Citation Nr: 1817587 Decision Date: 03/23/18 Archive Date: 04/03/18 DOCKET NO. 14-38 318A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date prior to February 11, 2010, for the award of service connection for small inferior periarticular acromioclavicular joint spurs and impingement syndrome with strain, right shoulder (right shoulder disability). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty in the Navy from July 1974 to June 1977. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 and February 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Offices (RO) in Montgomery, Alabama. See Notice of disagreement, August 24, 2010; see also Statement, January 11, 2011, and Report of General Information, August 1, 2011. In January 2018, the Veteran testified at a videoconference Board hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. On June 5, 2006, the Veteran filed a claim for service connection for a right shoulder disability; there was no communication received prior to that date indicating intent to file a claim. 2. An October 2006 rating decision denied service connection for a right shoulder disability; new and material evidence was received within one year of the rating decision. 3. A January 2007 rating decision continued the denial of service connection for a right shoulder disability, which rating decision was not mailed to the last known address of the Veteran; the Veteran received notice of the decision in September 2009 and filed a timely notice of disagreement. 4. An August 2010 rating decision awarded service connection for a right shoulder disability and assigned an effective date of February 11, 2010; the Veteran filed a timely notice of disagreement as to the effective date of service connection. CONCLUSION OF LAW The criteria for an effective date of June 5, 2006 for the award of service connection for a right shoulder disability have been met. 38 U.S.C.A. § 5110 (2012); 38 C.F.R. §§ 3.156(b), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The Veteran's claim of entitlement to an earlier effective date for the award of service connection for a right shoulder disability is granted in full herein, as the Veteran has requested an effective date that relates back to his original claim (dated June 5, 2006). As such, the Board finds that any error under the VCAA with regard to the Veteran's claim is moot. See 38 U.S.C.A. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis 38 U.S.C.A. § 5110(a) provides that "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 application therefor." See also Sears v. Principi, 16 Vet. App. 244 (2002). Likewise, 38 C.F.R. § 3.400(b)(2) provides that the effective date for service connection claims is generally the "date of receipt of claim, or date entitlement arose, whichever is later." Effective on March 24, 2015, VA amended its regulations, effectively eliminating informal claims and requiring a "complete claim" on a form proscribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160 (2017). However, prior to March 24, 2015, which is the time relevant time period in this appeal, "any communication or action indicating 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) (2017). The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Likewise, the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999). The Veteran seeks entitlement to an effective date prior to February 11, 2010, for the award of service connection for his right shoulder disability. On June 5, 2006 (stamped-received date), the Veteran filed a claim for service connection for a right shoulder disability. An October 2006 rating decision denied the claim, citing in part the lack of evidence of a current disability. In October 2006, the Veteran submitted a new buddy statement in support of his claim. On January 4, 2007, a VA treatment record was associated with the claims file showing diagnosed right shoulder capsulitis. The Board notes that the VA treatment records previously associated with the claims file did not explicitly show any right shoulder diagnosis, and the problem list included generally "adhesive capsulitis of shoulder," but did not specify which shoulder. Therefore, new and material evidence of a current right shoulder disability was received within one year of the October 2006 rating decision, which did not become final. See 38 C.F.R. § 3.156(b). A January 2007 rating decision continued the denial of the claim, citing a lack of evidence of a nexus to service (albeit the decision did not address the new October 2006 VA treatment record). Because new and material evidence was received after the October 2006 rating decision, the later January 2007 rating decision related back to the original June 2006 claim. See 38 C.F.R. § 3.156(b). The January 2007 rating decision, however, was not mailed to the Veteran's last known address in Valley, Alabama; rather, it was mailed to the address of his buddy shown in an October 2006 buddy statement in Ellerslie, Georgia. Compare to Correspondence, June 23, 2006 (showing the Veteran's last known address in Valley, Alabama). On February 11, 2010, the Veteran filed a statement explaining that he did not receive a copy of the January 2007 rating decision until September 2009 because it was never mailed to him at his last known address. He expressed disagreement with the denial of service connection for his right shoulder disability, and requested that his disagreement relate back to the original claim (arguing the January 2007 rating decision never became final). An August 2010 rating decision awarded service connection for the right shoulder disability and assigned an effective date of February 11, 2010, citing the Veteran's February 2010 correspondence as a request to reopen a previously denied claim. On August 24, 2010, the Veteran filed a notice of disagreement. In October 2010, the RO sent a letter to the Veteran seeking clarification as to his disagreement with the August 2010 rating decision. On January 11, 2011, the Veteran filed a statement clarifying he disagreed with the effective date of service connection. Likewise, a report of general information dated August 1, 2011 shows the Veteran again expressed disagreement with the effective date. An August 2011 deferred rating decision of the same date shows it was noted that a VCAA notice should be sent to the Veteran pertaining to his earlier effective date claim. On August 9, 2011, the Veteran again expressed disagreement with the effective date, and noted that the January 2007 rating decision was mailed to the wrong address. Ultimately, a February 2012 rating decision denied entitlement to an earlier effective date. The Veteran expressed timely disagreement with this decision in October 2012 and perfected an appeal to the Board. The Veteran articulated his reasons for an earlier effective date during the Board hearing in January 2018. As explained above, because new and material evidence was received within one year after the issuance of the October 2006 rating decision, the later January 2007 rating decision related back to the original June 2006 claim. See 38 C.F.R. § 3.156(b). Furthermore, the Board finds that the failure by the RO to mail to the Veteran's last known address notice of the January 2007 rating decision and of the Veteran's appellate rights served to abate the finality of the January 2007 rating decision and the beginning of the one-year period in which to file a notice of disagreement. See 38 U.S.C.A. § 5104 (the RO is required to provide a claimant with notice of a decision, including an explanation of the procedures for obtaining review of the decision); Ingram v. Nicholson, 21 Vet.App. 232, 240-41 (2007) ("[A] decision may be rendered nonfinal when 'the time for appealing either an RO or a Board decision did not run where the [Secretary] failed to provide the veteran with information or material critical to the appellate process.'") (quoting Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002)); AG v. Peake, 536 F.3d 1306, 1308 (Fed. Cir. 2008) (RO decision "never became final . . . because of VA's failure to notify [the claimant] of his right to appeal"); Best v. Brown, 10 Vet.App. 322, 325 (1997) ("For a VA decision to become final, written notification to the appellant is required."); Hauck v. Brown, 6 Vet.App. 518, 519 (1994) (holding that the one-year period for filing a notice of disagreement did not begin to run until the veteran was notified that his claim was denied). In this case, as noted above, the January 2007 rating decision was clearly mailed to the incorrect address, and the Veteran reports that he did not receive notice of the decision until September 2009. Accepting his statement as true, he expressed disagreement in February 2010, within one year of receipt of the January 2007 rating decision. Therefore, the Veteran filed a timely notice of disagreement, and the January 2007 rating decision did not become final. Thus, the Board finds that the August 2010 rating decision that awarded service connection relates back to the June 2006 original service connection claim. As noted above, the effective date for service connection claims is generally the "date of receipt of claim, or date entitlement arose, whichever is later." See 38 C.F.R. § 3.400(b)(2). In this case, the claim was received on June 5, 2006. Shortly thereafter, an October 2006 VA treatment record shows diagnosed right shoulder adhesive capsulitis. There is no reason for the Board to believe that a right shoulder disability was not already in existence four months prior at the time of the filing of the claim. Therefore, the Board finds that an effective date for service connection for the right shoulder disability of June 5, 2006 is warranted, as requested by the Veteran. Therefore, in summary, the Board concludes that entitlement to an effective date of June 5, 2006, for the award of service connection for the right shoulder disability is warranted. ORDER Entitlement to an earlier effective date of June 5, 2006, for the award of service connection for a right shoulder disability is granted. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs