Citation Nr: 1744707 Decision Date: 10/06/17 Archive Date: 10/17/17 DOCKET NO. 16-63 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an earlier effective date for the grant of service connection for malaria prior to August 1, 2013. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his sons ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1942 to March 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which granted service connection for malaria and assigned a 20 percent evaluation, effective August 1, 2013. The Veteran appealed for an earlier effective date for the grant of service connection. In August 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceedings is associated with the electronic claims file. The Board notes that in September 2017, the Veteran's representative submitted a statement titled "clear and unmistakable error," and asserted that the August 2016 rating decision on appeal was clearly erroneous. However, to the extent that such statement is asserting clear and unmistakable error in the August 2016 rating decision currently on appeal, the Board points out that the August 2016 rating decision is not final, therefore, it is not subject to a collateral attack on the basis of clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (2016). Accordingly, the Board will proceed with the adjudication of the claim on appeal as reflected on the title page of this decision. The Board notes that the Veteran remains free to file a motion for CUE concerning any prior final rating decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACTS 1. A March 1962 rating decision denied service connection for malaria. It was not appealed within one year and became final. 2. On August 1, 2013, the Veteran filed a petition to reopen a claim for service connection for malaria. 3. Prior to August 1, 2013, there was no pending formal claim, informal claim, or written intent to file a claim for entitlement to service connection for malaria following the April 1962 denial. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than August 1, 2013, for the grant of service connection for malaria have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2016). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Earlier Effective Date Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on new and material evidence under 38 C.F.R. § 3.156 (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(q)(2). Similarly, the effective date of an award of disability compensation based on a reopened claim under the provisions of 38 C.F.R. §§ 3.109, 3.156, 3.157, and 3.160(e) shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). The statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears v. Principi, 16 Vet. App. 244 (2002) . In order for the Veteran to be awarded an effective date based on an earlier claim, the Veteran has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332 (1995). A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160(d). A reopened claim is any application for a benefit received after final disallowance of an earlier claim. 38 C.F.R. § 3.160(e). VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R § 3.157. See Fed. Reg. 57,660, 57,695 (Sept. 25. 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2014). A claim is 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) (2014); 3.155 (2014). The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief. 38 U.S.C.A. § 5104 (West 2014). Such notice must inform a claimant of the right to initiate an appeal by filing a notice of disagreement (NOD), plus the periods in which an appeal must be initiated and perfected. 38 C.F.R. § 3.103(f) (2016). A claimant may then initiate an appeal from a VA decision by the timely filing of a NOD in writing. 38 C.F.R. § 20.200 (2016). A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the statement of the case or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends. 38 C.F.R. §§ 20.200, 20.300, 20.302 (2016). Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103 (2016). The Veteran is seeking an effective date prior to August 1, 2013, for the grant of service connection. Specifically, the Veteran contends that the grant of service connection should date back to his original claim for service connection, August 22, 1961. The Veteran originally filed his claim for service connection for malaria in August 1961. A November 1961 rating decision denied service connection. In January 1962, the Veteran again sought service connection for malaria and a March 1962 rating decision again denied service connection for malaria. The Veteran was notified of this rating decision via letter in April 1962. The Veteran did not appeal that decision and, thus, it became final. On August 1, 2013, the Veteran filed a petition to reopen his claim for service connection for malaria. The August 2016 rating decision on appeal granted service connection for malaria and assigned a 20 percent evaluation as of August 1, 2013, the date of the Veteran's petition to reopen his claim for service connection. A thorough review of the record does not show that any written communication by or on behalf of the Veteran in which service connection for malaria was requested was received prior to the August 1, 2013, petition to reopen. The record does not show that the Veteran filed any evidence which could be construed as seeking entitlement to service connection for malaria between his notification of the March 1962 decision and his petition to reopen in August 1, 2009. Moreover, the Veteran, himself, does not contend that he filed any claim in the period since the 1962 decision and prior to the August 1, 2013, petition to reopen. As such, an earlier effective date is not warranted for the grant of service connection for malaria. 38 U.S.C.A. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). Thus, in light of the foregoing, the Board has determined that August 1, 2013, is the date of receipt of the claim for service connection for malaria. The Board is sympathetic to the Veteran's situation. However, the pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that as the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and therefore, the claim is denied. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date prior to August 1, 2013, for the grant of service connection for malaria is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs