Citation Nr: 1754620	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  16-63 766	)	DATE
	)
	)

Received from the
Department of Veterans Affairs Regional Office in Manila, 
the Republic of the Philippines


THE ISSUE

Entitlement to an effective date earlier than June 13, 2016 for the grant of service connection for amyotrophic lateral sclerosis.


REPRESENTATION

Appellant represented by:	Paralyzed Veterans of America, Inc.


ATTORNEY FOR THE BOARD

J. W. Kim, Counsel





INTRODUCTION

The Veteran served on active duty in the Army from February 1961 to July 1983.  He has been awarded the Combat Infantryman Badge and Bronze Star Medal.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).


FINDING OF FACT

VA received the Veteran's original claim for service connection for amyotrophic lateral sclerosis on June 13, 2016, over one year after separation from service.


CONCLUSION OF LAW

The criteria for an effective date earlier than June 13, 2016 for the grant of service connection for amyotrophic lateral sclerosis have not been met.  38 U.S.C. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.1, 3.102, 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

In this case, the Veteran filed his original claim for service connection using VA Form 21-526EZ, which on the form itself provides claimants with the information and evidence needed to substantiate a claim for service connection.  Consequently, the Veteran has been provided with proper 38 U.S.C. § 5103(a) notice.  Moreover, the claim arises from an appeal of the effective date following the grant of service connection.  Courts have held that 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).  

Effective Date

Generally, the effective date for an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a) (West 2012); 38 C.F.R. § 3.400 (2017).  

The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, date of receipt of claim or date entitlement arose, whichever is later.  38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). 

A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. § 3.1(p) (2017).

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, or a person acting as next friend who is not sui juris may be considered an informal claim.  38 C.F.R. § 3.155 (2017).

In this case, VA received the Veteran's original claim for service connection for amyotrophic lateral sclerosis on June 13, 2016.  The grant of service connection has been made effective from that date.  

The Veteran asserts that he is entitled to an earlier effective date for the grant of service connection for amyotrophic lateral sclerosis because he began receiving treatment in May 2015 and was eventually diagnosed with amyotrophic lateral sclerosis in November 2015.

While the Board is sympathetic to the Veteran's situation, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority.  The Veteran has been assigned an effective date based on the date of receipt of his claim for service connection.  VA received his original claim for service connection for amyotrophic lateral sclerosis on June 13, 2016.  The record does not show, and the Veteran does not contend, that he filed an earlier claim.  Thus, the Board finds that June 13, 2016 is the appropriate effective date for the grant of service connection for amyotrophic lateral sclerosis as that is the date of receipt of the claim, which was received over one year after separation from service.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 

Accordingly, an effective date earlier than June 13, 2016 for the grant of service connection for amyotrophic lateral sclerosis is denied.  In a case where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426 (1994). 


ORDER

An effective date earlier than June 13, 2016 for the grant of service connection for amyotrophic lateral sclerosis is denied.



____________________________________________
THOMAS H. O'SHAY 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs