Citation Nr: 18149071
Decision Date: 11/08/18	Archive Date: 11/08/18

DOCKET NO. 16-52 667
DATE:	November 8, 2018
ORDER
Entitlement to an effective date prior to January 29, 2015 for the grant of service connection for hypertension is denied.
FINDING OF FACT
The Veteran was denied service connection for hypertension in a September 2008 decision of the Board of Veterans’ Appeals (Board). That decision is final.
CONCLUSION OF LAW
The criteria for entitlement to an effective date prior to January 29, 2015 for the grant of service connection for hypertension have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. § 3.400.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty from June 1977 to April 1980 with additional service in the California National Guard until November 2004. 
This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an January 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. 
Entitlement to an effective date prior to January 29, 2015 for the grant of service connection for hypertension
The Veteran has challenged the effective date of the grant of service connection for his hypertension, which is January 29, 2015. 
“Unless specifically provided otherwise in this chapter [38 U.S.C. §§ 5100 et seq.], the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). If a claim for disability compensation is received within one year of separation from service, the effective date of an award is the day following separation. 38 U.S.C. § 5110(b)(1). 
Sections 3.155 and 3.157 have been amended or eliminated.  However, the regulations were in force at the time of the prior decisions.  “Claim” is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). Further, under 38 C.F.R. § 3.157(b)(1), a report of examination or hospitalization may constitute an informal claim. 
Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). 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, 134 (1992). 
The Veteran filed a claim for service connection for hypertension in March 2005. That claim was denied in a July 2005 rating decision. The Veteran appealed, and a decision was rendered by the Board in September 2008. That decision is final. 
On January 29, 2015, the Veteran again requested service connection for hypertension. Service connection was granted in a January 2016 rating decision with an effective date of January 29, 2015.
There are two elements that must be addressed.  The first is whether the appellant may receive an effective date based upon the initial claim rather than a claim to reopen.  The second is whether VA may have missed a pending claim filed prior to January 29, 2015.
The effective date is based upon law.  Here, there was a prior final decision denying the benefit sought. The Veteran contends that he is entitled to an effective date based on the prior claim. The attempt to revisit that prior claim and decision is prohibited as that would vitiate the concept of finality.  The proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, 38 U.S.C. § 5110(a).  Rudd v. Nicholson, 20 Vet. App. 296 (2006).
As the grant of service connection was founded upon information in the Veteran’s service treatment records, the Board notes that there is an exception to finality in 38 C.F.R. § 3.156(c), which provides that after a claim is denied, “if 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.” 38 C.F.R. § 3.156(c). Such records include “service records that are related to a claimed in-service event, injury, or disease…” However, the September 2008 Board decision clearly addressed the specific treatment records in question. As such, the exception in 38 C.F.R. § 3.156(c) is not applicable here. As the previous decision was final, an effective date based on that claim is not warranted. 
Regarding the second theory, we have reviewed the file and there was no formal or informal claim submitted between the prior final claim and the communication received on January 29, 2015. Therefore, an earlier effective date is not warranted. 
The proper effective date is the date of receipt of the claim to reopen.



 
J.W. FRANCIS
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Creegan, Associate Counsel