Citation Nr: 1208994 Decision Date: 03/08/12 Archive Date: 03/19/12 DOCKET NO. 04-42 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an effective date earlier than May 7, 1998, for the grant of service connection for narcolepsy. REPRESENTATION The Veteran represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. D. Jackson, Counsel INTRODUCTION The Veteran had active military service from October 1973 to March 1974. This appeal to the Board of Veterans' Appeals (Board) is from a July 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In support of his claim, the Veteran testified at hearings at the RO before a Decision Review Officer (DRO) in August 2004 and before the undersigned Veterans Law Judge of the Board (Travel Board hearing) in August 2007. The Board subsequently issued a decision in October 2007 denying the claim, and the Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court/CAVC). In a January 2011 memorandum decision, the Court vacated the Board's decision and remanded the claim to the Board for further development and readjudication consistent with the Court's Order. And in furtherance of this, the Board in turn remanded the claim to the RO via the Appeals Management Center (AMC) in June 2011 to issue a corrective Veterans Claims Assistance Act (VCAA) notice letter. The Veteran resultantly was provided this corrective VCAA notice letter in October 2011. After giving him time to respond to that corrective VCAA notice letter, and not receiving a response, the RO issued a supplemental statement of the case (SSOC) on December 20, 2011 continuing to deny his claim. The SSOC also indicated, however, that he had 30 additional days to respond to that SSOC, and he indicated when responding to that SSOC on December 28, 2011 that "yes", he had more information or evidence to submit in support of his appeal. VA therefore waited the full 30 days to give him a chance to submit this information or evidence, albeit with the understanding that if he did not within this 30-day grace period his case would be returned to the Board. On February 2, 2012, so upon expiration of that allotted 30 days, the RO sent the Veteran a letter notifying him that his appeal consequently was being returned to the Board for disposition. The Board also sent him a letter one week later, on February 9, 2012, indicating it had received his VA claims file and that his appeal was being returned to the Board's docket. Shortly thereafter, on February 21, 2012, the Board received the additional evidence he had mentioned he would submit. Ordinarily, the receipt of this additional evidence following recertification of his appeal to the Board would require him to waive his right to have the RO initially consider this additional evidence - rather than the Board - and address it in another SSOC. See 38 C.F.R. §§ 19.31, 19.37, 20.800, 20.1304 (2011). But this evidence is mostly, if not entirely, duplicative of evidence already in the file that has been previously considered in prior adjudications. Also, one piece of it contains a date stamp of January 20, 2012, denoting the RO received it within the required 30 days of issuance of the December 20, 2011 SSOC. So a waiver is not needed in any event. The Board therefore is proceeding immediately with the readjudication of the claim. FINDINGS OF FACT 1. The Veteran served on active duty in the military from October 1973 to March 1974, and the same month as his discharge from service he filed his initial application for VA compensation or pension benefits (VA Form 21-526e) at the RO in Detroit, Michigan, the state where he was residing at the time, describing the nature of the sickness, diseases or injuries for which his claim was made as "Legs - Have aches and pains due to fall during basic [training]. Nov 73". 2. In another portion of that same application, when referencing someone who knew of his claimed disability since its inception, he again referred to it as "Aches in Legs", also again indicating he had experienced them since November 1973. 3. Later in March 1974, in response to that initial claim, the RO requested a VA compensation examination (see VA Forms 21-2507), citing the claimed disabilities as for residuals of a left upper thigh injury and left heel tendon condition, but a note on these forms also indicates the examination - although apparently scheduled for May 10, 1974 - was canceled after he failed to report for it. 4. The RO in Detroit resultantly sent the Veteran a letter on May 16, 1974 indicating that initial claim was denied because he had failed to report for his scheduled examination. That letter further indicated that, no further action would be taken on his claim unless he informed the RO of his willingness to report for examination by signing the statement below on that form and returning the letter to the RO. 5. The following month, so in June 1974, the Veteran returned the letter with the bottom portion of that form completed - indicating he was willing to report for an examination and listing a different contact address (his prior address was in Saginaw, Michigan, whereas his new address was in Longview, Texas). 6. In an accompanying written statement, the Veteran wrote that he would like to advise on relocating his discharge papers. He said that, before leaving Ft. Gordon his papers, he believed, were stolen, and that so far they had not been mailed to him. So if there was any immediate action that he may take in this case, he asked to please inform him. 7. In July 1974, because of his change of address and relocation to another state, the RO in Detroit transferred his file to the RO in Waco, Texas, so apparently to the RO that now had jurisdiction over his claim. See VA Form 07-7216a. This other RO, however, never rescheduled his examination. 8. Many years later, in January 1998, the Veteran submitted a statement in support of claim (VA Form 21-4138) to the RO in Houston advising that his permanent residence was in Houston and, consequently, asking that his claims file be transferred from the RO in Detroit to the RO in Houston. 9. On that same day in January 1998, he also submitted correspondence from the National Personnel Records Center (NPRC), a military records respository, indicating he had filed a claim at separation (so referring to his 1974 claim), and that all of his medical records were sent to the VARO near his home (in Detroit, Michigan). 10. He first filed a claim for service connection specifically for narcolepsy on May 7, 1998, alleging in his claim application (VA Form 21-526) that he had "always had it" but that he was "not treated for it in the military." He indicated the same for his insomnia, which he also claimed in addition to posttraumatic stress disorder (PTSD). In another portion of that claim application, he indicated he had been treated for the narcolepsy, insomnia, and PTSD since 1996 by Dr. F. G. at MacGregor Clinic on Greenbiar in Houston. 11. Also in May 1998, he submitted another statement in support of claim (VA Form 21-4138), requesting copies of his medical records in his file (military and VA). He also indicated he had changed his name from [redacted] to [redacted]. He also had crossed out the former, in favor of the latter, on his claim application. 12. The RO in Houston initially denied his claim for narcolepsy, but he appealed that denial and service connection subsequently was granted for this disability in a February 2003 rating decision, retroactively effective from May 7, 1998, on the premise that was the date of receipt of his initial claim specifically for this condition. 13. The wording of the initial claim in March 1974, even read liberally, was not equivalent or tantamount to a claim for narcolepsy as there was no express or even implied mention of a belief of entitlement to VA compensation or other benefits for this specific condition or any likely residuals of it. 14. It was only after the later receipt of the claim on May 7, 1998, specifically for this condition, when medical and other evidence eventually was received by VA not only confirming he had narcolepsy, so establishing he had this condition, but also as importantly associating it with events that had occurred during his military service to establish the required causation between this disability and his service. CONCLUSION OF LAW The criteria are not met for an effective date earlier than May 7, 1998, for the grant of service connection for the narcolepsy. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.105, 3.400 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist As provided by the VCAA, VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). This appeal dates back many years and arose from the Veteran's disagreement with the effective date assigned following the granting of service connection for his narcolepsy. So the claim, as it arose in its initial context, has been substantiated - indeed granted. Therefore, additional VCAA notice is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel has explained that no additional VCAA notice is required in this circumstance for such a "downstream" issue, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Board is bound by the General Counsel's opinion, as the Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c). Instead of issuing an additional VCAA notice letter in this situation concerning the downstream earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. And since the RO issued this required SOC in October 2004 and supplemental SOCs (SSOCs) in April 2007 and December 2011 addressing this downstream earlier-effective-date claim, which included citations to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an effective date earlier than May 7, 1998, no further notice is required. See also Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). Also, as the Court instructed when vacating the Board's prior decision, and resultant reason for the Board's subsequent June 2011 remand, a corrective VCAA notice was issued in October 2011 indicating the requirements for establishing entitlement to an effective date earlier than May 7, 1998 (not March 20, 1974) for the grant of service connection for the narcolepsy, such as by showing there had been an earlier claim for this condition that had remained pending during the many years since, including because a prior decision on this claim had not become final and binding, or was not abandoned, or because some other exception to finality (res judicata) applies, such as by collaterally attacking the prior decision and showing it involved clear and unmistakable error (CUE). In providing this necessary notice in October 2011, there was compliance with this June 2011 remand directive. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (indicating a Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board itself commits error in failing to ensure compliance). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (additionally discussing the notion of "substantial" compliance, even if not "exact" compliance). Consequently, the Board finds that all necessary development of this downstream earlier-effective-date claim has been accomplished, and therefore the Board may proceed with the readjudication of this claim. II. Whether the Veteran is Entitled to an Earlier Effective Date If the Veteran filed a claim for service connection for the condition at issue within one year of his separation from service, then his effective date for the grant of compensation benefits for the condition may be retroactive to the day following his discharge from service. In essence, this obligates VA to compensate him for the disability from the point when the service department's obligation ended, i.e., from the point when he transitioned from military to civilian life. But if he did not file a claim for this condition within one year after service, the earliest effective date he may receive is when he eventually filed his claim. And if there was a decision denying his claim, which he did not appeal or abandoned, then the earliest effective date that he may receive (if his claim is later granted on the basis of new and material evidence) is the date of receipt of his petition to reopen the claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2)(i), (r), (q)(1)(ii). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim that became final and binding, he has to collaterally attack the prior decision and show there was clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Else, there is no basis for a free-standing earlier effective date claim from matters addressed in a prior, final and binding, rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Court in Rudd noted that any other result would vitiate the rule of finality. When such a free-standing claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. But the dismissal should be without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393, (2006). In Sears the Court explained that the term "new claim," as it appears in 38 C.F.R. § 3.400(q)(1)(ii), means a claim to reopen a previously and finally denied claim. See also Livesay v. Principi, 15 Vet. App. 165, 172 (2001) (holding that the plain meaning of § 5110 to be that "the phrase 'application therefore' means the application which resulted in the award of disability compensation that it to be assigned an effective dated under section 5110."); Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran "first sought to reopen his claim"); Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). The term "application" is used interchangeably with "claim" and 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). But a claim is not considered actually filed until VA receives it. 38 C.F.R. § 3.1(r). Any communication or action indicating 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 juris may be considered an informal claim. 38 C.F.R. § 3.155. An informal claim must identify the benefit sought, however, though need not be specific. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (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. Also, according to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of informal claim. 38 C.F.R. § 3.157(b). Turning now to the facts of this particular case at hand. The Veteran's military service ended in March 1974 and he immediately filed a claim for VA compensation benefits - for what he described as aches and pains in his legs. And although he now contends otherwise, there was no mention of narcolepsy or anything of that sort - like spontaneously falling asleep and consequently injuring his legs, so the reason he was experiencing that claimed leg pain or those aches. When on his claim application specifically describing the nature of the sickness, diseases or injuries for which his claim was made, he wrote "Legs - Have aches and pains due to fall during basic [training]. Nov 73". In another portion of that same application, when referencing someone who knew of his claimed disability since its inception, he again referred to it as "Aches in Legs", also again indicating he had experienced them since November 1973. His service treatment records (STRs) reflect problems with sleeping and staying awake during the day, and they also confirm that in November 1973 he was indeed treated for a fall on his left thigh, but there was never mention or even suspicion of a correlation between the two, that is, of that leg injury being the result or consequence of what we now know is narcolepsy. 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 VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Later in March 1974, in response to that initial claim, the RO in Detroit requested a VA compensation examination (see VA Forms 21-2507), citing the claimed disabilities as for residuals of a left upper thigh injury and left heel tendon condition. But a note on these forms also indicates the examination, although apparently scheduled for May 10, 1974, was canceled after the Veteran failed to report for it. The RO resultantly sent him a letter on May 16, 1974 indicating that initial claim was denied because he had failed to report for his scheduled examination. That letter further indicated that, no further action would be taken on his claim unless he informed the RO of his willingness to report for examination by signing the statement below on that form and returning the letter to the RO. The following month, so in June 1974, the Veteran returned the letter with the bottom portion of that form completed - indicating he was willing to report for an examination and listing a different contact address (his prior address was in Saginaw, Michigan, whereas his new address was in Longview, Texas). In an accompanying written statement, he wrote that he would like to advise on relocating his discharge papers. He said that, before leaving Ft. Gordon his papers, he believed, were stolen, and that so far they had not been mailed to him. So if there was any immediate action that he may take in this case, he asked to please inform him. In July 1974, because of his change of address and relocation to another state, the RO in Detroit transferred his file to the RO in Waco, Texas, so apparently to the RO that now had jurisdiction over his claim. See VA Form 07-7216a. This other RO, however, never rescheduled his examination; nothing in the file indicates or suggests why this was not done (e.g., mere oversight or whatever). Under certain circumstances, a statutory filing period may be equitably tolled due to conduct of VA. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998). Equitable tolling, as an example, is available where the claimant has actively pursued his judicial remedies but has filed a defective pleading during the statutory period, or where a claimant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Jaquay v. Principi, 304 F.3d 1276, 1282-83 ( Fed. Cir. 2002). The Federal Circuit Court specifically held in Bailey that equitable tolling in the paternalistic Veterans' benefits context does not require misconduct - such as trickery; however, Bailey does require the Appellant to have been "misled by the conduct of his adversary into allowing the filing deadline to pass." Bailey, 160 F.3d at 1365; see also (William) Smith v. West, 13 Vet. App. 525 (2000). There must be a cause and effect, i.e., the complainant relied to his/her detriment on something that VA did or should have but did not do. See Cintron v. West, 13 Vet. App. 251, 257 (1999), citing Bailey, 160 F.3d at 1364. Generally, a rating decision does not become final and binding until written notification of the decision is issued to the claimant. See 38 U.S.C.A. § 5104(a); 38 C.F.R. §§ 3.103, 3.104(a), 3.160(d), 19.25. See also Best v. Brown, 10 Vet. App. 322, 325 (1997) (for a VA decision to become final and binding on a Veteran, he must first receive written notification of the decision); see, as well, Tablazon v. Brown, 8 Vet. App. 359, 361 (1995), citing Hauck v. Brown, 6 Vet. App. 518 (1994) (where an appellant never received notification of a decision denying his claim, the usual one-year limit for timely appealing the decision does not begin to accrue ("run"); instead it is tolled ("stopped")). The written notification also must explain the reasons and bases for the decision and apprise the Veteran of his procedural and appellate rights, in the event he disagrees with the decision and elects to appeal it. During the August 2007 hearing before the Board, the undersigned as presiding judge explained the reason the Veteran had not received an earlier effective date, pointing out that the RO had concluded that he had not filed an earlier claim (meaning prior to May 7, 1998), specifically for narcolepsy or, for that matter, for any symptoms or condition that plausibly could have been suggestive of narcolepsy. Two days after the hearing, in response to this information as to what was needed to support this claim, the Veteran returned to the RO and made further argument as to why he believes he deserves an earlier effective date. Among other things, he pointed out that he routinely fell asleep while in service, such as when standing guard or in line for training or marching drills, but that he did not know what was causing this. He added that for a long time he simply did not know what narcolepsy was or that he even had it, indeed, not until the initial diagnosis in 1994 or thereabouts, so did not know what to call it when filing his initial claim for VA compensation benefits shortly after service, in March 1974. Hence, when completing his initial claim application in March 1974, he simply reported what he believed to be the reason for him suddenly falling asleep - aches and pains in his legs resulting in them giving out and him falling without warning. And he said that he did not receive notice of that initial decision denying his claim because in the meantime he had moved, so that decision never became final and binding on him. There is a presumption of administrative regularity under which it is presumed that government officials "have properly discharged their official duties." United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926). VA need only mail notice or other correspondence to the Veteran's last address of record for this presumption to attach. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). This presumption of regularity in the administrative process may be rebutted only by "clear evidence to the contrary." Schoolman v. West, 12 Vet. App. 307, 310 (1999). And this requires showing, not only that the Veteran did not receive the notice or correspondence in question, but also that there was another viable address where he could have been reached. Absent this, VA is entitled to rely on his address of record. See Cross v. Brown, 9 Vet. App. 18, 19 (1996). Here, his contentions notwithstanding, the Veteran clearly received notice of that initial March 1974 decision, despite his change of address, as this is evident from the fact that he duly responded to the Detroit RO's May 1974 letter indicating that initial claim was being denied because he had failed to report for his scheduled VA compensation examination. In his June 1974 reply to that notification letter, he indicated his willingness to be examined if the examination was rescheduled, but also noting that he had moved and providing a new contact address in another state, namely, in Texas. That then placed the onus on VA - and, in particular, the RO in Waco, Texas, which assumed jurisdiction over his claim - to reschedule his examination as requested. But although the RO in Detroit subsequently transferred his file to the RO in Waco in July 1974, this inexplicably was never done. A claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which the claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent claim for the same disability. See Ingram v. Nicholson, 21 Vet. App. 232 (2007). See also McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability). In Ingram the Court held that a claimant's identification of the benefit sought does not require any technical precision. Ingram at 256-57 ("It is the pro se claimant who knows that symptoms he is experiencing and that are causing him disability...[and] it is the Secretary [of VA] who knows the provisions of Title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission."). A claimant may satisfy the requirement of filing a claim for a particular disability by describing the nature of the disability for which he is seeking benefits, including by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim). In both Brokowski and Clemons the Court recognized the need to consider the Veteran's claim in the context of his reported symptoms, not just on the basis of specific diagnoses. But this practice does not have endless bounds and involves a sense of determining what was a reasonable interpretation of the claim in the context it was presented. While VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. That is to say, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Moreover, the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but instead on the date that the application upon which service connection was eventually awarded was filed with VA. See Lalonde v. West, 12 Vet. App. 377 (1999). The U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has agreed by similarly holding that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. Rather, according to the Federal Circuit Court, "a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability." MacPhee at 1327 (bold type added for emphasis); see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established"); 38 C.F.R. § 3.155(a) ("Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs . . . may be considered an informal claim. Such informal claim must identify the benefit sought."). With all of this in mind, the Board rejects the notion that the initial claim in March 1974 for what amounted to just "leg pains" ("aches", etc.) required the RO in Detroit to in turn treat that initial claim as also for narcolepsy, as a possible precipitant or source of that leg pain in the posited chain link of causation, even accepting that the RO in Waco had an obligation to reschedule the Veteran's VA compensation examination in connection with that initial claim, which for some unexplained reason it never did. So while there resultantly was a pending claim, it was not for narcolepsy because there had not been the required formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a VA benefit on account of this specific condition. Indeed, to the contrary, there had not even been temporal mention of this condition as even the Veteran readily concedes that he did not actually learn until many years later, in 1994 at the earliest, that the sleep-related issues he had experienced in years past, including while in service, likely were, in actuality, manifestations of his later diagnosed narcolepsy. To the make the inductive leap at the time of his initial claim that his narcolepsy, in turn, was what he really was claiming or meaning to claim in March 1974 (when he only instead referred to "leg pains") is a seeming stretch of the imagination beyond reason. Under this approach, there would be virtually no bounds to claims (what is claimed versus what is not) inasmuch as any manifestation of any symptom during service would then require consideration of whether it was related or attributable to or a byproduct of any other manifestation of any other symptom in service, even in the absence of any suggestion of a possible or plausible relationship or correlation of one with the other. Because the factual basis of a claim for service connection is the Veteran's disease or injury, rather than the symptoms of that disease or injury, claims that are based upon distinctly and properly diagnosed diseases or injuries must be considered separate and distinct claims. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008). Absent the filing of a claim for narcolepsy in March 1974, the Board need not further address whether there was finality of that initial claim or pending status of it because there was no claim for narcolepsy. Rather, it was not until many years later, on May 7, 1998, when the Veteran first filed a claim for narcolepsy. The RO initially denied his May 7, 1998 claim, but later granted it in a February 2003 rating decision, assigning an effective date coinciding with the receipt of that claim on May 7, 1998. In April 2003, in response, the Veteran filed a downstream claim for an earlier effective date for the grant of service connection for his narcolepsy, and this appeal ensued after this claim was denied in July 2003. As support for assigning an earlier effective date back to the date of receipt of his initial claim in March 1974, the Veteran submitted supporting statements in July 2005 and August 2007 from R.W.F, M.D., who specializes in neurology and sleep disorders medicine. In vacating the Board's prior decision, the Court noted it was unclear whether the Board had fully considered these July 2005 and August 2007 opinions of Dr. R.W.F., although there was express mention at least of this doctors August 2007 statement in the Board's decision since the Veteran had submitted this additional statement from this doctor during his August 2007 hearing before the Board and had waived his right to have the RO initially consider it. 38 C.F.R. §§ 20.800, 20.1304. The August 2007 statement essentially is a reiteration of the opinions expressed in the July 2005 statement. The July 2005 opinion stated that during service the Veteran experienced a cataplectic event "and injured his thigh, which has been a problem since then" and opined that he is "suffering from narcolepsy-cataplexy with cataplectic events." Dr. R.W.F. provided a similar opinion in his subsequent August 2007 statement. He initially had evaluated the Veteran in 1994 and found, on the basis of his history and examination as well as polysomnography and the multiple sleep latency test, to have obstructive sleep apnea. Dr. R.W.F. concluded that a cataplexis event had occurred in November 1973, based on the Veteran's description of an incident in which he had a confrontation with another soldier. Dr. R.W.F. determined the Veteran had a clear-cut episode of cataplexy, which was precipitated by an angry confrontation with a fellow shoulder. The sudden collapse and muscle weakness, he explained, are quite typical of cataplexy. He added that narcolepsy, which has its most crucial component, excessive voluntary sleepiness, may also have been the cause of the Veteran to fall asleep on guard duty. He indicated the Veteran had experienced cataplexis events for 20 years, so dating back to his service. Dr. R.F.W. relayed these same impressions in a July 2005 letter to the Veteran's representative, reiterating that he believes the Veteran has a long-standing narcolepsy-cataplexy that certainly was apparent during his enlistment and possibly was present prior to his enlistment in the army. In James v. Brown, 7 Vet. App. 495 (1995), cataplexy similarly was medically defined as "a condition in which there are abrupt attacks of muscular weakness and hypotonia triggered by an emotional stimulus such as mirth, anger, fear, or surprise. It is often associated with narcolepsy." Dorland's Illustrated Medical Dictionary, 282 (27th ed. 1988). In rendering a decision, the Board is required to consider all evidence of record and all potentially applicable provisions of law and regulation. See Schrafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); see 38 U.S.C.A. § 7104(a). To this end, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons or bases for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Reviewing the November 28, 1973 clinical note from service, the Veteran presented with complaints referable to his left thigh. He indicated that he had fallen and injured this thigh some 6 days earlier during physical training (PT). There was effusion. The range of motion of his hip and knee, however, was within normal limits. The diagnostic assessment was mild contusion. At no time during that instance of treatment was there any express or implied mention of a confrontation or altercation with another soldier, or of his thigh or leg consequently having given way from suddenly falling asleep as the result of narcolepsy and cataplexy. As importantly, Dr. R.F.W.'s July 2005 and August 2007 opinions adding clarity to what occurred in service - insofar as what the Veteran's complaints actually represented (narcolepsy-cataplexy) - were not presented as supporting evidence until after the filing of the May 7, 1998 claim for narcolepsy. A "retrospective" or hindsight opinion can speak to the manifestations or severity of a disability years or even decades prior, but this after-the-fact medical nexus evidence did not precede the May 7, 1998 claim for service connection for narcolepsy. See Chotta v. Peake, 22 Vet. App. 80, 86 (2008). The confirmation of this condition and its association with events during the Veteran's service by this evidence does not allow for the assignment of an effective date on the basis of this evidence earlier than receipt of the claim concerning which the opinion is based, so no earlier than the May 7, 1998 claim for narcolepsy. Because there was no claim for narcolepsy within one year of the Veteran's discharge from service, the earliest possible effective date he may receive is when he eventually filed this claim, which instead was not until May 7, 1998. Generally, and except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. For these reasons and bases, the claim must be denied. The preponderance of the evidence is unfavorable, so the benefit-of-the-doubt rule does not apply. 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER The claim for an effective date earlier than May 7, 1998, for the grant of service connection for narcolepsy is denied. ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs