Citation Nr: 1806501 Decision Date: 02/01/18 Archive Date: 02/14/18 DOCKET NO. 12-35 651 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an earlier effective date for entitlement to service connection for dysfunctional uterine bleeding. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Boal, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1987 to August 1990, May 1995 to February 1996, and from December 2003 to April 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, TX, which granted service connection for dysfunctional uterine bleeding with a 30 percent rating effective July 15, 2010. The Veteran also appealed the issue of increased initial rating for service-connected dysfunctional uterine bleeding. The Veteran withdrew that issue in a December 2017 statement. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in December 2017 and a transcript of that hearing is associated with the record. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for dysfunctional uterine bleeding in August 2005 which was denied in a January 2006 rating decision. A Statement of the Case was issued in September 2008. The Veteran did not appeal the decision. 2. In July 2010, the Veteran submitted a supplemental claim form seeking service connection for her dysfunctional uterine bleeding. CONCLUSION OF LAW The criteria for the assignment of an effective date earlier than July 15, 2010 for the award of service connection for dysfunctional uterine bleeding have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.155 (a), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of the Veteran's claim, VA issued a VCAA notice in the form of an August 2010 letter which informed the Veteran of the evidence generally needed to support the claims on appeal. The notice included information regarding the assignment of an increased evaluation and effective date; what actions she needed to undertake; and how VA would assist the Veteran in developing the claim. The notice was also issued to the Veteran prior to the rating decision from which the instant appeal arises; therefore, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Regarding the duty to assist in this case, VA has secured or attempted to secure all relevant documentation required by the VCAA or identified by the Veteran. The Veteran's service treatment records, VA treatment records, and any identified private treatment records have all been obtained. The Veteran was afforded a VA medical examination for the disability on appeal in September 2010. The medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal, as it is competent medical evidence pertaining to the existence and etiology of the claimed current disability sufficient to decide the claim. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. All identified and available relevant documentation has been secured and all relevant facts have been developed. There remains no question as to the substantial completeness of the claims. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.159, 3.326(a). For these reasons, the Board finds that the VCAA duties to notify and to assist have been met. Law and Regulations Under 38 C.F.R. § 3.400 (b)(2)(i), if a claim for service connection is not received within one year after separation from service, the effective date for a grant of direct service connection will be the date of receipt of the claim, or the date that entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(ii). The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q) and (r). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1 (p). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1 (r). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 7105 (2012); 38 C.F.R. § 3.105 (a). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has made it clear that an appellant generally can attempt to overcome the finality of a prior final decision of the RO or Board in only one of two ways: by a request for revision of an RO or Board decision based on clear and unmistakable error (CUE), or by a claim to reopen based upon new and material evidence. See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C.A. § 7111 (a) ("A decision by the Board is subject to revision on the grounds of [CUE]. If evidence establishes the error, the prior decision shall be reversed or revised."). Of the two options for challenging a final decision, only a request for revision premised on CUE could result in the assignment of an earlier effective date for an award of service connection, because 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); see Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of CUE, [the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006) (holding that once a decision is final, a freestanding claim for an effective date earlier than the date on which the claim was received impermissibly attempts to vitiate the rule of finality); see also Bingham v. Nicholson, 421 F.3d 1346, 1349 (Fed. Cir. 2005) (holding that failure to consider all possible theories that may support a claim does not serve to vitiate the finality of a decision). Effective Date for Service-Connected Dysfunctional Uterine Bleeding On August 19, 2005, a claim for service connection for multiple disabilities was received at the RO. That claim was amended in September 2005 to include a claim for service connection for abnormal menstrual bleeding, which was reframed by the RO as dysfunctional uterine bleeding. Service connection was denied in a January 2006 rating decision. The Veteran filed a Notice of Disagreement and the RO issued a Statement of the Case in September 2008 The Veteran did not file a Form 9 within sixty days of the issuance of the Statement of the Case. Accordingly, the January 2006 rating decision is final, and August 2005 is no longer the appropriate point from which to determine the effective date of an award unless a claim for clear and unmistakable error (CUE) is submitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). On July 15, 2010, the Veteran submitted an application for compensation for a menstrual disorder. Thus, the earliest effective date for the award of service connection is July 15, 2010. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q) and (r). The Board has reviewed the record to determine whether an informal claim of service connection for dysfunctional uterine bleeding was filed prior to July 15, 2010, and finds that no document was received between January 2006 and February July 15, 2010 that can be construed as an informal or formal claim for compensation benefits for asthma. See 38 C.F.R. §§ 3.151, 3.155; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for effective date earlier than the date on which the claim was received impermissibly attempts to vitiate the rule of finality). While the Veteran has argued that an effective date prior to July 15, 2010 should be assigned as she began experiencing symptoms prior to that date, and further provided medical evidence reflecting such symptoms, the Board notes that it is not the presence of a disability that controls. The Court has long held that the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("[M]ere receipt of medical records cannot be construed as an informal claim."); Brannon v. West, 12 Vet. App. 32, 35 (1998) ("[T]he Board is not required to conjure up issues that were not raised by the appellant."). Similarly, while records of medical treatment can constitute an informal claim for increase of an already service-connected condition, they cannot serve as informal claims for conditions which have not been service-connected. See 38 C.F.R. § 3.157; Lalonde v. West, 12 Vet. App. 377, 382 (1999). In this case, while the Veteran had indeed filed a claim, that claim was denied in a final rating decision. Thus, the only way the Veteran could attempt to overcome the finality of the January 2006 rating decision in an attempt to gain an earlier effective date would be to request a revision of that decision based upon clear and unmistakable error (CUE). See Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); see also 38 U.S.C. § 5109A (a). The Veteran testified that she actually had shown up for the examination and was told it would be inconclusive. However, the Veteran has not asserted with specificity that there was clearly and unmistakably error in a prior VA decision. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). As such, there is no decision that is subject to revision based on CUE at the present time. 38 U.S.C.A. §§ 7105, 5109A; see Rudd, 20 Vet. App. at 296. While the Board is sympathetic to the Veteran's claim, under the applicable regulations, July 15, 2010 is the earliest date for the award of service connection for dysfunctional uterine bleeding. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Because the preponderance of the evidence is against the claim for an earlier effective date, the benefit of the doubt doctrine is not for application and the appeal is denied. See Gilbert, 1 Vet. App. at 53-54. ORDER An effective date earlier than July 15, 2010 for the award of service connection for asthma is denied. ____________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs