Citation Nr: 0509575 Decision Date: 03/31/05 Archive Date: 04/07/05 DOCKET NO. 02-00 283 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date prior to October 13, 2000, for an award of VA disability compensation under 38 U.S.C.A. § 1151. REPRESENTATION Appellant represented by: Robert P. Walsh, Attorney at Law ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active military service from January 1955 to January 1957. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2001 rating decision by the Detroit, Michigan, Regional Office (RO) of the Department of Veterans Affairs (VA) which awarded compensation pursuant to the provisions of 38 U.S.C.A. § 1151 for a colostomy due to gall bladder surgery and assigned a 100 percent rating effective October 13, 2000. By a decision issued in October 2002, the Board assigned an effective date of June 11, 1993, but no earlier, for that award. The veteran appealed that determination to the United States Court of Appeals for Veterans Claims (the Court). In December 2004, the Court issued a decision that vacated the October 2002 Board decision and remanded the appeal. Although the Court vacated the Board's decision, it appears that the Court did not intend to vacate the decision to the extent that it granted an effective date for benefits under 38 U.S.C.A. § 1151 prior to October 13, 2000, but rather, intended only to vacate that portion of the decision which denied an effective date prior to June 11, 1993. In particular, the Court directed that the Board explain why the veteran was not entitled to an effective date earlier than June 11, 1993, in light of the benefit of the doubt doctrine of 38 U.S.C.A. § 5107(b) and the permissive language of 38 C.F.R. § 3.154 discussing what VA may accept as a claim for veterans' benefits in situations involving 38 U.S.C.A. § 1151. However, since the Court's December 2004 Order vacates the Board decision in its entirety, the issue currently before the Board is the grant of an effective date prior to October 13, 2000 for a grant of benefits under 38 U.S.C.A. § 1151, and assignment of June 11, 2003 as the appropriate effective date for that grant of benefits is restated in the decision below. This appeal has been advanced on the Board's docket in accordance with 38 C.F.R. § 20.900(c) (2004). FINDINGS OF FACT 1. All relevant and available evidence necessary for an equitable disposition of the issues addressed in this decision has been obtained, and all statutory duties to the veteran have been met. 2. On January 3, 1991, the VA Regional Counsel received a claim under the Federal Tort Claims Act (FTCA) from the veteran seeking monetary damages for personal injury and a claim from the veteran's wife seeking monetary damages for loss of consortium, alleging that these damages followed the veteran's treatment at a VA Medical Center. 3. The claims submitted on January 3, 1991 were submitted under the FTCA and did not express any intent to claim a benefit governed under veterans' benefits laws. 4. By a memorandum dated May 7, 1993, a Deputy VA General Counsel notified the Director of the VA Compensation and Pension Service that the veteran and his wife had received a compromise settlement of $164,471.22 under the FTCA. 5. By a memorandum issued on June 11, 1993, the Director of the VA Compensation and Pension Service noted his determination that a claim had been filed which met the requirements under 38 C.F.R. § 3.154 for submission of a claim for benefits under 38 U.S.C.A. § 1151, but the Director did not state when the requirements under 38 C.F.R. § 3.154 were first met. 6. A formal claim for VA benefits for disability resulting from gallbladder surgery and its complications as if such disability were service-connected was received on October 13, 2000. CONCLUSIONS OF LAW 1. An effective date of June 11, 1993, but no earlier, for an award of VA benefits as if service-connected based on VA medical treatment is warranted. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.154, 3.160, 3.400(i) (2004). 2. There is no legal entitlement to an effective date prior to June 11, 1993 for an award of VA benefits based on VA medical treatment received in 1989 and thereafter. 38 U.S.C.A. §§ 1151, 5103, 5103A, 5110 (West 1991); 38 C.F.R. §§ 3.150, 3.151, 3.154, 3.155, 3.159, 3.160, 3.400 (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks an effective date prior to October 13, 2000, indeed, prior to June 11, 1993, for an award of VA disability compensation under 38 U.S.C.A. § 1151. Certain facts underlying this claim are not in dispute. The veteran, who had served in the military from January 1955 through January 1957, underwent gallbladder surgery at the VA Medical Center (VAMC) in Ann Arbor, Michigan, in March 1989. The veteran had numerous postoperative complications following that surgery, including necrotizing pancreatitis and perforation of the duodenum, necessitating numerous surgical procedures, including a permanent colostomy. On January 3, 1991, the veteran and his wife each filed a SF 95, Claim for Damage or Injury Under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2674, with the VA Office of District Counsel, Detroit, Michigan. The veteran claimed damages based on allegations of post-operative complications following the March 1989 surgery performed at a VAMC. The veteran's wife claimed damages for loss of consortium. The SF 95 submitted by the veteran and the SF 95 submitted by the veteran's wife are both devoid of reference to a claim for veterans' compensation or pension benefits or a claim to be adjudicated under laws administered by VA. In August 1991, the veteran and his wife filed their FTCA claims in the appropriate United States District Court. On February 10, 1993, the veteran and his wife entered into a settlement agreement with the government, resulting to payments to them and their attorney totaling $164,471.22. A U.S. District Court judge signed an Order of Dismissal dismissing the action on February 17, 1993. In May 1993, a Deputy Assistant General Counsel notified the Director of VA's Compensation and Pension (C&P) Service that the veteran had been awarded a settlement in the amount of $164,471.22 under the FTCA. That memorandum included the veteran's SF 95, the complaint filed with the court in August 1991, and the February 1993 stipulation of dismissal and Order to Dismiss. The May 1993 memorandum from the Deputy Assistant General Counsel to the Director, C&P Service, did not identify a specific claim filed under U.S.C.A. § 1151 that was pending. The claims file reflects that, following the receipt of this information from the Office of General Counsel, C&P Service requested the veteran's clinical records. A June 11, 1993 memorandum from the Director, C&P Service, to the Director of the Detroit, Michigan VA Regional Office reflects a determination that "review of the claims folder reveals a claim for benefits has been filed which meets the requirements of 38 C.F.R. § 3.154." The memorandum from the Director, C&P Service, did not state what document or documents was considered as meeting the requirements under 38 C.F.R. § 3.154 for a claim for benefits under 38 U.S.C.A. § 1151, and did not state what date the claim for benefits under 38 U.S.C.A. § 1151 was considered received. The Director, C&P Service, directed development of the claim for benefits under 38 U.S.C.A. § 1151. However, no further development of a claim for VA benefits was conducted until the veteran submitted an October 2000 formal claim for VA compensation for the disabilities resulting from his 1989 surgery. Laws and regulations governing the claim for an earlier effective date for benefits The provisions of 38 U.S.C.A. § 5110 and its implementing VA regulation, 38 C.F.R. § 3.400, govern the assignment of effective dates of VA benefit awards. The language of 38 U.S.C.A. § 5110 contains the following provisions: (a) Unless specifically provided otherwise . . ., the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. . . . (c) The effective date of an award of disability compensation by reason of 38 U.S.C.A. § 1151 is the date the injury or aggravation was suffered if the claim is received within one year after that date; otherwise, the effective date is the date of receipt of the claim. Regulations governing veterans' benefits provide that an application form will be furnished "upon request made in person or in writing by any person applying for benefits under the laws administered by the department of Veterans Affairs . . . ." 38 C.F.R. § 3.150. A specific claim in a form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. (Emphasis added.) 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, or his or her duly authorized representative, may be considered an informal claim. 38 C.F.R. § 3.155. 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 [the formal claim] is received within one year from the date it was sent to the claimant, it will be considered filed as the date of the receipt of an informal claim. 38 C.F.R. § 3.155(a). 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. Analysis As discussed in the vacated decision, the determination as to the effective date of the award of compensation under 38 U.S.C.A. § 1151 is controlled by the date of receipt of the original claim for benefits under that section. The RO has implicitly found that the informal claim received on October 13, 2000, constituted the earliest, indeed the only, claim of record that meets the requirements of 38 C.F.R. § 3.154, the critical element of which is that there be an expression of intent to file a claim for benefits based on VA medical treatment. No document received from the veteran before October 13, 2000, and meeting the requirements of that section is now of record in the claims file, but the June 1993 memorandum from the Director of the VA Compensation and Pension Service contains an explicit reference to a claim that was said to be in the file at that time. The reference cannot be casually dismissed as an error since it is found in a document that is not a form letter but was individually drafted to reflect the circumstances of the veteran's case. The memorandum directs that a specific course of action be undertaken in response to the filing of such a claim, namely, that the veteran's entitlement to benefits under § 1151 be developed and adjudicated. The evidence as to whether such a claim was filed before June 1993 is ambiguous given that a claim document is not of record, that the file contains no other reference to such a document, and that the veteran himself has not alleged that he ever filed a disability claim before October 2000 other than the December 1990 SF-95, received by VA in January 1991. In the absence of any means for reconciling the conflict, the Board must find that the evidence of record with respect to the question of whether a claim was in fact of record in June 1993 is in relative equipoise and that the benefit of the doubt must be resolved in favor of the veteran. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). This finding is consistent with judicial precedent establishing a presumption of regularity under which it is presumed that government officials, in this case the Director of the VA Compensation and Pension Service in preparing the memorandum, "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271 (1994). The presumption that there has been regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 311 (1999); Ashley v. Derwinski, 2 Vet. App. 307 (1992). Accordingly, in the absence of clear and unmistakable evidence that a document meeting the requirements of 38 C.F.R. § 3.154 was not of record at the time of the June 11, 1993, memorandum, the Board accepts such memorandum as the earliest evidence of the filing of a claim for compensation under 38 U.S.C.A. § 1151 and assigns that date as the effective date of the later award under that section. The veteran contends that the § 1151 compensation award should extend all the way back to March 1989, the date of his original hospitalization for gallbladder surgery, on the basis of his submission of the December 1990 application for damages under the FTCA. In determining whether the December 1990 Form SF 95 may be recognized as a claim for compensation, fundamental differences between a claim for VA compensation and a claim under the FTCA must be taken into account. The law makes a clear distinction between the two types of claims. The FTCA prescribes a uniform procedure for the handling of claims against the Government on account of damage to or loss of property, personal injury or death caused by negligent or wrongful acts or omission of a Government employee under circumstances where the United States, if a private person, would be liable under the law. 28 U.S.C.A. 1291, 1346, 1402, 2401, 2402, 2411, 2412, and 2671 through 2680; 38 C.F.R. § 14.600 (2001). A claim under the FTCA is initiated by the filing of a Form SF 95, Claim for Damages, Injury, or Death. That is the form prescribed by regulation to be used in a FTCA action. See 38 C.F.R. § 14.604 (2004). The FTCA, including 28 U.S.C.A. §§ 1291, 1346, 1402, 2401, 2402, 2411, 2412, and 2671-2680, is a statute which waives the sovereign immunity of the federal government. That statute provides a uniform procedure for handling claims against the government under a variety of circumstances where the United States, if a private person, would be liable under the law. The regulations governing claims for veterans' benefits provide that any communication showing an intent to file a claim for disability or for death benefits resulting from VA hospitalization, medical or surgical treatment under Department of Veterans Affairs laws may be accepted as a claim for benefits under 38 U.S.C.A. § 1151. However, in this case, the Regional Counsel did not interpret the veteran's FTCA claim, or the claim of the veteran's wife, as a claim under 38 U.S.C.A. § 1151. The form which the veteran and his wife used to submit their FTCA claims in January 3, 1991, the SF 95, is a standard United States Government form that may be used to submit an FTCA claim to any agency of the federal government. The SF 95 is not a VA form. Block 1 of the SF 95 requires the claimant to specify the federal agency to which the claim is to be submitted. In the facts underlying this appeal, the veteran and his wife stated that the forms were to be submitted to the Veterans Administration. The FTCA is not among the laws governing veterans' benefits, and is not administered by VA, and VA regulations so state. See 38 C.F.R. §§ 14.600-14.614. Although certain authority is delegated to specific employees of VA to act with regard to FTCA claims and FTCA matters, the VA regulations setting forth those delegations make it clear that the VA employees are acting under regulations issued by the Department of Justice in Title 28, Code of Federal Regulations, when handling with FTCA matters. The liability of the Federal Government in FTCA claims is determined in accordance with the law of the state where the act or omission bringing rise to the FTCA claim occurred. In particular, although 38 C.F.R. § 3.154 does not specifically so state, as noted above, in order to constitute a claim for veterans' benefits, as defined at 38 C.F.R. § 3.155, a communication must express an intent to apply for benefits under laws administered by VA. A claim for damages under the FTCA is not a claim for disability or death benefits under laws administered by VA. The FTCA claims submitted by the veteran and his wife in January 1991 expressed no intent to seek any benefit other than under the FTCA. Thus, to the extent that a claim for benefits under 38 U.S.C.A. § 1151 requires an intent to submit a claim under laws administered by VA, the veteran's 1991 FTCA submission does not meet that requirement. The Court, in a related context construing 38 C.F.R. § 3.151 (providing that a claim for compensation may be considered to be a claim for pension and vice versa), held, in Stewart v. Brown, 10 Vet. App. 15, 18 (1997), that VA was not obligated to accept a veteran's application for pension as a claim for service connection for post-traumatic stress disorder, stating that "[t]he Secretary is not automatically required to treat every compensation claim as also being a pension claim or vice versa." The Court indicated that the use of the word "may" in § 3.151 gave the Secretary discretion to determine the nature of a given claim. Under this analysis, VA would appear to have similar discretion in interpreting 38 C.F.R. § 3.154. The fact that the Regional Counsel did not interpret the veteran's January 1991 FTCA claim as also being a claim for veterans' benefits under 38 U.S.C.A. § 1151 is consistent with the veteran's statement that he did not know he could apply for VA benefits for the facts surrounding the FTCA claim. Moreover, the fact that the veteran's wife also submitted an FTCA claim at the same time for damages for loss of consortium, which is not compensable under laws governing veterans' benefits, made it even clearer that the veteran was seeking benefits other than veterans' benefits under laws administered by VA. Neither the veteran's January 3, 1991 claim for monetary damages under the FTCA nor the January 3, 1991 claim for monetary damages under the FTCA submitted by the veteran's wife contained an expression of intent to apply for VA compensation or constituted a claim for benefits administered by VA, and those claims were not, in and of themselves, a claim for benefits under 38 U.S.C.A. § 1151. 28 U.S.C. § 2674, 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. §§ 14.500, 14.600-617 (2004); 38 C.F.R. §§ 3.150, 3.154, 3.155 (1991). The file before the Director, C&P service, when he made the June 1993 determination that a claim for benefits had been filed which met the requirements of 38 CFR § 3.154, included documents other than the FTCA claims filed by the veteran and his wife in January 1991. The additional documents, particularly the complaint filed before the United States District Court, contain facts not included in the initial FTCA claim submitted in January 1991. Thus, it is clear from the facts and circumstances of the case that, when the Director, C&P Service, determined that a claim meeting the requirements of 38 C.F.R. § 3.154 had been submitted, that determination was not based on the SF 95 transmitting the January 1991 FTCA claim. The governing statutory and regulatory provisions do not require the Board to find that the requirements were met prior to the date of the determination by the Director, C&P Service, and the Board declines to do so. As the Court noted in its December 2004 Order, a determination under 38 C.F.R. § 3.154 as to whether a communication of some type expresses an intent to file a claim under 38 U.S.C.A. § 1151 is permissive, or discretionary, when the communication is other than a normal claim specifically referencing such benefits. See Malone v. Gober, 10 Vet. App. 539, 544 (1997) (discussing care that Secretary "may" provide, as opposed to "shall" provide, as being left to his discretion). In this case, VA made a discretionary determination on June 11, 1993, that an informal claim for benefits under 38 U.S.C.A. § 1151 had been submitted. The benefit-of-the doubt provisions of 38 U.S.C.A. § 5107(b) are not applicable to require the Secretary to make a discretionary determination that the criteria for a claim for benefits under 38 U.S.C.A. § 1151 were satisfied prior to June 11, 1993. Compare 38 C.F.R. § 3.153 ("An application on a form jointly prescribed by [VA] and [the Secretary of Health and Human Services] filed with the Social Security Administration (SSA) . . . will be considered a claim for death benefits, and to have been received [by VA] as of the date of receipt in SSA . . . .") with 38 U.S.C.A. § 3.154 ("A formal claim [for veterans' benefits] . . . or any statement in a communication showing an intent to file a claim for disability or for death benefits resulting from . . . hospitalization , medical or surgical treatment, or examination under Department of Veterans Affairs laws may be accepted as a claim [for benefits under 38 U.S.C.A. § 1151.") A permissive, or discretionary, regulation is exactly that, discretionary. The Director, C&P Service, did not indicate that the criteria for submission of a claim for benefits under 38 U.S.C.A. § 1511 were met until he assembled the evidence, including the materials provided as part of the FTCA action; there is no evidence that the criteria were, in fact, met prior to June 11, 1993. The regulatory provision which allowed VA to determine in June 1993 that an informal claim for such benefits was submitted as of June 11, 1993 does not require VA to determine that a date prior to June 11, 1993 is appropriate for the grant of benefits under 38 U.S.C.A. § 1151 at issue in this case. No statutory or regulatory provision entitles the veteran to an effective date prior to June 11, 1993, for an award of benefits under 38 U.S.C.A. § 1151. An effective date of June 11, 1993, for the grant of benefits under 38 U.S.C.A. § 1151, but no earlier date, is granted. ORDER An effective date of June 11, 1993, is granted for an award of veterans' benefits under 38 U.S.C.A. § 1151; the veteran's appeal for an effective date prior to October 13, 2000, for the award of benefits under 38 U.S.C.A. § 1151 is granted to this extent only, subject to the criteria governing the payment of monetary awards. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs