Citation Nr: 1805348 Decision Date: 01/26/18 Archive Date: 02/07/18 DOCKET NO. 17-52 585 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to an effective date earlier than March 13, 2015 for a grant of service connection for Barrett's esophagus and esophagitis (previously denied as esophagitis with esophageal cancer and hiatus hernia). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Miller, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1964 to January 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Fargo, North Dakota. 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) (West 2014). FINDINGS OF FACT 1. In August 1981, the Board denied a grant of service connection for esophageal conditions, and the Veteran did not appeal that decision. 2. In November 2005, the Board denied a grant of service connection for esophageal conditions finding that the Veteran had not submitted new and material evidence sufficient to reopen the previously disallowed claim, and the Veteran did not appeal that decision. 2. Since the November 2005 Board decision, the record contains no informal claim, formal claim, or any written intent to file a claim of entitlement to service connection for esophageal conditions prior to March 13, 2015. CONCLUSIONS OF LAW 1. The November 2005 Board decision, which denied entitlement to service connection for esophageal conditions, is final. 38 U.S.C. §§ 5108, 7103, 7104 (West 2014); 38 C.F.R. §§ 3.156, 20.1100 (2005). 2. The requirements for an effective date earlier than March 13, 2015 for the grant of entitlement to service connection for Barrett's esophagus and esophagitis have not been met. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. §§ 3.1(p), 3.155, 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that the effective date for his grant of service connection for Barrett's esophagus and esophagitis should date back to 1980 when he originally made the claim to VA. After a thorough review of the record, the Board finds that the current effective date for the grant of service connection for Barrett's esophagus and esophagitis is appropriate. The current appeal is for an earlier effective date for entitlement to a grant of service connection. Earlier effective date issues are generally considered to be "downstream" issues. 38 C.F.R. § 3.159(b)(3)(i) (no duty to provide VCAA notice arises from receipt of a notice of disagreement). The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court of Appeals for Veterans Claims (Court) have similarly held regarding such downstream elements as effective dates, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); 38 C.F.R. § 3.159(b)(3) (no VCAA notice required because of filing of NOD). The effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active duty service or date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a),(b)(1) (West 2014); 38 C.F.R. § 3.400(b)(2) (2017). 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) (2017). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, or a person acting as next friend for a claimant who is not of full age or capacity may be considered an informal claim. 38 C.F.R. § 3.155 (2017). The Veteran was originally denied service connection for esophageal conditions in July 1980. In an August 1981 Board decision, the decision of the RO to deny service connection was affirmed. The Board found that the Veteran's claimed condition was present during service or for many years following his separation from service in January 1966. That decision was not further appealed. In January 2003, the Veteran made a request to reopen the 1981 denial of service connection for esophageal conditions. That claim was denied in a June 2003 rating decision by the RO. The Veteran appealed that June 2003 decision to the Board who subsequently affirmed the RO's denial to reopen the claim for service connection for esophageal conditions in a November 2005 decision. At that point the Veteran did not appeal the Board's decision and it became final. In July 2014, the RO received a VA Form 10-5345 signed by the Veteran and an attorney named Timothy Lamb, in addition to a letter dated July 2014 from the same attorney stating the he represented the Veteran. On the VA Form 10-5345, the Attorney wrote that the purpose of the request for authorization to release records was to "challenge the denial." The RO did not receive a signed VA Form 21-22a from Attorney Lamb, as such the RO continued to copy the Veteran's duly authorized representative, Disabled American Veterans, on communications pertaining to the Veteran's claims. On March 6, 2015, the RO received a letter from the Veteran stating that he had spoken with someone at VA and was concerned that his disability claims for his stomach had still been turned down. The RO construed this March 2015 letter as an informal claim to reopen the previously denied claims pertaining to the "stomach," i.e. the irritable bowel syndrome and esophageal conditions claims. On November 20, 2015, the Veteran completed a VA Form 21-526b requesting to reopen the previously denied claims for esophageal conditions and irritable bowel syndrome, thus perfecting his March 2015 informal claim. 38 C.F.R. § 3.155(b)(4). The November 2015 form was accompanied by a letter from the Veteran's accredited representative, Disabled American Veterans. In a December 2015 rating decision, the RO denied the Veteran's claim for entitlement to service connection for esophageal conditions and irritable bowel syndrome. The Veteran filed a timely notice of disagreement and the RO ultimately granted service connection in January 2017 for Barrett's esophagus and esophagitis with an effective date of March 13, 2015. The Veteran subsequently filed a timely notice of disagreement with respect to the effective date of March 13, 2015 for the grant of service connection for Barrett's esophagus and esophagitis, stating that he wanted the effective date to be in 1980. The RO issued a statement of the case in September 2017 and the Veteran filed a timely VA Form 9 in response. The claim for an earlier effective date for the grant of service connection for Barrett's esophagus and esophagitis was certified to the Board in November 2017. With respect to claims of entitlement to service connection that are reopened based on new and material evidence pursuant to 38 C.F.R. § 3.156, if new and material evidence other than service department records is received within the appeal period or prior to an appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). If new and material evidence other than service department records is received after a final disallowance, the effective date of the grant of service connection will be the date of receipt of the new claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). The Federal Circuit has stressed that, with respect to the effective date of an award following a claim to reopen, absent a showing of clear and unmistakable error (CUE), a claimant may not receive disability payments for a time frame earlier than the date of a claim to reopen, even where new evidence might support an earlier disability date. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (2005). Where VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim pursuant to 38 C.F.R. § 3.156(c) (providing that such records include service records that are related to a claimed in-service event, injury, or disease). If an award of service connection is based on such service department records, the effective date will be the date entitlement arose or the date VA received the previously denied claim, whichever is later, or such other date as may be authorized by regulations that are applicable to the previously-decided claim. See 38 C.F.R. § 3.156(c)(3). In the present case, the Veteran was granted service connection for Barrett's esophagus and esophagitis in January 2017 based on a claim to reopen a previously denied decision. However, the July 21, 2014, letter from Attorney Lamb cannot be considered a valid informal claim. An October 8, 1981 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative, shows that the Veteran appointed Disabled American Veterans as his duly authorized representative. 38 C.F.R. § 14.631. A review of the claims file indicates that although Timothy Lamb, Attorney, has submitted documents on behalf of the Veteran, he is not accredited as a representative by VA's Office of General Counsel. Under VA regulation, agents and attorneys who commence representation on or after June 23, 2008 must file an application for accreditation with VA's Office of General Counsel (OGC). 38 C.F.R. § 14.629 (2017). A non-accredited attorney may, however, act on a one time basis in a single claim if a statement is signed by the attorney and the claimant that no compensation will be charged or paid for the services. 38 C.F.R. § 14.630 (2017). There is no such record of a compensation agreement in the claims file; therefore, this exception is not applicable in this case. Since Attorney Lamb neither filed a VA Form 21-22a nor a zero fee compensation agreement, the Board must conclude that the Veteran's authorized representative continued to be Disabled American Veterans at the time that Attorney Lamb submitted the July 2014 letter and the associated Form 10-5435, Request For and Authorization to Release Medical or Health Information. Additionally, the record does not show, and the Veteran has not claimed, that the Veteran was not of full age or capacity at the time of the July 2014 letter. As the July 2014 letter was not from the Veteran, the Veteran's duly authorized representative, or a person acting as next friend because the Veteran was not of full age or capacity, the July 2014 letter cannot be considered an informal claim. 38 C.F.R. § 3.155 (2017). When STRs are lost or missing, the Court has held that VA has a heightened duty "to consider the applicability of the benefit of the doubt rule, to assist the claimant in developing the claim, and to explain its decision when the Veteran's medical records have been destroyed." Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005) citing Russo v. Brown, 9 Vet. App. 46, 51 (1996). See also Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). In the present case, the record shows that some of the Veteran's STRs have not been available since prior to the original denial of service connection for esophageal conditions in July 1980. Whether or not the prior RO or Board decisions adequately considered the benefit of the doubt rule with respect to the Veteran's missing STRs is not within the purview of the appeal for an earlier effective date for a grant of service connection. However, the Board must determine whether any additional STRs were added to the record for consideration in later decisions after the original denial for service connection had been made. Here, the January 2017 rating decision which granted the Veteran service connection for Barrett's esophagus and esophagitis did not include additional records from the Veteran's STRs that had not been previously considered. The January 2017 rating decision notes that the VA examiner from January 2017 related the Veteran's esophageal conditions to active service based partially on the Veteran's separation medical examination from December 1965, which was also considered in the August 1981 Board decision. Therefore, an effective date relating back to the original date of claim in 1980 is not warranted. 38 C.F.R. § 3.156(c). In summary, the record does not show that additional STRs were considered in the January 2017 rating decision, or that the Veteran filed a claim, either formal or informal, prior to March 13, 2015. As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against a claim for any earlier effective date, the Board finds that the claim for an earlier effective date must be denied. 38 U.S.C. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date earlier than March 13, 2015 for the grant of service connection for Barrett's esophagus and esophagitis is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs