Citation Nr: 1010192 Decision Date: 03/17/10 Archive Date: 03/24/10 DOCKET NO. 05-37 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to service connection for a muscle condition, including whether a substantive appeal was submitted. 2. Entitlement to an effective date prior to December 15, 2000, for grant of service connection for peripheral neuropathy of the right lower extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARINGS ON APPEAL Appellant ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active military service from December 1976 to October 1993. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Seattle, Washington, Regional Office (RO) of the Department of Veterans Affairs (VA). In a February 2002 rating decision, the RO, in relevant part, denied entitlement to service connection for peripheral neuropathy of the lower extremities. In a September 2002 rating decision, the RO, in relevant part, denied entitlement to service connection for a muscle condition. In a statement received on August 15, 2003, the Veteran expressed disagreement with the RO's decision. In that document, he noted recent correspondence was sent to the wrong address and was not received by him until September 21, 2002. In a March 2004 Decision Review Officer Conference Report, a decision review officer requested clarification from the representative regarding the Veteran's August 2003 statement and which issues were being appealed. Specifically, the decision review officer noted that the February 2002 rating decision was not received by the Veteran until September 21, 2002, and he was also issued another rating decision on September 17, 2002. In a March 2004 response, the representative clarified that, in relevant part, the Veteran was appealing the denial of entitlement to service connection for a muscle condition and peripheral neuropathy of the lower extremities. The Board notes that only one issue was recertified after the remand, which was the earlier effective date issue. The Appeals Management Center (AMC), in Washington, DC, apparently determined the Veteran did not respond to the issue in the statement of the case issued in September 2008. The Veteran's representative, in the appellate brief, however, asserts that he did. Thus, the issues on appeal are as noted on the cover sheet. The Veteran appeared at a Travel Board hearing in February 2008 before the undersigned Veterans Law Judge. He also appeared at a local hearing before an RO decision review officer in November 2007. Transcripts of the testimony at both hearings are associated with the claims file. In a June 2008 decision, the Board denied entitlement to an earlier effective date for a low back disability. The Board remanded the claims of entitlement to service connection for a muscle disorder, and entitlement to an earlier effective date for the grant of service connection for right lower extremity peripheral neuropathy to the RO, via the AMC, for additional development. The AMC/RO completed the additional development as directed, continued to deny the claims, and returned the case to the Board for further appellate review. Additional correspondence sent by the Veteran raises an informal claim of entitlement to an increased rating for his low back disorder. This issue has not been considered by the RO, much less denied and timely appealed to the Board. So, it is referred to the RO for appropriate action, as the Board does not currently have jurisdiction to consider it. See 38 C.F.R. § 20.200 (2008); Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board does not have jurisdiction of an issue not yet adjudicated by the RO). FINDINGS OF FACT 1. The Veteran submitted a timely letter which, by inference, addressed the issue in the September 2008 statement of the case. 2. While the Veteran is service connected for bilateral lower extremity peripheral neuropathy, the preponderance of the probative evidence indicates the absence of a diagnosed lower extremity muscle disorder that is distinct from the service-connected right rhabdomyalgia and bilateral lower extremity peripheral neuropathy. 3. The evidence clearly and unmistakably shows that the Veteran's initial claim of entitlement to service connection for right lower extremity peripheral neuropathy was received on December 15, 2000. There is no earlier communication in the file indicating an intent to file a claim for right lower extremity peripheral neuropathy. CONCLUSIONS OF LAW 1. The requirements for perfecting an appeal to the Board are met. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 20.200, 20.202 (2009). 2. The requirements are not met for an effective date earlier than December 15, 2000, for service connection for right lower extremity peripheral neuropathy. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5110, 5111 (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.151, 3.155, 3.159, 3.400 (2009). 3. A lower extremity muscle disorder was not incurred or aggravated in-service, and such a disorder is not caused or aggravated by a service connected disorder. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107(b) (West 2002 and Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned for the right lower extremity peripheral neuropathy, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, there is no need to discuss whether VA met the VCAA, Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126, requirements as concerns that claim. The requirements of the VCAA have also been met for the service connection claim. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in June 2004 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. A March 2006 letter provided adequate notice of how disability ratings and effective dates are assigned in the event service connection is granted. Further, following issuance of the March 2006 letter and the additional development, the claim was reviewed on a de novo basis, as shown in the September 2008 statement and supplemental statement of the case. Thus, any timing-of-notice error was cured and rendered harmless. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as in a statement of the case or supplemental statement of the case. VA has also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). He was provided a meaningful opportunity to participate in the adjudication of his claims throughout all stages of the process via the presentation pertinent evidence and testimony, and he did in fact participate. See Washington v. Nicholson, 21 Vet. App. 191 (2007). In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication, and the Board may address the merits of the appeal. The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Substantive Appeal One of the remand instructions directed by the Board was for the AMC to issue a statement of the case in response to his timely disagreement with the pertinent 2002 rating decisions on the muscle claim. 38 C.F.R. § 19.29. The statement of the case was issued in September 2008. Governing Legal Standard A substantive appeal must be filed within 60 days of the date the Agency of Original Jurisdiction mails a statement of the case, or within the remainder of the one-year period from the date of the mailing of the notification of a decision, whichever period ends later. See 38 C.F.R. § 20.302. In the instant case, being as the statement of the case was not issued until several years after the rating decision, the Veteran had 60 days to submit a substantive appeal to perfect his appeal. See 38 C.F.R. § 20.302(b). A substantive appeal consists of a properly completed VA Form 9, or correspondence that contains the necessary information. 38 C.F.R. § 20.202. The Veteran opted not to submit a Form 9 but, instead, submitted a letter received by VA in October 2008. The letter was clearly timely, but the issue is whether it meets the substantive requirements. It does not reference either the 2002 rating decision or the 2008 statement of the case, and it is addressed to the United States Court Of Appeals For Veteran's Claims. These deficiencies notwithstanding, the Veteran's representative asserts the letter should be deemed a substantive appeal, being as the Veteran discussed his claim in it. The Board finds that because the letter generally tracks with the Veteran's earlier correspondence, and because the Veteran placed a footer on each page that states, "VA Form 9," the Veteran filed a timely substantive appeal. Hence, the Board will address the issue. Service Connection Claim Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Where the determinative issue involves medical causation or a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Analysis The Veteran is currently service connected for right leg rhabdomyalgia, with muscle cramping. The September 1997 rating decision assigned Diagnostic Code 5399-8520 for the disorder. A hyphenated code is used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation. See 38 C.F.R. § 4.27. The designated code meant it was rated analogously under the rating criteria for muscle group injury and also involved peripheral nerve symptomatology. The Veteran asserts, however, that he has a separate and distinct muscle disorder of the lower extremity. Service treatment records are entirely negative for any entries related to complaints, findings, or treatment for, a muscle group injury of either lower extremity. The sole entity documented in the service treatment records is the rhabdomyalgia, which was entered in April 1993. Examination at that presentation revealed no evidence of hematoma, ecchymosis, or suffusion. The examiner rendered a diagnosis of traumatic rhabdomyalgia. The February 1993 Report Of Examination For Retirement notes the lower extremities are assessed as normal. There are no notations of any muscle group injury. Following his separation from active service, the Veteran under went Persian Gulf War Registry as well as Compensation and Pension examinations. None of those examinations revealed clinical findings of a muscle disorder to include residuals of a muscle injury. The 2004 Persian Gulf Registry noted the rhabdomyalgia was noted as having manifested as a circulatory disorder. Muscle strength was consistently 5/5. Tightness of the Achilles tendons was also noted as part of the symptomatology of the right leg rhabdomyalgia. A March 2006 spine examination noted the absence of any muscle atrophy in the lower extremities. The examiner at a VA general examination conducted a comprehensive review of the claims file at that point, and noted the absence of any muscle disorder apart from the Veteran's complaints associated with the rhabdomyalgia. The examiner noted the muscle symptoms were focal, and there was no diagnosis of a muscle group injury. The Veteran noted his severely tender Achilles tendons on his claim. The Veteran is separately service connected for his left Achilles tendon, and the tenderness of his right Achilles tendon is included in the rating of his right leg rhabdomyalgia. He is receiving additional compensation separately for peripheral neuropathy involving each lower extremity. There is no evidence of any other independent muscle group injury. He is in fact compensated for all of his symptomatology. In light of the absence of a distinct diagnosed muscle group injury separate and apart from the service-connected right leg rhabdomyalgia and left Achilles tendon, there is no factual basis for service connection of another muscle group injury. 38 C.F.R. § 3.303. The symptomatology currently manifested in the Veteran's lower extremities is already service connected, to include peripheral neuropathy. The benefit sought on appeal is denied. Earlier Effective Date Governing Law and Regulation 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 an original claim for service connection "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). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. With a claim for service connection, the effective date of an award will be (1) the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service or (2) the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Where service connection is allowed on the basis of new and material evidence after a prior final disallowance, the effective date is the date of receipt of a new claim or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.400(q)(2), (r). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). 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. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 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 the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). With regard to the terms "application" or "claim", the Board notes that once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). Title 38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. Case law provides that, 38 C.F.R. § 3.157 only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Merely seeking treatment, does not establish a claim, to include an informal claim, for service connection. Further, the mere presence of a disability does not establish an intent on the part of the Veteran to seek service connection for that condition. See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). Thus, any prior VA medical records are not interpreted as an informal claim. Stated differently, merely seeking treatment does not establish a claim, to include an informal claim, for service connection. Analysis Historically, an August 2004 rating decision granted service connection for right lower extremity peripheral neuropathy effective July 10, 2000. The rating decision determined the neuropathy did not manifest to a compensable degree and combined it with the existing right leg rhabdomyalgia. The Board's July 2008 remand instructed the RO to separate the disorders so that the Veteran was rated for all of his symptomatology. See Esteban v. Brown, 6 Vet. App. 259 (1994) (separate ratings are available for different symptoms of a disability). The September 2008 rating decision granted service connection for right lower extremity peripheral neuropathy with an initial evaluation of 10 percent, effective December 15, 2000. It also determined the August 2004 rating decision contained clear and unmistakable error, in that the effective date for peripheral neuropathy should be December 15, 2000, the date the Veteran's claim was received, rather than July 10, 2000. The Veteran, of course, disputes that determination. A September 1997 rating decision denied service connection for peripheral neuropathy. An RO letter, also dated in September 1997, notified the Veteran of the decision but, he did not appeal. In the absence of an appeal, the claim is final and binding on the Veteran. 38 U.S.C.A. § 7105. There is no record in the claims file of any document that may be deemed a formal or informal claim during the period between September 1997 and December 15, 2000. As set forth earlier in this discussion, the effective date for service connection after a claim is reopened is the date of receipt of the claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). On July 10, 2000, the RO received the Veteran's claim for an increased rating for his "service-connected disability of circulation." The only disorder that reasonably fit that description was the right leg rhabdomyalgia. That document did not address the issue of a new claim for service connection for peripheral neuropathy in any way. Then, on December 15, 2000, the RO received the Veteran's claim for peripheral neuropathy secondary to rhabdomyalgia. This was the claim that eventually resulted in the allowance of service connection for the right lower extremity peripheral neuropathy. Thus, in as much as the December 15, 2000, claim was the first effort to reopen the September 1997 denial of peripheral neuropathy, that is the earliest effective date allowable. The Veteran's entitlement to the benefit, however, did not arise until the medical examination that established the medical linkage between his symptomatology and his active service, which was in 2004. Therefore, according to the applicable regulation, the effective date of the Veteran's allowance should be during 2004. The September 2008 rating decision, however, assigned December 15, 2000, the date the claim was received, as the effective date. Thus, the Veteran has already received an assigned effective date far more generous than what the regulations allow. The Board will not disturb this benefit, but will affirm the effective date assigned, which is December 15, 2000. 38 C.F.R. § 3.400(r). The Veteran has essentially asserted that the effective date should be the date following his separation from service because that is when the disability initially arose. He also argues that the various reports of examination referenced his neuropathy. As for the former assertion, even assuming that to be correct, however, the Veteran still has the burden of filing a claim with VA in order to be awarded any benefits. See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). As discussed above, a review of the file reveals that he did not file any document that may be construed as a claim for disability compensation related to his peripheral neuropathy until December 15, 2000. The latter assertion also fails. As noted in the applicable legal standard, above, reports of medical examination may constitute an informal claim solely for disorders for which service connection has already attached. They may not serve as informal claims for service connection. 38 C.F.R. § 3.157. Thus, the Veteran is not entitlement to an earlier effective date. 38 C.F.R. § 3.400. The benefit sought on appeal is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER Entitlement to service connection for a muscle condition is denied. Entitlement to an effective date prior to December 15, 2000, for the grant of service connection for peripheral neuropathy of the right lower extremity is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs