Citation Nr: 1754464	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  13-30 323	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to an effective date earlier than January 4, 2012 for the grant of service connection for gastric diffuse large B. cell Non-Hodgkin lymphoma (Lymphoma). 

2. Entitlement to an effective date earlier than January 4, 2012 for grant of special monthly compensation based on housebound (SMC) status. 


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Department of Veterans Affairs


INTRODUCTION

The Veteran served on active duty from May 1970 to May 1973. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco Texas, which granted service connection for lymphoma and SMC effective January 4, 2012. 

The Veteran testified at a videoconference hearing before the undersigned Veteran Law Judge, in March 2017, and transcript of the hearing is of record.  

Notably, the rating for the Veteran's service-connected lymphoma was reduced from a 100 percent to 0 percent effective April 2014 and SMC has been discontinued.  The Veteran disagrees with the reduction and has raised the issue during the hearing.  After reviewing the record, the Board finds that it lacks jurisdiction to review these claims in the first instance.  Therefore, the Board cannot adjudicate these claims at this time because they have not been adjudicated by the RO. 


FINDINGS OF FACT

1. The Veteran's claim for service connection for lymphoma was not received before January 4, 2012.

2.  The Veteran did not have additional service-connected disabilities independently ratable at 60 percent, separate and distinct from the 100 percent for his posttraumatic stress disorder (PTSD) before January 4, 2012. 

3. The Veteran has not been shown to be permanently household bound by reason of service-connected disabilities before January 4, 2012.


CONCLUSION OF LAW

1. The criteria for an effective date earlier than January 4, 2012 for the grant of service connection for gastric diffuse large B. cell Non-Hodgkin lymphoma, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

2. The criteria for an effective date earlier than January 4, 2012 for special monthly compensation based on housebound status have not been met. 38 U.S.C. § 1114 (s) (2012); 38 C.F.R. § 3.350 (i) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. The Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act (VCAA), the VA has a duty to notify claimants about requirements to substantiate a claim for VA benefits, and assist in the development of their claim. 38 U.S.C. §§ 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326(a) (2017).  

In this case, to the extent the February 2012 rating decision on appeal granted service connection for lymphoma and entitlement for SMC, the claims have been substantiated; thereby the purpose of section 5103(a) has been satisfied. Additional VCAA notice regarding the "downstream" element of effective date for a claim is not required. See Goodwin v. Peake, 22 Vet. App. 128 (2008); See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  

A September 2013 statement of the case provided notice on the "downstream" issue of entitlement to an earlier effective date for the award and readjudicated the matter. 38 U.S.C.§ 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006).  Since that time, the Veteran has had ample opportunity to supplement the record. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) 

Therefore, all proper development has been completed, and all of the Veteran's relevant records have been associated with the claims file.  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim, and the Board is unaware of any such evidence.  For this reason, the VA's duty to notify and assist has been satisfied. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).

II. Early Effective Date for Service Connection for Lymphoma 

The Veteran contends that his service-connected lymphoma should be effective earlier than January 4, 2012.

Section 5110(a), Title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 

The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 U.S.C. 
§ 5101(a) (2012); 38 C.F.R. § 3.151 (a) (2017). An informal claim may be any communication or action indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); 38 C.F.R. §§ 3.1 (p), 3.155(a) (2017). An informal claim must be written and it must identify the benefit being sought.

Although a claimant need not identify the benefit sought "with specificity," some intent on the part of the veteran to seek benefits must be demonstrated. VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," and extends to giving a sympathetic reading to all pro se pleadings of record.

Here, although the Veteran asserts that service connection for lymphoma should be effective earlier than January 4, 2012, he does not contends that he filed a claim earlier than this date.  Rather, the Veteran is seeking an earlier effective date based on the fact that he was sick and sought treatment from the VA before January 4, 2012. See hearing transcript at 3. After thorough review of the record, the Board notes that while the Veteran may have sought treatment at VA hospital before January 4, 2012, there is no evidence of record that shows a claim for service-connection for his condition was filed before that date. As noted above, an effective date is assigned based on either when a claim was filed or when entitlement arose, whichever is later. While the diagnosis of lymphoma at a VA hospital may have occurred before January 4, 2012, the evidence does not show that he sought service connection for the condition earlier than time. 

The Board is sympathetic to the Veteran's claim.  The Board has thoroughly sought the record for evidence that would support assignment of an earlier effective date.  However, the Board is bound by the law and without legal authority to grant the benefits sought. Absent evidence showing that the claim was received before January 4, 2012, entitlement for an earlier effective date cannot be assigned. 

In summary, the preponderance of the evidence in the record is against finding that an effective date earlier than January 4, 2012 is warranted. The appeal is accordingly denied.  In making this determination, the Board has considered the provisions of 38 U.S.C.A. § 5107(b) regarding benefit of the doubt, but there is not such a state of equipoise of positive and negative evidence to otherwise grant the Veteran's claim.



III. Earlier effective date for SMC

The Veteran contends that the SMC award should be effective earlier than January 4, 2012.

SMC at the 'housebound' rate is payable when a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i) (2017).

For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. § 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or 4.30 (temporary total convalescence rating). Also, a TDIU meets the criterion only if assigned for a single disability. Buie v. Shinseki, 24 Vet. App. 242 (2011).

The Board finds that a preponderance of the evidence is against entitlement to an effective date earlier than January 4, 2012 for SMC.  Although the Veteran's service-connected PTSD was rated as 100 percent disabling effective July 2000, the Veteran's other service-connected disabilities are not rated as 60 percent or higher. Nor is there evidence to conclude that the Veteran was substantially confined at home due to his service-connected disability.  To the contrary, a VA PTSD examination from November 2002 reflects that while the Veteran had significant functional impairment, he was able to competently manage VA benefit payments.  The Veteran also reported that he was living by himself, and he would spend time at his brother's diesel shop.  This evidence reflects that the Veteran was not permanently housebound for SMC purposes.  As of January 4, 2012, this benefit was granted based on the grant of service connection for Lymphoma, and of this date, the statutory criteria were met.  As discussed above, an earlier effective date for the grant of this service connection is denied.

Consequently, as the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt rule does not apply, and entitlement to an effective date earlier than January 4, 2012 for SMC due to housebound status must be denied. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102.


ORDER

Entitlement to an effective date earlier than January 4, 2012 for the grant of service connection for Lymphoma is denied.

Entitlement to an effective date earlier than January 4, 2012 for grant of special monthly compensation based on housebound (SMC) is denied. 




____________________________________________
Nathaniel J. Doan
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs