Citation Nr: 1311025 Decision Date: 04/03/13 Archive Date: 04/19/13 DOCKET NO. 12-00 388 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than May 16, 2004, for the grant of service connection for postoperative residuals of a left nephrectomy for renal cell carcinoma (kidney cancer). REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from April 1945 to April 1949, so including during World War II. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which found clear and unmistakable error (CUE) in the effective date for the grant of service connection for a left nephrectomy for renal cell carcinoma with residual scar. The RO assigned an earlier effective date of May 16, 2004 (one year prior to when the original claim was filed on May 16, 2005). The RO also confirmed and continued the existing 30 percent rating for this disability. The Veteran's appeal is for an even earlier effective date; he believes the effective date, instead, should go back to October 1992 at the very least, if not even further, back to February 1984. The Board has advanced this appeal on the 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. On May 16, 2005, the Veteran submitted a claim for service connection for renal cell carcinoma (kidney cancer). 2. A February 2006 rating decision granted service connection for renal cell carcinoma and assigned a disability rating of 30 percent retroactively effective from May 16, 2005, the date of receipt of this claim. He did not appeal that decision. 3. He filed a claim in February 2010 for an earlier effective date for the grant of service connection for the renal cell carcinoma. 4. The August 2010 rating decision at issue found CUE in the effective date for the grant of service connection for this disability and resultantly assigned an earlier effective date of May 16, 2004, one year prior to receipt of the claim. 5. The record contains no statement or other communication from the Veteran earlier than May 16, 2005, which may be reasonably construed as raising a claim of entitlement to service connection for renal cell carcinoma. CONCLUSION OF LAW The criteria are not met for an effective date earlier than May 16, 2004, for the grant of service connection and assignment of the 30 percent rating for the renal cell carcinoma. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will obtain; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Veteran filed this earlier-effective-date claim in February 2010, and a March 2010 letter sent prior to initially adjudicating this claim in August 2010, so in the preferred sequence, advised him of the type of evidence and information needed to substantiate this claim and of his and VA's respective responsibilities in obtaining this supporting evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. Pelegrini v. Principi, 18 Vet. App. 112 (2004). He was also notified of how a disability rating is determined for a service-connected disability and the basis for determining an effective date, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). (See also a more recent October 2011 VCAA notification letter). See, too, Huston v. Principi, 17 Vet. App. 195 (2003) (holding that proper VCAA notice, in response to a claim as here for an earlier effective date, includes apprising the Veteran of the need to have evidence of an earlier-filed claim that did not, in the absence of a timely appeal, become final and binding on him based on the evidence then of record). This appeal for an earlier effective date arises from the Veteran's disagreement with an issue "downstream" from the initial grant of service connection. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) and the U.S. Court of Appeals for Veterans Claims (Court/CAVC) have held that once service connection is granted the claim is substantiated, so additional VCAA notice is not required regarding the "downstream" issue, and any defect in the notice is not prejudicial 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). 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 instead issue a statement of the case (SOC) if the disagreement is not resolved. And since the RO issued an SOC in October 2011, also a supplemental SOC (SSOC) in December 2012, 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 16, 2004, no further notice is required. See also Goodwin v. Peake, 22 Vet. App. 128 (2008) and VAOPGCPREC 8-2003 (May 5, 2004). Resolution of this claim turns on the application of the law to the undisputed facts presented in this case. Thus, further assistance or examination could not aid in substantiating entitlement to an earlier effective date. The Court has held that a Veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide VCAA notice of the laws and regulations governing effective dates if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). VA's General Counsel has held that the notice and assistance requirements of the VCAA are inapplicable 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). Similarly, the Court has held that the VCAA is inapplicable where the outcome is controlled by the law, and the facts are not in dispute. Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). The VCAA also has no application to allegations of CUE as a matter of law, regardless of whether the Board or RO issued the earlier decision in question. See Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001) (en banc); Parker v. Principi, 15 Vet. App. 407 (2002). Since resolution of this claim ultimately turns on when the Veteran first filed this claim, an examination and opinion - including a "retrospective" opinion, are not needed to fairly decide this claim. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). See also Chotta v. Peake, 22 Vet. App. 80, 86 (2008). Merits of the Claim In February 2006, the RO granted service connection for left nephrectomy for renal cell carcinoma, retroactively effective from May 16, 2005, so back to the date the Veteran had filed his original claim of entitlement to service connection for this disability. He did not appeal that decision, so it became final and binding on him based on the evidence then of record. See 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103 (2011). The holding in Rudd v. Nicholson, 20 Vet. App. 296 (2006), bars de novo consideration of an effective date after finality attaches to a prior VA decision. In Rudd, 20 Vet. at 299-300, the Court explained that once a rating decision becomes final and binding on a Veteran, absent a timely appeal of the decision, the only way the decision may be revised is if it is collaterally attacked and shown to have involved CUE. The Court in Rudd noted that any other result would vitiate the rule of finality (res judicata). In other words, the Court has found that there are no freestanding claims for an earlier effective date. When such a freestanding 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). Here, though, in February 2010 a letter was received from Congressman John Garamendi, on the Veteran's behalf, requesting an increased rating for the Veteran's kidney cancer and an earlier effective date. An August 2010 rating decision found CUE in the effective date for the grant of service connection for the left nephrectomy for the renal cell carcinoma and accordingly assigned an earlier effective date of May 16, 2004. According to 38 C.F.R. § 3.105(a), where the evidence establishes such error, the prior decision will be reversed or amended. A rating or other adjudicative decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 U.S.C.A. § 5109A; 38 C.F.R. § 3.105(a). This appeal ensued for an even earlier effective date. The Veteran asserts that the effective date for this award should be February 1984, when he was diagnosed with kidney cancer. (See February 2010 written statement). In the absence of a sufficient manifestation of an intent to apply for benefits for this particular disease, however, a document merely providing medical information, such as confirming he had received this diagnosis, is not in and of itself an informal claim for VA benefits for this disease. See Ellington v. Nicholson, 22 Vet. App. 141 (2007). As more recently reiterated in DeLisio v. Shinseki, 2011 WL 3691857 at *9 (Vet. App. August 24, 2011), "[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." Under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. 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). But as made clear in Echols v. Shinseki, No. 11-2636 (March 15, 2013), VA examination or hospitalization reports constitute an informal claim for an increased rating when the reports relate to a disability for which service connection already has been established. See also Massie v. Shinseki, 25 Vet. App. 123, 132 (2011) (§ 3.157(b)(1) is applicable only "where the Veteran's disability is already service connected and the findings of a VA report of examination or hospitalization demonstrate that the disability has worsened"). This regulation therefore only serves to establish an increased-rating claim, not instead a claim of entitlement to service connection or even to reopen a previously denied claim. See Crawford v. Brown, 5 Vet. App. 33, 35 (1993). The Veteran alternatively contends that the effective date should be in October 1992 when the law was changed to allow for benefits on a presumptive basis. (See February 2011 written statement). He also maintains that he resultantly submitted a claim in 1993 for kidney cancer. He references a copy of a claim application, VA Form 21-526, but there is no date stamp on it. (See October 2011 VA Form 21-0820). An earlier effective date may be assigned if a grant is based upon a liberalizing law or VA issue. 38 U.S.C.A. § 5110(g). A "liberalizing law" is one creating a new basis for entitlement to benefits. See VAOPGCPREC 26-97 (July 16, 1997). Under 38 C.F.R. § 3.114(a), the change mentioned was considered a "liberalizing law" since creating a new basis of entitlement to benefits. 45 Fed Reg. 26,326 (1980); VAOPGCPREC 26-97 (July 16, 1997); Green v. Brown, 10 Vet. App. 111 (1997). VAOPGCPREC 26-97 held that "an effective date prior to the date of claim cannot be assigned under section 3.114 unless the claimant met all eligibility criteria for the liberalized benefit on the effective date of the regulatory amendment, and such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement." See McKay v. Brown, 9 Vet. App. 183, 186, 187-88 (1996) (purpose of one-year grace period is to give claimants time to react after a change in the law, but the requirement of continuous disability does not apply when the liberalizing law has a retroactive effective date); Viglas v. Brown, 7 Vet. App. 1, 5 (1994) (section 5110(g) was intended to limit maximum amount of retroactive benefits recoverable to one year prior to the filing of an application). In short, then, the pertinent laws and regulations permit an effective date one year earlier than the date of claim, but only if it can be demonstrated the Veteran met all eligibility criteria as of the date of the liberalizing change in VA law or issue. The effective date of an award of disability compensation based on an original claim for direct service connection or a claim reopened after final disallowance shall be the date following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on new and material evidence received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose whichever is later. 38 C.F.R. § 3.400(r). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement (NOD); otherwise, that determination becomes final and binding and is not subject to the revision on the same factual basis in the absence of CUE. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). However, if the evidence establishes CUE, the prior decision will be reversed and amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant or others, may be considered an informal claim. Such informal claim must identify the benefit sought. 38 U.S.C.A. § 3.155. But, as already explained, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit. While the Board must interpret his submissions broadly, it is not required to conjure up issues that were not raised by him. The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by him to apply for a benefit. Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Based upon the evidence of record, the Board finds no legal or factual basis under applicable VA law for an effective date earlier than May 16, 2004, for the grant of service connection for the left nephrectomy for the renal cell carcinoma. The record contains no statement or communication from the Veteran that may be reasonably construed as raising a claim of entitlement to service connection for the renal cell carcinoma prior to May 16, 2005. The law does not provide for a date earlier than the date entitlement arose or the date the claim or the petition to reopen was received, whichever was later. 38 C.F.R. § 3.400 (emphasis added). With regards to his contentions that he should have an effective date back to when the presumptive liberalizing law was enacted in October 1992 and/or when he was initially diagnosed with kidney cancer have no merit because the date that his claim was actually received - meaning received by VA (see 38 C.F.R. § 3.1(r)) - was not until in May 2005, which is the later date, and the liberalizing law, even assuming he met its requirements from the time of its enactment, only allows for assignment of an effective date at most one year prior to when he eventually filed his claim, which is why the RO made his award retroactive to May 2004 since his claim was filed in May 2005. With regards to his contention that he filed an earlier claim in 1993, the file simply is devoid of any documentary evidence confirming that occurred. To the extent he contends he was unaware of his eligibility, this, too, has no merit, as ignorance of the law is no excuse. Bryan v. West, 13 Vet. App. 482, 486-87 (2000). 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). Thus, 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, 68 S.Ct. 1. Although the Veteran sincerely believes that he is entitled to an earlier effective date for service connection, there is no legal or factual basis under applicable VA law or regulation allowing for an effective date earlier than May 16, 2004, for entitlement to service connection for his kidney cancer. His claim therefore must be denied. In so concluding, the Board in no way intends to minimize his sacrifices for his country, which are deserving of the highest respect. The Board, however, is obligated to decide cases based on the evidence and the law before it rather than based on equity. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). ORDER The claim for an effective date earlier than May 16, 2004, for the grant of service connection for left nephrectomy for renal cell carcinoma is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs