Citation Nr: 0325876 Decision Date: 10/01/03 Archive Date: 10/15/03 DOCKET NO. 02-11 180 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an earlier effective date for compensation under 38 U.S.C.A. § 1151 for pulmonary fibrosis secondary to Amiodarone. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Francesca Craft, Associate Counsel INTRODUCTION The veteran served on active duty from August 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2001 rating decision by the Department of Veterans Affairs (VA) regional office (RO) in Los Angeles, California. FINDING OF FACT The veteran filed a claim for disability compensation under 38 U.S.C.A. § 1151 for pulmonary fibrosis secondary to medical treatment with Amiodarone, which the VA received on June 12, 2000. CONCLUSION OF LAW The criteria for an effective date earlier than June 12, 2000 for compensation under 38 U.S.C.A. § 1151 for pulmonary fibrosis secondary to Amiodarone have not been met. 38 C.F.R. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.154, 3.155, 3.400 (2002). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (hereafter VCAA), now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West Supp. 2002), was recently enacted. The VCAA contains extensive provisions modifying the adjudication of all pending claims. VAOPGCPREC 11-00. Among other things, the new law enhances VA's duty to assist a claimant in developing facts pertinent to his claim and expands on VA's duty to notify the claimant and his representative, if any, concerning certain aspects of claim development. Review of the claims folder reveals compliance with the statutory and regulatory provisions sufficient to proceed on the claim currently before the Board. That is, by way of the September 2001 rating decision, the June 2002 statement of the case, and the December 2002 supplemental statement of the case, the veteran was provided with the applicable law and regulations and given notice as to the evidence generally needed to substantiate his claim. The veteran has not identified any additional evidence that has not been associated with the record. Finally, the veteran has had ample opportunity to present evidence and argument in support of his appeal. Therefore, there is no indication that the Board's present review of the claim will result in any prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). A formal claim for pension, compensation, dependency and indemnity compensation or any statement in a communication showing an intent to file a claim for disability or for death benefits resulting from the pursuit of a course of vocational rehabilitation, hospitalization, medical or surgical treatment or examination under Department of Veterans Affairs laws may be accepted as a claim. 38 C.F.R. § 3.154 (2002). The method of determining the effective date of a claim for disability or death due to hospitalization is set forth in 38 U.S.C.A. § 5110(c) (West 2002), as well as 38 C.F.R. § 3.400(i) (2002). These legal criteria provide that, in general, the effective date of an award for disability or death due to hospitalization is the date of the injury or aggravation if a claim is received within one year of that date or the date of receipt of the claim. 38 U.S.C.A. § 5110(c); 38 C.F.R. § 3.400(i). A claim is 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); 3.155 (2002). The regulation which governs informal claims, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant 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 claimant, it will be considered filed as of the date of receipt of the informal claim. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The date of a uniformed service examination which is the basis for granting severance pay to a former member of the Armed Forces on the temporary disability retired list will be accepted as the date of receipt of claim. The date of admission to a non-VA hospital where a veteran was maintained at VA expense will be accepted as the date of receipt of a claim, if VA maintenance was previously authorized, but if VA maintenance was authorized subsequent to admission, the date VA received notice of admission will be accepted. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b)(1) (2002) The date of receipt of evidence from a private physician or layman will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or layperson and shows the reasonable probability of entitlement. 38 C.F.R. § 3.157(b)(2) (2002). VA inpatient records show that the veteran was admitted to VA Medical Center in San Diego in December 1995 for approximately 12 days. His primary diagnosis was dilated cardiomyopathy with congestive heart failure. The discharge summary shows that he was treated with Amiodarone 800 mg (milligrams) by mouth daily for five days. After that, he received 400 mg by mouth daily for maintenance. Inpatient treatment records from February 1996, show continued use of 400 mg Amiodarone daily. Inpatient treatment records from April 1996 show continued use of Amiodarone 300 mg daily. Inpatient treatment records from July 1998 show continued use of Amiodarone 200 mg daily. Inpatient treatment records show an admission in late August 1998 through mid-September for approximately 23 days. Chest x-ray on admission was interpreted to show large dilated heart and diffusive interstitial infiltrates, unchanged from July 1, 1998, which was consistent with Amiodarone toxicity. The pertinent discharge diagnosis was pulmonary pneumonitis secondary to Amiodarone toxicity. S.C. Hospital records show that the veteran was admitted in late September 1998 for approximately seven days. The discharge summary indicates the following diagnoses: idiopathic dilated cardiomyopathy, atrial fibrillation, pulmonary fibrosis, and status post respiratory arrest and intubation 09/21 through /9/26/98. The RO received an informal claim from the veteran's spouse, date stamped received on September 30, 1998. On a VA Form 21-4138, the veteran's spouse indicated the veteran's name and social security number and she requested that her statement be considered an informal claim for VA compensation. She advised that a formal application and supporting documentation would be forwarded within 90 days. The RO sent a letter to the veteran's spouse in November 1998 requesting additional identifying data. The correspondence stated that her disclosure of the requested information was voluntary, but if the information was not furnished, the RO would be unable to take further action on her initial correspondence. The RO received a VA Form 21-526 (Veteran's Application for Compensation or Pension) in June 2000. The date-received stamp indicates the exact date was June 12th. The veteran listed the following sickness, disease or injuries: dilated cardiomyopathy with congestive heart failure, atrial fibrillation with rapid ventricular response, and pulmonary fibrosis. Enclosed with the veteran's formal claim were the following pertinent documents: (1) VA Form 21-4138 signed by the veteran and dated in July 1999; (2) VA Form 21-4138 signed by the veteran and dated in June 2000; and, (3) VA Form 10-583 signed by the veteran and dated in November 1998. None of the documents show a date stamp. The July 1999 VA Form 21-4138 asserts a claim for payment of emergency medical bills and a claim for compensation for the loss of both lungs due to pulmonary fibrosis cause by the use of Amiodarone, which as administered by the VA Hospital. The June 2000 VA Form 21-4138 contends that benefits should start on August 24, 1998, when the veteran was hospitalized and put on oxygen. The VA Form 10-583 is a claim for payment of cost of unauthorized medical services at S.H. Hospital in September 1998. II. Analysis The veteran contends that the effective date for his 38 U.S.C.A. § 1151 compensation for pulmonary fibrosis secondary to Amiodarone should be August 24, 1998, because this is the date that he was hospitalized and put on oxygen. Entitlement to an effective date based on the date of the injury is warranted only when a claim is received within one year of that date. 38 C.F.R. § 3.400(i). Review of the record reveals the only correspondence received from the veteran or an authorized representative on or before August 23, 1999, was a VA Form 21-4138 from the veteran's spouse, date stamped received on September 30, 1998. The veteran failed to follow up this initial correspondence with a formal claim within one year from August 24, 1998. Accordingly, August 24, 1998, although the proper date of injury, cannot be assigned as the effective date for 38 U.S.C.A. § 1151 compensation for pulmonary fibrosis secondary to Amiodarone. In the alternative, the September 30, 1998 correspondence does not identify the benefit sought; it simply indicates that the veteran is seeking "compensation." It fails to specify the type of compensation being sought or the sickness, disease, or injury for which compensation is being sought. Because the September 1998 correspondence does not identify the benefit being sought, it does not constitute an informal claim. 38 C.F.R. § 3.155(a). September 30, 1998, the date of the informal claim, cannot be assigned as the effective date for 38 U.S.C.A. § 1151 compensation. The difficulty with assigning this date is two-fold. First, as indicated above, the September 1998 correspondence fails to specify the benefit being sought. Secondly, the veteran failed to file a formal claim within a year of the September 1998 correspondence, as required. 38 C.F.R. § 3.155(a). The Board notes the veteran's Statement in Support of Claim dated in July 1999. While his statement is dated in July 1999 and it clearly identifies a claim under 38 U.S.C.A. § 1151 for pulmonary fibrosis secondary to Amiodarone, there is no evidence in the file that demonstrates the statement was received by the RO in July 1999 or earlier than June 2000. In fact, the FAX cover sheet accompanying this document and several other documents dated in 2000 is dated July 25, 2000. The law presumes the regularity of administrative processes in the absence of clear evidence to the contrary, a claimant has the burden to produce such evidence. See e.g., Leonard v. Brown, 10 Vet. App. 315, 316 (1997); YT v. Brown, 9 Vet. App. 195, 199 (1996); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Based on the evidence presented, an earlier effective date for compensation under 38 U.S.C.A. § 1151 for pulmonary fibrosis secondary to Amiodarone is not warranted. The negative evidence against the claim for an earlier effective date greatly outweighs the positive evidence. Consequently, reasonable doubt is not for application. ORDER An earlier effective date for compensation under 38 U.S.C.A. § 1151 for pulmonary fibrosis secondary to Amiodarone is denied. ____________________________________________ V. L. Jordan Veterans Law Judge, 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.