Citation Nr: 18152472 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-54 377 DATE: November 23, 2018 ORDER An effective date prior to January 25, 2013, for the grant of service connection for acute myelogenous leukemia (AML), is denied. REMANDED Entitlement to an initial compensable rating for AML is remanded. REFERRED ISSUES In his substantive appeal (VA Form 9), the Veteran indicated that, as a result of repeated bone marrow biopsies associated with his service-connected AML disability, he developed many long-term disabilities, including fatigue, emotional disturbance, joint pain, nerve problems, dental problems, stomach issues, hair loss, frequent headaches, and excessive bruising or bleeding. Therefore, the issues of entitlement to service connection for (1) fatigue, (2) emotional disturbance (except for the already service-connected social phobia), (3) joint pain, (4) nerve problems, (5) dental problems, (6) gastrointestinal disorder, (7) hair loss, (8) frequent headaches, and (9) and excessive bruising or bleeding as secondary to the service-connected AML disability have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). As such, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action for appropriate action. 38 C.F.R. § 19.9 (b) (2017). FINDING OF FACT VA received the Veteran’s initial claim for service connection for AML on January 25, 2013, and there is no prior, unadjudicated claim seeking service connection for AML. CONCLUSION OF LAW The criteria for the assignment of an effective date prior to January 25, 2013, for the grant of service connection for AML, are not met. 38 U.S.C. 5110 (2012); 38 C.F.R. 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1974 to July 1977, and from November 1979 to November 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from the October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). Laws and Analysis for Earlier Effective Date Claim In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits. 38 U.S.C. 5110; 38 C.F.R. 3.151. See Wells v. Derwinski, 3 Vet. App. 307 (1992). Benefits are generally awarded based on the date of receipt of the claim. 38 C.F.R. 3.1 (r), 3.400. Specifically, with respect to claims of service connection granted on a direct basis, such as the Veteran’s AML claim, governing regulation provides that the effective date will be the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from active duty; otherwise the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later (emphasis added). 38 C.F.R. 3.400 (b)(2)(i). All effective date determinations must be based upon the facts found, unless otherwise specifically provided. 38 U.S.C. 5101, 5110; 38 C.F.R. 3.400. For claims received prior to March 24, 2015, as pertinent here, 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 and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1 (p), 3.155(a) (2017); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1 (p) (2017) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r) (2017). In this case, the Veteran initially filed a claim for service connection for AML on January 25, 2013. In an October 2014 rating decision, the RO granted service connection for AML effective January 25, 2013, the date of the Veteran’s claim for service connection. A review of the remaining evidence of record does not show any other correspondence by the Veteran that may be construed as a formal or informal claim for service connection for AML prior to January 25, 2013. The Board recognizes the Veteran’s contention that the effective date should be assigned from the date of the diagnosis of AML and not by the date of filing. However, the effective date of a grant of service connection is not determined by the date upon which symptoms manifest or that a diagnosis is provided, but by the date a claim is filed. 38 U.S.C. § 5110. The mere existence or even receipt of medical records does not establish that the Veteran has filed a claim for service connection. Moreover, no clinical records prior to January 25, 2013, indicate any intent on the part of the Veteran to apply for service connection for AML. Where a claimant has not previously been granted service connection, VA’s receipt of medical records cannot be construed as an informal claim. Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a veteran suffers from a disability does not establish intent on the part of the veteran to seek service connection for that disability. Brannon v. West, 12 Vet. App. 32, 34, 35 (1998). Further, the Federal Circuit Court has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. As set out above, the relevant regulation requires that a claim, or at least some application that reasonably viewed can be considered a claim, be filed. Here, there was no such claim prior to the currently assigned effective date. In sum, the earliest indication that the Veteran wished to pursue a claim for service connection for AML was the January 25, 2013, statement. The effective date cannot be earlier than the date of claim in this case. Thus, the preponderance of the evidence is against the Veteran’s claim for an earlier effective date for the grant of service connection for AML and the benefit sought must be denied. REASONS FOR REMAND The Veteran maintains that his AML disability is more severe than what is contemplated by the currently assigned noncompensable (0 percent) rating. As noted above, the Veteran’s claims regarding secondary service connection for fatigue, emotional disturbance, joint pain, nerve problems, dental problems, stomach issues, hair loss, frequent headaches, and excessive bruising or bleeding have been referred to the AOJ for appropriate action. The Veteran’s AML is rated under 38 C.F.R. § 4.117, Diagnostic Code 7703, for leukemia. Leukemia is rated as 100 percent disabling with active disease or during a treatment phase. Otherwise, it is rated as anemia (Diagnostic Code 7700) or aplastic anemia (Diagnostic Code 7716), whichever would result in a greater benefit. Under Diagnostic Code 7700, a noncompensable rating is warranted for anemia when the hemoglobin level is 10gm/100ml or less and the disorder is asymptomatic. A 10 percent rating is warranted for a hemoglobin level of 10gm/100ml or less with findings such as weakness, easy fatigability, or headaches. 38 C.F.R. § 4.117, Diagnostic Code 7700. Under Diagnostic Code 7716, aplastic anemia is assigned a 10 percent rating for conditions requiring continuous medication for control. 38 C.F.R. § 4.117, Diagnostic Code 7716. Although a medical opinion was obtained in October 2014 regarding the etiology of the Veteran’s AML, a VA examination was not conducted. An examination is required to assist the Board in determining whether the Veteran’s AML is in full remission or whether a compensable rating is warranted under either Diagnostic Code 7700 or 7716. The matter is REMANDED for the following actions: 1. Obtain any outstanding treatment records since October 28, 2014, and associate them with the claims file. 2. Then, schedule the Veteran for a VA examination by a qualified medical professional, capable of specifically assessing the Veteran’s AML disability, to determine the current nature and severity of his service-connected AML and residual disabilities, to include anemia. 3. Then, readjudicate the increased rating claim on appeal. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel