Citation Nr: 1303407 Decision Date: 01/31/13 Archive Date: 02/05/13 DOCKET NO. 10-21 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than April 13, 2009, for the award of service connection for multiple myeloma. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESSES AT HEARING ON APPEAL Veteran, K. R. and L. M. ATTORNEY FOR THE BOARD Kristy L. Zadora, Counsel INTRODUCTION The Veteran had active duty service from February 1967 to January 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2010 rating decision of the Atlanta, Georgia Regional Office (RO) of the Department of Veterans Affairs (VA) which granted the Veteran's claim for service connection for multiple myeloma and assigned an initial rating, effective April 13, 2009. A review of the Virtual VA paperless claims processing system does not reveal documents pertinent to the claim on appeal. The Board remanded the instant matter in September 2012. The Veteran testified before the undersigned at a December 2012 RO (Videoconference) hearing. A hearing transcript has been associated with the claims file. The Board notes that the Veteran completed an Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) in January 2011 identifying the Georgia Department of Veterans Services as his representative. This appointment was made without limitation. In June 2012, the Veteran submitted a VA Form 21-22 appointing a private attorney to represent him in his then-pending claim for service connection for posttraumatic stress disorder only. This claim for service connection was addressed in a September 2012 Board decision. In January 2013, the Board received a letter from this private attorney terminating her representation of the Veteran. The Georgia Department of Veterans Services therefore remains the Veteran's representative with regards to the instant claim. In December 2012, after the issuance of the April 2012 statement of the case, the Veteran submitted additional evidence in support of his claim. The Veteran waived RO consideration of this evidence in December 2012. 38 C.F.R. § 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's initial claim for entitlement to service connection from multiple myeloma was received by VA on April 13, 2009; service connection was subsequently granted, effective April 13, 2009. 2. The claims file contains no informal claim, formal claim, or any written intent to file a claim for entitlement to service connection for multiple myeloma prior to April 13, 2009. CONCLUSION OF LAW The criteria for an effective date prior to April 13, 2009, for the grant of service connection for multiple myeloma have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.157, 3.160, 3.400, 3.816 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The Board notes that the Veteran's claim will be decided based on law and not the facts of this case. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). VA's General Counsel has held that the notice and assistance requirements of the VCAA are not applicable where there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit. The General Counsel reasoned that there was no reasonable possibility that such a claim could be substantiated. VAOPGCPREC 5-2004 (2004), 69 Fed. Reg. 59989 (2004). II. Earlier Effective Date for Grant of Service Connection The Veteran contends that the appropriate effective date for the grant of service connection for multiple myeloma is the day after he was discharged from service as he displayed symptoms of the disease at that time, although he was not diagnosed with this disability until 2008. He has also argued the appropriate effective date is December 29, 1971, the date he filed a claim for service connection for a skin condition and his first post-service claim. The effective date for the grant of service connection for disability compensation is 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 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i) (Emphasis Added). The effective date of an award of compensation based on direct service connection is the date following separation from service, if the claim is received within one year of that date. Otherwise, the effective date is the date VA receives the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). 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). With respect to the phrase "the date entitlement arose", the Court of Appeals for Veterans Claims (Court) has stressed what that phrase does not mean. In McGrath v. Gober, 14 Vet. App. 28, 35 (2000), the Board had found the earliest date that a VA examiner had diagnosed posttraumatic stress disorder as "the date entitlement arose" and used that date, rather than a much earlier date of receipt of claim, as the effective date. The Court soundly rejected that rationale. The Court stressed that the date of the medical evidence itself is irrelevant where an initial service connection claim is pending, even if it was submitted over twenty years after the time period in question. The Court offered, under the circumstances of an original claim for service connection, the date that the veteran submitted the claim or the date the veteran was released from active service, whichever applies, ultimately controls the effective date for benefits. Id. This conclusion is borne out in Lalonde v. West, 12 Vet. App. 377 (1999), where the Court stressed that the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. Any communication or action indicating an 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. 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 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. 38 C.F.R. § 3.155. See Norris v. West, 12 Vet. App. 413, 421 (1999), distinguishing between an original claim and a claim for increased rating, the latter of which may be initiated by a medical examination or hospitalization, under 38 C.F.R. § 3.157. In cases involving presumptive service connection due to herbicide exposure, there is an exception to the provisions set forth above. 38 C.F.R. § 3.816 sets forth the effective date rules required by orders of the United States District Court in the class-action case of Nehmer v. U. S. Department of Veterans Affairs, No. CV-86- 6160 (N.D. Cal. May 17, 1991) (Nehmer Stipulation). For purposes of this section, a Nehmer class member includes a Vietnam veteran who has a covered herbicide disease. If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award, if the class member's claim for disability compensation for the covered herbicide disease was either pending before the VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, will be the later of the date such claim was received by VA or the date the disability arose, unless the claim was received within a year following separation from service. A claim will be considered a claim for compensation for a particular covered herbicide disease if: (1) the claimant's application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. See 38 C.F.R. § 3.816(c)(2). Multiple myeloma was added to the list of diseases subject to presumptive service connection, effective June 9, 1994. See 59 Fed. Reg. 29,723 (1994). If the above requirements are not met, the effective date of the award shall be determined in accordance with 38 C.F.R. § 3.400. As multiple myeloma is a covered herbicide disease, the Veteran is considered a Nehmer class member. See 38 C.F.R. § 3.816(b)(1)(2). However, an earlier effective date pursuant to Nehmer and 38 C.F.R. § 3.816 is not available to the Veteran. The record reflects no claim for disability compensation for any such disease either pending before VA on May 3, 1989 or received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for multiple myeloma (i.e. June 9, 1994). The record contains no application, statement, or submission that may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for this covered herbicide disability, and VA had not issued a decision on any such claim between May 3, 1989, and the effective date of the statute or regulations establishing a presumption of service connection for either covered disease. Thus, the provisions of 38 C.F.R. § 3.816 are inapplicable in this case. The Veteran separated from active service in January 1969. In December 1971, he filed a formal claim for service connection for a skin rash; this claim was later amended to include hypertension and a nervous condition. He did not submit a claim of entitlement to service connection for multiple myeloma within one year of service discharge. Therefore, assignment of an effective date back to the day following his service discharge is not possible. Rather, the Veteran first raised a claim of service connection for multiple myeloma in a letter from his Congressman received by VA on April 13, 2009. This claim was granted in a January 2012 rating decision, and the award was made effective as of April 13, 2009, the date that his claim for service connection was received by VA. The Board has considered whether any evidence of record prior to April 13, 2009, could serve as an informal claim in order to entitle the Veteran to an earlier effective date. In this regard, 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. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran indicates an attempt to apply for service connection for multiple myeloma. However, no document submitted prior to April 13, 2009 indicates intent to pursue a claim of entitlement to service connection for this condition. It is further noted that, under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits. The provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Although some of the Veteran's clinical records document a diagnosis of multiple myeloma prior to April 13, 2009, such medical records cannot constitute an initial claim for service connection. See Criswell v. Nicholson, 20 Vet App 501 (2006); Brannon, supra (medical records cannot constitute an initial claim for service connection but rather there must be some intent by the claimant to apply for the benefit). Although the Veteran has generally argued that VA must review specific symptoms in the record to ascertain whether a claim for a particular disability has been filed, a claim, rather than a medical record, must be filed in order for any type of benefit to be paid. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). As it is the "unequivocal command" of 38 U.S.C.A. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefore, Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999), the RO granted the earliest effective date for a grant of service connection for multiple myeloma that the law allows. The exact date on which entitlement arose need not be ascertained in order to conclude that the April 13, 2009, date selected by the RO, is the earliest possible effective date here. If entitlement arose prior to April 13, 2009, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). Moreover, 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, supra; Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). There is simply no legal entitlement to an earlier effective date for the award of service connection for multiple myeloma. The Veteran has alleged that an effective date of 1969 or 1971 is warranted as he has suffered from multiple myeloma, albeit undiagnosed prior to 2008, since service. He is, in essence, requesting an effective date earlier than when he was diagnosed with a disability. His treatment records do document long-standing and extensive treatment for a variety of conditions. While the Veteran's multiple myeloma may have been present for many years prior to April 2009, the regulations provide that the appropriate effective date is the later of the date of receipt of the claim (i.e. April 13, 2009) or the date entitlement arose. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). In addition, the Veteran has argued that the Court's holding in McGrath is applicable to his case as he had previously filed claims for service connection for hypertension, a blood disorder, peripheral neuropathy and a back condition, and that such claims actually constituted a claim for service connection for multiple myeloma. However, in contrast with the findings in McGrath, the Veteran did not have an original claim for service connection for multiple myeloma pending earlier than April 13, 2009. A review of the claims file reveals that the Veteran did not file a claim for service connection for any blood disorder prior to April 13, 2009 and that his claims for service connection for hypertension and peripheral neuropathy had been fully granted, both effective prior to April 13, 2009. Moreover, the Veteran's claim for service connection for a back disorder to include lumbosacral instability and intervertebral disc disease was finally denied in a January 2006 Board decision; the Veteran's subsequent appeal to the Court as to this claim was dismissed in a December 2007 Order. Quite simply, the Veteran had no pending claim for multiple myeloma, or the purported symptoms of this disability, prior to April 13, 2009. See 38 C.F.R. § 3.160(c) (a "pending claim" means an application, formal or informal, which has not been finally adjudicated). The Board acknowledges and has carefully considered the Veteran's argument that his service connection benefits should be effective from service discharge due to his extensive exposure to Agent Orange during service, in the interests of fairness and equity and to accord justice. Unfortunately, neither the Board nor the Court can provide equitable relief. See Moffitt v. Brown, 10 Vet. App. 214, 225 (1997) ("[The] Court [and, by extension, the Board] is not a [forum] of equity and cannot provide equitable relief" (citing Harvey v. Brown, 6 Vet. App. 416, 425 (1994)); cf. Suttmann v. Brown, 5 Vet. App. 127, 138 (1993) (holding that the Board lacks jurisdiction to review the Secretary of VA's exercise of 38 U.S.C. § 503(a) to provide equitable relief at his discretion). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 433 (1992). The law is controlling and not the facts. The appeal for an earlier effective date than April 13, 2009, for the grant of service connection for a multiple myeloma must be denied as a matter of law. Sabonis, supra. ORDER Entitlement to an effective date earlier than April 13, 2009, for the award of service connection for multiple myeloma is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs