Citation Nr: 1814716 Decision Date: 03/12/18 Archive Date: 03/19/18 DOCKET NO. 14-35 483A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date earlier than February 5, 2013, for the award of service connection for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from January 1966 to December 1967. This matter originally came on appeal before the Board of Veterans' Appeals (Board) from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. While additional evidence was added to the claims file since the statement of the case, the Board finds that it need not ask for a waiver nor remand for agency of original jurisdiction review before adjudicating the appeal because this evidence is not pertinent. See 38 C.F.R. § 19.31 (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.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. An August 2011 rating decision denied service connection for hypertension and notice of that decision was mailed to the Veteran in September 2011. 2. The August 2011 rating decision became final when it was not appealed and new and material evidence was not associated with the claims file in the first year following issuance of the September 2011 notice of the decision. 3. The Veteran's next claim of service connection for hypertension was received by the RO on February 5, 2013. CONCLUSION OF LAW The criteria for an effective date prior to February 5, 2013, for the grant of service connection for hypertension have not been met. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2014); 38 C.F.R. § 3.1, 3.155, 3.157 (2015); 38 C.F.R. §§ 3.1, 3.104, 3.151, 3.160, 3.400, 20.302, 20.1103 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran asserts that an earlier effective date is warranted for service connection for his hypertension dating back to his first claim on December 23, 2010, because he has had hypertension in and since service. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Rating decisions become final when not appealed. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award is date of receipt of the new claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii). Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended the regulations regarding the filing of claims by rescinding 38 C.F.R. § 3.157 which applied to informal claims, revised 38 C.F.R. § 3.155 to specify procedures for filing a claim and adding the concept of an intention to file a claim, and added 38 C.F.R. § 3.160 which defines a complete claim. Nonetheless, under the laws and regulations that were in place at the time the Veteran filed his claim for VA benefits, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Moreover, the term "claim" or "application" meant 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). In addition, in meant any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. With the above laws and regulations in mind, in December 2010 the Veteran filed his initial claim of service connection for hypertension. In an August 2011 rating decision the RO denied this claim. In September 2011 the RO mailed the Veteran notice of this decision. A review of the record on appeal does not reveal that the Veteran thereafter appealed the August 2011. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. Moreover, the record does not show that new and material evidence as to the claim for hypertension was associated with the claims file in the first year following issuance of the September 2011 notice of that decision. See 38 C.F.R. § 3.156(b) (2017). Furthermore, the Veteran has not ever claimed that there was clear and unmistakable error in the December 2010 rating decision. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105 (2017). Therefore, the Board finds that the August 2011 rating decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. Accordingly, the Board finds that the effective date for service connection for hypertension can be no earlier than the date the Veteran filed a new claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii). In this regard, the record shows that the Veteran submitted his next statement that acted as claim of service connection for hypertension on February 5, 2013. This is the date from which service connection was established in the May 2014 rating decision; the date of claim to reopen, which is consistent with the provisions of 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii). In reaching the above conclusion, the Board has not overlooked the VA treatment records that were added to the claimed file between August 2011 and February 2013, the fact they some of the records documented the Veteran's continued post-service treatment for hypertension, and the fact that these records are considered constructively of record on the date they were created. However, the United States Court of Appeals for Veterans Claims has held that treatment records acting alone do not act as claim for service connection unless they include statements evidencing an intent to file such a claim and the effective date of an award of service connection is not based on the earliest medical evidence showing treatment but on the date that the application upon which service connection was eventually awarded was filed with VA. See Lalonde v. West, 12 Vet. App. 377, 382 (1999). Accordingly, since none of these treatment records include statements evidencing an intent by the Veteran to file an application to reopen his claim of service connection for hypertension, the Board does not finds that none of them can act as an earlier aoolication to reopen a claim of service connection for hypertension. Therefore, the Board finds that because the effective date of an award of disability compensation based on a claim to reopen is the date of receipt of the claim or the date entitlement arose, whichever is later, the grant of service connection may be no earlier than the February 5, 2013, claim, and the appeal is denied. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(1)(ii). ORDER Entitlement to an effective date prior to February 5, 2013, for the award of service connection for hypertension is denied. JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs