Citation Nr: 18159343 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-62 350 DATE: December 18, 2018 ORDER Entitlement to an earlier effective date earlier than April 8, 2106 for the initial grant of service connection for coronary artery disease is denied. FINDING OF FACT On January 21, 2012, the Veteran filed a claim for compensation but did not identify the benefits sought; an April 8, 2016, correspondence indicates intent to file a claim for service connection; on May 6, 2016, the Veteran filed a claim for service connection for a heart condition due to Agent Orange exposure. CONCLUSION OF LAW The criteria for an effective date earlier than April 8, 2016, to include entitlement to an effective date of January 21, 2012, for the grant of service connection for a heart condition due to Agent Orange exposure have not been met. 38 U.S.C. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.155, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from May 1966 to May 1970 and the Marine Corps Reserves from September 1973 to September 1974 and from January 1976 to December 1976. Entitlement to an effective date earlier than April 8, 2016, for the initial grant of service connection for coronary artery disease In assigning effective dates, the general rule is that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be 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. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. As an exception for presumptive service connection, the effective date is the date entitlement arose if the claim is received within one year of separation from service; otherwise the general rule applies. 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, a claim was 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) (2014). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). 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). In a September 2016 rating decision, the Veteran was granted service connection for a heart condition due to Agent Orange exposure and assigned an effective date of April 8, 2016, based on the date of his intent to file a claim for service connection. In an October 2016 notice of disagreement, the Veteran expressed disagreement with the effective date assigned. Specifically, the Veteran asserts that he is entitled to an earlier effective date of January 21, 2012, based on the claim filed on that date. Thus, the initial issue before the Board is the appropriate date of claim. In the January 21, 2012, claim for compensation, the Veteran listed the claimed disability as “Agent Orange.” As “Agent Orange” is not a disability, the Regional Office (RO) sent the Veteran a letter dated December 10, 2012, requesting that he identify the specific disability or disabilities he believed resulted from his exposure to herbicides. The Veteran did not respond to this letter. The RO reached out to the Veteran again regarding this matter in a letter dated March 25, 2013. The March 25, 2013, letter explicitly stated that VA “cannot take further action on your claim until we receive this information. You have a year from the date of this letter to return correspondence and preserve your effective date of January 21, 2012.” Thus, the letter apprised the Veteran that he had until March 25, 2014, to respond with a specific disability and preserve a January 21, 2012, effective date for the claim. There is no response of record from the Veteran within a year of the March 25, 2013, letter. Moreover, there is no additional correspondence of any form from the Veteran prior to April 8, 2016, the date of his intent to file a claim. Following this correspondence, in an April 26, 2016, statement, the Veteran stated that he originally submitted a request to VA in 2012 but was told that because he did not respond, the process was stopped. He stated that he was living overseas at the time and never received the request. On May 6, 2016, the Veteran filed a claim for service connection for a heart condition due to Agent Orange exposure. As noted, the claim for service connection for a heart condition due to herbicide exposure was granted in a September 2016 rating decision. In the October 2016 notice of disagreement, the Veteran stated that he first filed for compensation on January 21, 2012, and the “paper” was lost in the mail. In the December 2016 Form 9, the Veteran reiterated his request that his benefits go back to 2012 when he filed the claim and that the “paperwork was lost in the mail.” Having reviewed the evidence of record, the Board finds that January 21, 2012, is not the appropriate date of claim. Nor is any other date appropriate earlier than April 8, 2016. Essentially, the initial matter before the Board is whether the January 21, 2012, claim date was preserved. At the outset, the Board acknowledges, as noted, that the benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. at 199. While the benefit does not have to be specific, the benefit sought by the Veteran in the January 2012 claim was not identifiable. In the January 21, 2012, claim, the Veteran listed a disability for Agent Orange, which, as noted, is not a disability. There is also a plethora of conditions for which service connection may be granted pursuant to Agent Orange exposure. As such, the January 21, 2012, claim was too broad to identify a benefit sought. Furthermore, the RO made reasonable efforts to assist the Veteran in clarifying the claim and preserve the claim date. The Veteran was contacted about the matter twice. In the March 2013 correspondence, the Veteran was explicitly advised that he had a year to respond to preserve the effective date of January 21, 2012. The Veteran did not respond to either correspondence, and the Board does not find that good cause has been shown for the Veteran’s failure to respond. In determining whether good cause has been shown for the Veteran’s failure to respond, the Board notes the conflicting assertions from the Veteran as to why he did not respond. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). Initially, the Veteran stated in the April 2016 correspondence that he was overseas at the time the correspondence was sent. He then stated in the October 2016 notice of disagreement and December 2016 Form 9 that the “paper/paperwork” was lost in the mail. As noted, the Veteran was contacted in December 2012 and March 2013 requesting additional information regarding his claim. He has not specified which correspondence he is referring to as being sent when he lived overseas or lost in the mail. However, the Board finds that the record does not support either assertion that the Veteran was overseas or that the correspondences were lost in the mail. With regard to the Veteran’s assertion that he lived overseas, the record does not reflect any notification to VA of a change in address prior to the December 2012 or March 2013 correspondences requesting additional information from the Veteran regarding the January 2012 claim. Nor has the Veteran subsequently submitted any evidence showing that he lived overseas at the time of the December 2012 or March 2013 letters. While lay statements may suffice, given that the Veteran’s statements have not been consistent, as he also stated that the correspondence was lost in the mail, there is a question of credibility as to the Veteran’s statements. Given the Veteran’s inconsistent statements and the lack of any other evidence establishing that he lived overseas, the Board finds that the record does not support the Veteran’s assertion that he lived overseas at the time of the December 2012 or March 2013 correspondences. As to the assertion that the correspondence was lost in the mail, the Board notes that there is a “presumption of regularity” under which it is presumed that government officials have properly discharged their official duties. See Butler v. Principi, 244 F.3d 1337, 1340 (2001). Clear evidence to the contrary is required to rebut the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)); see also Schoolman v. West, 12 Vet. App. 307, 310 (1999) (‘clear evidence to the contrary’ is required to rebut the presumption of regularity, i.e., the presumption that the notice was sent in the regular course of government action). Therefore, the Board must presume that the Veteran received the December 2012 and March 2013 VA correspondences requesting additional information. Nor has clear evidence been presented to rebut this presumption. The Board emphasizes that the Veteran was contacted twice. Given the presumption, the Board finds it unlikely that both correspondences were lost in the mail. Moreover, the December 2012 and March 2013 correspondences were sent to the address listed by the Veteran on the January 21, 2012, claim. There are no “returned mail” notifications of record to suggest that either correspondence was undeliverable or that the Veteran’s address had changed. As such, the Board also finds that the record does not support the assertion that the correspondences were lost in the mail. Accordingly, as the Veteran failed to respond to the March 25, 2013, correspondence instructing him how to preserve the January 21, 2012, effective date, the Board finds that the January 21, 2012, effective date was not preserved. Instead, the Board finds that April 8, 2016, is the date of claim. The earliest correspondence of record following the January 2012 claim that shows an intent to file a claim is the April 8, 2016, correspondence. This correspondence was also followed by a May 2016 claim for benefits for a heart condition. There is no other document dated prior to April 8, 2016, showing intent to apply for benefits. However, even assuming arguendo that January 21, 2012, is the appropriate date of claim, a January 21, 2012, effective date for the grant of service connection would still not be warranted. Although the Veteran was granted service connection on a presumptive basis, the claim was not filed within a year of his discharge from service. Therefore, the general rule applies, and the effective date is the date of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). With regard to the date entitlement arose, as service connection was granted on a presumptive basis, an in-service incurrence was already established, and a nexus is not required. Thus, the only issue was a diagnosis. Therefore, entitlement arose when a diagnosis was established. In this case, a diagnosis was not established until the July 2016 VA examination. The examiner conducted testing on the date of examination (July 2016) and listed a 2016 date of diagnosis for the Veteran’s heart condition. There is no evidence of a diagnosis for a heart condition prior to the July 2016 VA examination. Even assuming that January 21, 2012, is the date of claim, there was no medical evidence submitted at the time of the January 2012 claim showing a diagnosis for a heart condition. As such, entitlement still did not arise on January 21, 2012. Instead, as discussed, entitlement arose in July 2016 when evidence of a diagnosis was established. Thus, whether the date of claim is January 21, 2012, or April 8, 2016, the date entitlement arose is later than either date of claim. Accordingly, as the general rule applies, whether the date of claim is January 21, 2012, or April 8, 2016, the appropriate effective date is the date entitlement arose in July 2016 as this date is later. As such, in assigning an effective date of April 8, 2016, the RO has assigned an earlier effective date. There is no basis to provide an effective date of January 21, 2012, as this date is earlier than the date entitlement arose. Accordingly, the claim for an earlier effective date of January 21, 2012, is denied. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Smith, Associate Counsel