Citation Nr: 1334564 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-48 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date prior to February 3, 2009 for the 10 percent disability evaluation for residuals of a pilonidal cyst. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Nichols, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1960 to July 1963. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In March 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Travel Board hearing. The transcript of the hearing is of record. Virtual VA and Veterans Benefits Management System (VBMS) electronic claims processing systems reveal documents that are either duplicative of the evidence of record or not pertinent to the appeal. FINDINGS OF FACT 1. In April 1964, VA effectuated the Veteran's renouncement of his VA compensation benefits. He was subsequently notified that such renouncement will not preclude the filing of a new application but no payment shall be made for any period before the date of receipt of the new application. 2. The Veteran's claim for reinstatement of compensation benefits filed in September 1973 and December 1976 had been abandoned each time as no evidence was submitted in support of his claim within one year from the date of notice in October 1973 and January 1977, respectively. 3. On February 3, 2009, the Veteran filed an informal claim for reinstatement of benefits and a VA examination was conducted. At the time of the February 3, 2009 claim, there were no prior claims pending. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than February 3, 2009 for the 10 percent disability evaluation for residuals of a pilonidal cyst are not met. 38 U.S.C.A. §§ 5110, 5306 (West 2002); 38 C.F.R. §§ 3.106, 3.158, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). As to the earlier effective date claim, the claim arises from the Veteran's disagreement with the effective date assigned in connection with the assignment of a 10 percent evaluation effective February 3, 2009 for residuals of a pilonidal cyst. Where an underlying claim of 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 prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). In addition, during the March 2013 Board hearing, the undersigned VLJ clarified the issue on appeal, explained the regulations pertaining to effective dates as it applies to the facts of the Veteran's case, and clarified factual issues that would assist in evaluation of the case. The actions of the VLJ supplement the VCAA and comply with any related duties owed during a hearing. See 38 C.F.R. § 3.103. Finally, VA obtained the Veteran's service treatment records and provided the Veteran with an examination in October 2009 in connection with his claim filed in 2009. Thus, the Board finds that VA has complied with the duty to assist with regard to the earlier effective date claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). Factual Background The Veteran was granted service connection for residuals of a pilonidal cyst by way of a December 1963 RO rating decision which assigned a 10 percent evaluation effective July 19, 1963. In February 1964, VA received a statement from the Veteran requesting a discontinuance of his VA compensation benefits because of his potential employment with the Washington D.C. Metropolitan Police Department. As a result, in April 1964, VA sent letters to both the Veteran and the Metropolitan Police Department confirming compliance with the Veteran's request to terminate compensation benefits. In May 1964, the Veteran submitted a report of hospitalization from December 1963 to January 1964 for his pilonidal cyst and requested a total rating for his period of hospitalization. By way of a June 1964 rating decision, the Veteran was granted a temporary total disability rating of 100 percent from December 30, 1963 and was awarded a 10 percent evaluation from February 1, 1964. The RO confirmed that the Veteran had renounced his entitlement to compensation as of February 1964 and in accordance with relevant provisions, the Veteran was deemed to have renounced all rights of compensation from the date of filing his renouncement and not those prior thereto. He was notified that the renouncement would not preclude the filing of a new application in the future. A noncompensable rating (0 percent) was in effect for his service-connected pilonidal cyst disability from April 1, 1964. In September 1973, VA received a statement from the Veteran indicating that he is no longer employed by the Metropolitan Police Department as of 1966 and that he would like to begin receiving his benefits again. In response, a notice letter was sent to the Veteran in October 1973 informing him that before his claim can be reconsidered, he must submit evidence, medical or lay evidence, showing that his service-connected disability has increased in severity. No response was received from the Veteran. In December 1976, the Veteran requested a reinstatement of his compensation benefits. A notice letter was sent to the Veteran in January 1977 requesting evidence demonstrating an increase in disability. He was informed that the disability was evaluated as less than 10 percent disabling. No response was received from the Veteran. VA received a statement requesting reinstatement of compensation benefits on February 3, 2009. In April 2009, the RO sent the Veteran a letter informing him that they have received his informal claim and notified him that he must subsequently file a formal claim, VA Form 21-526. In September 2009, VA received the Veteran's formal claim, VA Form 21-526. A VCAA notice letter was sent in September 2009 informing the Veteran that he had been scheduled a VA examination in connection with his claim for increase and also included a copy of 38 C.F.R. § 3.106, VA regulations on renouncement of claims. Accordingly, the Veteran underwent a VA examination in October 2009 in connection with his claim. A December 2009 rating decision increased the evaluation for service-connected residuals of pilonidal cyst to 10 percent effective February 3, 2009, the date of receipt of claim. In February 2010, the Veteran submitted his notice of disagreement as to the effective date of the 10 percent increase. He stated that August 30, 1966 that should be the effective date of his 10 percent evaluation. He subsequently perfected this appeal. In March 2013, the Veteran testified that in the years after 1976, he has not ever received treatment from a VA facility for his pilonidal cyst. The 2009 VA examination was the only time he has been seen for this issue. The Veteran acknowledged that he did not respond to VA after 1976 (until 2009) with respect to his claim for reinstatement. The Veteran's representative argued that the Veteran never wanted to renounce his benefits; he just did not want to receive the money from VA. The Veteran averred that he was never informed of how he could get his benefits back should he resign from the police department. The representative noted that VA did not "sever" the Veteran's benefits; they were just reduced to a noncompensable 0 percent. Hence, she avers, the Veteran did not renounce his benefits as per 38 C.F.R. § 3.106. Law & Analysis Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C.A. § 5110(a). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C.A. § 5110(b)(1). The Board notes that a specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Any communication or action indicating intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155. An 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. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). Where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year of the date of request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a) (1959-2013). Where a prior claim has been abandoned, the veteran must file a new claim, and the effective date of service connection will not be earlier than the date of the receipt of the new claim, or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.158(b), 3.400(b). Under the provisions of 38 C.F.R. § 3.106(a), any person entitled to compensation under any of the laws administered by the Department of Veterans Affairs may renounce his right to that benefit but may not renounce less than all of the component items which together comprise the total amount of the benefit to which the person is entitled nor any fixed monetary amounts less than the full amount of entitlement. The announcement will be in writing over the person's signature. Upon receipt of such renouncement by the Department of Veterans Affairs, payment of such benefits and the right thereto will be terminated, and such person will be denied any and all rights thereto from such filing. 38 U.S.C.A. § 5306(a). 38 C.F.R. § 3.106(a) (1959- 2013). The renouncement will not preclude the person from filing a new application for compensation at any future date. Such new application will be treated as an original application, and no payments will be made thereon for any period before the date such new application is received in the Department of Veterans Affairs. 38 U.S.C.A. 5306(b); 38 C.F.R. § 3.106 (b) (1959-2013). Initially, the Board notes that the June 1964 rating decision became final as the Veteran neither appealed this decision nor submitted new and material evidence within the one year appeal period. 38 U.S.C.A. § 7105(c); 38 C.F.R. § 20.1103. At the onset, the Board finds as of April 1964, the Veteran renounced his benefits in accordance with 38 C.F.R. § 3.106 (1959-2013). The Board notes the Veteran's contention that he did not renounce his claim as he specifically did not write to VA saying he was renouncing his benefits. He stated that he was seeking a discontinuance of monetary payment of benefits and he was not instructed of how he could obtain those benefits again in the future. The Board finds that 38 C.F.R. § 3.106 (renouncement) effectively covers requests for discontinuance of payments of VA compensation benefits. As the representative pointed out in the Board hearing, VA did not sever benefits as a way to stop payment of benefits. Severance and renouncement of benefits are two different concepts by VA regulation. Compare 38 C.F.R. § 3.106 to 38 C.F.R. § 3.105(d). Regardless, the RO's application of 38 C.F.R. § 3.106 was the correct remedy in light of the Veteran's request for discontinuance of VA compensation benefits. Hence, as of April 1964, the Veteran's disability rating was reduced to 0 percent (noncompensable). Furthermore, the Board finds that the Veteran's written, signed statement in February 1964 effectively constitutes a request for renouncement. In June 1964, the Veteran was given notice of what the renouncement regulation entails. In fact, the letter indicates that such renouncement will not preclude the filing of a new application in the future although no payment should be made prior to the receipt of the new application. For decades, the Veteran did not contest the "renouncement" of his benefits. Thus, the RO was correct in acting in accordance with the renouncement provisions. As a compensable rating would be any rating higher than 0 percent, the RO was also correct to treat the Veteran's claim for reinstatement of benefits as a claim for increase in disability. The provision specifically states that the Veteran cannot receive compensation (in this case, a compensable rating) prior to the date of the receipt of the new application. As previously mentioned, on this record, the Veteran filed new claims, or applications, for reinstatement of his compensation benefits in September 1973, December 1976, and February 2009. The record shows that all claims filed prior to the February 3, 2009 claim were effectively abandoned. See 38 C.F.R. § 3.158(a) (1959-2013). There were no pending claims until September 1973 when the Veteran requested reinstatement of his benefits. The RO treated this claim as a claim for increase for his service-connected residuals of pilonidal cyst, rated noncompensable at the time. Accordingly, in the October 1973 VA notice letter, the Veteran was instructed of the type of evidence that must be submitted before the Veteran's claim would be reconsidered. As the Veteran did not respond to the letter by furnishing medical or lay evidence within one year of the October 1973 letter, his claim was abandoned. See 38 C.F.R. § 3.158(a) (1959-2013). In response to the second claim made for reinstatement of benefits (treated as a claim for increase) in December 1976, the January 1977 notice letter also described the type of evidence necessary to substantiate a claim for a compensable evaluation. In both letters (October 1973 and December 1976), the Veteran was specifically told that further consideration of the claim will be given upon receipt of such evidence. Again, the Veteran did not respond to the December 1976 request for evidence. In fact, the Veteran testified that he has not received treatment from a VA facility for his pilonidal cyst since 1976 and he fully acknowledged his lack of response from 1976 to 2009, when he filed his third claim for reinstatement of benefits. Thus, as evidence was not received within one year of the January 1977 notice letter, the Board deems the 1976 claim to have been abandoned. Thus, from 1977 to 2009, the record confirms that no claims were pending during this time. To the extent that the Veteran claims that he has filed his claim for reinstatement/increase earlier than 2009, the 1973 and 1976 claims have been extinguished by abandonment. 38 C.F.R. § 3.158. The Veteran filed an informal claim in February 2009 and his formal claim (VA Form 21-526) in September 2009. In response to the Veteran's claim, the RO proceeded to develop the claim by scheduling a VA examination. The rating decision in December 2009 increasing the service-connected residuals of pilonidal cyst to 10 percent, set the effective date of February 3, 2009, the date of the receipt of the informal claim. Based on the evidence, the Board finds that there is nothing of record that could be construed as a valid claim that was not extinguished by abandonment prior to February 2009. The Veteran was notified upon VA's receipt of his claims for reinstatement in 1973 and 1976 that he needed to furnish evidence in support of his claim for his claim to be considered, and on both instances, the Veteran did not respond. As the regulation states, where a prior claim has been abandoned, the Veteran must file a new claim and the effective date cannot be earlier than the receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.158 (1959-2013). The Board notes that the VA regulations pertaining to abandonment of claims and renouncement has been substantively unchanged since 1959. The Veteran's claim for an earlier effective date involves a highly fact-based consideration. Given the facts above, as a matter of law, there can be no earlier effective date than the date the Veteran's new claim for increase was received by VA in February 2009. Even if 38 C.F.R. § 3.106 (renouncement) did not apply in this instance, the record reflects that there were still no pending claims prior to February 2009 as the two claims filed prior to 2009 were effectively abandoned when the Veteran did not submit any evidence in connection with his claim for increase. See 38 C.F.R. § 3.158(a). The Board notes that the VCAA (2000) eliminated the need for submitting a "well-grounded" claim by redefining VA's duty to assist in the development of a claim. The 1973 and 1976 claims were filed prior to such change. VA's letters to the Veteran in response to each of his claims suggested the types of evidence that the Veteran should submit. As previously discussed, the Veteran failed to submit evidence in support of his claims in 1973 and 1976 in the requisite time frame, thus abandoning those claims. Thus, there is nothing of record that could be construed as a pending claim prior to February 3, 2009. The 1964 rating decision reduced the evaluation to non-compensable (0 percent). The 1977 letter to the Veteran informed him that the evaluation was less than 10 percent. Since the evaluation was less than 10 percent, compensation was not payable. Even if the issue before the Board is treated as a claim for an increased evaluation, the result is the same. The Veteran did not submit any evidence in support of the two prior claims and the Veteran has submitted no evidence of an increase in disability in the one year prior to the informal claim. 38 U.S.C.A. § 5110(b). Furthermore, prior to the February 3, 2009 date there were no unresolved claims, informal claims, or intent to file a claim, to include an unrecognized VA examination. See 38 C.F.R. § 3.157 (1962-2013). Under the laws and regulations pertaining to effective dates, the February 3, 2009 date of the informal application for an increased evaluation is the appropriate effective date for the 10 percent evaluation for the service-connected residuals of a pilonidal cyst in this case, and an earlier effective date is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim for an earlier effective date for the 10 percent evaluation for the service-connected residuals of a pilonidal cyst, must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An effective date prior to February 3, 2009 for the 10 percent disability evaluation for residuals of a pilonidal cyst is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs