Citation Nr: 1807550	
Decision Date: 02/06/18    Archive Date: 02/14/18

DOCKET NO.  14-16 744	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri


THE ISSUE

Entitlement to an effective date prior to November 30, 2012, for the grant of service connection for status post left shoulder dislocation, now with osteoarthritis.


REPRESENTATION

Veteran represented by:	Jack Cox, Agent


ATTORNEY FOR THE BOARD

Rachel E. Jensen, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the United States Army from December 1972 to January 1975.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.  In that decision, the Veteran was granted service connection for status-post shoulder dislocation, now with osteoarthritis, at 20 percent disabling, effective November 30, 2012.  The Veteran submitted a Notice of Disagreement with the effective date awarded and subsequently perfected his appeal.

In the May 2014 substantive appeal, the Veteran requested a hearing on his claim.  In a December 2015 communication, he indicated that he no longer wanted a hearing and submitted a statement instead.  The Board finds that the request has been withdrawn.  38 C.F.R. § 20.704 (2017).


FINDINGS OF FACT

1.  The Veteran's initial claim for service connection for a left shoulder dislocation was denied in a May 1975 rating decision.  The Veteran did not appeal or submit new and material evidence within a year, resulting in a final decision.

2.  The Veteran filed to reopen his claim for service connection for a left shoulder dislocation, received November 30, 2012.


CONCLUSION OF LAW

The criteria for the assignment of an effective date earlier than November 30, 2012, for the grant of service connection for status-post shoulder dislocation, now with osteoarthritis, have not been met.  38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for a left shoulder dislocation.

Applicable law and regulations concerning effective dates state that, except as otherwise provided, 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 claim or the date entitlement arose, whichever is later.  See 38 U.S.C. § 5110(a)(b)(1); 38 C.F.R. § 3.400.

The effective date for an award of disability compensation based on direct service connection is the day following separation from active service or the date entitlement arose, if claim is received within 1 year after separation from active duty; otherwise date of receipt of claim, or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2).

Under VA regulations, a "claim" means 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).  A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the law administered by VA.  38 C.F.R. § 3.151.  If the Veteran files an informal claim for a benefit, such informal claim must identify the benefit sought.  38 C.F.R. § 3.155.

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim.  Such an informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(2009); Norris v. West, 12 Vet. App. 413 (1999).

In the present case, the Veteran separated from his tour of active duty in January 1975.  He filed a claim for service connection for his left shoulder dislocation upon separation.  He was scheduled for a VA examination to determine the nature and etiology of any shoulder condition, but failed to appear.  A May 1975 rating decision denied the claim.  No further correspondence or evidence was received from the Veteran until November 2012, at which time a claim for service connection for a left shoulder dislocation was raised again.  The RO granted service connection in a March 2013 rating decision.  The award was effective as of the date of the November 30, 2012 claim.

In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show clear and unmistakable error in the prior denial of the claim.  Flash v. Brown, 8 Vet. App. 332, 340 (1995).  Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final rating decision.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006). 

Where a claim for service connection is reopened and granted based upon new and material evidence, other than service records, received within the appeal period or prior to an appellate decision, the effective date will be as though the prior rating decision had not been rendered.  Where a claim for service connection is reopened and granted based upon new and material evidence, other than service records, received after the prior rating decision has become final, the effective date will be the date of receipt of claim to reopen or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(q). 

Because the Veteran did not appeal the May 1975 decision, nor was any evidence received within a year of that decision, it is final.  38 U.S.C. § 7105(c).  

The Court of Appeals for Veterans Claims (Court) held that the rule of finality regarding an original claim implies that the date of that claim is not to be a factor in determining an effective date if the claim is later reopened.  The Court held that the term "new claim," as it appears in 38 C.F.R. § 3.400(q)(1)(ii), means a claim to reopen a previously and finally denied claim.  See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed").  In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.  

Accordingly, the Veteran is not entitled to an effective date back to 1975, the date he initially filed a claim for service connection.  Therefore, the appropriate effective date is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2).  

The Veteran has asserted that he filed to reopen his service connection claim prior to November 30, 2012, namely, on December 23, 2011.  A letter in the claims file written by the Veteran's representative stated that a VA Form 21-22, VA Form 21-526EZ, and DD-214 were being submitted to establish a claim for service connection for the Veteran's left shoulder condition and left arm numbness.  The representative date-stamped the letter "December 23, 2011."  The letter contains a date-stamp of receipt from the St. Louis RO on November 30, 2012.  There are no forms or documents in the claims file with a date-stamp of receipt by VA of December 23, 2011, or a date from that time until November 30, 2012.  

A letter also date-stamped by the RO on November 30, 2012, indicated that the Veteran's representative was re-filing the service connection claim, asserting that VA had misplaced the original claim.  VA Forms 21-22 and 21-526EZ were submitted and stamped with a date of November 30, 2012, as well.

The Veteran contends that the December 23, 2011, letter was lost by VA and that his award of service connection should be effective as of that date.  

The Court has held that "[t]here is a presumption of regularity that public officers perform their duties 'correctly, fairly, in good faith, and in accordance with law and governing regulations.'"  Marsh v. Nicholson, 19 Vet. App. 381, 385(2005) (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)).  Courts presume that, "in the absence of clear evidence to the contrary," public officers have "'properly discharged their official duties.'"  Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)).  

Although the Veteran has pointed to the December 2011 letter as evidence that VA lost an earlier-filed claim, there is no evidence that VA ever received the letter prior to November 2012, or the documents listed therein.  VA conducted a review of its electronic tracking systems, including MAP-D, Virtual VA, and VBMS, and found no receipt of a claim prior to November 2012.  See March 2014 Statement of the Case.  VA regulations indicate that a claim is considered lost if, through a review of diaries in its electronic systems, there is a pending claim but no paperwork or virtual claims documents associated with that claim.  See M21-1MR, Part III, Subpart ii, Chapter 2, Section D.  Here, there was no evidence of a claim pending with documents lost in those VA systems.  The Veteran has not presented any clear evidence indicating that the December 2011 letter was actually submitted to VA or received by VA.  As such, the presumption of regularity attaches, and the Board finds that VA did not receive a service connection claim from the Veteran until November 2012.

Additionally, the claims file does not include any communication of record received by VA dated subsequent to the May 1975 rating decision but prior to November 30, 2012, that can be construed as an informal claim for benefits.  38 C.F.R. § 3.155(a).  Thus, in this case, the only date that could serve as a basis for the award of service connection is the date of receipt of the Veteran's new claim for service connection received on November 30, 2012. 

Therefore, the preponderance of the evidence is against an effective date earlier than November 30, 2012, for the grant of service connection, and the benefit of the doubt rule is not applicable.  See 38 U.S.C. § 5107(b).


ORDER

An effective date prior to November 30, 2012, for the grant of service connection for status-post left shoulder dislocation, now with osteoarthritis, is denied.




____________________________________________
H.M. WALKER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs