Citation Nr: 0216553 Decision Date: 11/19/02 Archive Date: 11/26/02 DOCKET NO. 01-03 480A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date prior to October 1, 1999 for the grant of service connection for Brugada syndrome. REPRESENTATION Veteran represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD N. W. Fabian, Counsel INTRODUCTION The veteran served on active duty from April 1978 to November 1993. This matter comes to the Board of Veterans' Appeals (the Board) on appeal from an April 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO granted service connection for Brugada syndrome (a heart disorder), and assigned a 10 percent rating for the disorder effective January 31, 2000. In a June 2000, rating decision the RO increased the assigned disability rating from 10 percent to 100 percent and awarded an earlier effective date, October 1, 1999, for the grant of service connection and the 100 percent rating. The veteran perfected an appeal of the effective date assigned for the grant of service connection. FINDINGS OF FACT 1. The veteran was separated from service in November 1993. 2. A diagnosis of a chronic heart disorder was made in May 1999. 3. The veteran initially claimed entitlement to service connection for a heart disorder in October 1999. CONCLUSION OF LAW Entitlement to an effective date prior to October 1 1999, for the grant of service connection for Brugada syndrome is not shown as a matter of law. 38 U.S.C.A. §§ 5101(a), 5110(a) (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.400(b) (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran contends that he is entitled to an effective date in November 1993, immediately following his retirement from service, for the grant of service connection for Brugada syndrome because a heart disorder was documented in his service medical records. He further contends that because the heart disorder was documented in his service medical records he was not required to submit a claim for service connection for that disorder in order for service connection to be granted. In the interest of clarity, the Board will initially review various laws generally pertaining to the issue on appeal. The Board will then move on to an analysis of the issue. Although all of the evidence in the claims file may not be specifically cited in the Board's decision, the Board has reviewed and considered all of the evidence in the claims file in reaching its conclusions. The Veterans Claims Assistance Act of 2000 The Board has considered VA's duty to inform the veteran of the evidence needed to substantiate his claim and to assist him in obtaining the relevant evidence. See, in general, the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified at 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002)); 38 C.F.R. § 3.159 (2002). As will be explained below, the Board finds that the provisions of the law and regulation do not apply to the veteran's claim. The United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). In the instant case the facts are not in dispute; resolution of the veteran's appeal is dependent on interpretation of the statutes and regulations regarding the effective date of an award of service connection. The issue of whether the veteran is entitled to an earlier effective date is dependent upon whether a viable claim for service connection was filed prior to October 1, 1999. That determination is dependent on the documents and evidence received by VA prior to October 1, 1999. VA has no further duty, therefore, to notify the veteran of the evidence needed to substantiate his claim, or to assist him in obtaining that evidence, in that no reasonable possibility exists that any further assistance would aid the veteran in substantiating the claim. Wensch v. Principi, 15 Vet. App. 362, 368 (2001). The Board observes in passing that the veteran has been provided with pertinent law and VA regulations in the March 2001 Statement of the case. He and his representative have been accorded ample opportunity to present evidence and argument in support of his claim. Factual Background The veteran's service medical records disclose that he was hospitalized for two days in November 1984 due to a two day history of left-sided chest pain. An electrocardiogram (EKG) revealed an ST segment elevation and a right bundle branch block, and he was admitted for evaluation. Diagnostic testing ruled out a myocardial infarction, and no diagnosis of a chronic heart disorder was made. The service medical records make no further reference to any complaints or clinical findings related to a heart disorder. Examination of the heart on separation from service in September 1993, which included an EKG, was normal. The veteran initially claimed entitlement to VA compensation benefits in December 1993. In that application (VA Form 21- 526) he asserted that he had numerous disorders that were incurred in service. He did not include a heart disorder in this claim for compensation benefits. The veteran underwent a VA medical examination in January 1994, during which he did not register any complaints pertaining to the heart, and no cardiac abnormalities were found on examination. In a letter from the veteran's representative, which was dated October 1, 1999, the veteran claimed entitlement to compensation benefits for a heart disorder. In January 2000 he submitted a medical report from K.S.R., M.D., showing that he had complained of atypical chest discomfort and palpitations in May 1999, which resulted in a diagnosis of Brugada syndrome following diagnostic testing. Dr. R. reviewed the December 1984 service medical record showing the right bundle branch block, and found that that abnormality was consistent with a diagnosis of Brugada syndrome. The veteran underwent a VA cardiology examination in March 2000, during which he stated that he was unable to remember whether he had any cardiac symptoms from 1984 to 1999. The examiner then defined Brugada syndrome as an electrical conduction abnormality in the heart that causes irregular and dangerous heart rhythms. The examiner also found that the cardiac abnormalities documented in December 1984 were consistent with Brugada syndrome, and provided an opinion that the onset of the disorder occurred in service. The RO subsequently granted service connection for Brugada syndrome with an effective date of October 1, 1999, the date of the letter from the veteran's representative. Relevant Law and Regulations A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran , it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). Analysis The factual background has been set forth above. In short, the veteran initially claimed entitlement to service connection for heart disease in a letter dated October 1, 1999 and the RO granted service connection as of that date. The veteran contends that the effective date for the grant of service connection should be November 23, 1993, the day following his separation from service. He bases that contention on the fact that the heart disorder was shown during service. He has asserted that he was not required to expressly include the heart disorder in his December 1993 claim for compensation benefits because it was documented in his service medical records. He claims that all of the EKGs that he had in service documented the existence of the disorder, and that the disorder was diagnosed during service. He also claims that had he been given an EKG during the January 1994 VA examination, it would have shown the Brugada syndrome. He contends that the RO should have granted service connection for Brugada syndrome in adjudicating his December 1993 claim. The evidence clearly indicates that the veteran did not expressly claim entitlement to service connection for a heart disorder, either formally or informally, until October 1999. He does not assert otherwise. It is his contention, in essence, that a claim for service connection for a heart disorder should have been inferred from his December 1993 claim due to the documentation of the cardiac abnormalities in his service medical records. The statutes and regulations pertaining to veterans' benefits have created a "nonadversarial, ex parte, paternalistic system for adjudicating veterans' claims." Collaro v. West, 136 F.3d 1304, 1309-10 (Fed. Cir. 1998). As the veteran's representative has pointed out, in adjudicating a claim for benefits VA is required to consider all statutory and regulatory provisions that may support entitlement to benefits, regardless of whether the veteran has raised or argued a particular issue. Douglas v. Derwinski, 2 Vet. App. 435, 439 (1992). This mandate does not, however, "require [VA] to conduct an exercise in prognostication, but only requires that it consider all issues reasonably raised. . . ." Talbert v. Brown, 7 Vet. App. 352, 356 (1995). Although the service medical records documented a cardiac abnormality in December 1984, contrary to the veteran's assertions that finding did not result in the diagnosis of a cardiac disorder. The service medical records make no further reference to a cardiac disorder, and examination on separation from service, which included an EKG, showed no heart abnormalities. The veteran did not register any complaints pertaining to the heart during the January 1994 VA examination, and no heart abnormalities were found as a result of the examination. The medical evidence indicates that a chronic heart disorder was not diagnosed until May 1999, more than five years following the veteran's separation from service. During the March 2000 VA examination the veteran stated that he could not remember whether he had had any cardiac symptoms from 1984 to 1999. In short, although there were abnormal diagnostic test findings during service, no health care provider identified heart disease until 1999. In adjudicating the veteran's December 1993, claim the RO had no way of knowing that a chronic heart disorder would be identified years later that was shown to be related to the symptoms documented during service. The Board finds, based on the record, that a claim for service connection for a heart disorder was not reasonably raised in the veteran's December 1993 claim for compensation benefits. The veteran himself was not aware at that time that he had heart disease, and neither was anyone else. For the RO infer a claim for service connection for a heart disorder in the December 1993 application would require an act of prognostication. This is not a duty imposed upon VA. See Talbert, supra; see also Buckley v. West, 12 Vet. App. 76, 81 (1998) [VA must adjudicate all issues reasonably raised from the veteran's pleadings]. The applicable statutory and regulatory provisions require that VA look to all communications from a claimant which may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.1(p), 3.400(o)(2), 3.155(a) (2002); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2002); see Dunson v. Brown, 4 Vet. App. 327, 330 (1993). The Board has examined communications from the veteran to the RO in an attempt to detect a claim, formal or informal, for service connection for heart disease prior to October 1, 1999. This effort has been unsuccessful. The veteran claimed entitlement to increased ratings for his service- connected disabilities in November 1995, and in January 1998 he claimed entitlement to service connection for an eye disorder. Neither of those documents cannot be construed as a claim for service connection for a heart disorder because the veteran did not express any intent to claim service connection for a heart disorder. Crawford v. Brown, 5 Vet. App. 33, 35 (1993); 38 C.F.R. § 3.155(a). The veteran was separated from service in November 1993, and submitted a claim for compensation benefits for other disorders in December 1993. In order to support the award of an effective date for service connection for a heart disorder of the day following his separation from service, however, the evidence must establish that the claim that resulted in a grant of service connection for a heart disorder was filed within one year of separation. See 38 C.F.R. § 3.400 (2002); Wright v. Gober, 10 Vet. App. 343, 346 (1997). The veteran did not submit a claim for service connection for a heart disorder until October 1999, which claim resulted in the grant of service connection. He is not, therefore, entitled to an effective date for the grant of service connection for the heart disorder of the day following his separation from service. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). In short, the veteran did not submit any document that can be construed as a claim for service connection for a heart disorder prior to October 1999. Because the October 1999 claim was submitted after his entitlement arose in May 1999, the effective date is determined by the date of the claim. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The Board finds, therefore, that entitlement to an effective date prior to October 1, 1999, for the grant of service connection for a heart disorder is not shown as a matter of law. Shields v. Brown, 8 Vet. App. 346, 349 (1995) [an earlier effective date cannot be granted in the absence of statutory authority, which requires the filing of a claim]. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) [in a case where the law and not the evidence is dispositive, a claim must be denied because of the absence of legal merit or the lack of entitlement under the law]. The Board additionally notes that it does not doubt the veteran's sincerity in pursuing his claim. As explained above, service connection is granted based on the filing of a claim, not on whether a disability may in fact have existed at some earlier point in time. In this case, the veteran's claim was filed in October 1999; the effective date of October 1, 1999 was correctly assigned. ORDER The veteran's appeal to establish an effective date prior to October 1, 1999 for the grant of service connection for Brugada syndrome is denied. Barry F. Bohan Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.