Citation Nr: 1826914 Decision Date: 05/01/18 Archive Date: 05/14/18 DOCKET NO. 14-38 821A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Entitlement to an effective date prior to May 7, 2012, for the award of service connection for limitation of flexion of the right elbow. 2. Entitlement to an effective date prior to May 7, 2012, for the award of service connection for a scar of the right elbow. 3. Entitlement to an effective date prior to May 7, 2012, for the award of service connection for an injury of the brachioradialis muscle of the right elbow. 4. Entitlement to an effective date prior to May 7, 2012, for the award of service connection for scars of the right elbow. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and spouse ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from March 1972 to March 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina. In November 2017, the Veteran testified at the RO before a Veterans Law Judge. A transcript of this hearing has been added to the claims file. FINDINGS OF FACT 1. The Veteran's initial service connection claim for a right elbow disability was received by VA on April 10, 2003. 2. Relevant service department records were received by VA on and after May 7, 2012. 3. Service department records received in May 2012, in whole or in part, served as the basis of the December 2012 grant of service connection for residuals of a right elbow injury. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 10, 2003, but no earlier, for the grant of service connection for limitation of flexion of the right elbow are met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2017). 2. The criteria for an effective date of April 10, 2003, but no earlier, for the grant of service connection for a scar of the right elbow are met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2017). 3. The criteria for an effective date of April 10, 2003, but no earlier, for the grant of service connection for an injury of the brachioradialis muscle of the right elbow are met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2017). 4. The criteria for an effective date of April 10, 2003, but no earlier, for the grant of service connection for scars of the right elbow are met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to notify and assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The claim for an earlier effective date for service connection arises from the Veteran's disagreement with the effective date assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to downstream questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). Furthermore, in the present case, there is no indication in this record of a failure to notify. See Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). The Board notes that the issue here is of entitlement to earlier effective dates for service connection and does not involve any medical questions. The Court has held that when the interpretation of a statute or regulation is dispositive of the issue on appeal, neither the duty-to-assist nor the duty-to-notify provisions of the VCAA are implicated. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000); see also VAOPGCPREC 5-2004 (June 23, 2004). Hence, adjudication of this appeal at this time is proper. Earlier effective date The Veteran contests the effective date of May 7, 2012, for the awards of service connection for four separate disabilities of the right elbow. He asserts an effective date of April 8, 2003, the date he initially filed a claim for VA compensation, is warranted. Under the applicable criteria, the effective date of an award of disability compensation based on an initial claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a) (2012). The implementing regulation provides that the effective date of an award of disability compensation is the day following separation from active service, if the claim is received within one year after separation from service; otherwise, the effective date is the later of the date of receipt of claim or the date that entitlement to service connection arose. 38 C.F.R. § 3.400(b)(2) (2017). A "claim" is defined in the VA regulations as "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). 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). The date of receipt of the claim, or "date of the claim," means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In the present case, review of the claims file reveals that on April 10, 2003, a VA Form 21-526, Veteran's Application for Compensation or Pension, was received from the Veteran. On this form, he requested service connection for a right elbow injury. The Veteran has stated that this was the first service connection claim filed by him or on his behalf, and review of the record does not reflect a prior claim on this issue. In response to the April 2003 claim, the RO requested service treatment records; however, the only records received were related only to service reserves duty from 1980-81. No service treatment records related to the Veteran's active duty service from March 1972 to March 1975 were obtained or reviewed. In an August 2003 rating decision, the RO denied the Veteran service connection for residuals of a right elbow injury, finding no evidence of record of an in-service injury. In May 2004, the Veteran submitted additional evidence, in the form of a photograph of the Veteran in service, and an informal claim to reopen service connection for a right elbow injury. No additional evidence was obtained by the RO. The RO issued an August 2004 rating decision continuing the denial of service connection for residuals of a right elbow injury. Next, an informal claim to reopen service connection for a right elbow disability was received from the Veteran on May 7, 2012. In developing the Veteran's claim, the RO obtained and reviewed additional service treatment records, including for the period from 1972-75. These records confirmed the Veteran's assertion of an in-service injury to his right elbow. In a December 2012 rating decision, the RO granted the Veteran four separate service connection awards for limitation of flexion of the right elbow, a single scar of the right elbow, an injury of the brachioradialis muscle of the right elbow, and multiple scars of the right elbow. Each of these awards was made effective from May 7, 2012. The Veteran contests this assigned effective date for these awards. Of relevance to the present case is 38 C.F.R. § 3.156(c), which provides in part that at any time after VA issues a decision on a claim, if additional pertinent service treatment records are obtained, VA will reconsider the claim. If the claim is subsequently granted based all or in part on the received service records, an effective date back to the date of receipt of the previously decided claim may be granted. 38 C.F.R. § 3.156(c). As noted above, relevant service treatment records were not of record at the time of the August 2003 and August 2004 denials, but were later obtained prior to the December 2012 rating decision granting service connection. Additionally, these service treatment records were, in whole or part, the basis of the awards of service connection, as these records confirmed an in-service injury. Where an award is made based all or in part on service department records associated with the claims file after an initial denial, the effective date is the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156 (c)(3). Thus, the Board concludes the proper effective date in the present case for each of the service connection awards for residuals of a right elbow injury is April 10, 2003, the date VA received the Veteran's initial service connection claim. An effective date prior to that date is not warranted, as the Veteran has denied and the record does not reflect receipt of a prior service connection claim for any residuals of a right elbow disability. ORDER An effective date of April 10, 2003, for the award of service connection for limitation of flexion of the right elbow is granted. An effective date of April 10, 2003, for the award of service connection for a scar of the right elbow is granted. An effective date of April 10, 2003, for the award of service connection for an injury of the brachioradialis muscle of the right elbow is granted. An effective date of April 10, 2003, for the award of service connection for scars of the right elbow is granted. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs