Citation Nr: 1318747 Decision Date: 06/10/13 Archive Date: 06/21/13 DOCKET NO. 09-49 024 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an effective date prior May 30, 2008 for the grant of entitlement to service connection for diabetes mellitus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Juliano, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1966 to March 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) regional office (RO) located in St. Petersburg, Florida. FINDING OF FACT On May 30, 2008, the Veteran filed an original claim of entitlement to service connection for diabetes mellitus; no communications were received by VA prior to that time that may be construed as a formal or informal claim. CONCLUSION OF LAW The criteria for an effective date prior to May 30, 2008 for the grant of service connection for diabetes mellitus 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 regard to the Veteran's claim for an earlier effective date for the grant of service connection for diabetes mellitus, 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, 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 for VA to obtain. 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. 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). The Veteran claims entitlement to an effective date prior to May 30, 2008 for the grant of service connection for diabetes mellitus. By way of background, on May 30, 2008, the Veteran, by way of his representative, filed a Form 21-526 formal claim for service connection for diabetes mellitus. Included with the Form 21-526 was a Form 21-22 Power of Attorney from the Disabled American Veterans (DAV), and a cover letter from DAV dated May 30, 2008 requesting that it be appointed as the Veteran's representative, and noting that a claim for service connection for diabetes mellitus was being filed therewith. A December 2008 rating decision granted the Veteran's claim for service connection for diabetes mellitus, and assigned an effective date of May 30, 2008. Prior to the filing of the Veteran's May 30, 2008 formal claim for service connection for diabetes mellitus, a March 1994 rating decision denied a separate claim for service connection for hearing loss, and no documents were associated with the claims file until May 30, 2008, when the Veteran filed his claim for service connection for diabetes mellitus. As noted above, in the case of direct service connection claims, 38 U.S.C.A. § 5110(a) provides that the effective date of an award "shall not be earlier than the date of receipt of application therefor." See also 38 C.F.R. § 3.400(b)(2). In this case, the date of receipt of the Veteran's service connection claim was May 30, 2008. Therefore, the Board concludes that the earliest effective date of service connection for diabetes mellitus is May 30, 2008, the date of receipt of the claim. The Board has considered whether an informal claim was filed prior to May 30, 2008. In that regard, prior to the filing of his claim in May 30, 2008, the claims file included a November 1993 formal claim for service connection for hearing loss, and a March 1994 rating decision denying the claim. There is no record in the claims file dated prior to May 30, 2008 indicating that the Veteran intended to file a formal or informal claim for service connection for diabetes mellitus prior to May 30, 2008. The Board also acknowledges VA treatment records associated with the claims file dated from July 2006 to July 2008, which include a November 2006 letter from a physician at the Orlando, Florida VA medical center in which he notified the Veteran that his fasting glucose was 145 and that he has diabetes mellitus, and later November 2006 records showing that he began treatment for diabetes. The Board notes, however, that "[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. The Board acknowledges that the Veteran has alleged that he had filed a November 2006 claim for service connection for diabetes mellitus along with a November 2006 power of attorney, and that it was "lost by the VA." See, e.g., Statement, August 2008; Claim (EED), February 2009. He cites the fact that the Form 21-22 on file is dated in November 2006 and that it had been filed with a November 2006 claim for service connection for diabetes mellitus (which Form 21-22 on file, while executed by DAV in November 2006, was received by VA in May 2008 with the diabetes mellitus claim in the file). In response to a request for proof from the RO, the Veteran submitted a copy of a December 2006 cover letter from DAV in which the representative stated that copies of the Veteran's DD Form 214, marriage certificate, and a Form 21-4138 were all being submitted for entitlement to a dependency allowance with regard to a "pending claim." While the Board acknowledges that the December 2006 DAV cover sheet references a "pending claim," the Board notes that, nevertheless, it does not tend to establish that the Veteran ever filed a claim for service connection for diabetes prior to May 2008. Moreover, the Board points out that DAV's May 2008 cover sheet filed with the Veteran's May 2008 diabetes claim never references any "pending claim" or any other sort of prior or outstanding claim for service connection for diabetes. Rather, the May 2008 cover sheet reflects "we are submitting the attached material as a claim for benefits. . . for diabetes mellitus," i.e., as the original claim. In addition, it requests that VA appoint DAV as the representative, thereby clearly indicating that no prior Form 21-22 had ever been filed as alleged by the Veteran. Based on these inconsistencies between the Veteran's alleged 2006 claim "lost by VA" and the documentary evidence of record from the Veteran's own representative, the Board finds the Veteran's allegations to be incredulous. In addition, the Board notes that the Court has long recognized that "[t]here is a presumption of regularity under which it is presumed that government officials 'have properly discharged their official duties.' " Ashley v. Derwinski, 2 Vet.App. 307, 308-09 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)). The presumption of regularity may be overcome only by the submission of "clear evidence to the contrary." Id. at 309. A claimant's mere statement that he submitted a document to VA is insufficient for that purpose. See Fithian v. Shinseki, 24 Vet.App. 146, 151 (2010) (applying the presumption of regularity to conclude that VA did not receive the appellant's Substantive Appeal because the appellant's statements were insufficient to rebut the presumption that had VA received the Substantive Appeal, VA would have placed it in the claims file and acted on it in some way); see also Redding v. West, 13 Vet.App. 512, 515 (2000) (finding appellant's assertions of submission insufficient to rebut presumption that RO did not receive her power of attorney). Therefore, in light of the above case law, the Board finds that the Veteran's allegation that he filed a claim for service connection for diabetes mellitus prior to May 30, 2008 to be insufficient to rebut the presumption of regularity (presuming that any claim for service connection filed by the Veteran would be of record in the claims file), even in combination with the photocopy of the December 2006 letter (which at no time references diabetes mellitus). In summary, the preponderance of the evidence is against the claim for entitlement to an effective date prior to May 30, 2008 for the grant of service connection for diabetes mellitus; the benefit of the doubt rule is not for application. See 38 U.S.C.A. § 5107(b). ORDER Entitlement to an effective date prior to May 30, 2008 for the grant of entitlement to service connection for diabetes mellitus is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs