Citation Nr: 1805834 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-03 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an earlier effective date, prior to March 21, 2011, for grant of service connection for degenerative joint disease of the lumbar spine. 2. Entitlement to an earlier effective date, prior to March 21, 2011, for grant of service connection for radiculopathy of the right lower extremity. 3. Entitlement to an earlier effective date, prior to March 21, 2011, for grant of service connection for right ankle degenerative joint disease. 4. Entitlement to an earlier effective date, prior to March 21, 2010, for grant of a 10 percent rating for tinnitus. REPRESENTATION Appellant represented by: Travis Barrack, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Baskerville, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1976 to November 1996. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The matters are currently under the jurisdiction of the Reno, Nevada RO. In June 2017, the Veteran testified before the undersigned Veterans Law Judge at a videoconference Board hearing. A copy of that transcript has been associated with the Veteran's electronic claims folder. FINDINGS OF FACT 1. In a June 1997 rating decision, the RO denied the Veteran's claims for entitlement to service connection for a right ankle disability and a lower back disability. It granted the Veteran's claim for entitlement to service connection for tinnitus and assigned a 0 percent rating, effective December 1, 1996. 2. There is no Notice of Disagreement date stamped as received by the RO within 1 year from the June 1997 rating decision. Therefore, the Veteran did not file a timely appeal to the June 1997 rating decision. 3. On March 21, 2011, the Veteran filed a claim (via telephone) to reopen his previously denied service connection claims and filed an increased rating claim for his service connected tinnitus. CONCLUSIONS OF LAW 1. There is no legal entitlement to an effective date, prior to March 21, 2011, for the grant of service connection for degenerative joint disease of the lumbar spine. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. There is no legal entitlement to an effective date, prior to March 21, 2011, for the grant of service connection for radiculopathy of the right lower extremity. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. There is no legal entitlement to an effective date, prior to March 21, 2011, for the grant of service connection right ankle degenerative joint disease. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. § 3.400 (2017). 4. There is no legal entitlement to an effective date, prior to March 21, 2010, for the grant of a 10 percent rating for tinnitus. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. 3.102, 3.156(a), 3.159 and 3.326(a). Significantly, however, in this case, the Veteran's claims for an earlier effective date arises from his disagreement with the effective date assigned following the grants of entitlement to service connection. In this regard, the Board notes that, once service connection is granted, the claim is substantiated and additional VCAA notice is not required, and as such, any defect in the notice is considered non-prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). II. Earlier Effective Date Except as otherwise provided, the effective date of an evaluation and 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. See 38 C.F.R. § 3.400 (2017). The effective date of increased rating claims may be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2)(2017). 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). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello, supra. The Veteran filed a claim for entitlement to service connection shortly after his discharge from service. In a June 1997 rating decision, the RO granted (amongst other things) the Veteran's claim for entitlement to service connection for tinnitus and assigned a 0 percent rating, effective December 1, 1996 (the date after service discharge). The RO also denied (amongst other things) the Veteran's claims for entitlement to service connection for a right ankle disability and a lower back disability. The Veteran contends that he filed a timely Notice of Disagreement (NOD) to the June 1997 rating decision and therefore should be entitled to an effective date of December 1, 1996 (day after separation) for his subsequently granted service connection and increased rating claims. Specifically, the Veteran contends that he submitted a handwritten document to the Waco VA expressing his disagreement and requests attention be directed to the date of July 10, 1997 that is written at the top right hand corner of each page. What is in dispute here is whether this document was indeed received by the VA on July 10, 1997. Generally, under VA law, there is a presumption of administrative regularity, based upon which it is presumed that Government officials have properly discharged their official duties, which may only be overcome by clear evidence to the contrary. See United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). The Board finds that in this case there is no clear evidence to overcome the presumption of administrative regularity in date stamping any documents received from the Veteran, including any Notice of Disagreement. The Board notes that the handwritten correspondence has not been date stamped anywhere indicating that it was filed or received by VA. The fact that there is a handwritten date on a document does not prove that the document was indeed filed on that date. VA has a system in place where all documents received are date stamped to ensure proper processing. The VA Adjudication Procedure Manual M21-1, III.ii.1.C.a. (2018) indicates that each document submitted to VA must receive a stamp with the date of receipt. With regard to handling a document processed without a date stamp, it is indicated that all hand written notations must include the RO number, RO name, employee's signature and current date. M21-1, III.ii.1.C.1.c. (2018). There is no indication that any additional information other than the hand written date is on the document such that it may be presumed to have been written by the RO. Prior to the use of the Veterans Benefit Management System (VBMS) - the current electronic claims processing tool used by VA - the VA relied on paper copies of all Veterans' documents. The Veteran's current file indicates that other documents were received from the Veteran in August 1998 (birth certificates of dependents) but no documents which resemble a Notice of Disagreement are of record. What is probative is the fact that there are numerous other documents received from the Veteran between 1997 and 2011, but none of them reference the appeal in question. In light of the facts above, there is no basis on which an earlier effective date may be assigned. Based on the Veteran's claim to reopen on March 21, 2011, the Board finds that the proper effective date is March 21, 2011 for the service connection claim and March 21, 2010 for the increased rating claim. See 38 C.F.R. § 3.400. While the Board has considered the arguments presented by the Veteran, the law is clear and precludes an earlier effective date in this case. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an earlier effective date, prior to March 21, 2011, for grant of service connection for degenerative joint disease of the lumbar spine is denied. Entitlement to an earlier effective date, prior to March 21, 2011, for grant of service connection for radiculopathy of the right lower extremity is denied. Entitlement to an earlier effective date, prior to March 21, 2011, for grant of service connection for right ankle degenerative joint disease is denied. Entitlement to an earlier effective date, prior to March 21, 2010, for grant of a 10 percent rating for tinnitus is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs