Citation Nr: 1418222 Decision Date: 04/23/14 Archive Date: 05/02/14 DOCKET NO. 12-24 205A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES Entitlement to an effective date earlier than May 3, 2006 for a 100 percent rating for prolapse of the rectum with sphincter control impairment and for a 20 percent rating for hemorrhoids with anemia. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Donna D. Ebaugh, Counsel INTRODUCTION The Veteran served on active duty from May 1943 to September 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the RO in Los Angeles, California, which increased an initial rating for prolapse of the rectum with sphincter control impairment, to 100 percent disabling, and assigned a separate 20 percent evaluation for hemorrhoids with anemia, both effective date of May 3, 2006. In February 2014, the Veteran testified at hearing before the undersigned at the Central Office in Washington, D.C. A transcript of the hearing is of record. The Board notes that, in addition to the paper claims file, there are paperless, electronic (Virtual VA and Veterans Benefits Management System (VBMS)) claims files associated with the Veteran's claim. The Virtual VA file includes the February 2014 hearing transcript; however, the remaining documents found in the Virtual VA file are duplicative of the paper claims file and/or irrelevant to the claim. There are no additional documents located in the VBMS file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. Service connection for rectum and anus disability, including hemorrhoids, prolapse of rectum and sphincter control impairment was granted by the Board in December 2010 and implemented in a January 2011 rating decision with an effective date of May 3, 2006. 2. Following a notice of disagreement, in January 2012, the RO increased the disability rating to 100 percent for prolapse of rectum with sphincter control impairment, effective May 3, 2006, and granted a separate evaluation of 20 percent for hemorrhoids with anemia, also effective May 3, 2006. 3. The Veteran indicated disagreement with the effective date for the disability ratings in correspondence received in March 2012, April 2012, and May 2012. 4. The earliest effective date for the establishment of service connection for prolapse of rectum with sphincter control impairment, as well as hemorrhoids with anemia, is May 3, 2006, the date of receipt of the Veteran's original claim. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than May 3, 2006, for the grant of service connection for prolapse of the rectum with sphincter control impairment are not met. 38 U.S.C.A. §§ 5101(a), 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.1(p), (r), 3.114(a), 3.151(a), 3.159, 3.400(b)(2), 3.816(c)(2) (2013). 2. The criteria for an effective date earlier than May 3, 2006, for hemorrhoids with anemia are not met. 38 U.S.C.A. §§ 5101(a), 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. §§ 3.1(p), (r), 3.114(a), 3.151(a), 3.159, 3.400(b)(2), 3.816(c)(2) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all elements of a claim, including the degree and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). Here, the Veteran's claims arise from his disagreement with the initial effective dates assigned following service connection for prolapse of rectum with sphincter control impairment and hemorrhoids with anemia. 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 United States Court of Appeals for Veterans Claims (Court) has 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). Review of the record shows the Veteran received adequate VCAA notice concerning his service connection claim by way of an October 2008 letter sent in response to an August 2008 Remand by the Board. Therefore, no further VCAA notice is required. As to VA's duty to assist, the Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran's available service treatment records and VA examination reports are associated with the claims file. The Board acknowledges the Veteran's report that he was informed that a portion of his service treatment records may have been destroyed in a fire in St. Louis, Missouri and that the portion in question concerns treatment at an Army hospital that became a VA hospital during the time in which he received treatment, from September 1945 to January 1946. The Board acknowledges that it has a heightened duty to assist when treatment records are lost in the St. Louis fire; however as explained below, even if those records were available, a remand to obtain the records would be futile as records of treatment may not constitute an "informal claim" as must be shown in order to succeed on his claims for earlier effective dates. See Lalonde v. West, 12 Vet. App. 377 (1999). Next, the Veteran was afforded the opportunity to testify before the Board in February 2014. In Bryant v. Shinseki, 23 Vet.App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the Veterans Law Judge who chairs a hearing fulfill two duties to comply with the regulation. These duties are as follows: (1) to fully explain the issues and (2) to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the undersigned essentially elicited testimony necessary to determine the nature of the Veteran's claims for earlier effective dates - namely that he received VA treatment immediately following service which he contends amounted to an "informal" claim for service connection. T. page 3. In addition, the undersigned sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim. Specifically, the undersigned explained that the Veteran needed to show that he filed a formal or informal claim prior to May 3, 2006, in order for an earlier effective date to be warranted. Transcript (T.) page 6. In an attempt to determine whether there is any additional outstanding proof of an earlier claim for service connection (either formal or informal), the Board inquired as to whether the Veteran had ever applied for Social Security Administration disability benefits and whether the treatment the Veteran received for episodes from 1957 to 1962 as well as in the 1970's was through VA or a private physician. T. page 7. The Veteran reported that he had not ever applied for SSA disability and that the treatment he received between service and the date of the present claim was private. The undersigned also asked whether the Veteran received a medical separation from service and explained the meaning of a medical separation. T. pages 4-6. The Veteran indicated that he had not received a medical separation. Significantly, the undersigned asked the Veteran if he had ever filed a claim prior to May 3, 2006, to which the Veteran responded "no". T. page 7. Regarding the contention that the VA treatment immediately following service constituted an informal claim for benefits, the undersigned asked the Veteran's representative if there was any case law that he wished to have the Board consider. The representative responded "no." T. page 3. Therefore, not only were the issues "explained . . . in terms of the scope of the claim for benefits," but "the outstanding issues material to substantiating the claim," were also fully discussed by the undersigned and the Veteran. See Bryant, 23 Vet. App. at 497. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing. In fact, when asked whether he felt he had a fair hearing, the Veteran indicated that he felt the undersigned had asked the right questions. T. page 14. His representative also indicated that they had presented everything they wished to present. Id. As such, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board may proceed to adjudicate the claims based on the current record. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the claims. II. Earlier Effective Date The Veteran is seeking earlier effective dates for the grant of service connection for his prolapse of the rectum with sphincter control impairment as well as hemorrhoids with anemia. The Veteran alleges that service connection, and corresponding disability payments, for the rectal disabilities should be effective from 1945, the date he initially sought VA treatment for his rectal disability. See July 2012 correspondence. In this regard, the Veteran asserts that his seeking VA treatment constituted an informal claim which was never developed and thus, his claim has been pending since that time. In this case, following a grant of service connection by the Board in December 2010, the RO implemented the grant of service connection for prolapse of the rectum, with hemorrhoids, with sphincter control impairment in a January 2011 rating decision and assigned an effective date of May 3, 2006; the date of receipt of the Veteran's claim. In January 2012, the RO later the rating to 100 percent, effective May 3, 2006 and granted a separate evaluation of 20 percent for hemorrhoids with anemia, also effective May 3, 2006. The Veteran was informed of the decision in March 2012. In April 2012, the Veteran submitted a statement indicating that he was entitled to payments for the rectal disability claims prior to the May 3, 2006 effective date. The Board construes his statement as claims for earlier effective dates. In general, except as otherwise provided, the effective date of an evaluation based on an original claim 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 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). Upon receipt of an informal claim, if a formal claim has not been filed, the RO will forward an application form to the claimant for execution. If the RO receives a complete application from the claimant within one year from the date it was sent, the RO will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). The Court has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). In this case, the Veteran's original claim of service connection for a rectal disorder including hemorrhoids was received on May 3, 2006, more than 60 years after his discharge from service. He has offered sworn testimony that he never filed a claim with VA until May 2006. T. page 7. Rather, he contends that he is entitled to earlier effective dates for his disabilities because his VA treatment immediately following service in 1945 constitutes an informal claim for service connection that was never properly developed. Under 38 C.F.R. § 3.157, a report of examination or hospitalization will be accepted as an informal claim for benefits. However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Treatment records do not constitute informal claims when service connection has not yet been established for the claimed condition. 38 C.F.R. § 3.157; Lalonde v. West, 12 Vet. App. 377 (1999). In Lalonde, the Court explained that it understood the appellant's feelings of entitlement to an earlier effective date based on VA treatment supplied prior to the date of claim for service connection. However, the Court went on to explain that "the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA." Id at 382. Here, the Veteran's VA treatment immediately following service was not pre-dated by an adjudication of a claim for service connection as discussed in 38 C.F.R. § 3.157, and, as such, that regulation does not afford a basis for finding that VA treatment dated prior to May 2006, constitutes a claim of entitlement to service connection for his rectal disability. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993). While the Veteran believes that the effective date for the award of service connection for prolapse of the rectum with sphincter control impairment should be earlier than assigned by the RO, the provisions of the law governing effective date of awards of benefits provide the date is either the date of receipt of a claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(b)(2)(i), 3.816 (c)(2). Here, the latter of either when entitlement arose (i.e., when first diagnosed), or the date of claim, is the date of the May 2006 claim. In this case, the RO assigned an effective date of May 3, 2006, the date of receipt of the Veteran's original claim for service connection, which is the earliest date allowable under the applicable criteria discussed above. 38 C.F.R. §§ 3.400(b)(2)(ii), 3.816(c)(2). Consequently, the Board concludes that the claims for earlier effective dates must be denied. In reaching this conclusion, the Board sympathizes with the Veteran but finds that it has no alternative but to deny the Veteran's appeal for earlier effective dates. ORDER Entitlement to an effective date earlier than May 3, 2006, for the 100 percent rating for prolapse of the rectum with sphincter control impairment, and for the 20 percent rating for hemorrhoids with anemia is denied is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs