopened after final adjudication, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim or a claim reopened after final disallowance "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. Direct service connection will be granted effective 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, the effective date will 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 (b)(2). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background and Analysis The Veteran contends that he filed his initial claims for service connection within one year of separation from active service on September 30, 2006. The evidence of record shows the Veteran submitted a VA Form 21-526 on January 14, 2009. In a July 2009 rating decision, the RO granted service connection for a back disability, left lower extremity radiculopathy, right knee arthritis, bilateral shoulder disability, tinnitus, bilateral hip disability, and allergic rhinitis effective from January 14, 2009. The Veteran submitted a statement asserting that an earlier effective date was warranted for service connection for these disabilities because he submitted service treatment records (STRs) to the Winston-Salem RO in 2006 and was then directed by his representative to fill out a VA 21-526, which he completed and returned to the RO on October 20, 2006. The United States Court of Appeals for Veterans Claims (Court) has held that, "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties." Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992) (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). Unless rebutted by clear evidence to the contrary, VA is entitled to the benefit of this presumption. Id. Applying the presumption of regularity to the Veteran's case, if the Veteran's claims were actually received by VA on October 20, 2006, the documents would have been date stamped and placed in his claims file. See M21-1MR, Part III.ii.1.E.2.b (2016) (directing that each document VA receives by the RO must be stamped with the date of receipt). However, the Board concludes that clear evidence sufficient to rebut the presumption of regularity has been presented. In support of his claim, the Veteran submitted a copy of a VA Form 21-256, dated October 20, 2006, that was received by the RO in November 2009. The application indicates that he submitted STRs to the RO via certified mail in July 2006. Review of the Veteran's electronic records indicates his original STRs were received by the RO on November 7, 2006. The Board finds the receipt of the STRs in November 2006 to be consistent with the Veteran's contention that he submitted claims to VA for service connection for the back disability, left lower extremity radiculopathy, right knee arthritis, bilateral shoulder disability, tinnitus, bilateral hip disability, and allergic rhinitis within one year of separation from service. In the Board's opinion, the presumption of regularity is rebutted. The Board finds that the Veteran did file his original claims less than one year after his discharge in September 2006. With the exception of the radiculopathy of the left lower extremities, the Veteran was granted service connection for the disabilities at issue because they are directly related to active service and the evidence satisfactorily establishes that they originated in service. Although service connection for the radiculopathy was granted as secondary to the service-connected back disability, the Veteran reported that the numbness in his left lower extremity began in 2005, prior to his discharge from service. Therefore, the Board concludes that the radiculopathy is also directly related to his active duty. Accordingly, the Board concludes that the proper effective date for service connection for the disabilities at issue is October 1, 2006, the day following the Veteran's discharge from service. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date of October 1, 2006, for the grant of service connection for degenerative disc disease of the lumbosacral spine is granted. Entitlement to an effective date of October 1, 2006, for the grant of service connection for left lower extremity radiculopathy is granted. Entitlement to an effective date of October 1, 2006, for the grant of service connection for right knee degenerative arthritis is granted. Entitlement to an effective date of October 1, 2006, for the grant of service connection for a left shoulder disability is granted. Entitlement to an effective date of October 1, 2006, for the grant of service connection for a right shoulder disability is granted. Entitlement to an effective date of October 1, 2006, for the grant of service connection for tinnitus is granted. Entitlement to an effective date of October 1, 2006, for the grant of service connection for a left hip disability is granted. Entitlement to an effective date of October 1, 2006, for the grant of service connection for a right hip disability is granted. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs