Citation Nr: 18151094 Decision Date: 11/16/18 Archive Date: 11/16/18 DOCKET NO. 16-51 198 DATE: November 16, 2018 ORDER Entitlement to an effective date earlier than November 25, 2014 for the grant of service connection for mitral valve prolapse is denied. FINDINGS OF FACT 1. On January 20, 1993, within one year of his separation from service, the Veteran submitted an unsigned and undated VA Form 21-526 that constituted an informal claim for entitlement to service connection for mitral valve prolapse. On February 25, 1993, the Veteran was sent notice informing him that he needed to submit a signed and dated formal claim within one year. The Veteran was provided a VA Form 21-526 for this purpose. 2. A formal claim for entitlement to service connection for mitral valve prolapse was first received by VA on November 25, 2014, more than one year after the Veteran's informal claim. CONCLUSION OF LAW The criteria for an effective date earlier than November 25, 2014 for the grant of service connection for mitral valve prolapse have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from January 1985 to December 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision. I. Duties to Notify and Assist The Veteran has not 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). 1. Entitlement to an effective date earlier than November 25, 2014 for the grant of service connection for mitral valve prolapse. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of the claimant's application. 38 U.S.C. § 5100(a). If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claims were received by VA prior to that date, the former regulations apply, as provided below. A claim is defined as 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); 3.155. Pursuant to 38 U.S.C. § 5101(a), "A specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary." See also 38 C.F.R. § 3.151(a). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identified the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal are "(1) an intent to apply for benefits, (2) an indication of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). 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). If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. If the formal claim is received after one year of its receipt, the effective date will be the date of VA's receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (discussing 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155). However, the effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by § 3.155, because the one-year time limit to return the formal claim did not begin. See, e.g., Quarles v. Derwinski, 3 Vet. App. 129, 137 (1992). A VA claim form that is unsigned and undated is an informal claim that generally does not serve as the basis for an effective date unless an executed and completed VA claim form is filed with VA within one year after VA notifies the claimant what is needed to complete the form. Fleshman v. Brown, 9 Vet. App. 548, 551-552 (1996), aff'd, 138 F.3d 1429 (Fed. Cir. 1998); see also 38 C.F.R. § 3.155(a). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). A report of examination or hospitalization that meets certain requirements will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services will be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to VA or uniformed services hospital will be accepted as the date of receipt of a claim. Those provisions apply only when the reports relate to examination or treatment of disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of the examination, treatment, or hospital admission. 38 C.F.R. § 3.157. Medical records cannot constitute an initial claim for service connection; rather there must be some intent by the claimant to apply for the benefit. Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998). Regarding the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In this case, the Veteran contends that he is entitled to an effective date earlier than November 25, 2014 due to the fact that he initially submitted a service connection claim for mitral valve prolapse at the time of his December 31, 1992 separation form active service. See November 2014 Statement. The record does show that on January 20, 1993, VA received a VA Form 21-526, Veteran’s Application for Compensation or Pension, in which the Veteran claimed entitlement to service connection for moderately severe mitral prolapse, mild mitral regurgitation. However, the Veteran did not sign or date the form in the provided blocks 41 and 42. As noted above, in the absence of a signature and date, the Veteran’s VA Form 21-526 is considered an informal claim. Fleshman, 9 Vet. App. at 551-552. In a February 25, 1993 letter, VA notified the Veteran that before further action could be taken on his claim for compensation, he needed to sign and date blocks 41 and 42 in an attached VA Form 21-526. The letter added that if VA did not receive the form within one year from the date of the letter, benefits, if entitlement was established, would not be paid prior to the date of its receipt. The Veteran has acknowledged that he received the February 25, 1993 letter. See November 2014 Statement. However, the record does not show that a formal claim for mitral valve prolapse was received within one year of VA notifying the Veteran that he was required to file an executed claim. The Veteran has also not asserted that he submitted a signed and dated a copy of the VA Form 21-526 within one year of the February 25, 1993 letter. As the Veteran did not complete the claim within one year of the letter requesting that he do so, the informal claim received on January 20, 1993 cannot serve as the basis for an earlier effective date. In addition, there were no subsequent communications from the Veteran that could be construed as a formal or informal claim for this benefit prior to November 25, 2014. The Board notes that in June 1998, VA’s Records Management Center (RMC) transferred the Veteran’s service treatment records to the AOJ. Although clinical records may, in some instances, be considered informal claims under 38 C.F.R. § 3.157(b), this provision is inapplicable, as the clinical evidence does not pertain to examination or treatment of a disability for which service connection has been previously established. The Board has also considered whether the Veteran met the requirements for service connection prior to November 25, 2014. However, even if the evidence shows an earlier date of entitlement, the effective date for an award based on an original claim (i.e., the first complete claim filed for that benefit) cannot be earlier than the date of VA's receipt of the claim. As the Veteran’s formal claim was received more than one year after he was sent a formal application form to complete, the effective date will be the date that the formal claim was received, which in this case, is November 25, 2014, the effective date currently assigned. As the weight of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel