Citation Nr: 0811142 Decision Date: 04/04/08 Archive Date: 04/14/08 DOCKET NO. 05-03 371 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than May 23, 2002, for the award of service connection for fibromyalgia. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Kroes, Associate Counsel INTRODUCTION The veteran served on active duty from September 1985 to September 1986. This case comes before the Board of Veterans' Appeals (Board) on appeal from the Oakland, California, Department of Veterans Affairs (VA) Regional Office (RO). An October 2003 rating decision granted entitlement to service connection for fibromyalgia, evaluated as 40 percent disabling and effective May 30, 2003. The veteran appealed the effective date assigned and an earlier effective date of May 23, 2002 was assigned by the December 2004 statement of the case. The veteran contends that the effective date should be January 10, 2002, and has not withdrawn his appeal as to this issue. Thus, the Board finds that it is still properly on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and such a claim remains in controversy where less than the maximum available benefit is awarded). The veteran requested a personal hearing before a Member of the Board; however, he withdrew that request in a January 2006 signed statement. The Board finds no hearing request pending. FINDING OF FACT On January 10, 2002, the veteran's representative most likely submitted a claim for entitlement to service connection for fibromyalgia. CONCLUSION OF LAW With resolution of reasonable doubt in the appellant's favor, the legal criteria for an effective date of January 10, 2002, but no earlier, for the grant of service connection for fibromyalgia have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). In this case, the veteran argues that he is entitled to an effective date of January 10, 2002, for the award of service connection for fibromyalgia. As an effective date of January 10, 2002 is being awarded by this decision, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. The veteran asserts that his claim for service connection for fibromyalgia was submitted to the RO on January 10, 2002, and that date should be the effective date for the award of service connection. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection and a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 2002). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on a reopened claim will be, "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The veteran submitted a claim for service connection for fibromyalgia; the claim was granted by an October 2003 rating decision. The effective date for the award of service connection was set as May 30, 2003, based on an RO date stamp on a claim and medical evidence submitted by the veteran's representative. The veteran appealed the assigned effective date, and asserted that the claim had originally been submitted to the RO on January 10, 2002. With the evidence submitted on May 30, 2003, the veteran's representative also enclosed a statement which noted that the claim was a fax copy of a claim originally submitted by the representative on January 10, 2002. The representative also stated that he found drop filled a submission of 3 pages of records which had been submitted on May 23, 2002, in support of this claim. A December 2004 statement of the case changed the effective date for the award of service connection for fibromyalgia to May 23, 2002, because medical evidence relevant to the claim had been stamped as received at the RO on that date. The cover sheet for this submittal of evidence stated that the medical evidence was in support of "EP020." The Board associated "EP" with meaning "End Product" and "020" as indicating a non-original claim. Essentially, the cover sheet indicates that on May 23, 2002, the veteran was submitting evidence in support of his claim. The copy of the veteran's claim, submitted by the veteran's representative in May 2003, shows a date of January 4, 2002 next to the veteran's signature. The copy of the fax cover sheet with that claim shows that the fax was sent by the County of Sacramento Department of Human Assistance, Veterans Service Office, and was stamped as received by The American Legion on January 10, 2002. The fax cover sheet is dated January 7, 2002. Below is a recreation of another stamp on the fax cover sheet: SUBMITTED TO THE VETERANS ADMINISTRATION OAKLAND REGIONAL OFFICE THE AMERICAN LEGION REHABILITATION-CALIFORNIA BY __________DATE_________ The date written in on this stamp is "1-10-02" and there appear to be initials in the "By" category. The veteran's claim and supporting evidence are not date stamped by the RO prior to May 23, 2002. The veteran's actual claim is first date stamped by the RO in May 2003. On the other hand, the veteran submitted evidence in support of this claim much earlier, on May 23, 2002. It would not make sense for the veteran to submit evidence in support of a claim that he never submitted. However, this does not show that the veteran's claim was actually submitted to VA - just that he believed that it had been submitted. A stamp from the veteran's representative indicates that the representative submitted the claim to the RO on January 10, 2002. Somewhere along the way the veteran's claim was misplaced. What is unclear is if the claim was misplaced prior to being submitted to the RO, or if it was misplaced after it had been received by the RO. The Board is of the opinion that the stamp by the veteran's representative indicating that the claim was submitted to the RO on January 10, 2002, and the veteran's submission of evidence in support of a claim on May 23, 2002, at least puts the evidence into equipoise. As such, with reasonable doubt resolved in favor of the veteran, an effective date of January 10, 2002, but no earlier, for the grant of service connection for fibromyalgia is granted. (CONTINUED ON NEXT PAGE) ORDER An effective date of January 10, 2002, but no earlier, for the grant of service connection for fibromyalgia is granted. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs