Citation Nr: 1755893	
Decision Date: 12/05/17    Archive Date: 12/15/17

DOCKET NO.  11-32 805	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUE

Entitlement to an effective date earlier than June 11, 2002, for the award of service connection for right knee internal derangement and chondromalacia and right knee arthritis (right knee disability).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Appellant and his spouse


ATTORNEY FOR THE BOARD

N. Rippel, Counsel


INTRODUCTION

The Veteran served on active duty from April 1969 to October 1970. 

This matter originally came before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. 

The Veteran testified before the undersigned Veterans Law Judge at a November 2012 hearing conducted at the RO.  A transcript of the hearing is of record.

In June 2015, the Board remanded this matter to the agency of original jurisdiction (AOJ).  At that time, the Board deemed the instant claim to be inextricably intertwined with another issue that was being remanded, whether there was clear and unmistakable error in an April 8, 1971, rating decision that denied service connection for a right knee disability.  That matter was remanded to the RO for issuance of a statement of the case (SOC) consistent with Manlincon v. West, 12 Vet. App. 238 (1999).  

In July 2016, the AOJ issued the SOC with regard to the CUE claim, as well as a supplemental SOC (SSOC) as to the instant claim.  The Veteran thereafter perfected an appeal with the CUE claim, and elected to be scheduled for a Travel Board hearing at the RO.  The hearing has not yet been conducted.  

The claim for an earlier effective date has been returned to the Board.  Upon review of the entire claim, the Board finds that these matters are not, in fact, inextricably intertwined, and that it may proceed with the instant claim.  The Board notes that, while the granting of a CUE claim can result in an earlier effective date, see 38 C.F.R. § 3.105(a) (finding of CUE has same effect as if corrected decision had been made on date of reversed decision), the Board may refer a CUE claim to the RO while deciding an earlier effective date claim even when the ultimate disposition of the CUE claim could result in an earlier effective date.  See, e.g., Brown v. Shinseki, No. 2011-7071, 430 Fed. Appx. 886, 2011 WL 2710353 (Fed. Cir. July 13, 2011) (unpublished per curiam decision) (affirming Veterans Court decision that both affirmed a Board denial of an earlier effective date and found that it lacked jurisdiction to review a CUE claim that the Board had referred).  In other words, the issues are not necessarily intertwined.  Also, the Board notes, under Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed.Cir.2005), "absent a showing of CUE, [a veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."  Thus deciding the earlier effective date claim now will not adversely affect the CUE claim for which the Veteran is awaiting a Travel Board hearing.


FINDINGS OF FACT

1.  By rating decision in April 1971, the AOJ denied the Veteran's claim for service connection for right knee disability; the Veteran did not timely appeal that decision and it is final.

2.  On June 11, 2002, the Veteran filed VA form 21-526, effectively a request to reopen the claim of service connection right knee disability.


CONCLUSION OF LAW

The criteria for an effective date earlier than June 11, 2002, for the grant of service connection for right knee disability have not been met.  38 U.S.C. § 5110 (West 2014); 38 C.F.R. § 3.400 (r) (2017). 



REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duty to Notify and Assist

The requirements of 38 U.S.C. § 5103 and 5103A have been met.  The appeal of an earlier effective date is a "downstream" issue that arose following the grant of service connection for right knee disability.  Also, in a February 2010 letter, the Veteran was provided notice of how disability ratings and effective dates are determined.  The claim for an earlier effective date for the award of service connection for right knee disability was most recently reviewed in the July 2016 SSOC. 

VA has also satisfied its duty to assist with regard to the issue decided herein.  All pertinent evidence has been received and additional VA examinations are not needed as current findings would not serve to establish entitlement to an earlier effective date for the grant of service connection.

On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  See 38 C.F.R. § 3.159.

II.  Analysis

	Law and Regulations

Generally, 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. § 5110 (a); 38 C.F.R. § 3.400.  

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA.  See 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a).  

The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA.  38 C.F.R. § 3.1 (r).  A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  See 38 C.F.R. § 3.1 (p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). 

Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits.  Such now requires that claims be made on specific claim form prescribed by the Secretary, effectively eliminating informal claims.  However, prior to March 24, 2015, which is the time relevant time period in this appeal, "any communication or action indicating an intent to apply for one or more benefits under the laws administered by [VA] ... may be considered an informal claim.  Such informal claim must identify the benefit sought."  38 C.F.R. § 3.155 (a) (2014).

Medical records cannot constitute an initial claim for service connection; rather there must be a record showing some intent by the claimant to apply for the benefit.  Criswell v. Nicholson, 20 Vet App 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). 

	Pertinent Facts

The Veteran filed an initial claim for service connection for right knee disability in November 1970 which the RO adjudicated in April 1971.  The RO denied the claim and provided the Veteran with notice of the decision that same month.  The RO gave the Veteran his appeal rights in the event that he wished to appeal the decision. 

Thereafter, on June 11, 2002, the Veteran filed a claim for service connection for right knee disability via a VA form 21-526, which was effectively a claim to reopen the previously denied claim of service connection for right knee disability.  In October 2003, the RO granted service connection for the right knee disability effective June 11, 2002, the date of the Veteran's application to reopen the claim.

In a letter to VA dated in April 2004, the Veteran essentially states that he believes the effective date of the award of service connection for the right knee disability should be the date of discharge from service.  

A February 2010 communication on the Veteran's behalf was construed as a claim for an earlier effective date for the award of service connection for a right knee disability.  The claim was denied by the RO in a May 2010 rating decision, the Veteran disagreed with the result, the October 2011 SOC confirmed the denial of an effective date prior to June 11, 2002.  The Veteran perfected his appeal.  

At his hearing before the undersigned, the Veteran, with the help of his representative, addressed the gap in time between the denial of benefits in April 1971 and the claim filed in June 2002.  It was argued that he did not know what to do about his claim and he was essentially improperly advised as to how to proceed.  This argument is representative of his assertions noted in the claims folder relevant to this issue.

	Discussion

The Veteran contends that the effective date for the grant of right knee disability should go back to the date of his original claim for compensation benefits. 

Given the sequence of events in this case, the Board finds that the April 1971 rating decision denying the Veteran's claim for service connection for right knee disability was final, as the Veteran did not initiate a timely appeal of the decision.  38 C.F.R. §§ 20.200, 20.302, 20.1103.  (We also note that new and material evidence was not received within one year of the decision.)  In this regard, the Veteran was advised by letter dated in April 1971 and was given his appeal rights at that time.  The June 2002 VA form 21-526 was the next document in the record that evidenced any intent to claim service connection for the right knee disability.  This was effectively his petition to reopen the finally denied claim.  Consequently, the AOJ appropriately assigned June 11, 2002, as the effective date for the award of service connection for right knee disability as this was when VA received his claim to reopen.  See 38 C.F.R. § 3.400.  As noted above, the Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen.  Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005). 

There is simply no document on file that was received by the RO after the denial in April 1971 and earlier than the June 11, 2002, claim that can be construed as a claim to reopen service connection for right knee disability.  Rather, the only documents on file during this period consist of administrative correspondence not related to this claim.  

Additionally, to the extent that the Veteran's April 2004 communication may be liberally construed as expressing his disagreement with the June 11, 2002, effective date, the Board need not address whether this is a "freestanding" claim for entitlement to an earlier effective date, and the appropriate result in this case is denial as opposed to dismissal.  Once a decision on a claim becomes final, it cannot be challenged through a "freestanding" claim for entitlement to an earlier effective date.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Knowles v. Shinseki, 571 F.3d 1167 (Fed. Cir. 2009) (rejecting freestanding "finality claim").  

Thus, despite the Veteran's argument that the effective date should go back to when he filed his initial claim for service connection, for the foregoing reasons, the date cannot be any earlier than the date he filed the claim to reopen, on June 11, 2002.  38 U.S.C. § 5110; 38 C.F.R. § 3.400 (r).







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In reaching the above conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not for application.  See 38 U.S.C. § 5107 (b) (West 2014); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).


ORDER

An effective date earlier than June 11, 2002, for the award of service connection for right knee internal derangement and chondromalacia and right knee arthritis (right knee disability) is denied.




____________________________________________
C. TRUEBA
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs