Citation Nr: 1808449 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 16-43 264 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUE Entitlement to an effective date earlier than August 22, 2013 for the grant of entitlement to service connection for asbestosis. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Hoopengardner, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1975 to November 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The procedural history will be outlined further below. Subsequent to the most recent Supplemental Statement of the Case (SSOC) issued in September 2016, additional documents were associated with the Veteran's claims file, without a waiver of review by the Agency of Original Jurisdiction (AOJ). While the Veteran filed his substantive appeal in September 2016 and evidence submitted by the Veteran is therefore subject to initial review by the Board, some of the additional documents were obtained by VA and waiver of consideration of such documents by the AOJ is not assumed. See 38 U.S.C. § 7105(e)(1) (2012). In any event, the additional records obtained by VA are not relevant to the earlier effective date claim. As the additional documents do not relate to or have a bearing on this claim, they are therefore not pertinent and the Board can proceed with a decision on this claim. See 38 C.F.R. §§ 19.31(b), 20.1304(c) (2017). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT No communication received by VA from the Veteran prior to August 22, 2013 indicated intent to apply for entitlement to service connection for asbestosis. CONCLUSION OF LAW The criteria for an effective date earlier than August 22, 2013 for the grant of entitlement to service connection for asbestosis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017); 38 C.F.R. §§ 3.1(p), 3.155(a) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Legal Criteria The effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. See 38 U.S.C. § 5110(a) (2012). Generally, for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). The regulation in effect as applicable in this case (the regulation was subsequently amended effective March 2015) defined a "claim" as "a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2013). With regard to informal claims, the regulation in effect as applicable in this case (the regulation was also subsequently amended effective March 2015) stated that "[a]ny communication or action, indicating intent to apply for one or more benefits under the laws administered by the [VA]...may be considered an informal claim. Such informal claim must identify the benefit sought." See 38 C.F.R. § 3.155(a) (2013). II. Procedural History and Evidence A VA Form 21-0820 (Report of General Information) noted a date of contact of August 22, 2013 and stated that "Veteran wants to add asbestos in his lungs to his current claim." A September 9, 2013 rating decision addressed multiple unrelated claims that had previously been filed, presumably which is what the Veteran was referencing with the language of "his current claim." A November 2014 rating decision granted entitlement to service connection for asbestosis (and assigned a 10 percent disability rating) effective April 9, 2014. This appeared to have been based on a VA Form 21-0820 dated April 9, 2014, which stated that "[t]he Veteran called to file a compensation claim for the following conditions: Asbestos exposure." A December 2014 rating decision increased the disability rating for asbestosis to 60 percent, effective April 9, 2014. A January 2015 VA Form 21-0958 (Notice of Disagreement [NOD]) noted disagreement with the December 2014 rating decision, specifically the evaluation of disability for asbestosis. A September 11, 2015 rating decision increased the disability rating for asbestosis to 100 percent, effective April 9, 2014. A VA Form 21-0820 dated September 18, 2015 stated that the "Veteran would like to request a reconsideration for the claim dated 09/11/2015 for an earlier effective date. Veteran states that the original file date for the asbestosis is in 2014." In an October 2015 statement the Veteran stated that "the previous decision was flaw at the time it was made," that "the time you went back to was wrong, I thinking the date was not far back, to the right month and year," that "it was said the first time the a[s]bestosis was found in the year 2014, but was found out about Oct[ober] 22[,] 2014." A December 2015 rating decision continued the assigned 100 percent disability rating for asbestosis. The rating decision stated in part that "[w]e received your claim for asbestosis on April 9, 2014, which is the effective date of your 100 percent evaluation. The effective date is the date we received your claim not the date of your diagnosis." A December 2015 VA Form 21-0958 noted disagreement with the December 2015 rating decision, specifically the effective date of award. The Veteran stated that "the date of my asbestosis was 7/15/2013" and that "effective date of award should have been 7/15/2013." Of record, to include submitted on October 12, 2015, was an October 2013 Occupational/Environmental Consultation from National Jewish Health. This document included the results of a July 15, 2013 chest CT, as well as an October 2013 chest CT, and stated that "[r]eview of the CTs by the radiologist revealed" certain findings that were "most consistent with asbestos-related pleural disease." The chest CT scan conducted on that date appears to have been the Veteran's reason for referencing the date of July 15, 2013. A September 6, 2016 Statement of the Case (SOC) listed the issue on appeal as "[e]ntitlement to an effective date of September 12, 2013." The SOC denied this issue and noted that April 9, 2014 was "the earliest date we can establish service connection," based on the VA Form 21-0820 dated April 9, 2014. On the Veteran's September 2016 VA Form 9 (Appeal to [the Board]), he stated that "I seeking comp[en]sation for asbestosis claim as early date of 10-22-13" and that "I should have put down I wanted comp[en]sation for asbestosis on a early date." A September 28, 2016 SSOC listed the issue on appeal as "[e]ntitlement to an effective date of July 15, 2013." The SSOC granted an earlier effective date of August 22, 2013, based on the VA Form 21-0820 dated August 22, 2013. An October 28, 2016 rating decision effectuated this earlier effective date. It was noted that "[c]lear and unmistakable error [CUE] was made in granting an effective date of April 9, 2014 for asbestosis. The correct effective date is August 22, 2013." The previously assigned 100 percent disability rating was also made effective from August 22, 2013. The Veteran's representative submitted an October 2016 VA Form 646 (Statement of Accredited Representative in Appealed Case) that did not advocate for a specific earlier effective date and that requested that regulatory provisions relating to reasonable doubt be considered (and which otherwise did not present any substantive contentions). The Veteran's representative submitted a January 2018 Informal Hearing Presentation that also did not advocate for a specific earlier effective date (and which otherwise did not present any substantive contentions). III. Analysis Initially, the Board notes that the earlier effective date claim on appeal was based on a December 2015 NOD that was filed to a December 2015 rating decision that continued the assigned 100 percent disability rating for asbestosis, though this rating decision did discuss the issue of the assigned effective date and the date of claim. A NOD was not filed to the November 2014 rating decision that granted entitlement to service connection for asbestosis. The procedural history in this case could be construed as involving a freestanding claim for an earlier effective date, which would be improper and require the Board to dismiss the claim. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). As outlined above, however, the AOJ addressed the issue of an earlier effective date as on appeal in the September 2016 SOC and SSOC and found such was warranted based on CUE in the November 2014 rating decision (as noted in the October 2016 rating decision). The AOJ may have viewed the November 2014 rating decision that granted entitlement to service connection for asbestosis as not final, by considering new and material evidence as being received within the one year appeal period following such rating decision (as noted, a December 2014 rating decision increased the disability rating for asbestosis from 10 percent to 60 percent and a September 2015 rating decision further increased the disability rating for asbestosis to 100 percent). See 38 C.F.R. § 3.156(b) (2017). In any event, as the AOJ treated the earlier effective date claim as being on appeal (and thus timely filed), the Board will also consider it to be so and therefore will address the merits of the claim. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (stating that "[i]f VA treats an appeal as if it is timely filed, a veteran is entitled to expect that VA means what it says"). Based on a review of the evidence of record, the Board concludes that an effective date earlier than August 22, 2013 is not warranted for the grant of entitlement to service connection for asbestosis. The Veteran filed a claim for entitlement to service connection for asbestosis on August 22, 2013. No communication received by VA from the Veteran prior to August 22, 2013 indicated intent to apply for entitlement to service connection for asbestosis, as would be required to file a claim (formal or informal). As noted above, generally for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). Assuming (without deciding) for purposes of this decision that entitlement arose for service connection for asbestosis prior to August 22, 2013, the date of claim, as the later date, would be the appropriate effective date for entitlement to service connection. As August 22, 2013 is date of the Veteran's claim, it therefore is the earliest possible effective date for the grant of entitlement to service connection for asbestosis. The Board has considered the Veteran's contentions, to include as outlined above. The only relevant possible earlier effective date the Veteran (or his representative) advocated for that is earlier than the currently assigned effective date of August 22, 2013 was July 15, 2013. As noted above, on the December 2015 VA Form 21-0958 the Veteran stated that "the date of my asbestosis was 7/15/2013" and that "effective date of award should have been 7/15/2013." Also as noted, a chest CT was conducted on July 15, 2013 and the results of such were referenced in an October 2013 Occupational/Environmental Consultation from National Jewish Health that stated that certain findings were "most consistent with asbestos-related pleural disease." The Veteran's contention appears to be that, essentially, he was diagnosed with asbestosis (or such was identified) on July 15, 2013 and that that should therefore be the appropriate effective date for the grant of entitlement to service connection. As noted above, however, generally for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). The date of diagnosis (or identification) of asbestosis is not solely determinative as to the appropriate effective date for the grant of entitlement to service connection and the date of claim must also be considered. As discussed above, assuming (without deciding) for purposes of this decision that entitlement arose for service connection for asbestosis prior to August 22, 2013 (for example, on July 15, 2013), the date of claim, as the later date, would be the appropriate effective date for entitlement to service connection. As such, an earlier effective date of July 15, 2013 is not warranted. The Board also acknowledges the Veteran's statement on the September 2016 VA Form 9 that "I should have put down I wanted comp[en]sation for asbestosis on a early date." While sympathetic to the Veteran, as discussed above, the date that the Veteran did file a claim for entitlement to service connection for asbestosis was August 22, 2013. For the reasons outlined in detail above, this is the earliest and appropriate effective date for the grant of entitlement to service connection for asbestosis. In sum, the Board finds that no communication received by VA from the Veteran prior to August 22, 2013 indicated intent to apply for entitlement to service connection for asbestosis. As such, the Board concludes that the criteria for an effective date earlier than August 22, 2013 for the grant of entitlement to service connection for asbestosis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017); 38 C.F.R. §§ 3.1(p), 3.155(a) (2013). The Veteran's claim therefore must be denied. IV. General Finally, neither the Veteran nor his representative has raised issues with respect to VA's duty to notify or assist or presented other procedural arguments. 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). ORDER Entitlement to an effective date earlier than August 22, 2013 for the grant of entitlement to service connection for asbestosis is denied. ____________________________________________ J.W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs