Citation Nr: 1415541	
Decision Date: 04/09/14    Archive Date: 04/15/14

DOCKET NO.  11-13 772	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama

				
THE ISSUE

Entitlement to an effective date earlier than October 23, 2006 for the grant of service-connection elevated left hemidiaphragm.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel


INTRODUCTION
	
The Veteran served on active duty from December 1967 to July 1969.

This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In September 2013, the Veteran presented testimony during a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  

A review of the Veteran's Virtual VA and VBMS claims file reveals no additional pertinent records.  


FINDINGS OF FACT

1.  In an April 1970 rating decision, the RO denied a claim for service connection for residuals of left flank trauma with hematuria.  A claim for diaphragm injury was neither raised nor explicitly or implicitly denied at that time.  

2.  In an October 1982 rating decision, the RO denied reopening the claim for service connection for residuals of a ruptured kidney.  A claim for diaphragm injury was received on September 2, 1982 but not adjudicated. 

3.  At the time of the October 23, 2006 claim for service connection for diaphragm injury, there was a pending, unadjudicated claim for service connection for this disability.

4.  The record contains no statement or communication from the Veteran dated prior to September 2, 1982, that can be reasonably construed as a claim for service connection for left hemidiaphragm.
CONCLUSION OF LAW

The requirements for an effective date of September 2, 1982 for the grant of service connection for elevated left hemidiaphragm are met. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.157, 3.159, 3.400, 20.1103 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

Nevertheless, the Board notes that such notice is unnecessary in this case.  The Veteran is challenging the effective date for the grant of service connection for left flank trauma with elevated left hemidiaphragm in a February 2009 rating decision.  If, in response to notice of its decision on a claim for which VA has already given the § 5103 notice, VA receives a notice of disagreement that raises a new issue, § 7105 (d) requires VA to take proper action and issue a statement of the case if the disagreement is not resolved, but § 5103 does not require VA to provide notice of the information and evidence necessary to substantiate the newly raised issue.  See VAOPGCPREC 8-03 (December 22, 2003); see also Dingess v. Nicholson, 19 Vet. App. 473 (2006) (in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required).  Thus, the Board finds that, under the holding in VAOPGCPREC 8-03 and in Dingess, further notice from VA to the Veteran is not required with regard to his claim for earlier effective date.

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  He has not identified any outstanding evidence that is relevant to the claim being decided herein.  VA has further assisted the Veteran and his representative throughout the course of this appeal by providing them a Statement of the Case, which informed them of the laws and regulations relevant to the Veteran's claim.  

During the September 2013 hearing, the Veterans Law Judge 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 Veterans Law Judge supplement the VCAA and comply with any related duties owed during a hearing.  See 38 C.F.R. § 3.103.

For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.

II.  Law and Analysis

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); 38 C.F.R. § 3.151(a).  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); 38 C.F.R. § 3.400.  However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).

"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); 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 claimant 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).  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).

In this case, the Veteran is seeking entitlement to an effective date earlier than October 23, 2006, for the grant of service connection for elevated left hemidiaphragm.  In essence, he contends that he is entitled to an effective date back to his discharge from service, as he claimed this disability in 1969 and the evidence showed he had sustained this injury in service.

By way of history, the Veteran filed a claim for service connection for malaria and a ruptured kidney in April 1970.  The RO denied that claim, characterized as residuals of trauma of the left flank with hematuria, in an April 1970 rating decision.  In denying the claim, the RO noted that the disability was not found on 1970 examination.  The Veteran was not informed of the denial of this claim.

In September 1982, the Veteran filed a claim for service connection for diaphragm and internal injuries due to mine explosion.  In an October 1982 rating decision, the RO determined that new and material evidence had not been submitted and denied reopening the claim for ruptured kidney.  The Veteran was also not informed of a denial of the claim for service connection for diaphragm injury. 

The Veteran subsequently filed another claim for service connection for collapsed lung and twisted diaphragm due to mine explosion in service in October 2006.  In a February 2009 rating decision, the RO granted service connection for history of left flank trauma with elevated left hemidiaphragm effective October 23, 2006, which was the date of receipt of that claim.

In various written statements and during the Veteran's September 2013 Board hearing, he contended that the evidence demonstrated that his disability had been present for many years, that that the evidence as a basis to award service connection for the disability was similar to the evidence in existence at the time of the prior rating decisions in 1970 and 1982.

Here, the Board notes that the Veteran's January 1970 "original claim for compensation," VA-Form 21-526, reflects that he claimed chills and fever, malaria, and ruptured kidney.  He did not claim a diaphragm injury, and such disability was not shown by the evidence at that time.  In the April 1970 rating decision, the RO denied service connection for malaria and ruptured kidney.  The determination line reflects that residuals of trauma of the left flank with hematuria were not found on last examination.  A diaphragm injury was thus neither explicitly nor implicitly adjudicated by the RO.  The Board also notes that the Veteran was not informed of the denial of the claim in the April 1970 letter accompanying the rating decision.

As such, the April 1970 rating decision does not constitute a prior final denial of the service connection for a diaphragm since the disability was not claimed, shown by the evidence or adjudication. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104, 20.302, 20.1103.  

The next communication received from the Veteran was his September 2, 1982 claim for compensation, which included a claim for diaphragm and internal injuries due to a mine explosion.  Along with this claim, the Veteran submitted February 1979 chest x-ray documenting elevation of the left hemidiaphragm, as shown in March 1977.

In the October 1982 rating decision, the RO denied reopening a claim for service connection for ruptured kidney.  The Veteran's claim for diaphragm injury was not addressed and neither implicitly nor explicitly denied.  Regardless, the record does not include a notification letter indicating that the Veteran was informed of a denial of the claim for service connection for diaphragm injury.

Thus, at the time the Veteran filed his claim for compensation for a collapsed lung and twisted diaphragm in October 2006, there was a pending, unadjudicated claim for service connection for diaphragm injury.

As such, the Board finds that an effective date of September 2, 1982-the date of receipt of claim, is warranted.

However, the Board also finds that an effective date earlier than September 2, 1982 is not warranted.  The Board acknowledges that VA must liberally construe all documents filed by a claimant.  See EF v. Derwinski, 1 Vet. App. 324, 326 (1991).  In this case, however, there is no document that might be construed, even in the broadest sense, as a claim of service connection for a diaphragm disability prior to September 2, 1982.  As discussed above, the Veteran clearly did not claim a diaphragm injury or elevated left hemidiaphragm on his 1970 original claim for compensation.   Furthermore, at the time of the decision there was no evidence of a post-service diaphragm impairment.   There is no other communication from the Veteran following the 1970 claim until September 2, 1982.

The applicable law and regulations clearly make it the Veteran's responsibility to initiate a claim for service connection with VA if he seeks that benefit. While VA has a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by VA.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).

In this case, there is simply no evidence that the Veteran filed a claim for service connection for a diaphragm injury or elevated left hemidiaphragm prior to September 2, 1982.  We find that there was no claim, informal claim or intent to file such claim prior to 1982.

The Board acknowledges the medical evidence documenting treatment of elevated left hemidiaphragm prior to September 1982.  VA regulations provide that once a formal claim for pension 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 reports of outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increase or claim to reopen.  However, the Board also notes that the type of reopening contemplated by the regulation is one for compensation where a claim for service connection for a disability has been allowed but "compensation disallowed for the reasons that the service-connected disability is not compensable in degree." 38 C.F.R. § 3.157(b). See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (holding that medical records do not satisfy the regulatory requirements of an informal claim if the condition disclosed in the medical records had not previously been determined to be service-connected); see also Crawford v. Brown, 5 Vet. App. 33 (1993); 38 C.F.R. § 3.157(b)(1) (1996) ("The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission."). That is not the situation here, and as noted above, there was no prior final denial of this claim.  Accordingly, the provisions of section 3.157(b) do not apply in this case.
  
In summary, the a claim for diaphragm injury was neither raised nor shown in 1970, and not adjudicated in the April 1970 rating decision.  While a claim for diaphragm injury was raised in September 1982, it was not adjudicated and was pending at the time of the October 2006 claim for the same disability.  Accordingly, the Board concludes that the preponderance supports a finding of an effective date of September 2, 1982, but not earlier, for the grant of service connection for left flank trauma with elevated left hemidiaphragm is warranted.




ORDER

Entitlement to an effective date of September 2, 1982, but no earlier, for the grant of service-connection for elevated left hemidiaphragm is granted.



____________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs