Citation Nr: 1318255 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 10-44 077A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. For the period prior to June 10, 2010, entitlement to an initial disability rating in excess of 20 percent for hepatitis C. 2. For the period beginning on June 10, 2010, entitlement to an initial disability rating in excess of 40 percent for hepatitis C. 3. Entitlement to an effective date prior to May 23, 2008 for the award of service connection for hepatitis C. REPRESENTATION Appellant represented by: National Association of County Veterans Service Officers ATTORNEY FOR THE BOARD J. Juliano, Counsel INTRODUCTION The Veteran served on active duty from October 1973 to October 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) located in Philadelphia, Pennsylvania. By way of background, a September 2008 rating decision denied entitlement to service connection for hepatitis C, which the Veteran appealed to the Board. A June 2010 Board decision granted the Veteran's claim. The August 2010 rating decision granted service connection effective May 23, 2008, and assigned a noncompensable disability rating. The Veteran appealed the initial rating and effective date of service connection to the Board. Subsequently, a November 2010 rating decision granted a higher, 20 percent rating, effective May 23, 2008. A November 2011 rating decision granted a higher, 40 percent rating, effective June 10, 2010. As these latter two grants of higher ratings did not constitute a full grant of the benefit sought on appeal, the Veteran's rating claims remain before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to an initial rating in excess of 20 percent disabling for the period prior to June 10, 2010, and 40 percent thereafter for the Veteran's hepatitis C are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The evidence of record does not reflect that the Veteran filed a formal or informal claim for service connection for hepatitis C prior to May 23, 2008. CONCLUSION OF LAW The criteria for an effective date prior to May 23, 2008, for the grant of service connection for hepatitis C have not been met. 38 U.S.C.A.§ 5110 (West 2002); 38 C.F.R. §§ 3.400 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, 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). The Board notes that the request for an earlier effective date is a downstream issue from the grant of the benefit sought, which was initiated by a notice of disagreement (NOD). The Court of Appeals for Veterans Claims has held that, as in this case, once an NOD from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). In any event, an August 2008 VCAA letter advised the Veteran of the information and evidence necessary to substantiate his claim for an service connection, what types of evidence the Veteran was responsible for obtaining and submitting to VA, and which evidence VA would obtain. The notice also explained how VA assigns disability ratings and effective dates. See Dingess, supra. The Board also concludes that VA's duty to assist has been satisfied. VA treatment records and private treatment records have been obtained and associated with the claims file. The Board finds that all necessary development of this downstream claim for an earlier effective date for the award of service connection 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. 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), reversed on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis Section 5110(a) provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim or a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." Similarly, 38 C.F.R. § 3.400 provides that except as otherwise provided, the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2012). "Claim" is 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his 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. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155(a) (2012). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The mere presence of medical evidence does not establish intent on the part of the veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Merely seeking treatment does not establish a claim, to include an informal claim, for service connection. The Veteran claims entitlement to an effective date prior to May 23, 2008 for the award of service connection for hepatitis C. He believes that the effective date of the award of service connection should be in 1993 when he donated blood to the American Red Cross that tested positive for hepatitis C antibodies. As noted above, 38 U.S.C.A. § 5110(a) provides that the effective date of an award of service connection shall not be earlier than the date of receipt of application therefor. In this case, the Veteran's informal claim for service connection for hepatitis C was received by VA on May 23, 2008. The Board has carefully reviewed every piece of correspondence received from the Veteran and his representative prior to that time, but none of them make any reference to any hepatitis. Moreover, the Veteran did not file his claim within one year of his separation from service, accordingly, an earlier effective date on that basis is not warranted. See 38 C.F.R. § 3.400(b)(2) (2012). Therefore, the Board finds that the earliest possible effective date for the Veteran's service connection award is May 23, 2008. The Board acknowledges the Veteran's sincere belief that he should be entitled to an earlier effective date for his hepatitis C service connection award because it was diagnosed prior to May 23, 2008. In that regard, the Board likewise acknowledges medical evidence of record reflecting that he tested positive for hepatitis C antibodies prior to May 23, 2008, including the September 2008 document from the American Red Cross reflecting that he donated blood back in June 1993 and that his blood tested positive for hepatitis C antibodies. Also, the Board acknowledges the Veteran's December 2008 statement that he tested positive for the hepatitis C antibodies at the Underwood Memorial Hospital, and in that regard, that records from that facility in the claims file show that he was hospitalized in December 2006 and January 2007 for complaints of lower left quadrant pain and diarrhea and that a January 2007 blood test results show that the hepatitis C antibody was positive. The Board notes, however, that these private medical records were not submitted until after the Veteran filed his informal claim for service connection in May 2008, and there was no informal claim for service connection prior to May 2008. Also, the Board notes again that, unfortunately, the existence of a diagnosis or seeking treatment by itself does not constitute a claim for benefits. The Board emphasizes that it is constrained by VA laws and regulations governing the establishment of effective dates for the award of compensation. Therefore, in light of the above, the Board finds that a preponderance of the evidence is against the Veteran's claim for entitlement to an effective date prior to May 23, 2008 for the award of service connection for hepatitis C. There is not an approximate balance of evidence. ORDER Entitlement to an effective date prior to May 23, 2008 for the award of service connection for hepatitis C is denied. REMAND The Veteran's service-connected hepatitis C is currently rated as 20 percent disabling prior to June 10, 2010, and 40 percent thereafter under Diagnostic Code 7354. 38 C.F.R. § 4.114 (2012). The Veteran seeks higher initial ratings. The medical evidence of record includes, among other things, VA treatment records dated from 2008 to 2011, and various private treatment records letters. The Veteran was also provided with VA examinations in September 2009 (relating to his service connection claim) and in December 2010. There is no indication in the claims file that his condition has worsened since the December 2010 VA examination so as to require a new VA examination. A March 2010 letter from Dr. Santoro reflects that he wrote that the Veteran had been under his care for hepatitis C since December 2009. In addition, a July 2010 VA treatment record reflects that the Veteran was treated by Dr. Santoro in 2010 for his hepatitis C. The Board notes, however, that there are no treatment records in the claims file from Dr. Santoro, only this March 2010 letter as well as a December 2010 letter written by him. Therefore, the Board finds that a remand is necessary so that any outstanding private treatment records from Dr. Santoro dated from December 2009 to present may be obtained. Also, in a February 2008 letter, Dr. Prieto wrote that he had been treating the Veteran for a year for his hepatitis C. He also noted that the Veteran was his patient in an October 2008 letter. Likewise, a July 2010 VA treatment record reflects that Dr. Prieto had treated the Veteran in 2007 for his hepatitis C. The Veteran identified treatment records from Dr. Prieto in a September 2008 Form 21-4142. The Board acknowledges that the RO requested copies of records from Dr. Prieto, and in response, several lab records, with handwritten notes, were received dated in 2008. On remand, the Veteran should be asked to provide or authorize the release of any additional recent records from Dr. Prieto. The Veteran also identified on the September 2008 Form 21-4142 private treatment records from Dr. Kehler. The Board acknowledges that the RO requested the records, and that the Veteran's treatment records dated from December 2003 to May 2009 have been associated with the claims file. Subsequently, a May 2010 VA treatment record notes that Dr. Kehler was the Veteran's outside physician. Therefore, the Board finds that any outstanding private treatment records from Dr. Kehler dated since May 2009 should also be associated with the claims file. In addition, as the Veteran currently receives care for hepatitis C through VA, recent VA treatment records not already associated with the record should be obtained on remand. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA has constructive notice of VA generated documents that could reasonably be expected to be part of the record). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding private treatment records from Dr. Santoro dated from December 2009 to present and associate them with the claims file. To that end, provide the Veteran with a Form 21-4142 authorization for his completion. Also, ask that the Veteran provide or authorize the release of any additional outstanding private treatment records from Dr. Prieto and Dr. Kehler. To that end, provide the Veteran with a new Form 21-4142 authorization for his completion. Ask the Veteran to identify any other outstanding private treatment records relating to treatment for his service-connected hepatitis C since 2008. To that end, provide the Veteran with Forms 21-4142 authorizations for his completion. All attempts to fulfill this development should be documented in the claims file. If after continued efforts to obtain the records it is concluded that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) inform the Veteran that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. Associate with the record recent VA treatment records pertaining to the treatment of hepatitis C that are not already of record. 3. Then, conduct any additional development that is deemed warranted, and readjudicate the Veteran's claim. If his claim remains denied, he should be provided with a Supplemental Statement of the Case (SSOC). After the Veteran and his representative have been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs