Citation Nr: 1313124 Decision Date: 04/19/13 Archive Date: 05/02/13 DOCKET NO. 10-44 201A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an effective date prior to March 31, 2009, for the grant of entitlement to service connection for migraine headaches. 2. Entitlement to an effective date prior to March 31, 2009, for the grant of entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1988 to November 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in Atlanta, Georgia. The issues of whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, and entitlement to service connection for erectile dysfunction have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. An unappealed August 2007 rating decision denied entitlement to service connection for migraine headaches, which decision became final. 2. On March 31, 2009, the Veteran filed an application to reopen his previously denied claim of entitlement to service connection for migraine headaches; no other communications were received by VA since the prior final denial dated in August 2007 that may be construed as a formal or informal claim. 3. On March 31, 2009, the Veteran filed an original claim of entitlement to service connection for fibromyalgia; no communications were received by VA prior to that time that may be construed as a formal or informal claim. CONCLUSIONS OF LAW 1. The August 2007 rating decision that denied service connection for migraine headaches is final. 38 U.S.C.A. §§ 7104, 7266(a) (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1104 (2012). 2. The criteria for an effective date prior to March 31, 2009 for the grant of service connection for migraine headaches have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). 3. The criteria for an effective date prior to March 31, 2009 for the grant of service connection for fibromyalgia have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claims for earlier effective dates for the grants of service connection for migraine headaches and for fibromyalgia, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5102, 5103(a), 5103A, 5106 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is generally required to "notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided . . . that is necessary to substantiate the claim." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). As part of that notice, VA must "indicate which portion of that information and evidence, if any, is to be provided by the claimant and which portion, if any, the Secretary . . will attempt to obtain on behalf of the claimant." 38 U.S.C.A. § 5103(a)(1) (West Supp. 2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). For effective date claims such as herein, where service connection has been granted and the claimant has appealed the effective date, the claim of service connection has been more than substantiated, as it has been proven. As such, 38 U.S.C.A. § 5103(a) notice is no longer required since the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement with the effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, any defect as to notice is nonprejudicial. See Dingess, 19 Vet. App. at 490- 491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007); see also Goodwin v. Peake, No. 05-876 (U.S. Vet. App. May 19, 2008) (where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to any downstream elements). The Board also concludes that VA's duty to assist has been satisfied. All of the Veteran's relevant VA treatment records have been associated with the claims file. The Veteran has not identified any outstanding relevant evidence. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis 38 U.S.C.A. § 5110(a) provides that "the effective date of an award based on an original claim, a claim reopened after final adjudication, or 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." See also Sears v. Principi, 16 Vet. App. 244 (2002). Similarly, 38 C.F.R. § 3.400(b)(2) provides that for direct service connection claims received more than one year after separation from service, the effective date of an award of direct service connection will be the date of receipt of the claim, or the date entitlement arose, whichever is later. Likewise, with regard to applications to reopen finally disallowed claims, 38 C.F.R. § 3.400(q)(2) provides that the effective date of an award will be the date of receipt of the new claim or the date entitlement arose, whichever is later. With regard to informal claims, VA is generally required to send a formal application to the veteran, and if the completed form is received by VA within one year from the date it was sent to the veteran, then the claim will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155(a) (2012); Servello v. Derwinski, 3 Vet. App. 196, 200-201 (1992). "Any communication or action indicating an intent to apply for one or more benefits under the laws administered by [VA] ... may be considered an informal claim. Such informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a) (2012). "The mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit." Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). A. Migraine Headaches By way of background, the Veteran filed a September 2006 original claim for service connection for migraine headaches, which claim was denied by way of an unappealed August 2007 rating decision; that decision became final. After the final August 2007 rating decision was issued, no further correspondence or records were associated with the claims file until the Veteran filed an application to reopen his claim on March 31, 2009. A June 2010 rating decision reopened and granted the Veteran's claim for service connection for migraine headaches, and assigned an effective date of March 31, 2009. The Veteran claims entitlement to an earlier effective date. As noted above, in the case of applications to reopen finally disallowed claims, 38 C.F.R. § 3.400(q)(2) provides that the effective date of an award will be the date of receipt of the new claim or the date entitlement arose, whichever is later. In this case, the date of receipt of the claim was March 31, 2009. Therefore, the Board concludes that the earliest effective date of service connection for migraine headaches is March 31, 2009, the date of receipt of the application to reopen the claim. The Board has considered whether an informal claim was filed prior to March 31, 2009. As noted above, however, since the August 2007 final denial of the Veteran's original claim for service connection, absolutely no records or correspondence was associated with the claims file until the Veteran filed his March 2009 application to reopen his claim. The Board acknowledges that VA treatment records dated from 2006 to 2009 were later associated with the claims file and were constructively of record, which included documented complaints of headaches prior to March 31, 2009. See, e.g., March 2008; Bell v. Derwinski, 2 Vet .App. 611, 613 (1992) (holding that VA-generated documents in the possession of the Secretary at the time of the Board decision are constructively part of the record of proceedings, as mandated by 38 U.S.C.A. § 7252(b)). As noted above, however, the existence of medical records alone generally cannot be construed as an informal claim. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006); cf. 38 C.F.R. § 3.157 (2012). Therefore, the Board finds that there was no informal claim filed prior to March 31, 2009. As a final matter, the Board acknowledges the Veteran's sincere belief that because he filed a claim for service connection for migraine headaches back in September 2006, his effective date should date back to that time. For the reasons explained above, however, the Board emphasizes that the law does not permit an earlier effective date than March 31, 2009. In summary, the preponderance of the evidence is against the claim for entitlement to an effective date prior to March 31, 2009 for the grant of service connection for migraine headaches; the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b). B. Fibromyalgia By way of background, on March 31, 2009, the Veteran filed an original claim for service connection for fibromyalgia. See also Statement, September 2009. A June 2010 rating decision granted the Veteran's claim and assigned an effective date of March 31, 2009. The Veteran claims entitlement to an earlier effective date for the award of service connection. As noted above, in the case of direct service connection claims, 38 C.F.R. § 3.400(b)(2) provides that for claims received more than one year after separation from service, the effective date of an award of direct service connection will be the date of receipt of the claim, or the date entitlement arose, whichever is later. In this case, the Veteran separated from service in 1992, and the date of receipt of the claim was March 31, 2009, more than one year after separation. Therefore, the Board concludes that the earliest effective date of service connection for fibromyalgia is March 31, 2009, the date of receipt of the claim. The Board has considered whether an informal claim was filed prior to March 31, 2009. In that regard, prior to the filing of his claim in March 2009, the Board acknowledges that the claims file included VA treatment records dated from 2006 to 2007, which included documented complaints of joint pain. See, e.g., January 2007. As noted above, however, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit." Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2012). Therefore, the mere existence of VA treatment records noting joint pains in the claims file, in and of themselves, did not constitute an informal claim for service connection. The Board similarly acknowledges VA treatment records dated from 2006 to 2009 that were later associated with the claims file but were nevertheless constructively of record, which likewise included documented complaints of joint pain prior to March 31, 2009. See, e.g., June 2007 (shoulder pain). See Bell v. Derwinski, 2 Vet .App. 611, 613 (1992). Still, however, the only correspondence received from the Veteran prior to the March 31, 2009 claim for service connection was a September 2006 Form 21-526, in which the Veteran claimed service connection for a sleeping disorder, migraine headaches, muscle spasms, and vision loss, but not fibromyalgia. The Board adds that service connection for muscle spasms was separately denied by way of the August 2007 rating decision, which denial was not appealed by the Veteran and became final. The next correspondence received from the Veteran was the correspondence dated March 31, 2009, which was construed by the RO as both an application to reopen the Veteran's claim for muscle spasms (which application was denied by the June 2010 rating decision, and which denial was not appealed and became final) as well as a new claim for service connection for fibromyalgia. Therefore, the Board finds that there was no informal claim for service connection filed prior to the Veteran's March 31, 2009 claim. Even if the March 2009 correspondence was construed as an application to reopen a prior claim of entitlement to service connection for fibromyalgia (characterizing the previously denied September 2006 claim for muscle spasms more broadly), again, the earliest effective date for an application to reopen a finally denied claim for service connection is the date of the application to reopen. See 38 C.F.R. § 3.400(q)(2) (2012). As a final matter, the Board again acknowledges the Veteran's sincere belief that he should be entitled to an effective date in September 2006, the date of his previously denied claim for muscle spasms (which August 2007 rating decision was not appealed and became final). For the reasons explained above, however, the Board emphasizes that the law simply does not permit an earlier effective date than March 31, 2009. In summary, the preponderance of the evidence is against the claim for entitlement to an effective date prior to March 31, 2009 for the grant of service connection for fibromyalgia; the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b). (Continued on next page.) ORDER Entitlement to an effective date prior to March 31, 2009, for the grant of entitlement to service connection for migraine headaches is denied. Entitlement to an effective date prior to March 31, 2009, for the grant of entitlement to service connection for fibromyalgia is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs