Citation Nr: 1001925 Decision Date: 01/12/10 Archive Date: 01/22/10 DOCKET NO. 08-19 918 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an earlier effective date prior to June 14, 2006 for the grant of service connection for non-Hodgkin's follicular lymphoma. REPRESENTATION Appellant represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD Tressa J. Gill, Associate Counsel INTRODUCTION The Veteran had active service from December 1963 to January 1967. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a January 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas, which granted service connection for non- Hodgkin's follicular lymphoma, effective June 14, 2006. FINDINGS OF FACT 1. Private medical records establish that non-Hodgkin's follicular lymphoma was first diagnosed in May 2006. 2. The Veteran's original claim for service connection for non-Hodgkin's follicular lymphoma clinical was received on June 14, 2006, more than one year following the Veteran's separation from service. CONCLUSION OF LAW The requirements for an effective date prior to June 14, 2006, for the award of service connection for non-Hodgkin's follicular lymphoma have not been met. 38 U.S.C.A. §§ 5101, 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(r) (p), 3.151, 3.152, 3.155, 3.157, 3.159, 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Before addressing the merits of the Veteran's claims on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in August 2006 and December 2007. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the Veteran's appeal. The Veteran contends that he began having symptoms of non- Hodgkin's follicular lymphoma in October 2005 and was diagnosed in April 2006. Thus should be entitled to an effective date of April 2006. When the RO granted service connection for non-Hodgkin's follicular lymphoma, it assigned an effective date of June 14, 2006, the date of receipt of claim. See 38 C.F.R. § 3.400. Under VA laws and regulations, except as otherwise provided, the effective date of an evaluation and award of service connection shall be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). 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). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. 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 a veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. A report of examination or hospitalization may be accepted as an informal claim for benefits, but only after there has been a prior allowance or disallowance of a formal claim for compensation. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33, 35-6 (1993). The record reflects that the Veteran filed a claim for service connection for non-Hodgkin's follicular lymphoma on a VA Form 526 (Veteran's Application for Compensation and/or Pension) which was received by the RO on June 14, 2006. The Veteran's claims file contains nothing that can be construed as a claim for compensation benefits prior to that date. Private medical records submitted in connection with the Veteran's claim include a May 2006 letter from the Veteran's private physician stated that the Veteran had been diagnosed as having non-Hodgkin's follicular lymphoma. Given this evidence, the Board finds that an effective date prior to June 14, 2006 for the grant of service connection for non-Hodgkin's follicular lymphoma is not warranted. While the record clearly reflects that the Veteran had been diagnosed with non-Hodgkin's follicular lymphoma prior to the date of the claim he filed with the RO, VA laws and regulations specifically provide that the effective date for the award of service connection will be the day following separation from service, if the claim is received within one year of separation from service, otherwise the effective date is the date of claim. The fact that the Veteran received treatment for non-Hodgkin's follicular lymphoma prior to June 14, 2006 does not warrant the assignment of an earlier effective date, as his original claim for service connection was received on that date. There is no prior claim for service connection for non-Hodgkin's follicular lymphoma. Given the above, as the Veteran did not file a formal or informal claim for service connection for non-Hodgkin's follicular lymphoma prior to June 14, 2006, he has already been given the earliest possible effective date for the award of service connection for his disability. Thus, there is no legal basis for an effective date earlier than June 14, 2006. Accordingly, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date prior to June 14, 2006 for the award of service connection for non-Hodgkin's follicular lymphoma is denied. ____________________________________________ RAYMOND F. FERNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs