BVA9504069 DOCKET NO. 93-O7 856 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUES 1. Entitlement to an effective date earlier than July 20, 1984 for an award of service connection for traumatic arthritis of the cervical spine with limitation of motion and retained foreign body. 2. Entitlement to an effective date earlier than July 20, 1984, for an award of service connection for shell fragment wound scars of the right hand and forearm, with retained foreign body. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C.M. Flatley, Counsel INTRODUCTION The veteran had active service from January 1942 to January 1946. In multiple statements submitted on appeal, the veteran has expressed dissatisfaction with the resolution of a variety of matters which he has raised. In a June 1993 statement, for example, the veteran made further comments as to his hearing loss, previously denied by the Board. In other correspondence, including the veteran's current notice of disagreement and his substantive appeal, with attachments, he raises a number of matters, including, apparently, an allegation of error in the denial of service connection for multiple disabilities; other issues apparently raised by the veteran include entitlement to a clothing allowance, compensation for loss of teeth, and an earlier effective date for increased compensation for hypoglossal nerve function. In light of the many statements submitted and references made by the veteran, some of which have previously been addressed, any action that he may wish to pursue is unclear. The matter is therefore referred to the regional office (RO) for clarification and any appropriate action. We note that for purposes of the current appeal, only the issue of entitlement to an effective date earlier than July 20, 1984 for an allowance of service connection for arthritis of the cervical spine and for shell fragment wound scars of the right hand and forearm have been fully developed and adjudicated and are ready for review by the Board of Veterans' Appeals (Board). Entitlement to service connection for arthritis of the cervical spine was denied by the Board in a June 1984 decision; the Board's decision is final. 38 U.S.C.A. §§ 5108, 7104(b)(West 1991). In response to the veteran's apparent dissatisfaction with the Board's decision, we note that reconsideration of an appellate decision may be accorded at any time by the Board on motion. 38 C.F.R. § 20.1000 (1993). Motions for Reconsideration must be filed in accordance with the provisions of 38 C.F.R. § 20.1001 (1993). CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that the effective date of the allowance of his claim should be at least 1975 or 1976, when his claim was "brought to...light." He also alleges that the appropriate effective date should reflect his original filing in 1946, and argues that he has complained of pain in the neck since 1948; with regard to the continuity of his claim, he contends that right hand and forearm symptomatology has essentially been ignored. He also asserts that his attempts to continuously prosecute a claim have been ignored by the Department of Veterans Affairs (VA). DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence is against the claims for an effective date earlier than July 20, 1984, for the allowance of service connection for traumatic arthritis of the cervical spine with limitation of motion and retained foreign body and for shell fragment wound scars of the right hand and forearm with retained foreign body. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained. 2. Entitlement to service connection for arthritis of the cervical spine was denied by the Board in a June 1984 decision. 3. An application to reopen a claim of service connection for arthritis of the cervical spine was received on July 20, 1984; the claim was reopened and service connection for traumatic arthritis of the cervical spine, with limitation of motion and retained foreign body, was allowed by an October 1987 rating decision. 4. An original claim of entitlement to service connection for shell fragment wound residuals of the right hand and forearm was received on July 20, 1984; service connection for shell fragment wound scars of the right hand and forearm, with retained foreign body, was allowed by an October 1987 rating decision and an effective date of July 20, 1984 was assigned. 5. The October 1987 rating decision which assigned an effective date of July 20, 1984, for the allowance of service connection for traumatic arthritis of the cervical spine, with limitation of motion and retained foreign body, and for shell fragment wound scars of the right hand and forearm with retained foreign body, was not appealed and was consistent with and supported by the evidence then of record. CONCLUSIONS OF LAW 1. The Board's June 1984 denial of service connection for arthritis of the cervical spine is a final determination. 38 U.S.C.A. § 7104(b)(West 1991). 2. The RO's October 1987 rating decision which, in part, assigned an effective date of July 20, 1984, for an award of service connection for arthritis of the cervical spine with limitation of motion and retained foreign body and for an award of service connection for shell fragment wound scars of the right hand and forearm with retained foreign body, became final, and no clear and unmistakable error in that rating decision is shown. 38 U.S.C.A. §§ 5108, 7105 (West 1991); 38 C.F.R. § 3.105 (1993). 3. An effective date earlier than July 20, 1984, for an award of service connection for arthritis of the cervical spine with limitation of motion and retained foreign body is not warranted. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. § 3.400, 3.400(q)(1)(ii),(r)(1987). 4. An effective date earlier than July 20, 1984, for an allowance of service connection for shell fragment wound scars of the right hand and forearm with retained foreign body, is not warranted. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.400, 3.400(b)(2)(i)(1987). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Traumatic Arthritis Of The Cervical Spine With Limitation Of Motion And Retained Foreign Body The pertinent law when the RO considered the veteran's claim in 1987, as now, provided 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 C.F.R. § 3.400 (1987). The effective date of compensation based on new and material evidence received after final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (1987). The effective date of an allowance of a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r) (1987). With respect to the veteran's claim of an earlier effective date for arthritis of the cervical spine, we note, as stated above, that the Board's June 1984 decision is final, and, absent certain circumstances not for discussion here, will be reopened only upon the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105. The evidence shows that correspondence was received from the veteran on July 20, 1984, and included a reiteration of his complaints referable to the cervical spine issue. The veteran's claim was ultimately reopened and by a May 1987 rating decision, entitlement to service connection for arthritis of the cervical spine with limitation of motion and retained foreign body was allowed. As set forth in the preceding paragraph, the effective date of an award of compensation based upon a reopened claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.400, 3.400(q)(1)(ii),(r). Review of the record reflects that the RO interpreted the first correspondence from the veteran after the Board's final decision, received on July 20, 1984, as the veteran's attempt to reopen his claim. As the veteran's claim was subsequently determined to be reopened, the RO identified the date of receipt of the veteran's correspondence as the date of the reopened claim. The effective date of July 20, 1984 for the allowance of service connection for arthritis of the cervical spine, therefore, is appropriate. In this regard, we note that a decision of the RO is final in the absence of a timely appeal and, except under limited circumstances not applicable here, is not subject to revision on the same factual basis, unless a notice of disagreement is filed within one year from the date of notification of the RO determination. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.104(a), 20.1103. A prior final determination may be reopened upon the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105(c). Subsequent to the RO's October 1987 rating decision, correspondence was received from the veteran in which he reiterated several complaints as to the RO's action on a number of matters. The RO requested that he clarify the nature of his disagreement with their action, and in a response received in January 1988, the veteran expressed dissatisfaction with the non- recognition of wounds to the neck and right hand and ostensibly in that context emphasized that he had been pursuing a claim for such wounds for many years. He argued that the effective date should be many years earlier because the arthritis which was recognized by the RO in 1987 was essentially related to wounds received in action. The veteran focused more on the nature of the disability for which service connection was allowed and in that respect argued that an effective date many years earlier would then be warranted. Although we recognize the veteran's argument, we stress that at that time, and similarly now, the veteran's notice of disagreement was required to express dissatisfaction or disagreement with an adjudicative determination, and written in terms which could reasonably be construed as a desire to review that determination. 38 C.F.R. § 19.118 (1987). In this case, the veteran's disagreement with the effective date assigned for the arthritis of the cervical spine and shell fragment wound scars of the right hand and forearm is not shown; rather, he argues more as to the nature of the disabilities for which service connection had been allowed. In this sense, therefore, the veteran's correspondence in the pertinent time frame subsequent to the RO's October 1987 rating decision cannot legitimately be considered disagreement with the aforementioned rating decision. Id. Accordingly, the October 1987 rating decision became final with respect to the effective date issue. 38 U.S.C.A. § 7105(b)(1). A claim may be reopened upon the submission of new and material evidence and a previous claim may be amended upon a showing of clear and unmistakable error in the prior rating decision. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.105. Error in the prior adjudication of a claim exists when, for example, the correct facts, as they were known at the time, were not before the adjudicator, or the statutory or regulatory provisions extant at the time were incorrectly applied. Russell v. Principi, 3 Vet.App. 310, 313 (1992). Clear and unmistakable error is the type of error which, had it not been made, would have manifestly changed the outcome at the time it was made; it is an error which is undebatable, so that it can be said that reasonable minds could only conclude that the original decision was fatally flawed at the time it was made. Russell, 3 Vet.App. at 313-314. A determination that there was clear and unmistakable error must be based on the record and the law that existed at the time of the prior decision. Russell, 3 Vet.App. at 314. We note initially that any discussion of material sent by the veteran in an attempt to reopen his claim is moot, as the effective date can be no earlier than the date of receipt of the reopened claim, the date that was assigned in this instance. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991); 38 C.F.R. § 3.156(a). We note that the provisions of 38 C.F.R. § 3.155 or 3.157 are not applicable to the facts in this case. In this case, when the RO, in its October 1987 rating decision, assigned an effective date of July 20, 1984, for the allowance of service connection for arthritis of the cervical spine, a final Board decision dated in June 1984 was of record. Subsequent thereto, the first correspondence received from the veteran was on July 20, 1984, which indicated, in part, that service connection should be allowed for traumatic arthritis of the neck and arthritis of the right hand and forearm. His claim for arthritis of the cervical spine was reopened based, in part, upon the evidence compiled in association with his reopened claim, and, as noted above, service connection for arthritis of the cervical spine with limitation of motion and retained foreign body was allowed. The law concerning the effective date is clear in this regard. As the veteran's claim for service connection for arthritis of the cervical spine had been reopened subsequent to a previous final Board denial, the date of the receipt of the reopened claim as the effective date of the allowance was in accordance with the applicable law and was appropriate. 38 C.F.R. §§ 3.400, 3.400(q)(1)(ii),(r). Clear and unmistakable error, as defined above, is clearly not present with regard to the RO's assignment of an effective date of July 20, 1984, for an allowance of service connection for arthritis of the cervical spine. See Russell, 3 Vet.App. at 313-314. We note for procedural purposes that the statement of the case issued to the veteran during his current appeal does not contain the appropriate law and regulations as to the effective date of an allowance of a compensation claim. In a July 1992 letter, however, the RO provided the veteran with a full explanation of the law regarding the effective dates as it applies in his case. Sufficient information upon which to base his appeal has been provided to the veteran, and his arguments on appeal indicate his understanding to this effect. The Board concludes, therefore, that the incomplete statement of the case results in no prejudice to the veteran in this regard. See Bernard v. Brown, 4 Vet.App. 384, 394 (1993). II. Shell fragment Wound Scars of the Right Hand and Forearm Entitlement to service connection for shell fragment wound scars of the right hand and forearm, with retained foreign body, was also allowed by the RO's October 1987 rating decision. The veteran argues that an earlier effective date is warranted, alleging essentially that the disability has been demonstrated since at least 1958 and that evidence was sufficient to allow service connection for the disability since at least the mid- 1970's. Initially, we note that an effective date of July 20, 1984, was assigned. The focus of the veteran's appeal, therefore, is whether VA law and regulations allow for an effective date prior thereto; any discussion of rating decisions referable to the disorder subsequent to July 20, 1984, are essentially moot in light of the allowance of the benefit from that time. As it applied in 1987, VA regulations provided that a "claim" or "application" meant 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) (1987). An informal claim was, and is, considered any communication or action indicating an intent to apply for one or more benefits under the laws administered by the VA; an informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (1987)(26 Fed. Reg. February 24, 1961, as amended July 21, 1987). Upon receipt of the informal claim, if a formal claim has not been filed, an application form will be forwarded to the veteran for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. Review of the record prior to July 20, 1984, establishes that no claim had been filed by the veteran prior thereto. We stress that although the veteran claimed that he had "always applied for service connection" for shell fragment wound in the areas which ostensibly included the right hand and forearm, the record does not support his contention in this regard, as an application for benefits is not shown. In spite of the veteran's argument made on appeal that he had been continuously prosecuting his appeal for many years, the record contains no indication that the veteran applied for VA benefits associated with his right hand and forearm, separate from his right wrist; an intent to apply and identification of the benefit sought is generally absent. We stress that the veteran's allegation that his claim in this respect had been previously denied is not supported. In addition, we note that no appeal was filed from the October 1987 rating decision. As such, the determination with respect to the effective date of the allowance of service connection is final, and, in pertinent part, may be amended upon a showing of clear and unmistakable error in the prior rating decision. 38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.105, 20.1103. The law in effect in 1987, as now, provided, in pertinent part, that the effective date of an award of disability compensation based on direct service connection and an original claim is the date of receipt of the claim or the date entitlement arose, whichever is later, since the claim for service connection for shell fragment wound scars of the right hand and forearm was not received within one year after separation from service. 38 C.F.R. §§ 3.400, 3.400(b)(2)(i). When the RO considered the veteran's claim in 1987, it reviewed the record and determined that the veteran's July 20, 1984 statement was all-inclusive with respect to his disabilities, and, in essence, that the evidence submitted in association with that claim warranted an allowance of service connection for shell fragment wound scars of the right hand and forearm, with retained foreign body. As discussed above, a claim for the aforementioned benefit was not of record prior to July 20, 1984. The veteran's application for benefits regarding the right hand and forearm received on that date, therefore, must be considered an original claim. The effective date of the allowance of the benefit, therefore, is the date of receipt of the claim. 38 C.F.R. §§ 3.400, 3.400(b)(2)(i). As such, assignment of July 20, 1984, as the effective date for the allowance of service connection was appropriate, and, in the absence of error, will stand. The RO's assignment of an effective date of July 20, 1984, the date of receipt of the original claim, was in accordance with applicable law, which is clear in this respect. There is no indication that the correct facts were not known to the adjudicator at the time or that the law was incorrectly applied. Russell, 3 Vet.App. at 313. Further, there is clearly no indication that an undebatable error was committed which would render the original decision fatally flawed at the time it was made. Russell, 3 Vet.App. at 313-314. Upon review of the RO's action, the Board concludes that clear and unmistakable error in the assignment of the effective date of July 20, 1984, for an allowance of service connection for shell fragment wounds of the right hand and forearm has not been demonstrated. The RO's determination, therefore, remains final, and the decision regarding the effective date at issue may not be amended. 38 U.S.C.A. §§ 5108, 7105(c); 38 C.F.R. §§ 3.104(a), 3.105, 3.400, 20.1103. ORDER Entitlement to an effective date earlier than July 20, 1984, for an award of service connection for arthritis of the cervical spine with limitation of motion and retained foreign body and for shell fragment wound scars of the right hand and forearm with retained foreign body is denied. WILLIAM J. REDDY Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.