Citation Nr: 1313293 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 11-02 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an earlier effective date, prior to August 25, 2009, for the grant of service connection for malaria. ATTORNEY FOR THE BOARD T. M. Gillett, Counsel INTRODUCTION The Veteran served on active duty from January 1945 to December 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which granted the Veteran's claim for service connection for malaria, evaluating the disability as 10 percent disabling, effective the date of the claim, August 25, 2009. This matter arises from the Veteran's disagreement with the August 25, 2009 effective date assigned for the granting of service connection for malaria. The Veteran did not request a hearing before the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The evidence of record indicates that the Veteran first filed a claim for service connection for malaria on August 25, 2009. CONCLUSION OF LAW The criteria for an earlier effective date, prior to August 25, 2009, for the grant of service connection for malaria have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The United States Court of Appeals for Veterans Claims (Court) held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) the veteran's status; (2) the existence of a disability; (3) a connection between the veteran's service and the disability; (4) the degree of disability; and (5) the effective date of the disability. The Court held that, upon receipt of an application for a service connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim, and to provide the veteran with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Id. at 486. This notice must also inform the veteran that a disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id. In this instance, a September 2009 VCAA notice letter satisfied the provisions of 38 U.S.C.A. § 5103(a). In this letter, VA informed the Veteran about the information and evidence not of record that was necessary to substantiate the claim; the information and evidence that VA would seek to provide; the information and evidence the Veteran was expected to provide; and the information regarding the assignment of ratings and effective dates required by Dingess. VA has acquired the Veteran's service and VA treatment records to assist with the claim. The Board notes that, as this appeal deals only with the Veteran's claim for an earlier effective date for malaria, and not the granting of service connection itself, VA's provision of a medical examination to determine the nature and etiology of the Veteran's malaria disorder is not relevant. Nevertheless, the Board notes that the RO provided the Veteran with a VA medical examination to determine the nature and etiology of his malaria disorder during the pendency of the appeal in October 2009. In view of the foregoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Earlier Effective Date for Malaria In general, the effective date of an evaluation and award of pension, compensation, or dependency, and indemnity compensation 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 the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The effective date for direct service connection is 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, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). In this case, the evidence of record indicates that the Veteran contacted the VA National Call Center and asked to open a claim for service connection for malaria on August 25, 2009. In an October 2009 VA medical examination report, the October 2009 VA examiner noted that the Veteran was treated for malaria during service in 1946. The VA examiner noted that the Veteran reported experiencing intermittent exacerbations of vertigo and muscle tightness in the trunk. The VA examiner diagnosed malaria with onset in service. In October 2009, the RO wrote the Veteran and told him that they were unable to continue work on the Veteran's claim because he had never previously filed a formal application for VA compensation benefits (VA Form 21-526). On November 9, 2009, the Veteran filed a complete VA Form 21-526. In a statement, dated November 10, 2009, the Veteran wrote that he was treated for malaria during service and that he subsequently experienced the effects of malaria many times after service. The Veteran stated that VA medical facilities "politely" refused to treat him over the years even though he had no money to visit a doctor on his own. The Veteran stated that he now lived near a VA medical facility and that he had been there on at least five occasions. The Veteran stated that, after being there so often, the VA medical personnel at the nearby facility finally decided to help him. The Veteran stated that he had filled out the VA Form 21-526 and mailed it in on two different occasions, but did not specify the dates of mailing. In the January 2010 rating decision from which this appeal arises, the RO granted service connection for malaria, assigning an effective date of August 25, 2009, the date that the Veteran's contacted the VA National Call Center and indicated that he wished to file a claim. In this decision, the RO granted service connection, in large part, due to the findings of an October 2009 VA examiner. The RO specifically noted that the Veteran reported experiencing malaria symptomatology after his discharge from service. However, in the VA rating decision, the RO also stated that the record of evidence contained no evidence of treatment for malaria after 1946. In a January 2010 statement, sent to the President of the United States, the Veteran stated that the RO was lying when it stated that he had not been treated for malaria over the previous 60 years. The Veteran wrote that he had lost time and money over the years due to malaria, and that veterans at VA medical facilities "waited in the halls" for care. In an April 2010 statement, the Veteran wrote that, over the previous 66 years, VA medical personnel had repeatedly told him that they had no record of him. The Veteran also indicated that VA medical facilities told him that they could not help him with his malaria and that he had lost work due to the disability. The Veteran stated that he went to his nearby VA facility eight times before he insisted on help. The Veteran stated that he knew that his malaria was on record for 67 years and did not believe that VA was being honest with him. In a May 2010 Notice of Disagreement (NOD), the Veteran noted that, in an April 2010 letter, the RO had told him that they had no record of a claim for malaria filed prior to August 25, 2009. The Veteran stated that he had made "oral claims" to various VA facilities dating back to 1947. The Veteran indicated that VA medical personnel had "politely" rejected his oral claims and told him repeatedly that they had no record of the Veteran having malaria. The Veteran wrote that all of his "requests" might have been lost by VA personnel. The Veteran stated that he had to take his discharge papers to the nearby VA medical facility eight times before the facility acknowledged him and filed his papers. The Veteran again stated that he mailed in a VA Form 21-526 on two different occasions. The Veteran wrote that it could not be denied by VA that the records showed that he had been treated for malaria since January 5, 1947 and that this had been the case every time that he had requested help from VA medical facilities. The Veteran stated that VA employees' lies had kept the employees from filing a claim for him. In his January 2011 Substantive Appeal to the Board, the Veteran wrote that he went to different VA facilities for 67 years wherever he lived. Each time, the VA personnel told him that they could not help him with his malaria as it was not in his record. From this record of evidence, the Board finds that the preponderance of evidence weighs against the Veteran's claim for an earlier effective date, prior to August 25, 2009, for the granting of service connection for malaria. As indicated above, the Board has thoroughly reviewed the Veteran's statements. The Board notes that, in most of these statements, the Veteran has reported experiencing frustration with VA personnel as he believes that they improperly denied him medical treatment for malaria. While the Board has noted the Veteran's frustration, the Board also notes that such matters are irrelevant to the Veteran's earlier effective date claim before the Board. Essentially, the only question before the Board concerns the date on which the Veteran first filed a claim requesting VA monetary compensation related to service connection for malaria. As noted above, the record of evidence indicates that the Veteran first contacted VA personnel to file a claim for VA service connection benefits for malaria on August 25, 2009. Specifically, on that date, the Veteran contacted the VA National Call Center and told a VA employee that wished to file a claim for service connection for malaria. The current record contains no indication that the Veteran filed a VA Form 21-526 prior to August 25, 2009. Although the record indicates that the Veteran did not file a VA Form 21-526 until November 2009, the RO granted the Veteran's claim for service connection for malaria, effective August 25, 2009, the date he told VA personnel that he wished to file the claim. As the Veteran's claim for service connection for malaria was not received within one year of his December 1946 separation from service, the effective possible effective date is the date of receipt of the Veteran's claim, August 25, 2009. 38 C.F.R. § 3.400(b)(2)(i). In his November 2009 statement, the Veteran suggested that he had mailed a copy of a VA Form 21-526 to VA on two prior occasions. In reviewing the November 10, 2009 statement, the Board notes that the Veteran obviously mailed a copy of a VA Form 21-526 once before he wrote the November 10, 2009 statement as the RO filed a completed VA Form 21-526 on November 9, 2009. In fact, in the November 10, 2009 statement, the Veteran did not report that he had mailed a copy to VA at any time prior to August 25, 2009. Yet, in his May 2010 NOD, the Veteran stated that he had made "oral claims" regarding malaria to VA personnel over the years and that VA personnel had denied him help. The Veteran stated that VA employees' lies, apparently about his in-service treatment for malaria, kept those employees from filing a claim for service connection for him over the years. Therefore, as the Veteran has written that he made "oral claims" to VA personnel prior to August 25, 2009, and apparently indicated that he had mailed at least one VA Form 21-526 prior to his mailing of the copy received by the RO on November 9, 2009, the Veteran is essentially contending that he filed a claim for service connection for malaria prior to August 25, 2009, and that said claim was ignored by VA personnel. If the Veteran is contending either that VA personnel did not properly file a VA Form 21-526 that he mailed prior to August 25, 2009, or that VA personnel did not actually note his desire to file a claim for service connection for malaria on any date prior to August 25, 2009, the Board finds that such contentions, without any other evidence, are insufficient to overcome the presumption of regularity applying to government officials. See Ashley v. Derwinski, 2 Vet. App. 307, 308-09 (1992). The Court has held that "there is a presumption of regularity which holds that government officials are presumed to have properly discharged their official duties." Ashley, 2 Vet. App. at 308-09 (quoting United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15, 71 (1926)). The presumption of regularity attaches to "all manner of VA processes and procedures." See Woods v. Gober, 14 Vet. App. 214, 220 (2000). Thus, it follows that, had a VA employee either received a properly filed VA Form 21-526 or heard the Veteran make a clear oral claim for service connection for malaria prior to August 25, 2009, the VA employee would have properly noted the Veteran's claim. Absent clear evidence to the contrary, VA is entitled to the presumption that VA personnel perform their duties, including the proper filing of claims for service connection. In order to overcome the presumption of regularity and shift the burden to VA to explain why a claim for service connection was not properly noted as filed, a veteran must submit "clear evidence" indicating that VA personnel erred in performing their duties. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001) (presumption of regularity allows courts to presume that what appears regular is regular, the burden shifting to the claimant to show the contrary). In this instance, the Veteran has not presented any evidence indicating that VA personnel did not properly perform their duties outside of his lay statements. The Veteran has not provided any names, dates, or other information regarding any attempts to file a claim for service connection prior to August 25, 2009. Considering this evidence, the Board finds that the Veteran's vague lay statements, suggesting the filing of a claim for service connection for malaria prior to August 26, 2009, are not sufficient to overcome the presumption of regularity. Therefore, as clear evidence to the contrary has not been submitted, the Board finds that the VA personnel are presumed to have noted the Veteran's claims for service connection properly. See id. As the evidence shows that the Veteran first filed a claim for service connection for malaria on August 25, 2009, that is the earliest effective date that may be allowed for the grant of service connection for malaria. For the reasons stated above, the Veteran's claim for an earlier effective date, prior to August 25, 2009, for the grant of service connection for malaria is denied. 38 C.F.R. § 3.400(b)(2)(i). ORDER Entitlement to an earlier effective date, prior to August 25, 2009, for the grant of service connection for malaria is denied. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs