Citation Nr: 1751534	
Decision Date: 11/09/17    Archive Date: 11/17/17

DOCKET NO.  11-30 558	)	DATE
	)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office in Seattle, Washington


THE ISSUE

Entitlement to an effective date prior to June 9, 1999, for the grant of entitlement to a total disability evaluation based on individual unemployability.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Wozniak, Associate Counsel

INTRODUCTION

The Veteran served in the U.S. Air Force from December 1970 to April 1974.

This matter came before the Board of Veterans' Appeals (Board) on appeal from a February 2010 decision of the Seattle, Washington, Regional Office (RO). In December 2016, the Board remanded the appeal to the RO for additional development.

In October 2007, and pursuant to the parties Joint Motion for Remand (JMR), the Court of Appeals for Veterans Claims (CAVC) remanded this matter to the Board. 
Pursuant to VA's duties to notify and assist the Veteran, VA advised the claimant how to substantiate an application for benefits, obtained all relevant and available evidence and conducted any appropriate medical inquiry. The appeal is ready for appellate review.

In March 2017, the Veteran was afforded a video conference hearing before the undersigned Veterans Law Judge. A hearing transcript is in the record.


FINDINGS OF FACT

1. The Veteran's claim for entitlement to individual unemployability was submitted on June 9, 1999. There is no evidence of an earlier claim for individual unemployability in the file.

2. There is no clear evidence indicating VA failed to notify the Veteran of his denial of service connection for low back in April 1975. 






CONCLUSION OF LAW

The criteria for an effective date prior to June 9, 1999 for the grant of entitlement to individual unemployability are not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.400 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication "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 service connection and compensation based on an original claim or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400 .

The "date of the claim" means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 also refer to the date an application is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are 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), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In determining whether an informal claim has been made, VA is not required to read the minds of the Veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). There is no provision in the law for awarding an earlier effective date based on any assertion that an acquired disorder existed from the time of his military service. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).

The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case.

In his March 2017 hearing the Veteran indicated that at some point prior to June 1999 he had completed a form with his name and claim number and was told that "they was going to take it from there." The Veteran also stated that he did not recall the nature of the form he filed prior to June 1999. He argued through his representative that he was not given the best advice from his service organization and could have filed his individual unemployability claim earlier had he been represented more effectively. The Veteran stated that his conditions were worsening and he continued to work, further worsening his symptoms leading up to the submission of his individual unemployability claim in June 1999. 

There is no evidence that the Veteran filed a formal or informal claim for individual unemployability prior to June 9, 1999. 

The Veteran first filed for service connection benefits beginning in October 1974. The Veteran's claim was denied in April 1975 and the record contains a copy of an April 25, 1975, VA Form 20-822, addressed to the Veteran at 617 W. Spruce Street, Compton, CA 90220. The VA Form 20-822 in the Veteran's file includes a completed checkbox indicating that VA Form 21-6782 was sent to the Veteran. A separate page of Form 20-822 indicates the Veteran's representative was also sent VA Form 21-6782. The Veteran's file does not contain a copy of form 21-6782, which includes an appellate rights advisement. The law maintains in these circumstances that there is a "presumption of regularity" under which it is presumed that government employees have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption or regularity. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)).

The VA-Form 21-6782 was a form entitled "Original Disability Compensation," which specified the disorders for which service connection had been established an included instructions for appealing VA decisions. Here, execution of VA Form 20-822 and the accompanying check box indicates the Veteran was notified using VA Form 21-6782. The mere lack of a copy of VA Form 21-6782 in the file does not rise to the standard of clear evidence that VA failed to properly discharge its official duties as to notifying the Veteran of the April 1975 decision and of his appellate rights. 

The Board subsequently reopened the Veteran's back claim in a May 2001 rating decision and granted service connection effective April 28, 1999. 

Despite the contentions of the Veteran, an effective date prior to June 9, 1999, for the grant of an individual unemployability rating is not warranted. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Therefore, the claim is denied. 

	
ORDER

An effective date earlier than June 9, 1999, for the grant of a individual unemployability is denied.




____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs