Citation Nr: 1334574 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 12-22 898 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than April 7, 2009 for the grant of service connection for chronic actinic damage. REPRESENTATION Appellant (Veteran) represented by: The American Legion ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from August 1950 to June 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. No new and relevant evidence has been added to either claims file since the Statement of the Case (SOC) in July 2012. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In June 1970, VA received the Veteran's original claim to service connection for skin cancer. 2. In a February 1971 rating decision, the Veteran's original claim to service connection for skin cancer was denied. The Veteran appealed the decision to the Board. 3. In a final July 1972 decision, the Board denied the Veteran's original claim to service connection for skin cancer. 4. On April 7, 2009, VA received the Veteran's claim to reopen service connection for skin cancer. CONCLUSION OF LAW The criteria for an effective date earlier than April 7, 2009, for the grant of service connection for chronic actinic damage, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist VA must provide notice and assistance to claimants for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). Proper notice applies 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). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, notice requirements under 38 U.S.C.A. § 5103(a) are no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess, supra. The Veteran was nevertheless provided with full notification here in a letter to him dated in July 2009. The letter informed the Veteran of the evidence and information necessary to substantiate a claim for service connection, informed the Veteran regarding his and VA's respective responsibilities in obtaining evidence and information, and informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date. Moreover, the Veteran was provided with full notification prior to the April 2010 rating decision on appeal. With regard to VA's duty to assist, the record indicates that in the notification letter the RO requested from the Veteran information pertaining to his claim for service connection. The record shows that the RO included in the claims file relevant private and VA treatment records and reports. Furthermore, the Veteran underwent February 2010 and August 2011 VA compensation examination into his claim for service connection, and then for increased rating. The reports of the examinations are of record. In sum, the Board finds that VA's duties to notify and assist have been substantially met. Any errors committed were not harmful to the essential fairness of the proceeding. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim for an earlier effective date. The Claim for an Earlier Effective Date The Veteran claims entitlement to an effective date earlier than April 7, 2009 for the grant of service connection for chronic actinic damage. Specifically, he claims entitlement to an effective date in the early 1970s. The record indicates that the Veteran initially claimed service connection for skin cancer in June 1970. In a February 1971 rating decision, the RO denied the Veteran's claim, which the Veteran timely appealed to the Board. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. Then, in a July 1972 final decision, the Board denied his claim. 38 U.S.C.A. § 7104. On April 7, 2009, the Veteran filed a claim to reopen his service connection claim for skin cancer. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The RO, in April 2010, found that new and material evidence had been submitted into the claims file, reopened the Veteran's claim, and then granted service connection effective the date of claim to reopen on April 7, 2009. The Veteran appealed the assigned effective date to the Board. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. A "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). Mere presence of evidence in the record of the existence of a disability does not establish an intent to seek service connection. To establish a claim, the Veteran must assert the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (holding that, while the Board must interpret a veteran's submissions broadly, the Board is not required to conjure up issues that were not raised by the veteran). Indeed, VA's duty to adjudicate all claims reasonably raised does not require VA to anticipate a claim for a particular benefit where no intention to raise it was expressed. See Brannon, supra. As noted, VA received the Veteran's original service connection claim in June 1970. Moreover, as the Veteran has asserted, the medical evidence of record in June 1970 documented that the Veteran had skin cancer. Nevertheless, that claim was finally denied in a 1972 Board decision. Review of the record confirms that there is no correspondence from the Veteran to VA between his 1972 appeal to the Board, and a request for military records in August 2008. The request for a copy of his records does not constitute a claim for service connection, as it did not raise any issues nor indicate an intent to file a claim. It was not until April 2009 that VA received the Veteran's claim to reopen his previously denied claim to service connection. That the Veteran filed a claim for service connection in June 1970, or that the record indicated at that time that he had the skin cancer for which he was ultimately service connected, is not controlling here. What is controlling is the fact that, on April 7, 2009, and not before, the Veteran filed his claim to reopen a claim that had been finally decided. April 7, 2009 "is the later" of the "date of receipt of the claim or the date entitlement arose[.]" 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. As the preponderance of the evidence is against the Veteran's claim to an earlier effective date, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an effective date earlier than April 7, 2009, for the grant of service connection for chronic actinic damage is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs