Citation Nr: 1322155 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-48 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than August 15, 2008, for the grant of service connection for auto-immune deficiency syndrome (AIDS) associated with posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Patrick J. Costello, Counsel INTRODUCTION The appellant served on active military duty from March 1968 to March 1970. This matter comes before the Board of Veterans' Appeals, hereinafter the Board, on appeal from a rating action of December 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In that action, the RO granted service connection for AIDS secondary to the previously service-connected psychiatric disorder. A 30 percent disability evaluation was awarded and an effective date of August 15, 2008, was assigned. FINDINGS OF FACT 1. On November 30, 2007, the RO received a claim of service connection from the appellant. In the claim, the appellant specifically requested that service connection be granted for a psychiatric disorder, to include PTSD. 2. On August 15, 2008, a VA examination was conducted that showed a diagnosis of AIDS secondary to PTSD. 3. The appellant did not file a claim, either formal or informal, for service connection for AIDS prior to August 15, 2008. CONCLUSION OF LAW The criteria for assignment of an effective date earlier than August 15, 2008, for the granted of service connection for AIDS secondary to PTSD, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.400 (2012) REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant seeks an earlier effective date be assigned for his service-connected AIDS secondary to his service-connected posttraumatic stress disorder. Service connection was granted for AIDS via an RO rating decision of December 16, 2008. The effective date was determined to be August 15, 2008. The appellant was notified of that decision. Within one year of the rating action, the appellant submitted a notice of disagreement in which he expressed disagreement with the effective date that was assigned. The appellant averred that the effective date of the award of service connection should be November 30, 2007 - the date of his original claim for his then recently service-connected PTSD. A review of the appellant's claim folder reveals that the appellant originally submitted a claim for entitlement to service connection on November 30, 2007. On that application for benefits, the appellant did not indicate or suggest that he was requesting service connection for AIDS, nor did he aver that his AIDS was secondary to his psychiatric disorder. Instead, the appellant requested service connection for PTSD that he claimed was caused by or the result of his military service. In conjunction with his claim for benefits for a psychiatric disorder, the appellant underwent a VA Psychiatric Examination on August 15, 2008. The examiner reviewed the appellant's available medical records and then examined the appellant. Upon conclusion of the examination, the examiner diagnosed the appellant as suffering from PTSD that was due to his military service. The examiner further noted the Veteran's diagnosis of AIDS. The examiner noted the Veteran's contention that his HIV was brought on by risk taking behavior including abuse of drugs and alcohol. The examiner believes it is more likely than not that the veteran's contention is correct. Because the drugs and alcohol are secondary to his PTSD, the examiner opined that it was more likely than not that his HIV status and the complications associated with the HIV, including the subsequent development of AIDS, was service-connected. The results of the examination were forwarded to the RO which, in turn, granted service connection for PTSD in a rating action issued on September 19, 2008. The effective date of the award was determined to be November 30, 2007 - the date of his original claim for benefits. The RO specifically deferred issuing a determination on the issue of entitlement to service connection for AIDS secondary to the service-connected PTSD so that a VA examination could be performed. See Notification Letter, September 24, 2008, and RO Rating Action, September 19, 2008. A second VA examination was accomplished on November 25, 2008. The appellant was diagnosed with AIDS after the medical doctor examined him. The results were forwarded to the RO. Upon review of the examination results and the appellant's claims file, the RO granted service connection for AIDS as secondary to the service-connected disability of PTSD with a depressive disorder. The RO then assigned an effective date of August 15, 2008. The RO noted in the rating action that this effective date was assigned based on the date of the VA examination showing a diagnosis of AIDS secondary to PTSD and depression. As reported, the appellant has appealed that assignment. Initially, it has been determined by the United States Court of Appeals for Veterans Claims (Court) that the Veterans Claims Assistance Act of 2000 (VCAA), (West 2002) is not applicable to claims involving statutory interpretation. See Livesay v. Principi, 15 Vet. App. 165 (2001); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA does not affect matters on appeal when the issue is limited to statutory interpretation). Consequently, the provisions of the VCAA, as well as VA's implementing regulations, will not be addressed in this portion of the Board's decision. With respect to the notice provisions, the Board observes that a statement of the case and the supplemental statement of the case, along with various notice letters have notified the appellant of any type of evidence needed to substantiate his claim. The governing statutory and regulatory provisions expressly stipulate that the effective date for the granting of disability compensation is the day following separation from active service or the date that the entitlement arose if the claim is received one year after separation from service. When a claim is received more than one year after the date of service separation, the effective date for the granting of disability benefits is the later of the dates that the claim was received or that entitlement arose. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012). Under 38 C.F.R. § 3.1(p) (2012), a "claim" for benefits or an "application" for the same will be ". . . a formal or informal communication in writing requesting a determination of entitlements, or evidencing a belief in entitlement, to a benefit." The Board notes that, in addition to filing a formal claim for compensation, any statement in a communication showing an intent to file a claim for disability or for death benefits resulting from the pursuit of a course of vocational rehabilitation, hospitalization, medical, or surgical treatment, or examination under VA laws may be accepted as a claim. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.154 (2012). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C.A. § 5110(b)(3) (West 2002); 38 C.F.R. §§ 3.1(p), 3.155(a) (2012). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appellant's substantive appeal, including all documents and oral testimony in the record prior to the Board's decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). But in determining whether an informal claim has been made, VA is not required to read the minds of the appellant or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). The informal claim of service connection for AIDS as secondary to the service-connected PTSD and the subsequent grant of benefits was based, in part, on an August 2008 VA psychiatric examination that found that the appellant's AIDS was due to or the result of or secondary to his posttraumatic stress disorder. The RO established an effective date of August 15, 2008, which was the date of the examination and thus the date it was ascertained that the AIDS disorder was secondary to PTSD. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. §§ 3.1(p), 3.155(a), 3.400 (2012). In considering the Veteran's earlier effective date claim, the Board must determine whether the claims folder contains any prior informal claim for benefits for service connection for AIDS secondary to the service-connected psychiatric disorder between the time of the discharge from service on March 26, 1970, until the current August 15, 2008, effective date now assigned. 38 C.F.R. §§ 3.1(p), 3.155(a) (2012); Lalonde v. West, 12 Vet. App. 377, 382 (1999). At the outset, the Board notes that there is no evidence that a claim of service connection for AIDS or any psychiatric disorder was received within one year after the appellant's separation from military service in March 1970. As such, the effective date cannot be the day following his separation from service. 38 C.F.R. § 3.400(b)(2) (2012). Additionally, the claims folder contains no other communication from the appellant or his representative or attorney indicating intent to seek, or a belief in entitlement to, service connection for AIDS from the time of discharge from service in March 1970 until August 15, 2008, the current date assigned. 38 C.F.R. §§ 3.1(p), 3.155(a) (2012). Indeed, it appears that it was actually the RO, and not the appellant, that processed the secondary service connection based on its own reading of the VA medical examination of August 15, 2008, and not based on any communication from the appellant or his representative. In order for a statement to be construed as a claim, the claimant must identify the benefit sought. This means that the claimant must describe the nature of the disability for which he is seeking benefits. His identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, at 256-57 (2007). A claimant may identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). However, in the present case, the appellant did not identify the benefit sought per 38 C.F.R. § 3.155(a) (2012) until after the RO granted service connection and assigned an effective date. Also, there are no medical records contained in the claims folder that might be construed as an informal claim that would indicate or suggest that the appellant might be applying for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006), citing Brannon v. West, 12 Vet. App. 32, at 35 (1998). Furthermore, the Court has held that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information which refers to a disability in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). The Court has also stated that a veteran's attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet. App. 327, 330 (1993). VA must have some means of distinguishing between legitimate claims and ordinary medical paperwork. The basic procedural requirements imposed by § 3.155 serve this purpose. The Court recognized two exceptions to this general rule: (1) When an underlying claim has been awarded and the medical records demonstrate that the veteran's disability has increased (38 C.F.R. § 3.157), or (2) when an underlying claim has been denied and the medical records evidence new and material evidence to reopen the claim. Criswell, 20 Vet. App at 504. However, neither exception applies in this case. The Board has also considered the Court's decision in the case of King v. Shinseki, 23 Vet. App. 464, 470-71 (2010). Although the King case addressed the issue of whether VA medical evidence could constitute a claim to reopen based on new and material evidence, as opposed to an original claim, it holdings are still relevant to the present case. The Court held in King that a veteran's recorded statements to VA health professionals expressing a wish or desire to be service connected do not constitute new and material evidence or informal requests to reopen a previously disallowed claim for service connection. Id. The Court further explained there was no reasonable expectation that VA would investigate whether a claim to reopen had been filed based merely on his comments to VA examining physicians expressing a wish or desire for VA benefits. Id. In footnote 3 of King, the Court noted that "nothing in the regulations contemplates filing such a claim with a VA medical professional." Unlike King, in the present case, there is no mention in the private medical treatment records or even the VA medical examination of August 2008 that the appellant actually openly expressed his desire for service connection for AIDS on a direct or secondary basis. No medical professional in the present case documented any such statement from the appellant. The Board emphasizes that in determining whether an informal claim has been made, VA is not required to read the minds of the appellant or his representative. Cintron v. West, 13 Vet. App. 251, at 259 (1999); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); see Sondel v. Brown, 6 Vet. App. 218, 220 (1994) (when issue is not reasonably raised, Board is not required to "conduct an exercise in prognostication"). The Board acknowledges that 38 C.F.R. § 3.157(b) (2012) provides that, once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the specified types of evidence will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, the Federal Circuit has interpreted § 3.157 to mean that an informal claim "must be for a condition that not only has been the subject of a prior claim, but the condition must also have previously been found to be service connected" or disallowed because the disability was "not compensable in degree." MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006); see also Kessel v. West, 13 Vet. App. 9, 23 (1999) (there has not been a prior allowance or disallowance of a claim for service connection for the claimed condition, and any examination reports could not be accepted as an informal claim); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (because the appellant had not been granted service connection for his anxiety disorder, the mere receipt of medical records cannot be construed as an informal claim); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992) (section 3.157(b) provides that the date of an outpatient or hospital examination or admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim for increased benefits, or an informal claim to reopen, with respect to disabilities for which service connection has been granted). In the present case, when the VA examination report of August 2008 produced a diagnosis of PTSD that was etiologically linked the appellant's military service, the disorder had not been the subject of a prior claim and had not been adjudicated by the RO. The same is true for the diagnosis of AIDS in the examination report of November 2008. The MacPhee case clearly rendered § 3.157(b) inapplicable to determining effective dates in claims where service connection is not already established and remains in effect as controlling law. Therefore, here, 38 C.F.R. § 3.157(b) (2012) does not provide a legal basis for an earlier effective date. The Board has also considered whether 38 C.F.R. § 3.816 (2012) should be applied 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) (2012). However, if the requirements of 38 C.F.R. § 3.816(c)(1)-(2) (2012) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400 (2012). See 38 C.F.R. § 3.816(c)(4) (2012). Certain additional exceptions are set forth that are not pertinent to this appeal. In this case, it is true that the appellant honorably served in Vietnam and was more than likely exposed to chemical dioxins while in theatre. However, he is service-connected for AIDS secondary to his service-connected PTSD. Neither HIV/AIDS nor PTSD are one of the herbicide diseases listed at 38 C.F.R. § 3.816 (2012), and as such the basic requirements of 38 C.F.R. § 3.816 (2012) have not been met. In other words, he is not a Nehmer class member. The Board also notes that his claim was not received within one year after his separation from service, and his service-connected AIDS/HIV has never been recognized as a "covered herbicide disease" nor is it a condition secondary to a "covered herbicide disease." Thus, there is no basis to establish an earlier effective date through application of 38 C.F.R. § 3.816 (2012). More importantly, with regard to secondary service connection for AIDS, the effective date assigned for a secondarily service-connected disability does not relate back to the filing date of a prior claim for the antecedent disability. Ellington v. Nicholson, 22 Vet. App. 141 (2007). Thus, the effective date for the grant of secondary service connection for AIDS cannot be the same as the effective date for the original underlying service-connected PTSD, unless they were filed at the same time. Moreover, there is no provision in the law for awarding an earlier effective date based on evidence that the appellant exhibited symptoms of AIDS prior to August 15, 2008. While VA is obligated to consider all possible bases for compensation, this does not mean that it must consider claims that have not been raised. Dunson, 4 Vet. App. at 330. In conclusion, the Board is sympathetic to the appellant and his accredited representative's arguments, but the Board's actions are bound by the applicable law and regulations as written and has no power to grant benefits not authorized by law. 38 U.S.C.A. § 7104(c) (West 2002). The general default rule is that the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). Here, the date of medical examination that determined that the appellant's AIDS was secondary to his PTSD (August 15, 2008), provides the earliest effective date possible when considering the facts of the present case. The Board need not determine whether the precise "date of entitlement" for secondary connection for AIDS is prior to the date of claim or subsequent to it, since in either case the date of informal claim (August 15, 2008) provides the earliest effective date possible. It was on that date that the condition was identified as being secondary to a possibly service-connected disability, and thus August 15, 2008, was the date that the entitlement arose. Therefore, the claim for an effective date earlier than August 15, 2008, for the award of service connection for AIDS must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012). ORDER Entitlement to an effective date earlier than August 15, 2008, for the grant of service connection for AIDS secondary to PTSD and depression is denied. ____________________________________________ Eric S. Leboff Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs