Citation Nr: 1602676 Decision Date: 01/28/16 Archive Date: 02/05/16 DOCKET NO. 14-21 295 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date earlier than January 28, 2013 for the grant of service connection for cardiomyopathy with left branch bundle block. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1980 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In that decision, the RO, in relevant part, granted service connection for the Veteran's cardiomyopathy with left branch bundle block (100 percent disabling) and assigned an effective date of January 28, 2013, which is the date the claim was received. The Veteran disagreed with the assigned effective date and perfected this appeal. The Veteran initially requested a Board hearing; however she did not appear on the date of the hearing. FINDINGS OF FACT 1. In December 1992, the Veteran filed a claim for service connection for left branch bundle block condition. 2. By way of a June 1993 decision, the RO denied service connection for left branch bundle block. The Veteran did not appeal the denial; thus, the decision became final within a year of notification to the Veteran. New and material evidence was not received within one year of the decision. 3. In January 2013, the Veteran requested to reopen her claim. The RO granted service connection for cardiomyopathy with left branch bundle block condition and assigned an effective date of January 28, 2013. At the time of the 2013 claim, there were no claims for a heart disability pending. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than January 28, 2013 for the award of service connection for cardiomyopathy with left branch bundle block are not met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159 (2015). The issue in this case is the propriety of the effective date assigned for the grant of service connection for a heart disability. Where an underlying claim for 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 address prejudice from absent VCAA notice. Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). As such, the Board finds that there is no prejudice in proceeding with a decision at this time. With regard to VA's duty to assist, the VCAA requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c) and (d). VA has obtained the Veteran's service treatment records, post-service private and VA treatment records, and the Veteran's statements in support of her claim. Accordingly, the Board finds that VA has complied with the duty to assist with regard to the earlier effective date claim. For the reasons set forth above, the Board finds that VA has complied with the VCAA's requirements. The claim for entitlement to an earlier effective date for the grant of service connection for a heart disability is thus ready to be considered on the merits. Applicable 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). Once a decision on a claim becomes final, it cannot be challenged through a "freestanding" claim for entitlement to an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Knowles v. Shinseki, 571 F.3d 1167 (Fed. Cir. 2009) (rejecting freestanding "finality claim"). "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). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. Id. at 57,686. As such, any communication or action in this case, 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 January 28, 2013 for the grant of service connection for a heart disability. By way of history, the Veteran filed a claim for service connection for a heart blockage in December 1992. The RO denied the claim for the heart blockage in June 1993. The RO noted that while a left branch bundle block was noted during service, such a condition was not a disability for VA compensation purposes. The Veteran was informed of that decision and of her appellate rights. See Notification Letter dated June 15, 1993. However, she did not appeal the decision. Moreover, the Veteran did not submit any evidence within one year of the issuance of that decision. 38 C.F.R. § 3.156(b). Therefore, the June 1993 rating decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran then filed to reopen her service connection claim in January 2013. The RO granted service connection for cardiomyopathy with left branch bundle block with an evaluation of 100 percent and assigned an effective date of January 28, 2013, the date the VA received the request to reopen the previous claim. See Rating Decision dated November 21, 2013. In essence, the Veteran contends that she is entitled to an effective date in 1992, when she originally filed a claim for service connection for a left branch bundle block. See Notice of Disagreement dated January 24, 2014. Despite the Veteran's argument that she is entitled to an earlier effective date, the Board finds that the evidence of record is against granting an earlier effective date for the Veteran's service-connected disability. The provisions of 38 C.F.R. §§ 3.155 and 3.157 have been eliminated, however, even if section 3.157 were considered, the regulation would not assist the claim. Here, compensation was not awarded for any disability until January 2013. Although VA treatment records reference the heart, service connection was not in effect for a heart disability until January 2013. Based upon decisions of the Court, such treatment records do not constitute a claim for compensation for the heart disability. Lalonde v. West, 12 Vet. App. 377 (1999). Similarly, the private treatment records were received after January 2013 and do not establish either a claim or a basis for an earlier effective date. The Board notes that in 1996, the Veteran's service dental records dated August 1980 through April 1992 were associated with the claims file. Generally, a claim can be reopened only on the submission of new and material evidence. 38 C.F.R. § 3.156(a). However, in contrast to the general rule, VA is required to reconsider a veteran's claim when relevant service department records are newly associated with the veteran's claim file, whether or not the records are new and material. 38 C.F.R. § 3.156(c); see also Blubaugh v. McDonald, 773 F. 3d 1310 (2014). If an award is made based all or in part on the newly associated service department records, that award is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156(c)(3). The Board finds that 38 C.F.R. § 3.156(c) is of no avail to the Veteran. Indeed, section 3.156(c) only applies "when VA receives official service department records that were unavailable at the time that VA previously decided a claim for benefits and those records lead VA to award a benefit that was not granted in the previous decision." Blubaugh, 773 F. 3d at 1314. Here, the Board finds that the Veteran's service dental records are irrelevant as they pertain to the Veteran's dental treatment throughout service. While the records do make note of the Veteran's heart condition, such information is cumulative of what the RO considered in its June 1993 denial. Furthermore, there is no evidence to demonstrate that the RO relied on the records in its 2013 grant of service connection. As such, 38 C.F.R. § 3.156(c) is not applicable to the instant case. The Board has given the most favorable reading possible to the facts of this case, but finds that there is no interpretation of the facts of this case which will support a legal basis for favorable action with regard to the Veteran's claim. However, there was no communication or submission of evidence from the Veteran evidencing an intent to apply for benefits from the time of the June 1993 denial to the time of the January 2013 request to reopen the claim. Accordingly, the Board finds no basis in the law or facts in this case for an effective date for service connection for a heart disability earlier than January 28, 2013. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against this claim this doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Court has held in Rudd that 38 U.S.C.A. § 5110(a) precludes a veteran from receiving service-connected disability payments "earlier than the date of receipt of application therefore." In this case, the pertinent date is when the Veteran filed the current claim to reopen (January 2013). Simply put, absent a showing of clear and unmistakable error, the Veteran cannot receive an effective date for a time frame earlier than the receipt date of her application to reopen, even with new evidence supporting an earlier disability date. See Rudd, 20 Vet. App. at 299. To hold otherwise would also vitiate the rule of finality, the purpose of which is to "preclude repetitive and belated readjudication of veterans' benefits claims." Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002). Therefore, under the laws and regulations pertaining to effective dates, the January 28, 2013 date of claim is the appropriate effective date for the grant of entitlement to service connection for cardiomyopathy with a left branch bundle block in this case, and an earlier effective date is not warranted. ORDER An effective date earlier than January 28, 2013 for the award of service connection for cardiomyopathy with a left branch bundle block is denied. ____________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs