Citation Nr: 0313988 Decision Date: 06/26/03 Archive Date: 06/30/03 DOCKET NO. 00-12 063 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to an effective date earlier than July 2, 1996, for service connection for trigeminal schwannoma, as secondary to Agent Orange exposure. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Mary C. Suffoletta, Counsel INTRODUCTION The veteran had active service from March 1966 to December 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 1999 decision of the RO. The veteran testified at a hearing at the RO before a Veterans Law Judge in January 2003. At the January 2003 hearing, the veteran's representative also contended that the veteran has suffered a loss of vision from surgeries performed for his service-connected disability. As that issue has not been developed for appellate review, it is referred to the RO for such further development as may be necessary. The Board also notes that the veteran, who performed service in the Republic of Vietnam, has indicated that he suffers from diabetes mellitus. This matter also is referred to the attention of the RO for appropriate action. FINDINGS OF FACT 1. On November 27, 1991, the RO received the veteran's initial claim of service connection for bilateral ankles and feet swelling, plantar warts and arthritis. 2. In a March 1992 rating decision, the RO denied the claim of service connection for bilateral ankles and feet swelling, plantar warts and arthritis; the veteran was notified of this decision, but did not appeal. 3. On July 2, 1996, the veteran presented his initial claim of service connection for a schwannoma of the left face/skull base. 4. It is not been shown that correspondence was received from the veteran prior to July 2, 1996, evidencing his intent to claim service connection for the schwannoma. CONCLUSION OF LAW An effective date earlier than July 2, 1996, for the grant of service connection for trigeminal schwannoma is not assignable. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duty to Assist and Provide Notice There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000). This law redefines the obligations of VA with respect to the duty to assist and includes an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminates the concept of a well-grounded claim and supersedes the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA cannot assist in the development of a claim that is not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, Pub. L. No. 106-475, § 7, subpart (a), 114 Stat. 2096, 2099-2100 (2000). See also Karnas v. Derwinski, 1 Vet. App. 308 (1991). To implement the provisions of the law, VA promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)). The implementing regulations are meant to define terms used in the Act, and provide guidance for carrying out the requirements of the Act. The regulations, with the exception of development in the case of attempts to reopen finally denied claims made after August 21, 2001, are not meant to bestow any new rights. 66 Fed. Reg. 45,629 (Aug. 29, 2001). Thus, the veteran is not prejudiced by the Board's initial application of the regulations to his claim. In this case the veteran's application appears to be complete. He has been informed of the information necessary to substantiate his claim via the Statement of the Case and the Supplemental Statement of the Case. There does not appear to be any relevant evidence that has not been associated with the claims folder. The record contains sufficient information to decide the claim. Accordingly, the veteran is not prejudiced thereby, because there is no factual development, which could require VA assistance or additional notice. Hence, no further assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claim. 38 U.S.C.A. §§ 5103, 5103A (West Supp. 2002). II. Effective Date for the Grant of Service Connection for Trigeminal Schwannoma, Secondary to Agent Orange Exposure A. Factual Background On November 27, 1991, the veteran submitted a claim of service connection for bilateral ankles and feet swelling, plantar warts and arthritis. In a March 1992 rating decision, the RO denied service connection for degenerative arthritis, loss of motion of the ankles, and benign growth of the skin on the basis that service medical records did not reveal treatment for any ankle, foot, plantar wart, or arthritic condition. The veteran was notified of this decision, but did not appeal. On July 2, 1996, the veteran submitted a claim for service connection for a cyst inside his mouth that was removed in 1972; a hematoma removed in 1992; and an enlarging left cheek soft-tissue mass that was revealed by MRI scan in 1994. The records submitted at that time included a report of an MRI scan of the veteran's brain in December 1991 showing a large schwannoma. Other records show that, in February 1992, the veteran underwent the following surgical procedure: Left frontotemporal craniotomy and evacuation of hematoma. The submitted records also show that, in January 1994, the veteran participated in the VA Agent Orange Registry. The results of his examination revealed a schwannoma. The veteran was advised that the examination did not automatically initiate a claim for VA benefits. In an August 1996 rating decision, the RO denied service connection for a schwannoma on the basis that the service medical records were negative for complaints, treatment or diagnosis of a mass of the left cheek area; and on the basis that the available scientific and medical evidence did not support the conclusion that the condition was associated with herbicide exposure. The veteran was notified of this decision; an appeal followed. During the course of the veteran's appeal, additional evidence of post-service treatment was submitted by the veteran. The veteran underwent a VA examination, and was diagnosed with status-post removal of recurrent benign schwannoma, left trigeminal nerve with persistent headaches and numbness, left face. A pathology report diagnosed malignancy. In a July 1998 rating decision, the RO granted service connection for a malignant peripheral nerve sheath tumor, schwannoma of the left face/skull base, secondary to Agent Orange exposure and assigned a 100 percent rating under Diagnostic Code 8540, effective from the date of receipt of the claim on July 2, 1996, and ending on June 30, 1997 (six months following completion of treatment). The rating was then to be based upon residual disability. The veteran was notified of this decision, and submitted additional evidence that the tumor remained active and malignant. In a November 1998 rating decision, the RO granted service connection for trigeminal schwannoma, secondary to Agent Orange exposure and assigned a 100 percent rating under Diagnostic Code 8540, effective on May 5, 1998. On April 12, 1999, the veteran submitted a claim for service- connected benefits at the 100 percent rate, retroactive to the date of first diagnosis. The records show that, in June 1999, the veteran still had residual disease that was active and appeared slow growing and that the probability of a cure with irradiation was low. In a July 1999 rating decision, the RO continued the 100 percent rating for the service-connected trigeminal schwannoma and assigned an earlier effective date of July 2, 1996, for the award of service connection based upon the date of receipt of the veteran's claim. The testimony of the veteran at a hearing in January 2003 was to the effect that he first submitted a claim of service connection for a schwannoma at the time of surgery in 1992 and was entitled to benefits retroactively to that date. B. Legal Analysis The veteran submitted his initial application for disability compensation, claiming service connection for bilateral ankles and feet swelling, plantar warts and arthritis on November 27, 1991. This claim was denied by the RO in March 1992. The veteran was notified of this determination and he did not appeal. Hence, the March 1992 RO rating decision became final. 38 U.S.C.A. § 7105 (West 2002). However, the veteran did not specifically claim service connection for a schwannoma in that document. There also was no correspondence received from the veteran from the time of the unappealed March 1992 RO rating decision until July 2, 1996. At that time, he submitted a claim of service connection for a cyst inside his mouth and a hematoma, both removed, and an enlarging left cheek soft- tissue mass. Any communication from the veteran may be considered an informal claim if it identifies the benefit sought. 38 C.F.R. § 3.155(a); Servello v. Derwinski, 3 Vet. App. 196 (1992). The records show that the correspondence from the veteran received in July 1996 was accepted as a claim of service connection for a malignant peripheral nerve sheath tumor, schwannoma of the left face/skull base. While an August 1996 RO rating decision denied service connection, additional evidence permitted further development and resulted in the grant of service connection for trigeminal schwannoma, secondary to Agent Orange exposure, by the RO in November 1998. The effective date of an award of direct service connection is the day following separation from active service or date entitlement arose if claim is received within one year after separation from service; otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). The effective date of an award of service connection based on new and material evidence following an earlier denial is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). As set forth hereinabove, the RO has assigned an effective date of July 2, 1996, for the award of service connection for trigeminal schwannoma. This date corresponds to the date of receipt of the veteran's claim. The veteran maintains that he is entitled to an effective date of November 27, 1991, apparently because his original claim of service connection for other disorders, as noted hereinabove, was filed at that time, or when first diagnosed and asserts that he has actively pursued service connection for a schwannoma since that time. However, the Board finds that the evidence of record does not support the veteran's contentions. While the veteran did, indeed, file his original claim of service connection in November 1991, that claim was eventually denied by the March 1992 RO rating decision. The unappealed rating decision is final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Thus, any claim of service connection submitted by the veteran prior to the unappealed March 1992 RO rating decision cannot provide a basis for an earlier effective date for the eventual award of service connection for trigeminal schwannoma. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(1)(ii) (providing that the effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later); 38 C.F.R. § 3.400(r) (providing that the effective date of an award of disability compensation for a reopened claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later). Moreover, there is no record of a claim for service connection for a schwannoma at that time or any evidence that the veteran entered a timely appeal. See 38 C.F.R. § 3.103(e) (prior to 1990); 38 C.F.R. § 3.103(a) (after 1990); 38 C.F.R. §§ 19.114, 19.192 (prior to 1991). A grave procedural error would have the effect of preventing a decision from becoming final. Hayre v. West, 188 F.3d 1327, 1333 (Fed. Cir. 1999). However, this is not demostrated in this case. The date of the original claim of service connection for a schwannoma in this case was on July 2, 1996. Accordingly, the Board finds that the grant of service connection for trigeminal schwannoma can be no earlier than that date. In sum, there is no legal basis for an effective date earlier than July 2, 1996, the date of receipt of the veteran's formal claim. The previous determinations which are final and binding are accepted as correct, in the absence of clear and unmistakable error. No such error has been shown. After consideration of all the evidence, the Board finds that the effective date of July 2, 1996, assigned by the RO for the grant of service connection for trigeminal schwannoma is proper. Hence, the claim for an effective date earlier than July 2, 1996 is denied. ORDER An effective date earlier than July 2, 1996, for the grant of service connection for trigeminal schwannoma is denied. ____________________________________________ STEPHEN L. WILKINS 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.