Citation Nr: 1320727	
Decision Date: 06/27/13    Archive Date: 07/05/13

DOCKET NO.  09-27 929	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to an effective date earlier than July 10, 2008 for the award of service connection for nonischemic dilated cardiomyopathy (heart disability).  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Nichols, Associate Counsel


INTRODUCTION

The Veteran served on active duty from November 1980 to February 2001.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 brokered decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Columbia, South Carolina.  Jurisdiction of the Veteran's claims file, however, rests with the RO in Roanoke, Virginia.  

In December 2012, the Veteran testified at a Board hearing before the undersigned Acting Veterans Law Judge (AVLJ).

A review of the Virtual VA paperless claims processing system reveals documents that are pertinent to the present appeal, namely the December 2012 Board hearing transcript.  

FINDING OF FACT

In July 2008, the Veteran filed his first claim for VA compensation benefits for a claim of service connection for a heart disability.  


CONCLUSION OF LAW

The criteria for an effective date prior to July 10, 2008, for the grant of service connection for a heart disability have not been met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.104(a), 3.151, 3.155, 3.159, 3.400 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA's Duties to Notify and Assist

Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide.  38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). 

The issue herein decided is the propriety of the effective date assigned for the original grant of service connection for a heart disability.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). 

In this case, the record reflects that a letter sent to the Veteran in July 2008 notified him of what information and evidence is necessary to substantiate a claim for an earlier effective date, which information and evidence VA will obtain, and which information and evidence he is expected to provide.  The Board is therefore satisfied that the Veteran was provided appropriate notice as well as a meaningful opportunity to participate in the adjudicatory process, and that there is no prejudice in the Board proceeding with a decision at this time. 

With regard to VA's duty to assist, it is noteworthy that determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points of time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding.  Nevertheless, the Board has carefully reviewed the Veteran's service treatment records, reports of post-service private and VA treatment and examination, and the Veteran's statements in support of his claim, and concludes that there has been no identification of further available evidence not already of record that would be relevant to the current claim on appeal.  Thus, VA's duty to assist has been met.

Furthermore, the Veteran was also afforded an opportunity to present testimony at a hearing before the Board.   During the hearing, the undersigned AVLJ clarified the issue on appeal, explained the concept of earlier effective date, ascertained that the Veteran did not have any additional evidence to submit, and also explained the concept of equitable relief to the Veteran.  The actions of the AVLJ supplement the VCAA and comply with any related duties owed during a hearing.

Analysis

The record reflects that the Veteran's active military service ended in February 2001.  In July 2008, the RO received the Veteran's claim by way of a written letter, in which the Veteran indicated that he was seeking compensation for a heart disability that first began during service.  A November 2008 RO rating decision awarded service connection for nonischemic dilated cardiomyopathy, and assigned an initial disability rating of 60 percent effective July 10, 2008, the date of receipt of the Veteran's claim. 

Evident from the Veteran's lay statements and hearing testimony, it is his contention that he be awarded an effective date earlier than July 10, 2008 because of an erroneous diagnosis in service which overlooked his serious heart condition.  He avers that a later discovery of his serious heart condition led to his later filing for disability benefits.  

Specifically, the Veteran was found to have an irregular heartbeat during service in 1997 as he experienced extreme fatigue while exercising.  Upon a showing of unusual EKGs, the Veteran was told he had an enlarged heart or "athletic heart."  No treatment was rendered at the time in service as medical professionals were not terribly concerned about the heart condition.  Upon separation from service in 2001, the military physicians did not note a serious heart problem.  The seriousness of the heart condition was later discovered in 2007 when the Veteran was given a thorough and comprehensive heart screening by a heart specialist at the Walter Reed Army Medical Clinic.  His treating physician at Walter Reed informed him that he had a dilated/congested heart and that he should immediately begin treatment.  The 2007 diagnosis lead to the filing of the July 2008 claim for service connection for a heart disability.  The Veteran argues that had he been properly diagnosed in service, he would have certainly filed his claim for service connection upon separation from service in February 2001.

Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA.  38 U.S.C.A. § 5101(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.151(a).  In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2).  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); 38 C.F.R. § 3.400(b)(2)(i). 

'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) (2012); see also Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim.  Such an informal claim must identify the benefits 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).  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).

In this case, the Veteran does not dispute that his first claim for service connection for a heart disability was in July 2008.  In fact, he verified such fact during his December 2012 Board hearing.  See Tr., p. 11.  Nevertheless, the Board has reviewed the claims file and observes that no communication was received from the Veteran prior to such date that might be construed as a claim for disability benefits with regards to a heart disability.  Rather, the documents of record dated prior to the July 2008 claim letter mostly pertain to the Veteran's other previous claims for the following conditions as listed on his VA Form 21-526 dated January 2001: headaches, neck pain and stiffness, and difficulty sleeping; arrhythmic type pain and soreness (hand disability); vision impairment; ankle disability; urinary disease; and broken nose.  

Absent any indication that an informal or formal claim was received prior to July 10, 2008, the controlling laws and regulations dictate that the award of disability compensation will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)(i).  Therefore, even if evidence of record supports a finding of a heart disability since service, the effective date of any award of service connection cannot be earlier than the date of receipt of the Veteran's compensation claim (unless received within one year of his separation from service). 

It is well settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing.  See, e.g., MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006), discussing Brannon v. West, 12 Vet. App. 32, 35 (1998)).  See also 38 C.F.R. § 3.1(p).  Thus, while the Board is sympathetic to the Veteran's claim for an earlier effective date for the grant of service connection for a heart disability, absent evidence that he submitted a formal or informal request of entitlement to service connection for such disability prior to July 10, 2008, the effective date for this award cannot be earlier than the date of receipt of his claim as it was received more than one year after his separation from military service.  38 C.F.R. § 3.400.  To the extent that the Veteran contends that he is entitled to an earlier effective date due to a misdiagnosis in service, which he argues, would have prompted him to file earlier for benefits, there is no basis in the law for an award on such grounds.  Such arguments therefore essentially constitute a theory of equitable relief.  However, the Board is without authority to grant relief on an equitable basis.  See 38 U.S.C.A. § 7104 (West 2002); Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). 

The Board has given the most favorable reading possible to the facts of this case, but finds that there is no interpretation of the facts of this case which will support a legal basis for favorable action with regard to the Veteran's claim.  Accordingly, the Board finds no basis in the law or facts in this case for an effective date for service connection for a heart disability earlier than July 10, 2008.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  In reaching this conclusion, the benefit of the doubt doctrine was considered.  However, as a preponderance of the evidence is against this claim this doctrine is not for application.  See 38 U.S.C.A. § 5107 (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Therefore, under the laws and regulations pertaining to effective dates, the July 10, 2008 date of claim is the appropriate effective date for the grant of entitlement to service connection for nonischmeic dilated cardiomyopathy in this case, and an earlier effective date is not warranted.


ORDER

An effective date earlier than July 10, 2008 for the award of service connection for nonischemic dilated cardiomyopathy is denied.



____________________________________________
STEPHANIE L. CAUCUTT
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs