Citation Nr: 1323244 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 10-26 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to payment of attorney fees from past due benefits awarded by the Department of Veterans Affairs. 2. Entitlement to an earlier effective date for service connection of lipomas, angiolipomas, seborrheic keratosis, and epidermoid cysts with status post removal to back, forehead, right rib cage, stomach, right leg and right arm. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. G. Alderman, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision issued by the Department of Veterans Affairs Appeals Management Center (AMC) in Washington, DC, that granted service connection and a 10 percent rating, effective August 9, 2001, for lipomas, angiolipomas, seborrheic keratosis, and epidermoid cysts with status post removal to back, forehead, right rib cage, stomach, right leg and right arm ("skin condition"). The Veteran appeared and provided testimony before the Board in January 2011. A transcript of the hearing has been associated with the claims file. The issues of entitlement to an increased rating for his skin condition and to service connection for Lupus have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. On January 11, 2011, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that he wanted to withdrawal the appeal challenging the grant of attorney fees. 2. The RO denied entitlement to service connection for the Veteran's skin condition in December 1982 and denied reopening the claim in March 1997. The Veteran did not appeal either decision or submit new and material evidence within one year of either decision. 3. On August 9, 2001, the Veteran filed to reopen his service connection claim for a skin condition. 4. In June 2008, the AMC granted service connection and assigned a 10 percent disability evaluation for the skin condition, effective August 9, 2001, the date of claim. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal contesting payment of attorney fees from past due benefits awarded by the Department of Veterans Affairs have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. § 20.204 (2012). 2. An effective date prior to August 9, 2001, for the grant of service connection for a skin condition is not warranted. 38 U.S.C.A. §§ 5103 , 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawal of Claim An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In this case, during his January 2011 hearing before the Board, the Veteran clarified that he did not want to appeal the grant of attorney fees awarded to his former attorney. He simply wants VA to recognize that he rescinded the appointment of his former attorney as his representative in March 2009 and appointed the Disabled American Veterans (DAV) organization to represent him with his current claims. See Transcript, page 3. The Veteran submitted a new VA Form 21-22 appointing DAV as his representative in May 2009. Since there remains no allegations of errors of fact or law for appellate consideration regarding the appeal of attorney fees; the Board does not have jurisdiction to review this matter and it is dismissed. II. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this appeal, such notice is unnecessary because the Veteran is challenging the effective date for the grant of service connection for his skin condition assigned in the June 2008 rating decision. In cases where service connection has been granted, and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Goodwin v. Peake, 22 Vet. App. 128, 136 (2008); Dingess, 19 Vet. App. at 484. Further, the Veteran has neither alleged nor demonstrated that he has been prejudiced by defective notice. Goodwin, 22 Vet. App. at 136; Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007). Therefore, the duty to notify the Veteran has been met. Regarding the duty to assist, the resolution of the claim seeking an earlier effective date depends upon when certain document(s) were either received by VA and/or promulgated to the Veteran; therefore, adjudication of a claim for an earlier effective date is based on evidence already in the claims file. Consequently, there is no additional development that can be conducted, nor any other records which can be obtained, which would substantiate the Veteran's claim. For example, any additional medical examination would only document the current severity of the Veteran's service-connected disability, and not whether he satisfied the criteria for an effective date earlier than August 9, 2001. Therefore, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. III. Earlier Effective Date 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); 38 C.F.R. § 3.151(a) (2012). 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) (West 2002); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r). "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); Brannon v. West, 12 Vet. App. 32, 34-5 (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 from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as best friend of a claimant who is not sui generis 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) (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). Once a formal claim for compensation has been allowed, a report of examination or hospitalization by VA will be accepted as an informal claim for increased benefits if the report relates to treatment or evaluation of a disability for which service connection has been previously established. The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of claim. 38 C.F.R. § 3.157(b) (2012). In this case, the Veteran filed his initial claim seeking service connection for a skin condition in September 1982. The RO denied his claim in December 1982 and advised him of his appellate rights. The Veteran did not submit a NOD or new and material evidence within one year of the decision; therefore, the December 1982 rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2012). The Veteran filed a claim to reopen his claim for service connection for a skin condition in September 1996. In March 1997, the RO denied reopening his claim due to lack of receipt of new and material evidence and advised him of his appellate rights. The Veteran did not submit a NOD or new and material evidence within one year of the decision; therefore, the March 1997 rating decision became final. The next correspondence from the Veteran regarding his skin condition was received on August 9, 2001. He asked the RO to reopen and reconsider his claim. The RO denied the claim in August 2002 due to lack of receipt of new and material evidence and advised him of his appellate rights. The Veteran appealed the August 2002 decision and in June 2008, the AMC granted service connection and assigned a 10 percent disability evaluation, effective August 9, 2001, the date of his claim. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that August 9, 2001 is the correct date for the grant of service connection for the Veteran's skin condition. As noted above, the effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(ii), (r) (2012). In this case, the Board found no formal or informal claims for service connection for a skin condition pending prior to the receipt of the August 9, 2001 claim. While the Veteran's condition pre-existed the date of his claim, because August 9, 2001 is the latter of the two dates, an effective date prior to August 9, 2001 is not warranted. Consequently, the Board finds that the appropriate effective date for the award of service connection for his skin condition is August 9, 2001, the date the claim was received. An earlier effective date is not authorized by law. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application in the instant case. See generally Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Consequently, the benefit sought on appeal is denied. ORDER The appeal addressing payment of attorney fees from past due benefits is dismissed. Entitlement to an effective date prior to August 9, 2001 for service connection of lipomas, angiolipomas, seborrheic keratosis, and epidermoid cysts with status post removal to back, forehead, right rib cage, stomach, right leg and right arm is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs