Citation Nr: 18157047 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-55 393 DATE: December 11, 2018 ORDER Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for breast cancer, status post left lumpectomy is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for degenerative disc disease of the cervical spine is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for degenerative disc and joint disease of the lumbar spine is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for degenerative joint disease of the left knee is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for gastroesophageal reflux disease (GERD) with hiatal hernia and diverticulitis is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for obstructive sleep apnea and chronic bronchitis is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for hemorrhoids is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for hypertension is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for pelvic adhesions status post right oophorectomy is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for plantar fasciitis, status post left fasciotomy is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for residual scar, status post appendectomy is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for uterine fibroids, status post hysterectomy is denied. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for special monthly compensation (SMC) for anatomical loss of a creative organ is denied. FINDING OF FACT 1. The Veteran was discharged from service on March 31, 2012. 2. The Veteran’s original claim of service connection for breast cancer, status post left lumpectomy, degenerative disc disease (DDD) of the cervical spine, degenerative disc and joint disease of the lumbar spine, degenerative joint disease of the left knee, GERD with hiatal hernia and diverticulitis, obstructive sleep apnea and chronic bronchitis, hemorrhoids, hypertension, pelvic adhesions, plantar fasciitis, residuals of an appendectomy, residuals of a hysterectomy, to include the implied claim for SMC due to loss of use of a creative organ, was received by VA on October 11, 2013. CONCLUSIONS OF LAW 1. An effective date earlier than October 11, 2013 for the grant of service connection for breast cancer, status post left lumpectomy is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 2. An effective date earlier than October 11, 2013 for the grant of service connection for breast cancer, status post left lumpectomy is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 3. An effective date earlier than October 11, 2013 for the grant of service connection for degenerative disc disease of the cervical spine is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 4. An effective date earlier than October 11, 2013 for the grant of service connection for degenerative disc and joint disease of the lumbar spine is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 5. An effective date earlier than October 11, 2013 for the grant of service connection for degenerative joint disease of the left knee is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 6. An effective date earlier than October 11, 2013 for the grant of service connection for GERD with hiatal hernia and diverticulitis is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 7. An effective date earlier than October 11, 2013 for the grant of service connection for obstructive sleep apnea and chronic bronchitis is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 8. An effective date earlier than October 11, 2013 for the grant of service connection for hemorrhoids is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 9. An effective date earlier than October 11, 2013 for the grant of service connection for hypertension is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 10. An effective date earlier than October 11, 2013 for the grant of service connection for pelvic adhesions status post right oophorectomy is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 11. An effective date earlier than October 11, 2013 for the grant of service connection for plantar fasciitis, status post left fasciotomy is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 12. An effective date earlier than October 11, 2013 for the grant of service connection for residual scar, status post appendectomy, is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 13. An effective date earlier than October 11, 2013 for the grant of service connection for uterine fibroids, status post hysterectomy, is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400. 14. An effective date earlier than October 11, 2013 for the grant of service connection for special monthly compensation (SMC) for anatomical loss of a creative organ is not warranted. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1992 to March 2012. This matter is on appeal from a March 2015 rating decision. Effective Date 1. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for breast cancer, status post left lumpectomy 2. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for degenerative disc disease of the cervical spine 3. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for degenerative disc and joint disease of the lumbar spine 4. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for degenerative joint disease of the left knee 5. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for gastroesophageal reflux disease (GERD) with hiatal hernia and diverticulitis 6. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for obstructive sleep apnea and chronic bronchitis 7. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for hemorrhoids 8. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for hypertension 9. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for pelvic adhesions status post right oophorectomy 10. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for plantar fasciitis, status post left fasciotomy 11. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for residual scar, status post appendectomy 12. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for uterine fibroids, status post hysterectomy 13. Entitlement to an effective date earlier than October 11, 2013 for the grant of service connection for special monthly compensation (SMC) for anatomical loss of a creative organ The effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year of separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R.§ 3.400 (b)(2)(i). The Board notes that, 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; however, the amendments apply only to claims filed on or after March 24, 2015. Because the Veteran’s service connection claims were received by VA prior to that date, the former regulations regarding the definition of a claim, as provided below, apply in this case. “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). To determine when a claim was received, the Board must review all communication in the claims file that may be construed as an application for a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). While the VA should broadly interpret submissions from a Veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). In the March 2015 rating decision on appeal, the RO granted service connection for the disabilities listed above, as well as entitlement to SMC based on loss of use of a creative organ, effective from October 11, 2013, the date of receipt of the Veteran’s informal claim for benefits. The Veteran has disagreed with the effective date arguing that entitlement to service connection and SMC should be made effective from April 1, 2012, the day after she retired from service. Review of the record reveals that, in September 2010, the Veteran submitted a claim seeking service connection for several disabilities, including those at issue in this case. See September 2010 formal claim; September 2010 informal claim. At that time, she also submitted a VA Form 21-22 appointing Disabled American Veterans (DAV) as her representative. In April 2011, the RO contacted the Veteran to verify her dates of service, at which time she stated that she had been extended on active duty and was scheduled to retire in April 2012. See April 2011 Report of General Information. Given the information provided by the Veteran, the RO sent her a letter informing her that her claim for benefits could not be processed because she was still on active duty. The Veteran was informed that, when she was released from active duty, she should submit a copy of her DD Form 214 along with a statement requesting that her claim be reopened and any medical records. See April 2011 Notice Letter. The next communication received on behalf of the Veteran was submitted in April 2013, which included an updated VA Form 21-22 wherein the Veteran again appointed DAV as her representative and a cover letter wherein DAV requested that its representation be acknowledged. Notably, neither DAV nor the Veteran submitted any statement requesting a determination of entitlement to benefits, including for those disabilities previously identified in September 2010. See April 2013 VA Form 21-22 and cover letter. Review of the record reveals that DAV submitted the Veteran’s DD Form 214 to VA in July 2013; however, a statement requesting entitlement to benefits was not submitted at that time. See July 2013 statement from DAV. On October 11, 2013, the Veteran submitted a copy of a letter sent to her Congressman wherein she identified several disabilities that she incurred during service and requested assistance with her claim for VA benefits. In the letter to her Congressman, the Veteran stated that she filed a claim for benefits in 2011, as well as a copy of her DD Form 214 in May 2012, but she was informed that her claim had been closed without review in 2011 due to an administrative error. The October 11, 2013 statement from the Veteran was accepted by VA as the informal claim for benefits from which the grant of service connection and SMC were based in this appeal. Based on the applicable law and the foregoing evidence, the Board finds October 11, 2013 is the earliest possible date for the grant of service connection and SMC for the disabilities at issue in this case. While the Veteran has asserted that service connection and SMC should be awarded from April 1, 2012, the evidence does not reflect that she submitted a claim for benefits within one year of her separation from service in March 2012. Indeed, the first communication received on behalf of the Veteran following her period of active duty service was submitted in April 2013 and only included an appointment of representation for DAV without any statement requesting a determination or evidencing a belief in entitlement to benefits. The Board acknowledges that the submission of a VA Form 21-22 suggests that the Veteran was, at a minimum, contemplating beginning the VA claims process, as she appointed a representative at that time; however, because neither the Veteran nor DAV specifically raised or identified a claim at that time or referred to the claims previously filed in September 2010, the Board is unable to find that the submission of a VA Form 21-22, alone, constitutes a claim as defined by VA law and regulations. In this context, the Board notes the Veteran has alleged that she submitted a copy of her DD Form 214 in May 2012; however, there is no record of such submission in the evidentiary record. Even if the Veteran did submit a DD Form 214 in May 2012 or within one year of her separation from service, that form, alone, only establishes the dates of military service and does not constitute a claim for benefits without some additional communication requesting entitlement to a benefit for a disability. In this regard, the Board notes that, in April 2011, the Veteran was informed that she needed to submit a copy of her DD Form 214 along with a statement requesting that her claim be reopened after she retired in order to begin the claims process at that time. No such communication (wherein the Veteran requested entitlement to a benefit for disabilities incurred during service) was received by VA until October 11, 2013 when the Veteran submitted a copy of the letter she sent to her Congressman. Therefore, October 11, 2013 is the earliest possible effective date for the grant of service connection for the disabilities adjudicated in the March 2015 rating decision, as that is the date of receipt of the Veteran’s original claim. See 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i); McGrath, supra. There is no doubt to be resolved in this matter. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel