Citation Nr: 1629124 Decision Date: 07/21/16 Archive Date: 08/01/16 DOCKET NO. 15-19 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date prior to August 18, 1965, for the grant of service connection for status post encephalitis, to include on the basis of clear and unmistakable error (CUE) in a December 1965 rating decision. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from September 1950 to September 1953, and from January 1955 to March 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran testified before the undersigned during a Board hearing held in May 2016. A copy of the hearing transcript (Transcript) is of record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT Evidence of record demonstrates that the Veteran filed a claim for benefits on November 16, 1953. CONCLUSIONS OF LAW 1. The December 1965 rating decision contained clear and unmistakable error. 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a) (2015). 2. The requirements for an effective date prior to August 18, 1965, for the award of service connection for status post encephalitis have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran maintains that he is entitled to an effective date prior to August 18, 1965, for the grant of service connection for status post encephalitis. Specifically, he contends that he filed a claim for benefits for this disorder in November 1953, and that he should be assigned a non-compensable rating for residuals of this disorder from November 16, 1953. The Board further notes that part of the Veteran's VA claims file was presumably destroyed in a fire in St. Louis in 1973. Generally, the effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. A "claim" is defined in the VA regulations as "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). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 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. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Pertinent to this case, the Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C.A. § 7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). The Court has held, however, that the Board is not required to "conjure up issues that were not raised by the appellant." Brannon v. West, 12 Vet. App. 32 (1998). As such, the Board must determine the date that the initial claim for service connection, formal or informal, was received by VA. The Board has carefully reviewed all of the evidence of record, and finds that the Veteran's VA membership card, issued in November 1953, clearly indicates that the Veteran's claim was filed 2 days prior. The Veteran also testified that this claim was for service connection for status post-encephalitis. Therefore, there is clear indication that the Veteran filed a claim for service connection prior to August 18, 1965. While the RO assigned an effective date of August 18, 1965, in a December 1965 decision, it is clear from the record that the Veteran claimed entitlement to service connection nearly twelve years prior, which was simply not adjudicated. The Veteran has contended that an earlier effective date is warranted because he claimed entitlement to service connection for this disability many years before his assigned effective date of August 18, 1965, and the Board agrees. As noted above, failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. See Lalonde. Of note, the Veteran subsequently reported experiencing-enlisted on January 14, 1955 and served until March 16, 1956. However, such service does not preclude the adjudication of his claim or the grant of service connection. For the foregoing reasons, the record provides a basis for assignment of an effective date of November 16, 1953 have been met for the grant of service connection for status post encephalitis. The Board notes that there is no duty to assist the Veteran in obtaining additional evidence to support a claim of CUE, because CUE claims are based upon the record before VA at the time the decision was made. Furthermore, the Veterans Claims Assistance Act of 2000 (VCAA) is not applicable to claims of CUE, because CUE claims are not conventional appeals, but rather are requests for revision of previous decisions. Livesay v. Principi, 15 Vet. App. 165, 179 (2001); see also Parker v. Principi, 15 Vet. App. 407, 412 (2002) (in a case involving a CUE claim as to a prior final RO decision, the Secretary's VCAA remand motion "has no merit following this Court's decision in Livesay."); Juarez v. Principi, 16 Vet. App. 518, 521 (2002) (citing Parker as "holding VCAA inapplicable to claim that RO decision contained CUE"). ORDER An effective date of November 16, 1953 for the grant of service connection for status post encephalitis on the basis of CUE is granted. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs