Citation Nr: 1314043 Decision Date: 04/26/13 Archive Date: 05/03/13 DOCKET NO. 09-20 480 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than July 21, 2003, for the grant of service connection and 100 percent rating for multiple myeloma for accrued benefits purposes. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Appellant and K.E. ATTORNEY FOR THE BOARD Michael Holincheck, Counsel INTRODUCTION The Veteran served on active duty from March 1966 to August 1973. The Veteran died in August 2007. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The appellant testified at a Travel Board hearing before the undersigned Veterans Law Judge in October 2012. A transcript of the hearing is associated with the claims folder. 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). FINDINGS OF FACT 1. The evidence of record shows that the Veteran first registered for eligibility for VA healthcare in August 1998. 2. The Veteran's initial claim for service connection for multiple myeloma was received by VA on July 21, 2003. He was granted service connection in July 2003 with notice of the rating action provided in August 2003. The effective date of the grant of service connection, and a 100 percent disability rating, was from the date of the claim. 3. The Veteran did not appeal the effective date assigned for service connection or the 100 percent rating. The rating decision became final. 4. Even if an earlier claim for service connection was deemed received by VA prior to July 2003, that claim is considered to be adjudicated in July 2003. As the Veteran did not appeal the July 2003 rating decision, it is now final and an earlier effective date cannot be established. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than July 21, 2003, for the grant of service connection and 100 percent rating for multiple myeloma for accrued benefits purposes have not been met. 38 U.S.C.A. §§ 5110, 5121 (West 2002); 38 C.F.R. §§ 3.114, 3.400, 3.816, 3.1000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background The Veteran served on active duty from March 1966 to August 1973. He submitted a claim for entitlement to service connection for multiple myeloma that was received on July 21, 2003. He stated that he believed his myeloma was the result of herbicide exposure during his service in Vietnam. He submitted two statements from his private physician, B. Goldsweig, M.D., both dated in July 2003. In the first statement, Dr. Goldsweig said the Veteran was diagnosed with multiple myeloma/plasmacytoma in October 1997. He said the initial diagnosis was by a Dr. Smith. The Veteran started therapy for his illness in January 1998 and continued to be on active therapy. In his second statement, Dr. Goldsweig opined that the Veteran had a life expectancy of six months to one year. The Veteran had also provided an authorization to obtain the treatment records from Dr. Goldsweig with his claim. The records were identified as dating from October 1997 to the then present - July 2003. The Veteran's military records documented his service in Vietnam during the period required for presumptive service connection of his multiple myeloma as due to herbicide exposure. Thus, the evidence established a current diagnosis of a presumptive disease based on herbicide exposure and that the Veteran served in Vietnam during the requisite period for consideration of presumptive service connection. The Veteran was granted service connection for his disability in July 2003. He was awarded a 100 percent rating from the date of his claim, July 21, 2003. Notice of the rating action was provided to the Veteran in August 2003. There is no indication in the claims folder that the Veteran appealed any aspect of the rating action, to include the effective date for service connection and his 100 percent rating. The Veteran submitted a claim in April 2007. He said he had had an appointment with VA in January 1998. He said that he completed a claims form at that time but said he was told his claim was a waste of time because his claimed disease was not "on the list." He noted that he filed his claim again in 2003 and it was processed. He said that the 2003 claim was supposed to cover the period back to when he first attempted to file a claim in 1998. He said VA failed to process his original claim and he believed he should receive benefits back to the date of his original claim in 1998. The Veteran contacted the RO to inquire about his recent claim in June 2007. The Veteran explained that he had given the claim to a VA representative at the PCT desk in April 2007. A Report of Contact noted that a check was made of the Veteran's claims folder and the claim had been received and placed in the claims folder with no action. The Veteran was contacted in June 2007 and informed that the RO would process his claim. The Veteran's daughter contacted the RO to inform VA of the Veteran's death in August 2007. The appellant submitted her claim for Dependency and Indemnity Compensation (DIC) and accrued benefits in October 2007. In regard to her claim for accrued benefits, the appellant stated that she should receive retroactive benefits back to 1998. Service connection for the cause of the Veteran's death was granted by way of a rating decision dated in October 2007. A determination on the effective date for accrued benefits was deferred. The appellant submitted additional information in support of her claim in December 2007. She noted that she and the Veteran relocated to South Carolina in 1998. They made an appointment and registered with VA for care in 1998. She said the Veteran informed VA personnel that he had multiple myeloma and wanted to file a claim for benefits. She said the Veteran was informed that his disease was not on the list of Agent Orange-related diseases and that he could not fill out a claim form unless it was on the list. She said the Veteran was told it would be a waste of time. The appellant said the Veteran received information from a relative that multiple myeloma had been added to the list of presumptive diseases. The Veteran went on online to confirm the fact and she said it was added to the list of diseases in 1997 or 1998. The Board notes that multiple myeloma was included in the list of presumptive diseases associated with herbicide exposure in Vietnam in June 1994. See 59 Fed. Reg. 29,723-29,724 (June 9, 1994). The appellant said the Veteran submitted his claim for service connection in 2003. The appellant also said the Veteran was told that he would not receive retroactive payment to 1998 because he did not file a claim at that time. She said the Veteran explained why he did not submit an earlier claim. The appellant also said the Veteran was told in February 2007 that he could be reimbursed for the years 1998 to 2003. The appellant did not identify the source of this information. The Veteran went to VA to submit a claim. She said the Veteran was told by a VA employee not to bother because he would not get the retroactive benefit. Another VA employee directed that the Veteran be given a claim form. The appellant noted that the Veteran called to check on his claim and learned that it had been stuck in his claims folder without anyone taking action. Processing of the claim was begun at that time after contact with the Veteran. The RO denied the appellant's claim for an earlier effective date for accrued benefits in February 2008. The RO determined that the evidence showed the Veteran first submitted a claim for service connection that was received on July 21, 2003. He had not appealed the effective date established in July 2003. Thus, no earlier effective date could be established. The appellant submitted her notice of disagreement (NOD) in May 2008. She maintained that the Veteran did try to submit an earlier claim for service connection. She further maintained that there should be a claim for benefits on file at the VA medical center (VAMC) in Columbia, South Carolina. The appellant was issued a statement of the case (SOC) in June 2009. In the SOC, the RO related that a check of records at VAMC Columbia was made. It was noted that the earliest login date for the Veteran was recorded as of September 9, 1998, and the earliest application for enrollment was November 21, 1998. The SOC indicated that there was no indication of a claim being filed. The appellant testified at her Travel Board hearing in October 2012. Her testimony was essentially the same as her prior submissions. The Veteran had attempted to submit a claim in 1997/1998. He was told it would be a waste of time as multiple myeloma was not included in the list of presumptive diseases related to herbicide exposure. She testified that the Veteran received a letter from the VAMC on their moving to South Carolina. He was advised to come in and register for VA care. The Board remanded the case for additional development in December 2012. One issue was that the SOC of June 2009 referenced records from the VAMC in Columbia that were not associated with the claims folder or Virtual VA. The records needed to be associated with the claims folder. The appellant was to be given the opportunity to identify treatment records for the Veteran. She was also to be given the opportunity to submit any correspondence from VA to the Veteran following his diagnosis of multiple myeloma from October 1997 to April 2007. On remand, the Appeals Management Center (AMC) wrote to the appellant in December 2012. She was asked to identify treatment records for the Veteran. She was also asked to submit copies of correspondence from VA for the period from October 1997 to 2007. The AMC obtained records from the Columbia VAMC in January 2013. The records show that the Veteran submitted a VA Form 10-10EZ, Initial Application for Health Benefits in August 1998. The form did show the Veteran reported being exposed to Agent Orange. The application did not include any information regarding a specific medical condition. However, the Veteran did report that he and the appellant had non-reimbursed medical expenses of $3,000 to $5,000. The VAMC wrote to the Veteran in November 1998 in response to his application for health benefits. The letter essentially notified the Veteran of his enrollment for VA healthcare. He was informed of the name of his physician and given a contact telephone number to schedule an appointment. He was also given a telephone number to contact should he experience any medical problems before a scheduled visit. There is also a computer printout, dated September 9, 1998, that showed the Veteran's basic service information. A copy of the Veteran's DD 214 was included. The last record was a VA Form 10-10F, Financial Worksheet, dated in February 2001. This form included information on all of the income for the Veteran and the appellant. The form also listed the Veteran's medical expenses during the previous calendar year in the amount of $5,091.00. The form was signed by the Veteran. The response from VAMC Columbia said this represented all records for the Veteran, to include those that had been retired and recalled. The cover sheet noted that the Veteran had registered for treatment but was never treated. The appellant responded to the AMC's letter by providing an authorization form for records from Dr. Smith for the period from October 1997 to July 2001. The AMC wrote to Dr. Smith for the identified records in February 2013 but the request was returned as unable to deliver as addressed. A Report of General Information, dated March 5, 2013, noted that a VA employee left a message for the appellant that the records request was returned. The appellant returned the call and said she had been unable to retrieve the records as they were destroyed after 10 years. The appellant's claim remained denied. She was issued a supplemental statement of the case (SSOC) in March 2013. The appellant submitted a response to the SSOC in April 2013. She said the whole case was based on a VA employee that refused to give the Veteran a form to fill out to start the process for benefits in 1998. She said this was because he was diagnosed with multiple myeloma that was not on the employee's "Agent Orange List." She noted that the Veteran submitted a claim for an earlier effective date that was misplaced. The appellant also noted that the medical records from Dr. Smith were now destroyed and that there was nothing more she could submit in support of the claim. II. Analysis The law applicable to accrued benefits provides that certain individuals, including a veteran's surviving spouse, may be paid periodic monetary benefits (due and unpaid for a period not to exceed two years) to which the veteran was entitled at the time of his/her death under existing ratings or based on evidence in the file or constructively of record at the time of death. 38 U.S.C.A. § 5121(a) (West 2002); 38 C.F.R. § 3.1000 (2012). A claim for such benefits must be filed within one year of the veteran's death. 38 C.F.R. § 3.1000(c). Here the Veteran submitted a claim for an earlier effective date for his grant of service connection and 100 percent rating for multiple myeloma in April 2007. He died in August 2007. The appellant submitted her claim for accrued benefits within one year of the Veteran's death. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). In the case of presumptive service connection, the effective date is the date the entitlement arose if the claim is received within one year after separation from active duty. Otherwise the effective date is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(ii) (2012). Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2012); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits). A claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Any claim for VA benefits must be submitted in the form prescribed by the Secretary. 38 U.S.C.A. § 5101(a) (West 2002). Section § 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Moreover, the United States Court of Appeals for Veterans Claims (Court) has explicitly stated that the "mere presence" of a diagnosis of a specific disorder in a VA medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. See Brannon v. West, 12 Vet. App. 32, 35 (1998). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a) (2012). Such a communication may be 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. The appellant maintains that the Veteran tried to submit a claim for service connection for multiple myeloma when he registered for VA healthcare in 1998. She further maintains that the Veteran was told it would be a waste of time as the disease was not included in the list of presumptive diseases related to Agent Orange exposure. The appellant maintains that service connection should be established based on the attempt to submit a claim in 1998. Her contentions are essentially the same as those raised by the Veteran when he submitted his claim in April 2007. Records were obtained from VAMC Columbia that show the Veteran did register for enrollment for VA healthcare in August 1998. The records do not show the Veteran as listing a specific medical condition or that he was seeking disability compensation at that time despite the fact that he was being treated for his multiple myeloma at the time. There is a second submission from the Veteran in February 2001 by way of a financial disclosure form. Again, no specific medical condition is identified on the form and there is no indication that he sought disability compensation at that time. The first identifiable claim for service connection of record is the Veteran's submission that was received on July 21, 2003. At that time he submitted a VA Form 21-526, Veteran's Application for Compensation and/or Pension. He listed the condition of multiple myeloma and that he believed it was due to his exposure to Agent Orange. He also submitted the first medical evidence that documented his diagnosis of the disease in October 1997 and treatment since that time. His claim was granted and he was awarded a 100 percent rating within days of the submission of the claim. His effective date was established as of July 21, 2003. He was provided notice of the rating action on August 7, 2003. The Veteran had one year to express disagreement with any aspect of the rating decision, to include the effective date. See 38 U.S.C.A. § 7105(b)(1)(West 2002); 38 C.F.R. § 20.302 (a) (2003). However, there is no evidence of record to reflect that the Veteran disagreed with any aspect of the rating decision until he submitted his claim in April 2007. The rating decision became final. Neither the Veteran nor the appellant ever contended that Veteran expressed disagreement with the effective date assigned in July 2003. The Board notes that the United States Court of Appeals for the Federal Circuit and the Court have issued a number of decisions that require VA to fully and sympathetically develop a Veteran's/appellant's claim to the optimum before deciding it on the merits. The decisions have also held that pro se filings must be read liberally. See Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013); Moody v. Principci, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). In Ingram v. Nicholson, the Court noted that: It is the pro se claimant who knows what symptoms he is experiencing and that are causing him disability, ...[and] it is the Secretary who knows the provisions of title 38 and can evaluate whether there is a potential under the law to compensate an averred disability based on a sympathetic reading of the material in a pro se submission. Ingram, 21 Vet. App. 232, 256-57 (2007). Even if the Board was to construe the Veteran's submission of his application for healthcare in August 1998 or financial information in February 2001 as a claim for service connection, an earlier effective date could not be established. This is because the claim would have been finally adjudicated with the rating decision of July 2003. The Board notes that the Court also held in Ingram that a reasonably raised claim remains pending until there is either recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent claim for the same disability. 21 Vet. App. at 243. The Federal Circuit has also held that a subsequent final adjudication of a claim that is identical to a pending claim that had not been finally adjudicated terminates the pending status of the earlier claim. See Williams v. Peake, 521 F.3d 1348, 1351 (Fed. Cir. 2008). The Federal Circuit further noted that notice of the adjudication of the later claim provides the Veteran with an opportunity for appeal. It is clear from the evidence of record that an identical claim would have been adjudicated in July 2003 as one raised in August 1998 or February 2001 - service connection for multiple myeloma based on herbicide exposure in Vietnam. As the Veteran did not appeal the effective date assigned in July 2003, there would be no basis for an earlier effective date on a theory of an earlier submitted claim. The Board has also considered whether an earlier effective date could be obtained through a change in the law. In that regard, if the payment of additional compensation is due to a change in the law or an administrative issue, the effective date of the increase is fixed in accordance with the facts, but is not earlier than the date of the change in the law. In no event is the increase retroactive for more than one year from the date of application for the increase, or the date of administrative determination, whichever is earlier. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2012). This provision is often used in cases relating to new diseases added to the list of presumptive disease associated with herbicide exposure. If a claim is reviewed at the claimant's request more than a year after the effective date of the law, benefits may be authorized for one year prior to the date of receipt of the request. 38 C.F.R. § 3.114(a)(3). However, in order for a claimant to be eligible for such a retroactive payment, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of the claim or administrative determination of entitlement. 38 C.F.R. § 3.114(a). In this case, there is no change, or liberalizing law, that would benefit the appellant. Multiple myeloma was a presumptive disease linked to herbicide exposure as of 1994. The Veteran was not diagnosed until October 1997. Thus, an earlier effective date cannot be established under this theory. Finally, the Board has considered the application of 38 C.F.R. § 3.816 in this case. That regulation relates to individuals identified as a Nehmer class member based on the case of Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.). The regulation was promulgated in response to court orders in the cited case. A Nehmer class member is defined as a Vietnam veteran who has a "covered herbicide disease." A "covered herbicide disease" means a disease for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002, pursuant to the Agent Orange Act of 1991. 38 C.F.R. § 3.816(b) (2012). Certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; or if there was a claim for benefits pending before VA between May 3, 1989, and the effective date of the applicable liberalizing law; or, if the claim was received within one year of the class member's separation from service, the effective date is the day following separation from service. See 38 C.F.R. § 3.816(c)(1)-(3). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Certain additional exceptions are set forth that are not pertinent to this appeal. In this case, the Veteran was a Nehmer class member and he had a covered herbicide disease. He was not denied compensation between the required dates and did not have a claim pending between May 3, 1989, and the effective date of the regulation establishing multiple myeloma as a covered disease - June 9, 1994. He was not diagnosed with multiple myeloma until October 1997. In addition, his claim was not received within one year after his separation from service. Thus, there is no basis to establish an earlier effective date through application of 38 C.F.R. § 3.816. Upon consideration of all of the evidence of record and the contentions of the Veteran and now the appellant, the Board finds that an earlier effective date cannot be established in this case. As noted, even if an earlier claim for service connection for multiple myeloma is conceded, that identical claim was adjudicated in July 2003. The Veteran did not disagree with the effective date assigned for his grant of service connection or 100 percent rating within the required one-year period and the July 2003 decision became final. In addition, the Board finds that there is no liberalizing law or regulation that would permit an earlier effective date and a positive outcome under 38 C.F.R. § 3.816 is also unavailing. In Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). The Court noted that any other result would vitiate the rule of finality. 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 must be dismissed. The appellant's accrued benefits claim is one to challenge the effective date established by way of the rating decision of July 2003. A rating decision that became final without any appeal. Accordingly, the claim is a freestanding claim for an earlier effective date and, as per the Court's direction in Rudd, the claim must be dismissed. The Board is sympathetic with the appellant's claim and acknowledges her frustration with the information she and the Veteran received in 1998 and the handling of his claim in 2007. However, the law is dispositive in this case. The Board cannot grant benefits based on equity. See 38 U.S.C.A. § 7104. Should the appellant so desire, she may petition the Secretary for equitable relief in her case. The Board has considered the provisions of the Veterans Claims Assistance Act of 2000 (VCAA), (codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp 2012)), and implementing regulation, codified at 38 C.F.R. § 3.159 (2012). The Board notes that, although the RO provided the appellant with general notice on how to substantiate a claim for accrued benefits, the RO failed to apprise the appellant of the provisions of the VCAA in regard to an earlier effective date issue. However, VA's General Counsel has issued a precedential opinion, VAOPGCPREC 5-2004, that holds 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. As noted, the undisputed facts in this case, and the applicable law, do not permit the grant of the benefit sought by the appellant. ORDER The appellant's claim for entitlement to an effective date earlier than July 21, 2003, for the grant of service connection and 100 percent rating for multiple myeloma for accrued benefits purposes is dismissed. ____________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs