Citation Nr: 21001255 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-43 500 DATE: January 7, 2021 ORDER Entitlement to an effective date earlier than October 4, 1991, for the award of service connection for degenerative disc disease of the lumbar spine with spondylosis is denied. Entitlement to an effective date earlier than October 4, 1991, for the award of service connection for neurogenic bladder is denied. FINDINGS OF FACT 1. An informal claim to reopen the claim of service connection for a lumbar spine disability was received by VA on October 4, 1991.  There were no prior unadjudicated claims.   2. The RO, in a May 2011 rating decision, awarded service connection for neurogenic bladder as secondary to the Veteran’s service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 4, 1991 for the award of service connection for degenerative disc disease of the lumbar spine with spondylosis are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.    2. The criteria for an effective date earlier than October 4, 1991 for the award of service connection for neurogenic bladder are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.    REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from November 1969 to March 1970. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which awarded service connection for spondylosis and marked degenerative disc disease of the lumbar spine and assigned a 40 percent rating, effective June 4, 2009, and service connection for neurogenic bladder, secondary to service-connected lumbar spine disability, and assigned a 10 percent rating, effective June 9, 2004.   In a May 2017 decision, the Board granted an earlier effective date of October 4, 1991 for the awards of service connection for a lumbar spine disability and neurogenic bladder. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). A May 2019 memorandum decision of the Court vacated and remanded the May 2017 decision. The Court found that a question of clear and unmistakable error (CUE) in a February 1971 rating decision has not yet been considered by VA. The Court further found that the reasons and bases in the May 2017 Board decision regarding earlier effective dates were inadequate, as the Board did not appropriately consider the Veteran’s assertions. Upon return of the appeal in January 2020, the Board remanded the issues of entitlement to an effective date earlier than October 4, 1991 for the awards of service connection for degenerative disc disease of the lumbar spine with spondylosis, and neurogenic bladder, and directed that the issue of CUE in the February 1971 decision be adjudicated by the agency of original jurisdiction (AOJ) in the first instance. The rating decision with regards to the Veteran’s motion for revision of a February 1971 rating decision and Supplemental Statement of the Case (SSOC) concerning an earlier effective date for the awards of service connection for a lumbar spine disability and neurogenic bladder having now been provided, the directives have been substantially complied with and the matter again is before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). At this time, the Veteran is within the time period to pursue an appeal of the adverse July 2020 rating decision which denied the motion for CUE in a February 1971 rating decision. The Board acknowledges the Veteran’s informal July 2020 notice of disagreement. However, since the implementation date of the Appeals Modernization Act (AMA), on and after February 19, 2019, veterans are required to file a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), to appeal to the Board. As that form has not been received, this issue is not under the Board’s jurisdiction. Pursuant to 38 C.F.R. § 20.200, the RO must inform the Veteran of his appellate rights to initiate an appeal. Consequently, the Veteran’s motion for revision of a February 1971 rating decision is not currently ripe for appellate review at this time and will be decided in a later Board decision, if appropriate. This appeal is limited to the issues on the title page. The Veteran’s CUE motion is not inextricably intertwined with the current earlier effective date appeals, as those matters may be decided irrespective of any eventual determination regarding CUE, on an independent set of facts. While a finding of CUE may render a decision on the current appeals moot at some time in the future, such does not impact the findings of fact and laws and regulations at issue here. Harris v. Derwinski, 1 Vet. App. 180 (1991). Duty to Notify and Assist 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, 3.159, 3.326(a). These duties have been satisfied in this case. This appeal arises from the Veteran’s disagreement with the assigned effective date following the grants of service connection for a back disability and neurogenic bladder. 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). No additional discussion of the duty to notify is therefore required. The RO associated the Veteran’s service and post-service treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have 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 duty to assist argument). Earlier Effective Date The Veteran contends that an effective date prior to October 4, 1991 is warranted for the awards of service connection for degenerative disc disease of the lumbar spine with spondylosis, and neurogenic bladder. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  See 38 U.S.C. § 5110(a).   Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form.  79 Fed. Reg. 57660 (Sept. 25, 2014).  As the claim in question was earlier than this, the amended provisions do not apply.   Under the law prior to the amendment, a claim was defined 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 was any communication or action indicating an intent to apply for one or more benefits.  38 C.F.R. § 3.155(a).  Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board finds that the appropriate date for the Veteran’s claim is October 4, 1991, the receipt date of the Veteran’s informal claim to reopen the claim of service connection for a lumbar spine disability. The evidence of record reflects that the Veteran submitted his initial claim of service connection for a back condition (also claimed as bilateral spondylosis) in an Application for Compensation (VA 21-526), which was received by the RO in April 1970.  Service connection for spondylosis was denied by the RO in a rating decision dated February 1971. The Veteran did not submit a notice of disagreement or otherwise express disagreement with that determination within one year of the decision. While the February 1971 rating decision would otherwise be final, the Veteran asserts that he was not provided notice of the denial of his claim. He contends that as a result of VA’s failure to provide such notice, the February 1971 rating decision is not final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. The Veteran and his representative are entitled to written notice of the decision on his claim. 38 U.S.C. § 5104; 38 C.F.R. § 3.103(a), (b), (f). The presumption of regularity states that VA and other government officials perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet. App. 381 (2005). For purposes of this appeal and in accordance with the presumption of regularity, this means that, if notice is sent to the Veteran’s last known address of record, it will be presumed that VA properly discharged its official duties. Significantly, the Veteran may rebut the presumption of regularity by submitting clear evidence to the effect that VA’s regular mailing practices were not followed in his case; in this regard, the question of whether clear evidence exists to rebut the presumption of regularity is a question of law. Crain v. Principi, 17 Vet. App. 182, 188 (2003). An “assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process.” Jones v. West, 12 Vet. App. 98, 102 (1998). If the Veteran succeeds in rebutting the presumption of regularity, then the burden shifts to VA to establish that regular administrative practices were, in fact, observed. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). Thus, in order to rebut the presumption that the RO issued such notice along with the February 1971 rating decision, in accord with its regular practice, there must be clear evidence to the contrary; i.e., clear evidence that the RO did not discharge its duty to issue notice. Upon review of the record, the Board finds that the Veteran has rebutted the presumption of regularity, and the failure to correctly mail the decision in accordance with VA laws and regulations rendered the decision not final. See Hauck v. Brown, 6 Vet. App. 518, 519 (1994). In his April 1970 application, the Veteran listed his address as “7124 Glendale St., Metairie, LA 70003.” However, the RO, sent its March 1971 notification letter to the February 1971 rating decision to “7124 Glendale St., Metairie, LA 70043.” Thus, the presumption did not attach as notice was not sent to the then-latest address of record. 38 C.F.R. § 3.1(q); Crain v. Principi, 17 Vet. App. 182, 186 (2003). Only a subsequent Board decision can resolve an appeal that was initiated but not completed. See Juarez v. Peake, 21 Vet. App. 537, 543 (2008); see also Ingram v. Nicholson, 21 Vet. App. 232, 242 (2007) (claims which are not adjudicated remain pending until adjudicated). The record reflects that the Veteran submitted a subsequent claim for a back condition and reiterated his prior April 1970 assertion that it was aggravated by service. An October 1981 notification letter acknowledged the claim and instructed the Veteran to submit evidence not previously considered in order to reopen the claim. The record does not reflect that the Veteran responded to the notification letter. Thereafter, the Veteran submitted further claims for a back condition that was received by the RO in May 1988. The RO, in a May 1988 rating decision, confirmed and continued the previous denial. In January 1989, the Veteran sought to reopen his claim, which was denied by the RO in a February 1989 notification letter. In June 1989, the Veteran submitted a subsequent claim to reopen of service connection for a back condition. The RO denied the claim in a July 1989 rating decision, and the Veteran perfected his appeal to the Board in August 1989. The Board remanded the claim in June 1990, and upon return of the appeal, the claim of service connection for a back disability was denied in a November 1990 decision. The Veteran did not appeal the Board’s decision to the Court, and therefore, the November 1990 decision is final. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Consequently, the Board finds that the Veteran’s April 1970 claim remained pending until the Board’s November 1990 decision that denied service connection for a back disability. 38 C.F.R. § 3.160(d)(1)(ii). Any outstanding, unresolved claim was effectively subsumed by the Board decision. Service connection for marked degenerative disc disease of the lumbar spine with spondylosis, and service connection for neurogenic bladder were ultimately granted by the RO in a May 2011 rating decision. The RO’s previous assignment of the June 9, 2004 effective date was predicated upon the receipt date of what was interpreted as the Veteran’s most recent claim to reopen. However, the Board notes that following the issuance of a statement of the case in August 1991 for claims of service connection for hearing loss, a heart condition, tinnitus, and neurogenic bladder, the Veteran requested in October 4, 1991 correspondence that VA “reinstate [his] back disability as the main issue of [his] case.” The Board finds that the October 4, 1991 correspondence constituted a claim to reopen his previously denied claim of service connection for a back disability. The correspondence served as a written communication wherein the Veteran evidenced his belief in entitlement to service connection for that disability. 38 C.F.R. § 3.1(p). When a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen, which in this case is October 4, 1991. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005)). Turning to the Veteran’s neurogenic bladder, the evidence of record reflects that the Veteran submitted an initial informal claim of service connection for neurogenic bladder in June 1989. The RO denied the claim in a July 1989 rating decision. Thereafter, the Veteran perfected his appeal in October 1991. The matter was remanded by the Board in December 1992 for additional development. The Board notes that no further action was taken on the claim, as noted by the Board’s remands in April 2009 and June 2010. Thereafter, the RO, in a May 2011 rating decision, awarded service connection for neurogenic bladder as secondary to the Veteran’s service-connected lumbar spine disability, with a 10 percent rating, effective June 9, 2004. As noted above, the RO assigned the June 2004 effective date upon what it perceived as the receipt date of the Veteran’s claim. However, there was no other decision of record that constituted a final decision regarding that claim and there is no indication that the Veteran at any point withdrew his claim for service connection for neurogenic bladder. Therefore, the Veteran’s claim of service connection for neurogenic bladder was continuously prosecuted and had remained pending since it was initially filed in June 1989 until it was ultimately granted in May 2011, as the Veteran expressed disagreement with the July 1989 rating decision and there is no intervening final decision concerning that claim. Nevertheless, despite the Veteran’s pending claim of service connection for neurogenic bladder since his initial filing in June 1989, the Veteran was awarded service connection for neurogenic bladder as secondary to his service-connected lumbar spine disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. As discussed above, the 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 the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, the grant of service connection for neurogenic bladder was based upon a finding that the disability is secondary to the Veteran’s service-connected lumbar spine disability, and the effective date for the latter is, by virtue of the Board’s determination above, October 4, 1991. An effective date for the grant of secondary service connection for neurogenic bladder cannot be granted prior to the latter date, regardless of when the claim for such was filed. See Sabonis v. Brown, 6 Vet. App. 426 (1994). An effective date cannot be assigned prior to when entitlement to the benefit arose. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Thus, the evidence of record reflects that the date the entitlement arose is later than the date of receipt of the claim. Therefore, the Board finds that the appropriate date for the Veteran’s awards of service connection for degenerative disc disease of the lumbar spine with spondylosis, and secondary neurogenic bladder, is October 4, 1991.  38 U.S.C. § 5110; 38 C.F.R. § 3.400.   Nothing in this decision shall be taken as commenting on or impacting future consideration of the separate claim for revision of a February 1971 rating decision on the basis of CUE. Different evidentiary records and different law and regulation are applicable to such. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.