Citation Nr: 0812009 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 03-26 199 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to an effective date earlier than January 25, 1993, for the award of service connection for dilated cardiomyopathy with congestive heart failure. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a veteran who served on active duty from November 1964 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2002 rating decision by the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). FINDINGS OF FACT 1. All relevant evidence necessary for the equitable disposition of the issue on appeal was obtained. 2. The veteran's original claim for entitlement to service connection was received by VA on January 25, 1993. 3. VA rating action in April 2002 established service connection effective from January 25, 1993. 4. The evidence does not demonstrate the veteran was incapacitated because of a permanent and total disability such that it prevent his filing a claim for VA benefits prior to January 25, 1993; there is no evidence of any earlier unadjudicated formal or informal claims. CONCLUSION OF LAW The criteria for an effective date earlier than January 25, 1993, for the award of service connection for dilated cardiomyopathy with congestive heart failure have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2006); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (hereinafter "the Court") have been fulfilled by information provided to the veteran by correspondence dated in December 2005. That letter notified the veteran of VA's responsibilities in obtaining information to assist in completing his claim, identified the veteran's duties in obtaining information and evidence to substantiate his claim, and requested that he send in any evidence in his possession that would support his claim. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to this matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claim would not cause any prejudice to the appellant. Earlier Effective Date Claim Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of the receipt of the claim, or the date entitlement arose, whichever is later. In the case of direct service connection, the day following separation from active service or date entitlement arose, if claim is received within 1 year after separation from service; otherwise date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(1)(1992). Once a formal claim has been allowed or disallowed because the disability was not compensable in degree the receipt of VA examination or hospitalization reports will be accepted as an informal claim for increased benefits or an informal claim to reopen. 38 C.F.R. § 3.157(b) (2007). The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. See Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C.A. § 7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). The Court has held, however, that the Board is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2006); 38 C.F.R. § 3.151(a) (2007). VA regulations also provide that the terms claim and application mean 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) (2007). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). 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, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris 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 1 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. 38 C.F.R. § 3.155(a) (2007). In this case, the evidence shows that the veteran was admitted to a private hospital emergency room on June 19, 1992, with complaints including a reaction to medication and chest pains. Records show he was evaluated by a physician and was noted to be alert and oriented. He was subsequently transferred to a VA hospital later that same date. VA medical records show he was alert and oriented times three and in no apparent distress when he was received at 3:20 PM on June 19, 1992. The diagnoses at that time included possible unstable angina and hypertension. The veteran underwent cardiac catheterization on June 24, 1992. The hospital discharge diagnoses included hypertension, cardiomyopathy, hypercholesterolemia, and unstable angina. Records show he was discharged to home on June 25, 1992, and he was ambulatory, oriented, and free of pain. In March 2002, Board of Veterans' Appeals awarded the veteran service connection for residuals of tonsillitis to include dilated cardiomyopathy with congestive heart failure. In the April 2002 rating decision establishing service connection the RO assigned a 100 percent disability rating effective from January 25, 1993, for dilated cardiomyopathy with congestive heart failure as a residual of tonsillitis. It was noted that the total evaluation was assigned because the history of ejection fraction deficiency was documented and the diagnosis of congestive heart failure was well established since the veteran's hospital admission in June 1992. The decision granted entitlement to Dependents' Educational Assistance and noted the disability was permanent in nature. In statements in support of his claim the veteran asserted that an effective date from June 19, 1992, was warranted based upon his VA hospitalization. He contended, in essence, that his hospital admission should be considered as an informal claim for service connection benefits or, alternatively, that the earlier date is warranted because he was incapacitated from filing a claim prior to January 25, 1993, because of his permanent and total disability. A careful reading of 38 C.F.R. § 3.400(b)(ii)(B) addresses this circumstance; however, this applies to disability pension benefits and not to disability compensation benefits, a greater benefit, which the veteran was awarded. Based upon the evidence of record, the Board finds that an effective date earlier than January 25, 1993, for the award of service connection for dilated cardiomyopathy with congestive heart failure is not warranted. There is no evidence of any earlier denial of a claim for a heart disorder and no evidence of any earlier unadjudicated formal or informal claim. The available evidence includes no evidence of any intent to file a VA compensation during VA hospital treatment in June 1992. The Board also finds that although the RO noted in the April 2002 rating decision that the veteran's service-connected disability was permanent and total since his hospital admission in June 1992, there is no probative evidence demonstrating that he was incapacitated to the point that he was preventing from filing a disability pension claim (a lesser benefit) prior to January 25, 1993. The veteran is presently receiving an effective date from the date of VA receipt of his original claim for compensation benefits. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence is against the claim. ORDER Entitlement to an effective date earlier than January 25, 1993, for the award of service connection for dilated cardiomyopathy with congestive heart failure is denied. ____________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs