Citation Nr: 1308308 Decision Date: 03/12/13 Archive Date: 03/20/13 DOCKET NO. 07-06 457A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than October 5, 2004, for the grant of service connection for epididymitis. REPRESENTATION Appellant represented by: Robert Walsh, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1968 to February 12, 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Cleveland, Ohio, and Detroit, Michigan. The RO in Detroit, Michigan, has since assumed jurisdiction of these appeals and forwarded the Veteran's appeals to the Board. A Travel Board hearing was held in August 2010 before the undersigned. When this matter was before the Board in March 2011, the Board denied entitlement to an effective date earlier than October 5, 2004, for the grant of service connection for epididymitis. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a March 2012 order, the Court granted the parties' joint motion for remand, vacating the Board's March 2011 decision denying entitlement to an effective date earlier than October 5, 2004, for the grant of service connection for epididymitis, and remanded the case for compliance with the terms of the joint motion. Additional matters before the Board in the March 2011 Board decision were remanded for additional development. Apparently, that development has not been completed, as those issues have not been certified back to the Board. The development requested in the March 2011 Remand as to those issues remains in effect. FINDINGS OF FACT 1. The Veteran's original claim for service connection for epididymitis (claimed as swollen testicles) was received by the RO in May 1970, less than one year after the Veteran's service separation February 12, 1970; that claim was denied in an August 1970 rating decision, which the Veteran did not appeal, and the decision became final. 2. In May 1990, the Veteran requested that a claim for service connection for epididymitis be reopened, and additional service treatment records (STRs) showing inservice treatment in 1968 and 1969 for bilateral epididymitis were submitted, but the request to reopen was denied on the basis that no new and material evidence was submitted. 3. The Veteran's service treatment records demonstrate inservice treatment for epididymitis, and post-service records and opinion establish that current residuals of the condition still exist (e.g., atrophied testicle). CONCLUSION OF LAW Entitlement to an effective date of February 13, 1970, for the grant of service connection for epididymitis is warranted. 38 U.S.C.A. §§ 1155, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.156(c), 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board further notes that adjudication of a claim for an earlier effective date from a grant of service connection is based upon evidence already in the claims folder; the resolution of the claim depends upon when certain document were either received by VA and/or promulgated to the veteran. See generally 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.157, 3.160, 3.400 (2012). This case also addresses whether a liberalizing law can afford an earlier effective date, but this question also pertains to the dates of receipt of certain documents by VA and/or promulgation of documents to the veteran. Consequently, there is no additional development that can be conducted, examination performed, nor any other records which can be obtained, which would substantiate the Veteran's claim. As the decision below is entirely favorable to the Veteran, no further discussion of the duty to notify or assist the Veteran is required. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also 38 C.F.R. § 3.103(c)(2) (2012). Earlier Effective Date The question before the Board is whether an effective date earlier than October 5, 2004, is warranted for the grant of service connection for epididymitis. The record reflects that the Veteran served on active service from January 1968 to February 1970. In May 1970, the Veteran filed a formal claim for service connection for disabilities, to include "swollen testicles." The service treatment records (STRs) were negative for treatment or diagnosis of this condition. The RO noted, however, that the service treatment records were incomplete, stating, "The Veteran's claim is being rated on incomplete medical treatment service records." VA examination in July 1970 showed that the testicles were not enlarged; however, mild and chronic epididymitis was diagnosed. In an August 1970 rating decision, the RO denied the Veteran's claim for epididymitis. Service connection was also denied for a back condition and for a urinary infection. The Veteran was notified of this decision and did not appeal. Thus, the decision became final. On June 25, 1981, the Veteran filed a request to reopen the previously denied claim for service connection for a back disorder and for "burning sensation on urination[,] testicles became swollen and associated with a urethral discharge of whitish pink material." In a November 1981 rating decision, it was determined by the RO that new and material evidence had not been submitted to reopen the previously denied claim of service connection for a chronic urinary infection. The RO did not address any other claim, to include epididymitis. A statement of the case (SOC) discussing urethritis was issued in January 1982 and a supplemental statement of the case (SSOC) addressing that claim as well as service connection for a back disorder was issued in December 1982. The Board denied those claims upon decision in December 1983. The Board notes that the March 2012 Order directs the Board to consider whether the June 1981 claim should have been adjudicated as a request to reopen the claim for service connection for epididymitis. In view of the more favorable decision rendered herein, further discussion of the 1981 claim is not required. The RO next heard from the Veteran in correspondence dated in May 1990, wherein, in pertinent part, he requested reopening of the claim for service connection for epididymitis. Additional STRs were submitted that same month. The service treatment records submitted at that time include clinical records not previously available to VA which show that the Veteran was treated for bilateral epididymitis and/or swollen testicles in 1968 and 1969. The RO determined that new and material evidence had not been submitted to reopen the previously denied claim for service connection for epididymitis. The RO decision did not mention the recently added STRs showing inservice treatment for epididymitis. The Veteran was notified of this decision and did not appeal. No further correspondence was received from the Veteran regarding his service connection claim for epididymitis until October 5, 2004, when he again filed to reopen the previously denied claim. The record reflects that additional STRs were added to the record in July 2005, one of which was not previously of record, and which discloses laboratory examinations related to inservice treatment for epididymitis. In an April 2006 rating decision, service connection was granted for epididymitis based on review of STRs which showed treatment during service for the condition. Moreover, VA examination in January 2006 showed the disorder. In August 2010, at a personal hearing, the Veteran argued that a more appropriate date for the grant of service connection for epididymitis was earlier than October 5, 2004. In the Court's 2010 Order, it was noted that the Board should render a new statement of reasons or bases assessing whether the Veteran's June 1981 application was, in fact, a reasonably raised request to reopen his claim, and, if so, whether the Veteran was now entitled to an effective date earlier than October 5, 2004. As determined below, it is determined that an earlier effective date is warranted for the grant of service connection for epididymitis, based on application of 38 C.F.R. § 3.156(c). As such, the claim is considered pending since the time of his original claim for service connection. The Board's explanation follows. Except as otherwise provided by law, the effective date of an award based on an original claim 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). This statutory provision is implemented by a regulation which provides that the effective date for disability compensation will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2012). The date of entitlement to an award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary is necessary for disability 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 (2012). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an application is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are 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) (2012); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 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 juris may be considered an informal claim. Such an 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 after 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 (2012). 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 (2012). The effective date of a successful claim to reopen is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. Spencer v. Brown, 4 Vet. App. 283, 293 (1993), aff'd 17 F.3d 368 (Fed. Cir. 1994). When a claim is denied, and the claimant fails to timely appeal that decision by filing a NOD within the one- year period prescribed in 38 U.S.C.A. § 7105(b)(1), and a substantive appeal (VA Form 9 or equivalent statement) within 60 days of the statement of the case (SOC) or within the remainder of the one-year period following notification of the decision in question, that decision becomes final and binding on him based on the evidence then of record and the claim may not thereafter be reopened or allowed, except upon the submission of new and material evidence or a showing that the prior final decision contained clear and unmistakable error (CUE). See 38 U.S.C.A. §§ 7104(b), 7105(c); 38 C.F.R. §§ 3.105, 20.200 (2012). In this case, the Veteran initially filed claim for service connection for epididymitis in May 1970. In an August 1970 rating decision, the RO denied his claim. The Veteran did not appeal the decision, and it became final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2012). In the case of a petition to reopen a previously denied claim for service connection, the pertinent regulations governing new and material evidence require VA to reconsider previously denied claims on the merits whenever relevant service records unavailable at the time of the last final rating decision are submitted. 38 C.F.R. § 3.156(c) (2012); Vigil v. Peake, 22 Vet. App 63 (2008). Although not argued, the Board now notes that STRs were found and submitted after the initial denial of the claim which were pertinent to the ultimate grant of service connection. The Veteran's STRs were incomplete at the time of the 1970 denial, but additional STRs were subsequently received showing that he was, in fact, treated during service for epididymitis in 1968 and 1969. Moreover, post-service records showed continued residuals of the condition. At the time the Veteran filed his petition to reopen his claim in May 1990, "[38 C.F.R.]§ 3.400(q)(2) govern[ed] the effective date of benefits awarded when VA reconsider[ed] a claim based on newly discovered service department records." 70 Fed. Reg. 35,388 (proposed June 20, 2005). Read together, sections 3.156(c) and 3.400(q)(2) provide that the effective date for an award of benefits based on newly discovered service department records that were previously unavailable "may relate back to the date of the original claim or date entitlement arose even though the decision on that claim may be final under [38 C.F.R.] § 3.104." Id; see also 71 Fed. Reg. 52,455, 52,455 (Sept. 6, 2006) ("[T]he purpose of this rule is to clarify long-standing VA rules . . . which authorize VA to award benefits retroactive to the date of a previously decided claim when newly discovered service department records are received."); Mayhue v. Shinseki, 24 Vet. App. 273, 277 (2011). In 2005, VA renumbered 38 C.F.R. § 3.400(q)(2) as 38 C.F.R. § 3.156(c)(3). The new section provided that the effective date for an award based on 38 C.F.R. § 3.156(c)(1) is "the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim." 38 C.F.R. § 3.156(c)(3); see also 70 Fed. Reg. at 35,389; Mayhue, 24 Vet. App at 278. Under both the older and amended regulations, "a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim." Mayhue, 24 Vet. App. at 279. In this case, STRs obtained after the August 1970 denial show that the Veteran was treated during service in 1968 and 1969 for bilateral epididymitis. In April 2006, the RO granted service connection for epididymitis based on review of the STRs which were added to the record after the initial denial and upon VA examination in January 2006 which showed one atrophied testicle. The RO did not specify what service treatment records were the basis of the 2006 conclusion that the Veteran was treated for bilateral epididymitis is service. However, after reviewing the record as a whole, the Board concludes that additional service treatment records submitted after the 1970 claim were the basis of the eventual grant of service connection, since the RO determined in 1970 that service treatment records available in 1970 failed to show that the Veteran was treated for epididymitis in service. Under 38 C.F.R. § 3.156(c)(3), "[a]n award made based all or in part" on newly discovered service department records shall be effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. In this case, the RO granted service connection in part due to the STRs showing inservice treatment for bilateral epididymitis. The Veteran filed his original claim on May 1, 1970. He separated from service on February 12, 1970. The effective date for direct service connection for a claim filed within one year of separation from service is the day following separation from active service or the date entitlement arose. 38 C.F.R. § 3.400(b)(2) (2012). Therefore, the proper effective date for the grant of service connection for epididymitis is February 13, 1970, the date following the Veteran's separation from service. 38 C.F.R. §§ 3.156(c)(3), 3.400(b)(2) (2012). Further development or notification action under the Veterans Claims Assistance Act of 2000 (VCAA) would be adverse to the Veteran. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126. Moreover, additional discussion regarding whether the significance of a 1981 document is unnecessary, as the Board has granted an earlier effective date retroactive to the day following the Veteran's service discharge. ORDER Entitlement to an effective date of February 13, 1970, for the award of service connection for epididymitis is granted. ____________________________________________ TRESA M. SCHLECHT Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs