Citation Nr: 1756862	
Decision Date: 12/08/17    Archive Date: 12/15/17

DOCKET NO.  13-06 513	)	
	)
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On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)


THE ISSUE

Entitlement to an effective date prior to December 2007, for the grant of service connection for ischemic heart disease.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Appellant



ATTORNEY FOR THE BOARD

C. Bates, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1969 to April 1975.  The Veteran died in January 2016; the Appellant is his surviving spouse.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from the RO.  In August 2017, the Appellant testified at a hearing before the undersigned Veterans Law Judge (VLJ); a transcript of that proceeding has been associated with the record. 


FINDING OF FACT

The evidence of record is at least in relative equipoise as to whether the Veteran submitted his service connection claim for heart disease on February 15, 2003.


CONCLUSION OF LAW

The criteria to establish an earlier effective date of February 15, 2003 for ischemic heart disease have been met.  38 U.S.C. §§  5107, 5110 (2012); 38 C.F.R. §§ 3.309, 3.816 (2017). 




REASONS AND BASES FOR FINDING AND CONCLUSION

The Appellant seeks to establish entitlement to an earlier effective date for the Veteran's award of service connection for heart disease.  As a preliminary matter, the Board observes that the competent medical evidence of record clearly indicates that the Veteran was diagnosed with heart disease on February 15, 2003.  Under applicable criteria, the Veteran would be entitled to an effective date for his service-connected heart disease the later of the date such claim was received by VA or the date the disability arose.  See 38 C.F.R. § 3.816.  Whereas the Board acknowledges that the disability arose on February 15, 2003, the primary issue in this case regards the date that the original claim was filed.  

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.  See Quarles v. Derwinski, 3 Vet. App. 129, 124 (1992).  

The RO has treated correspondence dated December 17, 2007 as the original service connection claim, while the Appellant maintains that various documents were faxed to VA in 2003, which included an informal or inferred claim.  Compare Correspondence, 1 (Dec. 17, 2007), with Hearing Transcript, 2 (Aug. 7, 2017).  

Although the reported faxed claim from 2003 does not appear in the claims file, the Board observes that VA sent a letter to the Veteran, dated April 13, 2006, which stated in pertinent part, "We have received your application for benefits."  See Returned Mail, 3 (Mar. 31, 2006).  Notably, this letter follows an almost three year gap in the record, which reasonably indicates that the "application for benefits" referenced in the VA letter is missing from the record.  This, in turn, counters any presumption of regularity in this case that the VA might point to as evidence routine administrative actions were accomplished.  

In any event, since VA sent the Veteran a letter in April 2006, acknowledging submission of a claim, it must be taken that some claim was submitted.  With the definite nature of the referenced claim ambiguous, combined with the Appellant's competent and credible testimony, the evidence as to whether VA's letter was sent in response to a faxed claim she described is at least in relative equipoise; affording her the benefit of the doubt, the Board finds that an earlier service connection claim for heart disease was submitted to VA.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board now turns to determining the actual date that the submitted claim was received by VA.  Based on the Appellant's testimony, any claim for heart disease would have been submitted between February 15, 2003 (the date of diagnosis) and Dec. 31, 2003; the Board acknowledges that the date of diagnosis is appropriate for consideration as a potential filing date because the claim was reportedly faxed (which involves the almost immediate transmission and receipt of data), rather than mailed (which often involves days for delivery), to VA.  See Hearing Testimony, 2 (Aug. 7, 2017).  

Although the Appellant was unable to provide a specific date, she testified that the treatment records were faxed to VA in 2003.  See Hearing Testimony, 3-4 (Aug. 7, 2017).  Absent a more ascertainable date, the Board finds that evidence is at least in relative equipoise as to whether the claim was submitted on February 15, 2003; consequently, the Appellant has satisfied the criteria to warrant an earlier effective date of February 15, 2003 for the award of service-connection for the Veteran's heart disease.  See 38 C.F.R. §§ 3.309, 3.816; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Quarles v. Derwinski, 3 Vet. App. 129, 124 (1992).





ORDER

An earlier effective date of February 15, 2003, for the Veteran's service-connected heart disease is granted.



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals







Department of Veterans Affairs