Citation Nr: 1313259 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 10-38 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an earlier effective date prior to December 15, 2006 for the grant of service connection for chronic lymphocytic leukemia (CLL) with scar, status post lipoma removal. 2. Entitlement to an earlier effective date prior to March 2, 2010 for the grant of service connection for posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Saira Spicknall, Counsel INTRODUCTION The Veteran served on active duty from August 1968 to April 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In an April 2007 rating decision, the Columbia, South Carolina, RO awarded service connection for CLL and assigned 100 percent disability rating, effective December 15, 2006. The Veteran filed a notice of disagreement (NOD) in July 2008, in which he disagreed with the assigned effective date for the grant of service connection for CLL. He was provided a statement of the case (SOC) in September 2010 and filed a timely substantive appeal, via a VA form 9, with respect to this issue in September 2010. By a January 2011 rating decision, the Atlanta, Georgia, RO awarded service connection for PTSD and assigned a 30 percent disability rating, effective March 2, 2010. The Veteran filed an NOD in February 2011 with respect to the effective date assigned for the award of service connection on this issue. He was provided an SOC in April 2012 and filed a timely substantive appeal, via a VA form 9, with respect to this issue in May 2012. Jurisdiction over these claims remains with the Atlanta, Georgia RO. The Veteran testified at a hearing at the RO before a Decision Review Officer (DRO) of the RO (RO hearing) in August 2010. A transcript of that hearing has been associated with the claims file. A review of the Virtual VA paperless claims processing system reflects that additional records have been added to the present appeal. These records include VA medical records. A supplemental statement of the case (SSOC) was issued in April 2012, which addressed this additional evidence. FINDINGS OF FACT 1. The Veteran filed his initial claim for service connection for CLL with scar, status post lipoma removal, on December 15, 2006. 2. The objective evidence of record does not provide the basis for the award of service connection for CLL with scar, status post lipoma removal, prior to December 15, 2006. 3. The Veteran filed his initial claim for service connection for PTSD on October 25, 2004, which was denied by an October 2005 rating decision; he did not appeal this decision. 4. The Veteran filed a petition to reopen his claim for service connection for PTSD on March 2, 2010. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 15, 2006, for the grant of service connection for CLL with scar, status post lipoma removal, are not met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2012). 2. The criteria for an effective date earlier than March 2, 2010, for the grant of service connection for PTSD are not met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act (VCAA) The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000. Implementing regulations were created, codified at 38 C.F.R. § 3.159 (2012). Pursuant to the VCAA, before addressing the merits of a claim for VA disability benefits, the Board generally is required to ensure that VA's duties to notify and assist have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1) (2012). As service connection for CLL with scar, status post lipoma removal, and PTSD have been granted (the context in which the claims initially arose), and initial ratings and effective dates have been assigned, the notice requirements of the VCAA have been met because the initial intended purpose of the notice has been served. Additional VCAA notice is not required concerning this "downstream" effective date element of the claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel has clarified that no additional VCAA notice is required for a downstream issue, including regarding the effective date, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Instead of issuing an additional VCAA notice in this situation, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. Since the RO issued SOCs in September 2010 and April 2012 addressing the downstream earlier-effective-date claim, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. 195 (2003). The Board is aware that the Veteran submitted additional evidence in December 2012, after the most recent supplemental statement of the case (SSOC) was issued in April 2012 and the case was on appeal at the Board. 38 C.F.R. § 20.1304(c) states that any "pertinent" evidence submitted by the Veteran which is accepted by the Board must be referred to the agency of original jurisdiction for review, unless this procedural right is waived by the Veteran. No such waiver was received in this instance. However, upon review of the evidence, the Board notes that the additional evidence contains private medical records of treatment for CLL in November 2012, which is not "pertinent" to the claims on appeal, as the Veteran's appeals for earlier effective dates require a review of evidence in the claims file prior to the effective dates currently assigned, specifically relevant is evidence prior to December 15, 2006 and prior to March 2, 2010. As such, the Board finds although the new evidence was submitted without a waiver, it is not "pertinent" evidence to the issues on appeal. Therefore, the provisions of 38 C.F.R. § 20.1304 are inapplicable in this case. The Board also finds that all necessary development of the downstream earlier effective date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran. Resolution of this appeal ultimately turns on when he filed his claim, so an examination and opinion are not needed to fairly decide this appeal for an earlier effective date. 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, 85-86 (2008). Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA. Pertinent Laws and Regulations Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE)). 38 C.F.R. § 3.105(a). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). 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). The proper effective date for an award based on receipt of new and material evidence other than service treatment records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). When evidence, other than service treatment records, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). 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. The "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). 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). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). While VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Additionally, 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). Analysis 1. CLL with scar, status post lipoma removal The Veteran contends that his CLL with scar, status post lipoma removal, warrants an effective date prior to the December 15, 2006 effective date assigned for the grant of service connection for this issue. He disputes that the effective date should be granted back to 2003 based on the presumptive service connection regulation changes at that time which included CLL as a presumptive disability, or alternatively the effective date should be granted back to 1984 as he has had CLL since 1984 and had filed a claim at that time for service connection for Agent Orange exposure. Initially, the Board notes that as of October 16, 2003, the regulation pertaining to diseases associated with exposure to certain herbicide agents that are subject to presumptive service connection, located at 38 CFR § 3.309(e), was amended and chronic lymphocytic leukemia (CLL) was added to the list of diseases for which entitlement to service connection is presumed for veterans exposed to herbicide agents, to include Agent Orange. See 68 Fed. Reg. 59,540 -59,542 (October 16, 2003). As the Veteran's CLL with scar, status post lipoma removal, was granted on the basis of this presumption, service connection for CLL based on presumptive service connection under 38 C.F.R. §§ 3.307, 3.309(e) cannot be awarded prior to October 16, 2003, the date the regulations were amended to include CLL. The Veteran served on active duty from August 1968 to April 1970, and filed his initial claim for service connection for CLL with scar, status post lipoma removal, on December 15, 2006. Private medical records from April 1982 to November 2012 and VA medical records from February 1985 to April 2012, including a February 1985 VA examination, reflect that the Veteran was initially diagnosed with CLL in August 2006 by a private physician. While these records also include various white blood cell count findings dating back to January1992 at the earliest, there is no evidence of record that these values were associated with a diagnosis of CLL by a medical professional prior to August 2006. Attached to an August 2008 statement, the Veteran submitted a VA notice letter, dated in December 1984, notifying the Veteran that his application for benefits had been received. The Veteran added a handwritten note onto this letter, indicating that he had applied for benefits in December 1984 for "Agent Orange." Along with this letter, the Veteran also submitted online medical treatise information discussing treatment for CLL. In an August 2010 RO hearing, the Veteran reported that he was first diagnosed with CLL in 2006. His representative noted that they were attempting to obtain an earlier effective date from 2003, when presumptive service connection for CLL came into effect. The Veteran testified that, prior to 2006, he only had been treated for diabetes and had not been diagnosed with cancer. He stated that, at the time he was first diagnosed with CLL, a doctor had told him to see his primary doctor because his white blood cell count was high and he was presumed to have cancer. He also noted that after his primary doctor took his blood work and told him he had cancer, he sent him to a cancer specialist who confirmed that he had CLL and that he had it for "quite some time." The Veteran then specified that, after receiving the diagnosis of CLL in 2006, he went on the internet, researched leukemia, reviewed his past medical records back to 1984 and discovered his blood count had been high since 1984. He also reported having talked to his primary VA nurse about his diagnosis of CLL and that she had looked up his files and had told him he had it in 2004 based on reviewing his blood work. After a careful review of the record, the Board has determined, based upon the satisfactory and probative evidence set forth above, that an earlier effective date prior to December 15, 2006 for the grant of service connection for CLL with scar, status post lipoma removal, is not warranted. Authorization to receive a VA monetary benefit requires the existence of both entitlement to the underlying benefit, and a claim for the benefit. In this case, while the evidence, including private and VA medical records demonstrating white blood cell count findings dating back as early as January 1992, may have established entitlement to the benefit prior to December 15, 2006, there is no evidence in the claims folder showing that the Veteran had intended to file a formal or informal claim for service connection for CLL prior to that date. Initially, the Board observes that CLL was added to the list of diseases for which entitlement to service connection is presumed for veterans exposed to herbicide agents, to include Agent Orange as of October 16, 2003. See 68 Fed. Reg. 59,540 -59,542 (October 16, 2003). As the Veteran was granted service connection for CLL on this basis, an effective date for the grant of service connection for CLL could not be assigned prior to this date. With respect to the Veteran's argument that he had filed a claim for "Agent Orange" in December 1984, the record reflects that a claim for service connection for a skin rash and second degree burns secondary to Agent Orange exposure was filed in December 1984 and denied by the RO in April 1985. At that time, the Veteran perfected an appeal on the claim, which was denied by the Board in March 1986. The Board decision was final when issued. 38 U.S.C.A. § 7104. Furthermore, the claim was for a skin disability and not CLL. Thus, there is no evidence indicating that an earlier formal or informal claim for service connection for CLL was filed prior to December 15, 2006. While a Request for Authorization to Release Medical Records or Health Information was received in September 2006 and indicated that the Veteran might have possible leukemia, the type of leukemia was not specified and this form did not indicate any intent to file a claim for service connection at that time. 38 C.F.R. § 3.155(a). In summary, while the evidence, including private and VA medical records demonstrating white blood cell count findings dating back as early as January 1992, may have established entitlement to the benefit prior to December 15, 2006, VA had no notice whatsoever, in any form, that the Veteran had any desire to file a claim for service connection for CLL prior to the effective date currently assigned. Specifically, there is no correspondence of record received prior to December 15, 2006, indicating intent to apply for service connection for CLL. 38 C.F.R. §§ 3.151, 3.155. Therefore, despite the fact that the evidence may have established entitlement to the benefit prior to December 15, 2006, the effective date of an evaluation and award compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). In this case, the later date is the date of the Veteran's initial claim for service connection for CLL in December 15, 2006. Thus, the claim for an earlier effective date prior to December 15, 2006 for the award of service connection for CLL is denied. 2. PTSD The Veteran contends that his PTSD warrants the assignment of an effective date prior to the March 2, 2010 effective date assigned for the grant of service connection for this issue, as he had initially filed a claim for PTSD in 2005, which was denied in October 2005. As noted above, the Veteran served on active duty from August 1968 to April 1970. He filed his initial claim for service connection for PTSD on October 25, 2004, which was denied by an October 2005 rating decision. The Veteran did not appeal of this decision and no new and material evidence was received within one year of the decision. Therefore, the October 2005 rating decision was final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.156(b), 3.160(d), 20.200, 20.302, 20.1103. He filed a petition to reopen his claim for service connection for PTSD on March 2, 2010. Private medical records from April 1982 to November 2012 and VA medical records from February 1985 to April 2012, including a February 1985 VA examination, reflect that the Veteran was initially diagnosed with PTSD in September 2004 at VA and subsequently treated for and diagnosed with PTSD by VA treatment providers. After a careful review of the record, the Board has determined, based upon the satisfactory and probative evidence set forth above, that an earlier effective date prior to March 2, 2010 for the grant of service connection for PTSD is not warranted. The proper effective date for an award based on receipt of new and material evidence other than service treatment records received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i); 38 C.F.R. §§ 3.400(q)(2), 3.400(r). In this case, the Veteran filed his initial claim for service connection for PTSD on October 25, 2004, which was denied by an October 2005 rating decision. The Veteran did not timely perfect an appeal on this decision and the October 2005 rating decision was final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. Thereafter, he filed a petition to reopen his claim for service connection for PTSD on March 2, 2010. The January 2011 rating decision granted the Veteran's claim for service connection for PTSD based on the recent regulation changes relating to in-service stressors. See January 2011 rating decision; see also 38 C.F.R. § 3.304(f). While the Veteran has stated that he should be awarded an effective date back to 2005, when he filed his original claim, the original claim for service connection for PTSD was denied by the RO in October 2005 and he did not timely perfect an appeal on this decision and the October 2005 rating decision was final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103. The previous determination in October 2005, which was final and binding, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE)). 38 C.F.R. § 3.105(a). In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). In this case, the Veteran has not raised a claim asserting CUE with the October 2005 rating decision. Following the October 2005 final rating decision, there is no evidence in the claims folder showing that the Veteran had intended to file a formal or informal claim for service connection for PTSD prior to March 2, 2010. In summary, there is no correspondence of record received following the final October 2005 rating decision and prior to March 2, 2010, indicating intent to apply for service connection for PTSD. 38 C.F.R. §§ 3.151, 3.155. Thus, the claim for an earlier effective date prior to March 2, 2010, for the grant of service connection for PTSD is denied. ORDER An earlier effective date prior to December 15, 2006 for the grant of service connection for CLL with scar, status post lipoma removal, is denied. An earlier effective date prior to March 2, 2010 for the grant of service connection for PTSD is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs