Citation Nr: 1122569 Decision Date: 06/10/11 Archive Date: 06/20/11 DOCKET NO. 09-47 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an effective date earlier than April 24, 2006 for the award of service connection for hidradenitis suppurativa. ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran served on active duty from February 1962 to February 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. On April 24, 2006, the Veteran filed an original claim for service connection for hidradenitis suppurativa, and in a February 2007 rating decision, the RO granted service connection for such disorder, effective April 24, 2006. 2. The competent evidence of record reflects that the Veteran did not file either a formal or informal claim for service connection for hidradenitis suppurativa at any time prior to April 24, 2006. CONCLUSION OF LAW The criteria for an effective date earlier than April 24, 2006 for the award of service connection for hidradenitis suppurativa have not been met. 38 U.S.C.A. §§ 5101, 5107, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (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 (West 2002 & Supp. 2010)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2010). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a March 2008 letter, the RO advised the Veteran of what information and evidence is needed to substantiate his claim for an earlier effective date, as well as what information and evidence must be submitted by him and what information and evidence will be obtained by VA. This letter also advised the Veteran of how effective dates are assigned, and the type of evidence which impacts that determination. However, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2008). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA examination reports, private treatment records, and lay evidence. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Moreover, the nature of the claim for an earlier effective date is based upon evidence already contained in the claims file, and the Veteran's argument centers around evidence in the claims file. Any error in the sequence of events or content of the notice is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Generally, a specific claim in the form prescribed by VA must be filed in order for VA benefits to be paid. 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151, 3.160 (2010). 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) (West Supp. 2010); 38 C.F.R. § 3.151(a) (2010). The term "claim" or "application" means 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) (2010). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, 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 generis may be considered an informal claim. Such an informal claim must identify the benefits 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 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. 38 C.F.R. § 3.155(a) (2010). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2010). Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2) (2010). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a veteran shall be the day following the date of discharge or release. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2) (2010); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). The Board has reviewed all of 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 the Veteran 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) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that the effective date for the grant of service connection for hidradenitis suppurativa should be in 1982. He argues that he was already suffering from hidradenitis suppurativa when he underwent a VA examination in May 1982 shortly after his discharge from service. Furthermore, he alleges that he did not file a claim for service connection for hidradenitis suppurativa back in 1982 only because he was unaware of the name or nature of such disability at that time. The Veteran was discharged from active service on February 28, 1982. On March 5, 1982, he filed an original claim for service connection for migraine headaches, fungus on the right hand and on both feet, and severe calluses on the balls of both feet. The Veteran underwent a VA general medical examination in May 1982, at which time it was noted in pertinent part that he had maceration with well defined scaling in the inguinal folds and the natal clef. He was diagnosed in pertinent part with tinea pedis, manus, unguis et cruris. Thereafter, in a July 1982 rating decision, the RO granted service connection for tinea pedis, manus, unguis et cruris, effective March 1, 1982. No evidence or correspondence which can be construed as either a formal or informal claim for service connection for hidradenitis suppurativa was filed at any time prior to April 24, 2006, as the record reflects that the Veteran did not submit any statements prior to April 24, 2006 which mentioned his hidradenitis suppurativa specifically or any intent to claim benefits for such disability. The Board notes that the skin condition referred to by the Veteran on a June 1988 VA Form 9 is the condition which he was already receiving service connection for at that time (namely, tinea pedis, manus, unguis et cruris), as this June 1988 VA Form 9 was serving to perfect an appeal of the rating assigned for that condition. On April 24, 2006, the Veteran filed an original claim for service connection for hidradenitis suppurativa. Thereafter, he submitted private treatment records dating from September 1997 through January 2000 which showed treatment for abscesses in his groin and buttock areas, including a January 2000 private treatment record which diagnosed the Veteran with hidradenitis suppurativa and noted that numerous abscesses in his groin had been incised and drained over the past 20 to 30 years. The Veteran underwent VA skin examinations in June 2006 and January 2007; on both occasions, he was diagnosed with hidradenitis suppurativa, and it was noted that his service treatment records showed episodic infections of hidradenitis suppurativa beginning in August 1962. In a February 2007 rating decision, the RO granted service connection for hidradenitis suppurativa, effective April 24, 2006. This February 2007 rating decision also determined that service connection should remain in effect uninterrupted since March 1, 1982 for the separate disability of tinea pedis, manus, unguis, cruris, and pedis. While the Veteran argues that his effective date should be based on the date entitlement arose for service connection for hidradenitis suppurativa (i.e., in 1982), the competent evidence of record reflects that the Veteran did not file either a formal or informal claim for service connection for hidradenitis suppurativa at any time until April 24, 2006. There is no correspondence in the record received prior to April 24, 2006 indicating a request for compensation benefits for hidradenitis suppurativa specifically. He has acknowledged that he did not file a claim for that disorder prior to April 2006, and has stated that the condition is a distinct disorder unrelated to his service connected tinea. It was not until after he filed his April 24, 2006 claim that the Veteran submitted treatment records which showed a current diagnosis of hidradenitis suppurativa. Indeed, VA examinations in 1982, 1984, and 1987 only reflected the tinea diagnoses, with no mention of hidradenitis suppurativa. Therefore, according to 38 U.S.C.A. § 5110(a) (West 2002) and 38 C.F.R. § 3.400 (2010), April 24, 2006 is the appropriate effective date for the grant of service connection for hidradenitis suppurativa; the date of claim controls as it is later than the date entitlement arose. As a result, the Veteran is not entitled to an effective date earlier than April 24, 2006 for hidradenitis suppurativa. In summary, the law provides that the earliest effective date that may be assigned for the grant of service connection for the Veteran's hidradenitis suppurativa is the date of receipt of his original claim for such disability on April 24, 2006. See 38 U.S.C.A. § 5110(a) (West 2002); see also 38 C.F.R. § 3.400 (2010). Consequently, an effective date earlier than April 24, 2006 is not warranted. In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an effective date earlier than April 24, 2006 for the award of service connection for hidradenitis suppurativa is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs