Citation Nr: 1754496 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 14-04 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to an effective date earlier than February 7, 2012, for the award of service connection for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than February 7, 2012, for the award of service connection for Group III, right shoulder muscle injury with scar, status post debridement for shrapnel wound. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Army from November 1966 to August 1971, including service in the Republic of Vietnam. He is the recipient of the Army Commendation Medal, the Bronze Star Medal with "V" device and two oak leaf clusters, and the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The appellant filed a timely Notice of Disagreement (NOD), received in February 2013. A Statement of the Case (SOC) was issued in December 2013. A timely substantive appeal was received in December 2013. In correspondence received in February 2014, the appellant requested a local hearing before a Decision Review Officer (DRO). In correspondence received in August 2014, the appellant requested a Board hearing by live video teleconference. A January 2015 Report of General Information states that the appellant cancelled both his DRO and Board hearings. He reaffirmed his desire to withdraw his request for a Board hearing in a Statement in Support of Claim received in June 2016. The Board further observes that a note was written on a copy of the June 2016 Statement in Support of Claim that the appellant indicated that he would withdraw all of his claims on appeal, but would submit a written statement withdrawing such issues. To date, no such written withdrawal has been received. Thus, the Board will adjudicate the claims of entitlement to effective dates prior to February 7, 2012, for the awards of service connection for PTSD and Group III, right shoulder muscle injury with scar, status post debridement for shrapnel wound. FINDINGS OF FACT 1. The appellant filed a claim of entitlement to service connection for neurosis and a right shoulder shrapnel wound in April 1994. 2. In an unappealed November 1994 rating decision, the RO denied service connection for neurosis and a right shoulder disability was denied. 3. The appellant filed to reopen claims of entitlement to service connection for a mental disorder, to include PTSD, and a right shoulder disability, received on February 7, 2012. 4. In an October 2102 rating decision, the RO granted service connection for PTSD and Group III, right shoulder muscle injury with scar, status post debridement for shrapnel wound, effective February 7, 2012. CONCLUSIONS OF LAW 1. The November 1994 rating decision denying service connection for neurosis and a right shoulder disability is final. 38 U.S.C. § 7105(c) (1991) (currently 38 U.S.C. § 7105 (2012)); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1994) (currently 38 C.F.R. §§ 3.104, 3.158, 20.1103 (2017)). 2. The criteria for an effective date earlier than February 7, 2012, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 20.1100 (2017). 3. The criteria for an effective date earlier than February 7, 2012, for the grant of service connection for Group III, right shoulder muscle injury with scar, status post debridement shrapnel wound have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As a preliminary matter, the Board finds that no further notice or development action is necessary in order to satisfy VA's duties to the appellant under the VCAA. A review of the record indicates that VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the appellant nor his representative has argued otherwise. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The matter at issue in this case stems from an appeal of the effective date assigned following an award of service connection. The U.S. Court of Appeals for Veterans Claims (Court) has held that, once service connection is granted, the claim has been substantiated, and further VCAA notice is generally not required. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006) ("[O]nce a decision awarding service connection, a disability rating, and an effective date has been made, section 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."); see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, under those circumstances, the provisions of 38 U.S.C. §§ 5104, 7105 and 38 C.F.R. § 3.103 are for application. Id. The Board finds that the notification requirements of 38 U.S.C. §§ 5104, 7105 and 38 C.F.R. § 3.103 have been met in this case. A review of the record indicates that the appellant was duly provided notice of the decision on appeal, as well as an explanation of the procedure for obtaining appellate review of the decision. Following receipt of his notice of disagreement, the appellant was appropriately notified of the pertinent legal criteria in a Statement of the Case. The Board further notes that neither the appellant nor his representative has raised any allegations of prejudice regarding any notification deficiencies. Goodwin v. Peake, 22 Vet. App. 128 (2008) (holding that where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements such as the disability rating and effective date). Moreover, as set forth in more detail below, the pertinent facts in this case are not in dispute, and the appeal must be denied as a matter of law. Thus, any deficiency in VA's notice or development action is harmless error. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). II. Applicable Law A. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA 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. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. B. Effective Dates Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). III. Analysis The appellant seeks effective dates earlier than February 7, 2012, for the awards of service connection for PTSD and Group III, right shoulder muscle injury with scar, status post debridement for shrapnel wound. After considering the record in light of the legal criteria set forth above, the Board finds that earlier effectives date are not warranted. The appellant's original claim of entitlement to service connection for neurosis and a right shoulder disability was received by VA in April 1994. Service connection was denied in a November 1994 rating decision. The appellant was informed of the adverse decision and his appellate rights in a November 1994 letter. The appellant did not appeal this decision, nor was new and material evidence received, within one year of notification of such decision. The appellant does not contend otherwise. Absent clear and unmistakable error, which has not been shown or alleged here, this decision is final. 38 U.S.C. § 7105(c) (1991) (currently 38 U.S.C. § 7105 (2012)); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1994) (currently 38 C.F.R. §§ 3.104, 3.158, 20.1103 (2017)). On February 7, 2012, VA received the appellant's application to reopen his previously denied claim of entitlement to service connection for a right shoulder disability and a claim of entitlement to service connection for a mental disorder, to include PTSD. The Board notes that, despite the appellant's representative's August 2017 argument that the issue of entitlement to service connection for neurosis is separate from PTSD and is still on appeal, the appellant's February 2012 claim of service connection for a mental disorder can be construed as a request to reopen his previously denied claim of service connection for neurosis. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009) (holding that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by a claimant's description of the claim, reported symptoms, and the other information of record). Regardless of how the appellant's February 2012 claim is construed, however, entitlement to an effective date prior to February 7, 2012, for the award of service connection for a psychiatric disorder, to include PTSD, is not warranted. Further, as explained above, the November 1994 rating decision which denied entitlement to service connection for neurosis is final; thus, it is not on appeal before the Board. As set forth above, the law provides that the effective date of an award of compensation based on a claim reopened after a final adjudication shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). In this case, the appellant's original claims were denied by the RO in a final November 1994 decision and his application to reopen such claims was received by VA on February 7, 2012. The appellant has pointed to no earlier pending claim to reopen, formal or informal, and a review of the record reveals no communication which could be construed as a claim to reopen prior to February 7, 2012. See 38 C.F.R. § 3.151, 3.155. The Board has also carefully considered the appellant's contentions to the effect that an earlier effective date is warranted as he was not afforded VA examinations for his claims in 1994. The Board does not dispute that the Veteran experienced symptoms prior to the assigned effective date. Again, however, the applicable law provides that the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The appellant had the opportunity to appeal the denials of service connection in the November 1994 rating decision but did not do so within one year of notification of such denials, nor was new and material evidence received within that one year. Thus, February 7, 2012, must be the effective date of the awards of service connection. Under the facts of this case, therefore, there is no legal basis for awarding an effective date earlier than February 7, 2012, for the awards of service connection. See Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("When a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."). ORDER Entitlement to an effective date earlier than February 7, 2012, for the award of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date earlier than February 7, 2012, for the award of service connection for Group III, right shoulder muscle injury with scar, status post debridement for shrapnel wound is denied. ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs