Citation Nr: 18143293 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-27 666 DATE: October 18, 2018 ORDER Entitlement to an effective date of March 30, 2015 for entitlement to service connection for coronary artery disease (CAD) with supraventricular arrhythmia (herein CAD) is granted. REMANDED Entitlement to an effective date prior to July 6, 2015 for eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. chapter 35 is remanded. Entitlement to an effective date prior to July 6, 2015 for entitlement to special monthly compensation (SMC) based on housebound criteria (38 U.S.C. § 1114(s)) is remanded. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, a claim for entitlement to service connection for CAD was received in VA on March 30, 2015. CONCLUSION OF LAW The criteria for entitlement to an effective date of March 30, 2015 for entitlement to service connection for CAD have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1(r), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to September 1967, to include service in the Republic of Vietnam from August 1966 to September 1967. Earlier Effective Date – Service Connection for CAD Legal Criteria 38 U.S.C. § 5110(a) states that “[u]nless specifically provided otherwise…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.” 38 C.F.R. § 3.400 states that “[e]xcept as otherwise provided, the effective date of an evaluation and award of…compensation…based on an original claim…will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400(b)(2)(ii) states, as relevant, that the effective date for disability compensation based on presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309 will be “date of receipt of claim, or date entitlement arose, whichever is later.” 38 C.F.R. § 3.1(r) states that “[d]ate of receipt means the date on which a claim…was received in” VA. Analysis A November 2015 rating decision granted entitlement to service connection for CAD and assigned a 100 percent disability rating, effective July 6, 2015. The rating decision stated that “service connection for [CAD] has been granted on the basis of presumption due to Agent Orange exposure.” It was also noted that “[t]he effective date of this grant is July 6, 2015. Service connection has been established from the day VA received your claim.” The Veteran submitted a November 2015 notice of disagreement (NOD) as to the assigned effective date. He stated that “[t]he decision letter reflects 8/1/15; however, it should be 4/1/15.” The Board notes that the Veteran is referencing the first day of payment of monetary benefits, which is generally the first day of the calendar month following the month in which an award becomes effective. See 38 U.S.C. § 5111; 38 C.F.R. § 3.31. The Veteran also referenced that he submitted a claim in March 2015 and stated that “attached is a copy of the Fax Verification that it was received at the VA Intake Center in Janesville[,]” Wisconsin. The Veteran also stated that “I had not heard anything from the VA and…in July 2015…a copy of the claim that was submitted in March along with the copy of the Fax Verification was sent with a [statement] explaining that I sent (fax’d) the claim in March 2015.” The Veteran provided, essentially, the same contentions on his June 2016 VA Form 9 and again advocated for an effective date of April 1, 2015. The evidence of record includes a VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) that was noted to be received by the VA Claims Intake Center in Janesville, Wisconsin on July 6, 2015. On this form, the Veteran listed entitlement to service connection for ischemic heart disease (IHD). The Veteran dated this form March 13, 2015. It was based on this document that the Agency of Original Jurisdiction (AOJ) assigned the current effective date. Also of record are multiple other documents received by VA on July 6, 2015. One document was a letter from the Veteran’s representative that listed documents being submitted as including “[p]reviously submitted 21-526EZ” and “Fax Receipt from Janesville (03/30/2015).” A statement from the Veteran stated that “I submitted a claim for IHD…on March 13, 2015, and it was submitted to the VA on March 20, 2015” and that “I am attaching the cover sheet with the date stamp, and the fax transmittal showing it was faxed to Janesville on March 30, 2015.” He also stated that “[t]he original date of claim should be back to March of 2013” (presumably the Veteran meant March of 2015). Also received on July 6, 2015 was a cover letter from the Veteran’s representative dated March 13, 2015. It was addressed to the California Department of Veterans Affairs and had a “received” date stamp of March 20, 2015 from the California Department of Veterans Affairs. In review, this document was addressed to, and date stamped, by the Veteran’s representative, the California Department of Veterans Affairs. It was not addressed to or date stamped by the United States Department of Veterans Affairs. Also received on July 6, 2015, as referenced in the Veteran’s NOD and Form 9, was a document with the heading of “Transmission Verification Report.” This document listed a date of March 30, 2015. It listed the “result” as “OK.” Also listed for “pages” was “03.” In addition, the fax number listed was 844-822-5246. The Board notes that an August 2015 letter from VA to the Veteran included an attachment titled “Where to Send Your Written Correspondence” and on this page the Evidence Intake Center in Janesville, Wisconsin was listed as having the same fax number of 844-822-5246. As such, the Transmission Verification Report listed the fax number for the Evidence Intake Center in Janesville, Wisconsin. As outlined above, the appropriate effective date in this case for the grant of entitlement to service connection for CAD is the date of receipt of claim or the date entitlement arose, whichever is later. The evidence of record indicated that entitlement arose for entitlement to CAD at least as of March 30, 2015. In this regard, the AOJ granted entitlement to service connection on a presumptive basis based on exposure to herbicide agents and the evidence indicated that the Veteran had a qualifying disease associated with exposure to herbicide agents pursuant to 38 C.F.R. § 3.309(e) as of at least March 30, 2015. See, e.g., September 2015 Heart Conditions Disability Benefits Questionnaire (stating that the Veteran had an automated implantable cardioverter defibrillator (AICD) inserted in February 2015 and that “[t]he AICD is as likely as not due to [IHD]”). As such, the key issue is the date of receipt of the Veteran’s claim for entitlement to service connection for CAD. As noted, 38 C.F.R. § 3.1(r) states that “[d]ate of receipt means the date on which a claim…was received in” VA. As outlined, the Veteran has contended that he faxed his claim to VA on March 30, 2015. In support of this contention he submitted the discussed Transmission Verification Report. This document was dated March 30, 2015 and was sent to the fax number of the VA Evidence Intake Center in Janesville, Wisconsin. As noted, this documented listed the “result” as “OK.” Taken together, and resolving reasonable doubt in the Veteran’s favor, the listed fax number and the “result” of “OK” indicated that a fax was successfully transmitted to VA on that date. See 38 U.S.C. § 5107(b) (“[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, [VA] shall give the benefit of the doubt to the claimant”); 38 C.F.R. § 3.102 (“[w]hen…a reasonable doubt arises regarding…any other point, such doubt will be resolved in favor of the claimant”). In addition, the Veteran reported that the VA Form 21-526EZ signed by him on March 13, 2015 that listed entitlement to service connection for IHD was submitted via fax on this date. The Board notes that the Transmission Verification Report listed for “pages” “03,” which would be sufficient to include the two pages of the VA Form 21-526EZ signed by the Veteran on March 13, 2015 that listed entitlement to service connection for IHD. As such, the Board finds that, resolving reasonable doubt in the Veteran’s favor, a claim for entitlement to service connection for CAD was received in VA on March 30, 2015. As explained, the appropriate effective date in this case for the grant of entitlement to service connection for CAD is the date of receipt of claim or the date entitlement arose, whichever is later, and entitlement arose for entitlement to service connection for CAD at least as of March 30, 2015. As such, March 30, 2015 is the appropriate effective date in this case. The Board accordingly concludes that the criteria for entitlement to an effective date of March 30, 2015 for entitlement to service connection for CAD have been met and, in this regard, the Veteran’s claim is therefore granted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1(r), 3.400. The Board notes that this is a complete grant of the benefits sought on appeal, as the Veteran advocated in his NOD and Form 9 for an effective date of April 1, 2015 and the grant of an earlier effective date for entitlement to service connection for CAD of March 30, 2015 will allow for the payment of monetary benefits as of April 1, 2015. See 38 U.S.C. § 5111; 38 C.F.R. § 3.31. The Board also acknowledges that in the June 2016 statement of the case (SOC) the AOJ discussed and relied upon in its denial of an earlier effective date internal rules of the Veterans Benefits Administration (VBA). The Board is not bound by these rules and has overall found that there is sufficient compelling evidence to give the benefit of doubt to the Veteran in this case. See 38 U.S.C. §7104(c) (stating that “[t]he Board shall be bound in its decisions by the regulations of the Department, instructions of the Secretary, and the precedent opinions of the chief legal officer of the Department”); 38 C.F.R. § 19.5 (stating that “[i]n the consideration of appeals, the Board is bound by applicable statutes, regulations of [VA], and precedent opinions of the General Counsel of the [VA]. The Board is not bound by Department manuals, circulars, or similar administrative issues”. REASONS FOR REMAND 1. Earlier Effective Date – Eligibility for DEA 2. Earlier Effective Date – Entitlement to SMC (38 U.S.C. § 1114(s)) A November 2015 rating decision granted basic eligibility to DEA and entitlement to SMC, both effective July 6, 2015. Eligibility to DEA and entitlement to SMC were both predicated on the effective date when CAD was assigned a 100 percent disability rating. As outlined above, the Board has granted entitlement to an earlier effective date for entitlement to service connection for CAD. The AOJ will in the first instance assign a disability rating for the newly service-connected time period for CAD. The assigned disability rating will impact the eligibility for DEA and entitlement to SMC. As such, these claims are inextricably intertwined with the claim granted in this decision and they must therefore be remanded for readjudication following further action by the AOJ related to the earlier effective date claim granted by the Board. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: Following the assignment of a disability rating for the newly service-connected time period for CAD, readjudicate the earlier effective date claims related to eligibility for DEA and entitlement to SMC. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Hoopengardner, Counsel