Citation Nr: 1403294	
Decision Date: 01/27/14    Archive Date: 02/10/14

DOCKET NO.  10-25 385	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUE

Entitlement to an effective date prior to October 27, 2009 for the grant of service connection for non-Hodgkin's lymphoma, T-cell lymphoma.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A.J. Turnipseed, Counsel



INTRODUCTION

The Veteran had active service from March 1965 to May 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois.

The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claim.  A review of the Virtual VA claims file reveals a copy of the Veteran's representative's January 2014 Appellant's Brief.  The remainder of the documents in the Virtual VA file are either duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal.


FINDINGS OF FACT

1.  VA received the Veteran's original informal claim seeking service connection for non-Hodgkin's lymphoma, T-cell lymphoma on October 27, 2009.  

2.  In a rating decision dated in January 2010, and issued in March 2010, the RO granted service connection for non-Hodgkin's lymphoma, T-cell lymphoma, effective October 27, 2009, the date of receipt of the Veteran's original service connection claim.
 

CONCLUSION OF LAW

The criteria for an effective date prior to October 27, 2009 for the grant of service connection for non-Hodgkin's lymphoma, T-cell lymphoma have not been met.  38 U.S.C.A. §§ 5110, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.155, 3.400 (2013).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  VA's Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). 

Proper notice from VA must inform the claimant of any information and medical or lay 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 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim.  Accordingly, notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

The Veteran was provided a VCAA letter in December 2009 that advised him of the evidence and information necessary to substantiate his underlying service connection claim, his and VA's respective duties in obtaining evidence in support of such claim, and the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra.  Thereafter, in a January 2010 rating decision, which was issued in March 2010, service connection for non-Hodgkin's lymphoma, T-cell lymphoma was granted, effective October 27, 2009.  Following the issuance of the rating decision, the Veteran entered a notice of disagreement as to the propriety of the assigned effective date.  

The Board observes that a claim for an earlier effective date for the grant of service connection is a downstream issue from the original award of such benefit.  Grantham v. Brown, 114 F.3d 1156 (1997).  VA's General Counsel has held that no VCAA notice is required for such downstream issues.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated."  Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also Goodwin v. Peake, 22 Vet. App. 128 (2008) (the Court held that as to the notice requirements for downstream earlier effective date claims following the grant of service connection, "that where a claim has been substantiated after enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements").  In this case, the Veteran's service connection claim was granted and an effective date was assigned in the March 2010 rating decision on appeal.  As such, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

Relevant to the duty to assist, the Board notes that relevant medical evidence was reviewed by the RO in connection with the adjudication of the Veteran's service connection claim.  However, pertinent to his effective date claim, as the Veteran has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his original claim for service connection, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file.  There is no outstanding information or evidence that would help substantiate the Veteran's claim.  VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A.  See VAOPGCPREC 5-04 (June 23, 2004).  

In this regard, the Board has considered the Veteran's representative's argument in his January 2014 Appellant's Brief that the Board obtain a medical opinion as to the date of onset of the Veteran's non-Hodgkin's lymphoma, T cell lymphoma.  However, the Board finds that a medical opinion is not necessary in this case because the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA.  See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999).

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001).

II.  Analysis

The Veteran contends that he is entitled to an effective date prior to October 27, 2009, for the grant of service connection for his non-Hodgkin's lymphoma, T cell lymphoma.  Specifically, he alleges that he should be granted an effective date as of the date of diagnosis/onset of such disease.   

The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400.  The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later.  See 38 C.F.R. § 3.400.  The effective date for direct and presumptive service connection is the day following separation from active service or the date entitlement if the claim is received within 1 year after separation from service; otherwise, date of receipt of the claim, or date entitlement arise, whichever is later.  38 C.F.R. § 3.400(b)(2)(i), (ii).  

Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim.  Such 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.  38 C.F.R. § 3.155(a).

In this case, the Veteran filed an original claim seeking, inter alia, service connection for non-Hodgkin's lymphoma secondary to his service-connected Hodgkin's lymphoma that was date-stamped as received at the RO on October 27, 2009.  Prior to that date, the claims file does not contain any submissions or communications from the Veteran regarding a claim of entitlement to service connection for non-Hodgkin's lymphoma, T-cell lymphoma.  

In conjunction with his service connection claim, the Veteran submitted an October 2009 statement from P.P., a fellow in hematology and oncology at the VA Chicago Healthcare System.  Dr. P.P. noted the Veteran's history of Hodgkin's lymphoma and further noted the Veteran was being treated for peripheral T cell lymphoma/non-Hodgkin's lymphoma, stating it is known that non-Hodgkin's lymphoma occurs more frequently in patients with previous Hodgkin's lymphoma.  The Veteran also submitted a January 2009 statement from Dr. D.J.D., which states that the Veteran's current lymphoma is as likely as not related to his in-service exposure to herbicides.  The evidentiary record also contains VA examination reports which consistently report that the Veteran's non-Hodgkin's lymphoma had its onset in 2009.  See VA examination reports dated December 2009, July 2010, and October 2011.  

In a January 2010 rating decision, the RO granted service connection for non-Hodgkin's lymphoma, T cell lymphoma, effective October 27, 2009.  In this regard, the RO granted service connection for such disease as directly related to service.  The Board also notes that VA regulations provide that presumptive service connection for non-Hodgkin's lymphoma is warranted for Veterans who were exposed to herbicides during their military service, as is the case here.  

After reviewing the totality of the evidence, the Board finds that October 27, 2009, is the earliest possible effective date for the grant of service connection for non-Hodgkin's lymphoma, T-cell lymphoma.  Indeed, the Board notes that VA did not receive an application for compensation benefits for such disease prior to the original claim received on October 27, 2009.  In this regard, there is simply no indication on the part of the Veteran of any intent to file a claim for service connection for non-Hodgkin's lymphoma, T-cell lymphoma prior to the October 2009 claim, to include within one year of his service discharge in May 1967.  As such, the RO awarded service connection effective October 27, 2009, the date of receipt of the Veteran's original service connection claim.

The Board recognizes the Veteran's argument that he should be assigned an effective date coincident to the diagnosis/onset of non-Hodgkin's lymphoma, T-cell lymphoma.  However, such argument is insufficient to establish that the Veteran is entitled to an earlier effective date under governing laws and regulations.  The effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA.  See LaLonde, supra.

Indeed, while sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by statute from assigning an effective date prior to October 27, 2009, for the award of service connection for non-Hodgkin's lymphoma, T-cell lymphoma.  38 C.F.R. 
§ 3.400(b)(2)(i), (ii).  Accordingly, the preponderance of the evidence is against the claim for an effective date earlier than October 27, 2009.  As such, the benefit-of-the-doubt doctrine does not apply and the Veteran's claim must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.


ORDER

An effective date prior to October 27, 2009 for the grant of service connection for non-Hodgkin's lymphoma, T-cell lymphoma is denied.



____________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs