Citation Nr: 1751468 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 16-52 300 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than December 19, 2008 for the grant of service connection for Non-Hodgkin's lymphoma. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S.M. Kreitlow INTRODUCTION The Veteran had honorable active military service from February 1962 to February 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which effectuated a March 2016 Board decision that granted service connection for Non-Hodgkin's lymphoma and assigned an effective date for service connection of December 19, 2008. In August 2016, the Veteran disagreed with the effective date assigned for the grant of service connection and this appeal followed. In July 2017, the Veteran appeared and testified at a Board video-conference hearing before the undersigned Veterans Law Judge. The transcript of that hearing is associated with his claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The VA Form 21-22 appointing a representative filed in September 2005 does not constitute a claim for service connection for Non-Hodgkin's lymphoma. 2. Although the Veteran filed an informal claim for service connection for Non-Hodgkin's lymphoma in January 2007 via his representative, he failed to complete his application by submitting a formal claim within one year, although advised to do so. 3. On December 19, 2008, the Veteran filed an informal claim for service connection for Non-Hodgkin's lymphoma that he appropriately followed up with a formal claim in June 2009. CONCLUSION OF LAW The criteria for an effective date prior to December 19, 2008, for service connection for Non-Hodgkin's lymphoma are not met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, and 5110 (West 2014); 38 C.F.R. § 3.1, 3.151, 3.155 (2014); 38 C.F.R. §§ 3.160, 3.400, 19.5 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION By rating decision issued in May 2016, the RO effectuated a March 2016 Board grant of presumptive service connection for Non-Hodgkin's lymphoma based upon exposure to herbicide agents in the Republic of Vietnam. The grant of service connection was made effective December 19, 2008, the date the Veteran's claim for service connection was received by the RO. The Veteran has disagreed with the assignment of this date for various reasons. The Board will address his arguments in further detail below. Initially, the Board notes that the assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2014) and 38 C.F.R. § 3.400 (2017). Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400(2)(i) (direct service connection). For presumptive service connection purposes, the effective date is the date entitlement arose, if the claim is received within one year after separation from active duty; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(2)(ii)(presumptive service connection). The Veteran contends that he previously filed claims in both 2005 and 2007 and, therefore, an earlier effective date should be warranted in either of those years. He testified at the July 2017 Board hearing that he found out in 2007 that his 2005 application was filed on the wrong form and then he was confused about the forms being sent in 2007. He asserted that he received bad or faulty advice from prior individuals who represented him at those times, which led to his either filing the wrong paperwork or not responding, and he clearly feels that such circumstances should not be held against him. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a) (2014). A claim is defined 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). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Section 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Thus, before VA can adjudicate an original claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it. See also Brannon v. West, 12 Vet. App. 32 (1998). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. [The Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran's contentions are that the claim was received by VA prior to that date, the former regulations apply and are cited herein.] In the present case, the record shows the Veteran filed a VA Form 21-22 in September 2005 appointing a representative. However, no other paperwork was received from the Veteran or his representative at that time. Although filing the VA Form 21-22 may be interpreted as an indication that the Veteran intended to seek benefits at that time, without further documentation, the form itself is insufficient to constitute a claim because it does not identify what benefits the Veteran was seeking. Thus, the Board cannot find that the September 2005 submission of the VA Form 21-22 constituted the submission of a claim, formal or informal. Therefore, such document cannot be the basis for establishing an earlier effective date for the award of service connection for Non-Hodgkin's lymphoma. The Board acknowledges that the claims file contains a third-party letter received January 12, 2007 from a new representative (the Board notes he also submitted a new VA Form 21-22 on the same day) in which service connection for Non-Hodgkin's lymphoma was requested. By letter sent February 6, 2007, the Veteran was advised that this letter was accepted as an "informal claim for benefits" and that his application was "substantially incomplete." In order to complete his application, he was told to complete the enclosed VA Form 21-526, sign it and return it to the RO within one year of the receipt of his informal claim or January 12, 2007. He was specifically told that, if the application is not received within one year, VA may only be able to pay benefits from the date of receipt of the application. The Veteran did not respond to this letter and, therefore, no completed application was received within one year of the receipt of his informal claim. As a substantially complete application was not received within one year of the informal claim, benefits cannot be paid back to the receipt date of the informal claim because there is no formal claim that can be considered to have been filed on the date of the informal claim. See 38 C.F.R. § 3.155(a). Consequently, the Board finds that the January 2007 informal claim cannot be the basis for awarding an earlier effective date for the grant of service connection for Non-Hodgkin's lymphoma. The Board finds that the earliest date that permits an effective date to be awarded is December 19, 2008, the date the RO has already assigned, as that is the date the Veteran filed an informal claim that he appropriately filed a formal claim to in June 2009. Thus, according to 38 C.F.R. § 3.155(a), the date the informal claim was received in December 2008 is the appropriate effective date for the award of service connection. The Board acknowledges the Veteran's assertion that he was given faulty or bad advice by the individuals that were representing at the time in 2005 and 2007. However, such allegation is not sufficient to warrant assigning an earlier effective date. The Board notes that, generally faulty advice on the part of VA employees cannot serve as a basis for an earlier effective date because VA is not bound to grant benefits due to such an administrative error. See Owings v. Brown, 8 Vet. App. 17, 23 (1995); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (statute specifically provides that effective date of DIC benefits award is date of application, and earlier effective date is not allowable under equitable estoppel because payment of government benefits must be authorized by statute) (citing OPM v. Richmond, 496 U.S. 414, 424, 110 S.Ct. 2465, 2471, 110 L.Ed.2d 387 (1990)); see also Lozano v. Derwinski, 1 Vet. App. 184, 186 (1991). Thus, an earlier effective date cannot be based upon the faulty advice the appellant may have received from the VA. However, the Veteran is not even alleging that the faulty or bad advice came from a VA employee, but from his service representative. Even more so, VA cannot be held responsible for the errors of outside parties; the Veteran is ultimately responsible for knowing and following the law. The Board is sympathetic to the Veteran and the fact that he had difficulty understanding the process and that he may have been given bad or faulty advice by his representatives previously. The law, however, prohibits the Veteran from entitlement to service-connected benefits before an appropriate claim is filed, and the Board is bound by the laws and regulations applicable to the benefit sought, see 38 C.F.R. § 19.5 (2017). Based upon the facts of this case, the Board finds that the earliest effective date permitted by law is December 19, 2008 as this is the date that an informal claim was filed for service connection for Non-Hodgkin's lymphoma with an appropriate formal claim filed within one year thereafter in accordance with the law. Consequently, the Board finds that the preponderance of the evidence is against finding that an effective date earlier than December 19, 2008 is warranted. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Veteran's appeal, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2017). ORDER Entitlement to an effective date earlier than December 19, 2008 for the grant of service connection for Non-Hodgkin's lymphoma is denied. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs