Citation Nr: A21020057 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 200526-87918 DATE: December 15, 2021 ORDER Entitlement to an effective date for service connection of lumbar degenerative disc disease prior to January 17, 2020, is denied. FINDING OF FACT The provisions of 38 C.F.R. § 3.155(b) regarding the submission of a complete application within one year of receipt of the intent to file a claim and the treatment of the completed claim as if it was filed as of the date of the intent to file a claim do not apply to supplemental claims. CONCLUSION OF LAW The criteria for entitlement to an effective date for service connection of lumbar degenerative disc disease prior to January 17, 2020, have not been met. 38 U.S.C. §§ 101, 5101, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.150, 3.155, 3.160, 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1995 to February 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2020 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In his May 2020 notice of disagreement, the Veteran selected the Direct Review docket. The matter is now before the Board for consideration. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations obligate on VA to provide claimants with notice and assistance. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). However, the U.S. Court of Appeals for Veterans Claims (CAVC) held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated. The CAVC recognized that enactment of the VCAA does not affect matters on appeal when the questions are determined as a matter of law. See De la Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). In earlier effective date claims such as this one, the VCAA does not apply because the facts of the claim are undisputed, and the claim is granted on the basis of the controlling statutes and regulations alone. Nevertheless, VA's duty to notify and assist was satisfied with a VCAA / DTA Letter in September 2008. In his May 2020 VA Form 10182, the Veteran asserted that "the effective date of 80% disability should have been January 2019, when I opened the claim. It was only backdated to January 2020." The provisions governing the assignment of the effective date of a claim for compensation, or an increased rating are set forth in 38 U.S.C. § 5110(a) and (b) and 38 C.F.R. § 3.400(b) and (o). The general rule regarding effective dates is: "Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, 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 thereunder." See 38 U.S.C. § 5110(a); see also 38 C.F.R. § 3.400, General ("Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later."). For claims of disability compensation filed under 38 C.F.R. § 3.4(b), which includes "[b]asic entitlement...if the veteran is disabled as the result of a personal injury or disease (including aggravation of a condition existing prior to service) while in active service," the effective date of claims is: "Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." See 38 C.F.R. § 3.400(b)(2)(i). However, a Veteran may indicate a desire to file a claim for benefits by submitting an intent to file a claim to VA. If VA receives a complete application form as prescribed by VA within one year of the receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. An intent to file a claim can be submitted in one of the following ways: (i) a saved electronic application; (ii) written intent on a prescribed intent to file a claim form; or (iii) oral intent communicated to designated VA personnel and recorded in writing. See 38 C.F.R. § 3.155. Effective March 24, 2015, all claims must be filed "on an application form prescribed by the Secretary," eliminating the constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. See 38 C.F.R. § 3.155(a). In the Federal Register, lawmakers explained the change: "those claimants who are familiar with VA's claims process may recognize the operation of the intent to file process as functioning similar to the current informal claim process. The difference is that the intent to file a claim form serves as the effective date placeholder like the informal claim itself but must be submitted in specified standard formats and will only trigger VA's duty to furnish the claimant the appropriate form." This rule will not disturb the amount of monies paid except "where a claimant who is not familiar with the intent to file a claim process submits an informal claim which VA will deem as a request for an application for benefits, resulting in the claimant submitting an intent to file a claim form or complete claim at a later date." Standard Claims and Appeals Forms, 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014). VA will not recognize more than one intent to file concurrently for the same benefit. If an intent to file has not been followed by a complete claim, a subsequent intent to file regarding the same benefit (e.g., compensation or pension) received within 1 year of the prior intent to file will have no effect. If, however, VA receives an intent to file followed by a complete claim and a later intent to file for the same benefit (e.g., compensation or pension) is submitted within 1 year of the previous intent to file, VA will recognize the subsequent intent to file to establish an effective date for any award granted for the next complete claim, provided the claim is received within 1 year of the subsequent intent to file. See 38 C.F.R. § 3.155(b)(6). In this case, the record contains a January 2019 VA Notification Letter, which states: "We received your intent to file on January 23, 2019. You indicated you would like to file a claim for compensation." Thus, the January 23, 2019 Intent to File would have preserved the effective date for service connection had the Veteran filed a "complete claim" within one year of his Intent to File. The Veteran submitted a supplemental claim for disability compensation "on an application form prescribed by the Secretary," which was received by VA on January 17, 2020. See January 2020 VA Form 20-0995, Supplemental Claim ("Chronic Lower Back Pain and Strain, Disc Protrusion, Arthropathy"). Unfortunately, the introductory language of 38 C.F.R. § 3.155 specifically excludes supplemental claims in its application to claims filed under paragraph (b), Intent to file a claim. See 38 C.F.R. § 3.155 ("The provisions of this section are applicable to all claims governed by part 3, with the exception that paragraph (b) of this section, regarding intent to file a claim, does not apply to supplemental claims."). In other words, the supplemental claim filed by the Veteran, received by VA on January 17, 2020, is not a "complete claim" that would allow his January 23, 2019, Intent to File to function as the effective date of his claim. See 38 C.F.R. § 3.155(b). To that end, review of the record shows that in the period between his January 23, 2019 Intent to File, and his January 17, 2020 supplemental claim, no other documents that could be taken as a "complete claim" were filed; the documented received by VA during this time included medical documentation submitted by the Veteran, a VA Form 3288, Request for and Consent to Release of Information from Individual Records, which VA acknowledged as a Privacy Act request. In summary, the Veteran complied with the provisions of 38 U.S.C. § 5101 and 38 C.F.R. § 3.155 by submitting to VA an intent to file a claim for compensation on January 23, 2019. VA acknowledged receipt of this intent to file. Within one year of submitting an intent to file, the Veteran submitted a claim for benefits for a lumbar spine disability, received by VA on January 17, 2020. However, the Veteran submitted a VA Form 20-0995, supplemental claim application, which 38 C.F.R. § 3.155(b) specifically states is not a "complete claim." Therefore, the Veteran's appeal must be denied, and the grant of service connection for lumbar degenerative disc disease remains effective from January 17, 2020. J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.