Citation Nr: 1813005 Decision Date: 03/01/18 Archive Date: 03/13/18 DOCKET NO. 16-12 867 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than January 8, 2015 for the grant of service connection for hidradenitis. 2. Entitlement to an initial compensable rating for hidradenitis. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Van Wambeke, Counsel INTRODUCTION The Veteran had honorable active duty service from May 1970 to January 1972. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran presented testimony before the undersigned Veterans Law Judge in October 2017. A transcript is of record. 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). The issue of entitlement to an initial compensable rating for hidradenitis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran filed an original claim for service connection for "tumor" in July 1984; the claim was denied in a letter dated January 29, 1985, as a result of the Veteran's failure to report for a scheduled VA examination. 2. The Veteran filed a reopened claim for service connection for "tumor with discharge on the left side of scrotum" that was received on January 8, 2015; service connection for hidradenitis was ultimately established effective January 8, 2015. 3. There is no indication, and the Veteran has not alleged, that a claim to reopen was filed prior to January 8, 2015. CONCLUSION OF LAW The criteria for an effective date prior to January 8, 2015 for the grant of service connection for hidradenitis have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran filed a claim to establish service connection for "tumor" in conjunction with a claim for service connection for "skin rash possibly related to Agent Orange" that was received on July 23, 1984. See VA Form 21-526. The claim was denied in a January 29, 1985 letter as a result of the Veteran's failure to report for a scheduled VA examination. The Veteran was informed that no further action would be taken unless the RO received notification of his willingness to report for examination; if the Veteran did so, an examination would be rescheduled and the claim would be considered when the examination was complete. The Veteran was also informed of his procedural and appellate rights. There is no indication that the Veteran indicated he was willing to report for the examination or that he initiated an appeal of the January 1985 denial of his claim. Therefore, the January 1985 decision became final. See 38 U.S.C. § 4005(c) (1982); 38 C.F.R. §§ 3.104, 19.129, 19.192 (1983). The Board notes that the Veteran testified in October 2017 that he did not receive the RO's January 1985 letter notifying him that his claim had been denied. Such notice was sent to the same address as listed on the July 1984 VA Form 21-526. There is no evidence in the claims file this letter or an October 1984 letter to the same address were returned as undeliverable. The Court has held that there is a presumption of regularity that the Secretary properly discharged his official duties by mailing a copy of a VA decision to the last known address of the appellant on the date that the decision was issued. See Davis (Desmond) v. Brown, 7 Vet. App. 298, 300 (1994); Ashley v. Derwinski, 2 Vet. App. 62, 64- 65 (1992). A claimant's mere statement of nonreceipt of the applicable notice is insufficient for rebutting the presumption of regularity. See Butler v. Principi, 244 F.3d. 1337, 1340 (Fed. Cir. 2001); see also Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007). Here, the letter was properly addressed with the same address as listed on the July 1984 VA Form 21-526 and neither that letter nor one sent a few months prior were returned as undeliverable. Thus, the Board accordingly finds that that the presumption of regularity applies and that he was properly notified of the January 1985 denial of the claim. Final decisions can only be revisited in two ways. First, they can be reopened through the submission of new and material evidence. See 38 C.F.R. § 3.156 (2017). Second, they can be revised through a successful claim of clear and unmistakable error (CUE) in a prior decision. See 38 C.F.R. § 3.105 (2017); see also Cook v. Principi, 318 F.3d 1334, 1337 (Fed. Cir. 2002). Claims of CUE must be plead with specificity. Id. Here, while the Veteran has used the phrase clear and unmistakable error, he has used it in conjunction with how his condition has been diagnosed. In this regard, his notice of disagreement stated "there has been a Clear and Unmistakable error in the way that my diagnosis has been treated from the time that I was in service until now." He has not filed a specific claim of CUE with the January 1985 denial, nor has his representative alleged that such a claim has been filed. The Veteran essentially argues that the effective date for the grant of service connection for hidradenitis should go back to the day following his discharge from service. He argues that his condition was misdiagnosed in service and he was told his condition would go away; that it has been chronic and debilitating since service (1971); that the treatment he has received now is for the condition noted in service; and that had he been properly diagnosed in service, he would have been service connected beginning the first day following his discharge from service. He also asserts that he never received notice of a VA examination scheduled in conjunction with the claim filed in 1984. In general, the effective date for an award of service connection for claims received within one year after separation from service shall be the day following separation from service, or date entitlement arose; otherwise, the effective date shall be the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b). The effective date of an evaluation and award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q). 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). A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2014). An informal claim was considered to be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). An informal claim needed to be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it had to identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-35 (1998). Upon review of the record, the Board finds the RO assigned the earliest possible effective date for its grant of service connection for hidradenitis. As an initial matter, the Board notes that the Veteran requests an effective date back to the date he was discharged from service. However, as his claim for skin tumors or a skin condition was not filed within one year of his discharge from service, there is no basis upon which an effective date based on his discharge from service can be assigned. 38 C.F.R. § 3.400(b). As discussed above, the Veteran's initial claim was filed in July 1984 and was denied in January 1985. As the January 1985 denial is final, the earliest effective date assignable is the date the reopened claim was received. There is no indication from review of the claims file, and neither the Veteran nor his representative has alleged, that a claim to reopen was filed prior to receipt of the January 8, 2015, VA Form 21-526EZ. As the next claim filed after the January 1985 denial was received on January 8, 2015, there is no basis to assign an effective date prior to that date. 38 C.F.R. § 3.400(q). While the Veteran's arguments for an earlier effective date center around misdiagnosis and incorrect treatment, it is the date of claim or date entitlement arose, whichever is later, that determines the effective date. 38 C.F.R. § 3.400(b) (emphasis added). His arguments pertain to the date his hidradenitis condition arose. As he alleges the condition arose in service, the date of claim is clearly the later of those dates. Here, the Veteran's original claim for benefits was received in July 1984, approximately 12 years after his January 1972 discharge from service. The claim was denied in January 1985 on the basis that the Veteran failed to report for a scheduled VA examination. There is no indication from review of the claims file that the Veteran requested that the examination be rescheduled, as instructed in the January 1985 letter, or that he initiated an appeal of that decision, as outlined in the notice of procedural and appellate rights attached to the January 1985 letter. Moreover, the Board reiterates that there is also no indication from review of the claims file that the Veteran attempted to reopen his claim prior to January 8, 2015. Thus, there is no basis to assign an effective date for service connection for hidradenitis earlier than the date his application to reopen was received. As a final matter, the Board acknowledges the Veteran's contentions that he did not receive the notice to report for the examination or the October 1984 letter advising him that his claim had been received. As noted above, there is no indication that the October 1984 was returned as undeliverable and the presumption of regularity applies. In addition, the Board questions the Veteran's credibility regarding his assertions that he did not receive various letters sent by VA in conjunction with his July 1984 claim for service connection. In this regard, prior to his testimony regarding nonreceipt of the October 11, 1984 letter mentioned above, he submitted a copy of that letter in March 2016 that included handwritten notations added to it indicating this was the "only letter I received." Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (The credibility of a witness can be impeached by a showing of interest, bias, or inconsistent statements). Moreover, a handwritten notation on the VA Form 21-2507 examination request indicates that the Agent Orange examination was scheduled for November 29 at 2:00 pm, and the address for the Veteran listed on the form was the same address listed by the Veteran on his July 1984 VA Form 21-526. However, regardless of whether he received notice of the examination, he was advised in the January 1985 letter, which he is presumed to have received for the reasons set forth above, that his claim was denied for failure to report for the examination, and that he should notify VA when he was willing to report. He did not do so at any point prior to his January 2015 claim. Further, any failure to schedule the examination or to notify him of that examination amounts to an argument that VA failed in the duty to assist. Such cannot serve to negate the finality of the January 1985 denial. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999), reh'g denied (en banc), cert. denied, 529 U.S. 1004, 120 S.Ct. 1270, 146 L.Ed.2d 219 (2000) ("nothing in those provisions indicates, or even suggests, that the Secretary's failure to provide assistance to a claimant justifies ignoring the unequivocal command in 38 U.S.C. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefor"). For the foregoing reasons, the claim for entitlement to an effective date prior to January 8, 2015, for the grant of service connection for hidradenitis is denied. ORDER An effective date prior to January 8, 2015, for the grant of service connection for hidradenitis, is denied. REMAND Review of the VA treatment records indicates that in November 2015, the Veteran's treating psychiatrist was going to submit a consult to dermatology for hidradenitis. In December 2015, the Veteran was seen for VHA Choice approval for medical care due to a long history of testicular/groin ulceration, infections and oozing. It was noted he had recently been diagnosed with hidradenitis and that he had been trying to control the problem for many years and would like evaluation and management. VA treatment records were last obtained in January 2016. Any VA dermatology consults or treatment the Veteran obtained through the VHA Choice Program must be requested on remand. Updated VA treatment records should also be obtained since the Veteran testified that he receives VA treatment every six months except when he has a flare-up, which occur between June and October. The Veteran reported receiving private treatment from Dr. Heskel. Only one record from this provider (dated in November 2015) is of record. On remand, the Veteran should be asked to provide his authorization for the release of his complete record of treatment from this provider. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain any VA dermatology consults; treatment the Veteran obtained through the VHA Choice Program; and VA treatment records dated since January 2016. If any requested records are unavailable, the Veteran should be notified of such. 2. Ask the Veteran to provide the required authorization for the release of his complete record of treatment from Dr. Heskel. After securing the necessary release, the AOJ should request any relevant records identified. If any requested records are unavailable, the Veteran should be notified of such. 3. Schedule the Veteran for a VA skin examination to determine the current severity of his hidradenitis. The claims file should be reviewed by the examiner. All appropriate tests and studies should be conducted and the results reported in detail. 4. After undertaking the development above and any additional development deemed necessary, the Veteran's claim should be readjudicated. If the benefit sought on appeal remains denied, the appellant should be furnished a supplemental statement of the case and be given an appropriate period to respond thereto before the case is returned to the Board, if in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs