Citation Nr: 1802292 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 15-41 148 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boston, Massachusetts THE ISSUES 1. Entitlement to an effective date earlier than September 16, 2012, for the award of service connection for ischemic heart disease, status-post multiple angioplasty and stent interventions with residuals, including dyspnea on exertion and intermittent atrial and ventricular ectopy (hereinafter referred to as "IHD"). 2. Entitlement to an effective date earlier than September 16, 2012, for the award of service connection for diabetes mellitus type II with erectile dysfunction (hereinafter referred to as "DM II"). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jane R. Lee, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1964 to September 1968. This appeal is before the Board of Veterans' Appeals (Board) from a March 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts, which granted service connection for IHD and assigned a 60 percent rating, for DM II and assigned a 20 percent rating, for neuropathy of the left lower extremity and assigned a 10 percent rating, and for neuropathy of the right lower extremity and assigned a 10 percent rating, all with effective dates of September 16, 2012. The RO also granted special monthly compensation based on loss of use of a creative organ from September 16, 2012. The Veteran submitted a June 2014 Notice of Disagreement (NOD) regarding the initial ratings for IHD, DM II, and neuropathy of the bilateral lower extremities; and the effective dates for IHD and DM II. However, his November 2015 VA Form 9 specifically stated that he was only appealing the effective dates for IHD and DM II. As the Veteran limited his appeal, the issues involving the initial ratings assigned are not in appellate status and are not currently before the Board. The Board also notes that the Veteran was granted a total disability rating for individual unemployability due to service-connected disabilities (TDIU) in a December 2014 rating decision. He submitted an April 2014 NOD, but did not file a VA Form 9 after the August 2015 Statement of the Case was issued. As such, this issue is also not on appeal and is not currently before the Board. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. The RO received the Veteran's fully developed claims for service connection for IHD and DM II on October 23, 2013. 2. The Veteran's September 16, 2013, notice of intent to file for compensation is considered an informal claim for service connection for both IHD and DMII. 3. VA did not receive any evidence prior to September 16, 2013, which can reasonably be construed as a claim for service connection for IHD and/or DMII. 4. The assigned one-year retroactive effective date of September 16, 2012, pursuant to a liberalizing law with respect to fully developed original compensation claims is the earlier effective date possible in this case. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 16, 2012, for the award of service connection for IHD are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.155, 3.400 (2017). 2. The criteria for an effective date prior to September 16, 2012, for the award of service connection for DM II are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Preliminary Matter In this case, 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). II. Claims for Earlier Effective Dates The Veteran seeks an effective date earlier than September 16, 2012, for the awards of service connection for IHD and DM II. The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. With specific regard to direct service connection claims, the effective date is the day following separation from active service or the date entitlement arose if the claim was received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(ii)(2)(i). However, retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a). To be eligible for a retroactive payment under these provisions, the evidence must show that the claimant met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue and that such eligibility existed continuously from that date to the date of claim or administrative determination of entitlement. These provisions apply to original and reopened claims, as well as claims for increase. Id.; see also McCay v. Brown, 9 Vet. App. 183 (1996), aff'd, 106 F.3d 1577 (Fed. Cir. 1997). In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed on the initiative of VA within one year from the effective date of the law or VA issue, or at the request of a claimant received within one year from that date, benefits may be authorized from the effective date of the law or VA issue. 38 C.F.R. § 3.114(a)(1). If a claim is reviewed on the initiative of VA more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of administrative determination of entitlement. 38 C.F.R. § 3.114(a)(2). If a claim is reviewed at the request of the claimant more than one year after the effective date of the law or VA issue, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(3). On August 6, 2012, the President signed a comprehensive legislative package, the "Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012," Public Law 112-154. Section 506 of this Act amends 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully-developed original claims for compensation received from August 6, 2013, through August 5, 2015. "[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead of assigning an effective date mechanically on the date of a Veteran was diagnosed, "all of the facts should be examined to determine the date that [the Veteran's disease] first manifested." See id. at 58. The Board must determine when a service-connected disability manifested itself under the all of the "facts found," including the medical opinions in question, and assign an effective date based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000). "[I]t is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528). The effective date of a service connection claim is not necessarily the date the diagnosis is made or submitted to the VA. Rather, a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms. Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). In this case, the Veteran's statement informing VA of his intent to apply for compensation/pension benefits was received by the RO on September 16, 2013. VA received the Veteran's application for fully developed claims for original compensation for IHD and DMII on October 23, 2013. In his June 2014 NOD, the Veteran contended that he should have been given disability compensation for IHD back in 1995. Additionally, in his November 2015 VA Form 9, the Veteran requested an effective date of 2010 for his IHD and of 1995 for DM II. He noted that he was given medication for DM II and IHD in 1995 and 1996, and that his diagnoses of DM II and IHD were confirmed by Dr. C.H. in 2010. However, he stated that he was never told that IHD and DM II were considered presumptive to Vietnam duty and that he should file disability claims. As such, he concluded that the medical personnel who provided medical care to him in 1995 and 2010 were incompetent in their duties or that they were instructed not to advice veterans regarding their disability benefits. Additionally, he noted that he would have requested earlier effective dates if he had access to his VA treatment records at the time of his original September 2013 claims. For the reasons expressed below, the Board finds that an earlier effective date is not warranted for the awards of service connection for IHD and DMII. Because the Veteran's claims were filed many years after he was discharged from service in 1968, the effective date cannot be assigned from the day after service discharge. Thus, the effective date, as a general matter, is the date of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Although the medical evidence conflicts as to the exact date of diagnosis for DMII and IHD, it is clear that the Veteran had been diagnosed with both in approximately the late-1990s. VA received the Veteran's fully developed original claims for service connection for IHD and DMII in October 2013. However, the evidence clearly shows that VA had constructive notice of the claims on September 16, 2013, when the Veteran filed the notice of intent to file claims. Accordingly, the September 16, 2013, notice of intent to file is considered an informal service connection claim for both the IHD and DMII. 38 C.F.R. § 3.155. The date of the claim is controlling here as it is later than the date entitlement arose. The RO assigned a one-year retroactive effective date of September 16, 2012, pursuant to the Honoring America's Veterans Act because the Veteran filed the fully developed original claims for service connection for IHD and DMII during the requisite time period (i.e., received from August 6, 2013, through August 5, 2015). Thus, the earliest possible effective date for the awards of service connection for IHD and DMII has already been awarded by the RO. The Board considered whether any evidence of record dated prior to September 2013 may be construed as a claim, formal or informal for service connection for IHD or DMII. For VA compensation purposes, 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). Significantly, in this case, there is no document of record earlier than the established date of claim that may reasonably be construed as a formal or informal claim for service connection for IHD or DM II. See 38 C.F.R. §§ 3.151(a), 3.155(a). First, the controlling regulation provides that the effective date of the Veteran's awards of service connection shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). The "Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 was approved in August 2012. Moreover, if the liberalizing law had not been enacted or was inapplicable in this case, the effective date would be controlled by 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i), which provides that the effective date assigned would be the later of the date of claim or the date entitlement arose. In this case, for the reasons expressed above, an effective date prior to the date of the Veteran's claims for service connection for IHD and DMII is legally precluded. While recognizing the Veteran's contention that he received medication for DMII and IHD as earlier as 1995/1996, his claims still fail as medical evidence cannot serve as an informal claim for service connection; there must be some intent to apply for a benefit. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Indeed, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon, supra; Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Furthermore, the Board acknowledges the Veteran's contention that he was not informed any earlier that he could file for disability compensation benefits for his IHD and DM II. However, there is no duty to assist on the part of medical care providers to inform and notify the Veteran of other benefits to which he may be entitled; indeed, their primary responsibility is to provide medical care and treatment. The Board is grateful for the Veteran's honorable service to our country and is sympathetic to his claim; however, the law is dispositive in this case. It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) [citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)]. The Board has no discretion to afford benefits in this matter; the appeal is therefore denied. ORDER Entitlement to an effective date prior to September 16, 2012, for the award of service connection for IHD is denied. Entitlement to an effective date prior to September 16, 2012, for the award of service connection for DM II is denied. ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs