Citation Nr: 1311019 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 10-45 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania (Foreign Cases) THE ISSUE Entitlement to an effective date earlier than September 23, 2008 for the assignment of a 100 percent evaluation for amyotrophic lateral sclerosis (ALS) with loss of use of both hands and feet. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from October 1964 to May 1972. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which in pertinent part, granted a 100 percent disability evaluation for ALS with loss of use of both hands and feet, effective September 23, 2008. FINDINGS OF FACT 1. Effective September 23, 2008, VA issued a new regulation establishing presumptive service connection for ALS. 2. The Veteran submitted a claim for service connection for ALS in December 2008. CONCLUSION OF LAW There is no legal entitlement to an effective date prior to September 23, 2008 for the grant of service connection for ALS with loss of use of both hands and feet. 38 U.S.C.A. §§ 5101, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.1(p), 3.114(a), 3.318, 3.400 (2012); 73 Fed. Reg. 54691-01 (Sept. 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Significantly, however, in this case, the Veteran's claim arises from his disagreement with the effective date assigned following the grant of a 100 percent disability evaluation for service-connected ALS with loss of use of both hands and feet. In this regard, the Board notes that, once service connection is granted, the claim is substantiated and additional VCAA notice is not required, and as such, any defect in the notice is considered nonprejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, because the application of the law to the undisputed facts is dispositive of this appeal, no further discussion of VA's duties to notify and assist is necessary. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994); Mason v. Principi, 16 Vet. App. 129 (2002); VAOPGCPREC 5-2004 (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). Earlier Effective Date Law and Regulations Generally, the assignment of effective dates is governed by 38 U.S.C.A. § 5110, which states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, a claim for increase of compensation, dependency and indemnity compensation, or pension, 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, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. Where a claim for compensation is awarded pursuant to a liberalizing law, or a liberalizing VA issue, the effective date of such award shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue, although in no event shall such award be retroactive for more than one year from the date of application therefore. If the claim is reviewed at the request of a claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 U.S.C.A. § 5110(g); 38 C.F.R. § 3.114(a). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, 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 claims 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 the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2012). Effective September 23, 2008, VA issued a regulation establishing presumptive service connection for ALS. See 38 C.F.R. § 3.318; see also 73 Fed. Reg. 54691 (Sept. 23, 2008). This regulation provides that the development of ALS manifested at any time after discharge or release from active military, naval, or air service is sufficient to establish service connection for that disease if the veteran had active, continuous service of 90 days or more. 38 C.F.R. § 3.318. However, the presumption of service connection for ALS does not apply if there is: 1) affirmative evidence that ALS was not incurred during or aggravated by such service, or 2) affirmative evidence that ALS was caused by the veteran's own willful misconduct. Id. Earlier Effective Date Analysis In the present case, the Board finds that the Veteran filed a formal claim for VA compensation benefits on December 29, 2008. See VA Form 21-526. In March 2009 the RO, in pertinent part, granted service connection for ALS and assigned a 30 percent disability rating, effective September 23, 2008. In awarding the effective date, the RO noted that VA amended its regulations, effective September 23, 2008, to include ALS as a presumptive chronic condition. As such, because the Veteran's service connection claim for ALS was filed within one year of the amended regulation (December 23, 2008), the RO granted service connection and assigned the earliest possible effective date of September 23, 2008. See 38 C.F.R. § 3.114(a). In June 2009, the RO increased the disability evaluation to 100 percent for ALS with the loss of use of both hands and feet and continued the September 23, 2008 effective date. The Veteran contends that the effective date of the grant of service connection for ALS should be the date of his first diagnosis in 1992, and not the effective date of the new regulation (September 23, 2008). See 38 C.F.R. § 3.318. In this regard, the Veteran states that he was unaware that he could file a claim for service connection and was never advised by VA to do so. See Veteran's statement dated July 2010. Moreover, the Veteran argues that the "undiagnosed illness" presumption governing Persian Gulf War veterans under 38 C.F.R. § 3.114 should be afforded to Vietnam veterans like himself. See statements dated July 2010, October 2011, and November 2010. According to the Veteran, an evaluation under the undiagnosed illness presumption would render an earlier effective date. Further, the Veteran's representative has asked the Board to consider whether a remand is required in order to determine whether the Veteran provided any information to VA prior to December 2008 that may be construed as a claim for service connection for ALS. See representative's statement dated March 2012. At the outset, the Board finds that a remand for additional, unspecified information is not required for proper adjudication of the Veteran's earlier effective date claim. The Board has carefully reviewed the claims file and the Virtual VA electronic file and finds no indication that the Veteran filed any evidence, which may be construed as a claim, either formal or informal, for VA compensation benefits, prior to December 23, 2008. Importantly, neither the Veteran nor his representative has made the Board aware of any existing information not yet obtained by VA. Also, as discussed in further detail below, the date of the liberalizing legislation for ALS (September 23, 2008) is determinative of the effective date, and not the date of the claim. See 38 C.F.R. § 3.114(a). As such, the Board finds that the basis of the denial is lack of legal entitlement; therefore, a remand is not warranted for additional evidence, including evidence of a claim, and the Board will proceed with adjudication of the case. The Board finds that there is no legal basis for an earlier effective date of February 1992 (date of ALS diagnosis). As stated above, the effective date of service connection will generally be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Also, if, as in this case, a claim is awarded pursuant to a liberalizing law, or a liberalizing VA issue, the effective date shall not be earlier than the effective date of the act or administrative issue, which in this case is September 23, 2008. See 38 U.S.C.A. § 511(g); 38 C.F.R. § 3.114(a). In the present case, the Veteran submitted a claim for service connection for ALS on December 23, 2008, within one year from the September 23, 2008 liberalizing legislation regarding ALS. The Board has reviewed the claims file and finds no evidence which could be construed as a claim for VA compensation benefits prior to December 23, 2008. Further, the Board notes that, even if an earlier claim for ALS had been filed prior to December 2008, the effective date for the claim would still be September 23, 2008, the date of the liberalizing legislation for ALS. See 38 C.F.R. § 3.114(a). As such, the Board finds that the earliest effective date legally possible for ALS is September 23, 2008. See 38 C.F.R. § 3.318; see also 38 C.F.R. § 3.114(a) (2012) (benefits may be authorized from the effective date of the liberalizing law if a claim is received within one year from the effective date of the liberalizing law). For these reasons, the Board finds that there is no legal basis for an effective date earlier than September 23, 2008 for the assignment of a 100 percent evaluation for ALS with loss of use of both hands and feet. As mentioned above, the Veteran contends that he is entitled to an earlier effective date for the grant of service connection for ALS because he was unaware that he could file a claim for service connection. The Board finds this to be entirely credible; however, his lack of knowledge that he could file a claim may not provide a basis for an earlier effective date. See Bryan v. West, 13 Vet. App. 482, 486-87 (2000); Morris v. Derwinski, 1 Vet. App. 261 (1991) (veteran's failure to adequately pursue a claim for service connection is not excusable on grounds of his alleged ignorance of regulatory requirements). The Supreme Court of the United States has held that everyone dealing with the government is charged with knowledge of federal statutes and lawfully promulgated agency regulations. Fed. Crop Ins. Corp v. Merrill, 332 U.S. 380, 384, 68 S.Ct. 1, 92 L.Ed. 10 (1947). The regulations are binding on all who seek to come within their sphere, "regardless of actual knowledge of what is in the [r]egulations or of the hardship resulting from innocent ignorance." Id. at 385. The Board has also considered the Veteran's contention that the presumption in the statutes governing Persian Gulf War veterans, to include an "undiagnosed illness," should be afforded to Vietnam veterans. Specifically, the Veteran states that his ALS symptoms are very similar to those enumerated under 38 C.F.R. § 3.317 (2012). The Veteran stated that, despite similar disabilities and symptoms for undiagnosed illnesses, the differentiation between Persian Gulf War veterans and Vietnam veterans constitutes discrimination. According to the Veteran, eligibility under 38 C.F.R. § 3.317 would result in an earlier effective date for his claim. Under the facts and controlling law, the Veteran's contentions that the presumption in the statutes governing Persian Gulf War veterans should be afforded to Vietnam veteran lack legal merit. The Board may not grant a benefit that a veteran is not eligible to receive under statutory law. See Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). The Board's jurisdictional statute provides that it is bound by regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department. 38 U.S.C.A. § 7104(c). Here, it is undisputed that the Veteran served in the Republic of Vietnam during the Vietnam War and was discharged from service in 1972. See DD Form 214. As such, the Veteran did not serve in the Persian Gulf, and 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable to the Veteran's claim. Federal laws authorizing monetary benefits are enacted by Congress, and, unless an individual meets all of the requirements of a particular law, he or she is not entitled to the benefit; indeed the benefit cannot be awarded, regardless of the circumstances. See, e.g., Office of Personnel Management v. Richmond, 496 U.S. 414, 426, 110 L. Ed. 2d 387, 110 S. Ct. 2465 (1990); Davenport v. Principi, 16 Vet. App. 522 (2002); Harvey v. Brown, 6 Vet. App. 416 (1994). The Board acknowledges the Veteran's arguments that benefits for the grant of service connection for ALS should be effective prior to September 23, 2008; however, for the reasons stated, the Veteran is not eligible for an effective date prior to the effective date of the liberalizing legislation that provided the benefit, 38 C.F.R. § 3.318, and the Board has no authority to provide equitable relief. See Moffitt v. Brown, 10 Vet. App. 214, 225 (1997), citing Harvey v. Brown, 6 Vet. App. 416, 425 (1994)); cf. Suttmann v. Brown, 5 Vet. App. 127, 138 (1993). ORDER An effective date earlier than September 23, 2008 for the assignment of a 100 percent evaluation for amyotrophic lateral sclerosis with loss of use of both hands and feet is denied. ____________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs