Citation Nr: 1815761 Decision Date: 03/15/18 Archive Date: 03/23/18 DOCKET NO. 14-36 029 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to an effective date earlier than November 20, 2012, for the establishment of service connection for diabetes mellitus, type II. REPRESENTATION Appellant represented by: Maine Veterans' Services WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Freda J. F. Carmack, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from December 1969 to April 1972, to include service in Vietnam. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Togus, Maine Regional Office (RO) of the Department of Veterans Affairs (VA) that granted the Veteran's claim for service connection for diabetes mellitus, type II, and assigned a 20 percent disability rating. The Veteran attended an informal conference with a Decision Review Officer in February 2015. He also testified before the undersigned Veteran's Law Judge during a September 2015 videoconference hearing. An informal conference report and a hearing transcript are of record. FINDINGS OF FACT 1. The Veteran's diabetes mellitus, type II, was diagnosed in 2008. 2. VA did not receive a claim, formal or informal, for service connection for the Veteran's diabetes mellitus, type II, until November 7, 2013, when the Veteran filed an incomplete fully developed claim (FDC). The Veteran filed a completed FDC on November 20, 2013. CONCLUSION OF LAW The criteria for an effective date earlier than November 20, 2012, for the grant of service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.114, 3.400, 3.816 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a). Under the notice requirements, VA is to notify the veteran of what information or evidence is necessary to substantiate the claim, what subset of the necessary information or evidence, if any, the veteran is to provide, and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). Earlier effective date claims are generally considered "downstream" issues from the original grant of service connection if appealed from that initial grant of service connection. As such, separate notice of VA's duties involving such downstream issues is not required if the veteran was provided adequate VCAA notice following receipt of the original claim. VAOPGCPREC 8-2003. Since the rating decision the Veteran is appealing is the one that determined the effective date being appealed, statutory notice served its purpose and its application is no longer required. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Earlier Effective Dates Except as otherwise provided, the effective date of an evaluation and award for compensation 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. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). A "claim" is 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), 3.151; see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim; but an informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Treatment records do not constitute informal claims when service connection has not yet been established for the condition. Sears v. Principi, 16 Vet. App. 244 (2002). While VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998) (the mere existence of medical records cannot be construed as an informal claim); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The mere presence of a disability does not establish intent on the part of a veteran to seek service connection for that condition. See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). Section 506 of PL 112-154, now codified as 38 U.S.C. § 5110(b)(2)(A), establishes different rules for the assignment of effective dates that are specific to claims decided under the fully developed claim (FDC) process. Thereunder, the effective date of an award of disability compensation to a veteran who submits an application that sets forth an original claim that is fully-developed as of the date of submittal shall be fixed in accordance with the facts found, but shall not be earlier than the date that is one year before the date of receipt of the application. 38 U.S.C. § 5110(b)(2)(A). A claim for service connection submitted through the FDC process, by definition, meets the statutory requirement of "an original claim that is fully-developed as of the date of submittal." 38 U.S.C. § 5110(b)(2)(B). In cases where a Vietnam Veteran files a claim for service connection for a covered herbicide disease between May 3, 1989, and the effective date of a regulatory presumption of service connection for the disease, the effective date for an award will be the later of (1) the date such claim was received by VA or (2) the date the disability arose. See 38 C.F.R. § 3.816(c)(2). However, if the claim is received within one year from the date of the veteran's separation from service, the effective date of the award shall be the day following the date of the veteran's separation from service. See 38 C.F.R. § 3.816(c)(3). Diabetes mellitus, type II, was added to the list of covered herbicide diseases on May 8, 2001. See VBA Manual M21-1, IV.ii.2.C.3.i.; 38 C.F.R. § 3.309(e). The record shows that the Veteran filed an incomplete FDC form claiming entitlement to service connection for diabetes mellitus, type II, on November 7, 2013. In a letter of the same date, VA informed the Veteran that his claim was incomplete and invited him to submit a completed form. The letter indicated that VA will use the date of his incomplete claim to pay benefits from the earliest possible date if a completed FDC form is completed within one year. The Veteran filed a complete FDC form on November 20, 2013. In February 2014, the RO granted the Veteran's claim and assigned a disability rating of 20 percent effective November 7, 2012. In the decision, the RO explained that a one-year retroactive effective date for awards of disability compensation is available based on fully developed original claims for compensation received from August 6, 2013, through August 5, 2015. In a July 2014 rating decision, the RO changed the effective date to November 20, 2012, on the basis that the one-year retroactive effective date is available based on the date that a fully completed FDC form is received. The claim received on November 7, 2013, was incomplete, whereas the claim received on November 20, 2013, was complete. Therefore, the RO determined the appropriate effective date was November 20, 2012. 38 U.S.C. § 5110(b)(2)(A) does not establish that the effective date for claims filed under the FDC process should automatically be one year prior to the date of the filing of the formal claim for service connection. Instead, the statute states that the effective date shall be fixed in accordance with the facts found, so long as the date established by the facts is not earlier than one year prior to the date of the receipt of the claim. Thus, the earliest possible effective date for the award of service connection for diabetes mellitus, type II, is November 20, 2012, which is one year prior to the date a complete FDC was filed. The Veteran asserts that he is entitled to an effective date of February 2008, the date that he was diagnosed with diabetes mellitus, type II. Indeed, the evidence of record indicates that the Veteran was diagnosed in February 2008. As the Veteran served in Vietnam, his diabetes mellitus is presumed to have been caused by or related to exposure to herbicides during service. 38 C.F.R. § 3.307(a)(6); 38 C.F.R. § 3.309 (e). Accordingly, evidence regarding the date of onset of his diabetes is relevant to establishing the date that his entitlement to service connection for diabetes arose. When the date of receipt of the claim is later than the date that the entitlement arose, however, the effective date of the award of compensation is the date of receipt of the claim. Thus, the February 2008 diagnosis does not provide a basis for an earlier effective date for service connection and compensation. The Board has considered whether any evidence of record prior to November 2013 could serve as an informal claim that would entitle the Veteran to an earlier effective date under 38 C.F.R. § 3.155. However, there are no letters, treatment records or other documents in the claims file received prior to November 2013 from which any such intent can be construed. Moreover, at his informal conference in February 2015 and his hearing in September 2015, the Veteran explicitly stated that he did not file a claim for benefits prior to November 2013. Although the Veteran provided evidence showing he was diagnosed with diabetes in 2008, the mere existence of medical records cannot be construed as an informal claim. Brannon, 12 Vet. App. 32. As stated above, the presence of a disability is not enough to establish an intent on the part of a Veteran to seek service connection for that condition. See KL, 5 Vet. App. 208; Crawford, 5 Vet. App. 35. The Board notes the Veteran's September 2015 testimony asserting that he did not file a claim for service connection in 2008 because he was not aware that he may be eligible for VA benefits until 2013, when his friend discussed the matter with him. However, the absence of such knowledge cannot serve as the basis for an award of benefits. Morris v. Derwinski, 1 Vet. App. 260 (1991), Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947); Velez v. West, 11 Vet. App. 148 (1998). Persons dealing with the Government are charged with knowledge of Federal statutes and lawfully promulgated agency regulations, regardless of actual knowledge or hardship resulting from innocent ignorance. Morris, 1 Vet. App at 265. In addition, compensation can only be paid by the Government on the basis of laws passed by Congress. McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (payment of government benefits must be authorized by statute). There is no statutory or regulatory provision that would permit earlier eligibility for compensation based on the Veteran's lack of awareness of his entitlement to benefits. For these reasons, the Board finds that an effective date prior to November 20, 2012, is not warranted. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107(b) regarding benefit of the doubt; however, as the preponderance of the evidence is against the Veteran's appeal for an earlier effective date, the doctrine is inapplicable. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Payment of Benefits The Board takes note that, at the February 2015 informal conference and the September 2015 hearing, the Veteran took issue with the dates provided for the actual payment of his benefits for his service-connected diabetes mellitus, type II. In the February 2014 Notification Letter provided to the Veteran when his claim was granted and the November 2012 effective date was assigned, an explanation for the payment of benefits was provided. Specifically, the letter stated that payment begins on the first day of the month following the effective date and that the Veteran's payment start-date was December 1, 2012. It stated also that payments will then be made at the beginning of each month for the prior month. The Veteran confirmed that his first payment was dated for January 1, 2013. The Veteran asserts, however, that he received an additional letter stating that his payment start date is November 1, 2012, such that his first payment should be dated for December 1, 2012. Moreover, he stated that this payment schedule was confirmed to him by two representatives at the RO. On this basis, he believes that he has been denied an additional month of benefits. Consistent with the February 2014 Notification Letter, VA regulations provide that the actual payment of benefits based on an original or reopened claim begins on the first day of the calendar month following the month in which the award became effective. 38 U.S.C. § 5111(a); 38 C.F.R. § 3.31. The Veteran filed his claim in November 2013 and was correctly assigned an effective date one year prior to that date in November 2012. Accordingly, payment of his benefits begin December 1, 2012. A review of the claims file does not reveal any letter of the type described by the Veteran. The Veteran was asked to provide a copy of this letter following his informal conference but, at his hearing, he testified that could not find it. Regardless, erroneous information provided on the part of VA employees verbally or in writing cannot serve as the basis for an earlier effective date because all payment of government benefits must be authorized by statute. Sheilds v. Brown, 8 Vet. App. 346, 351 (1995); McTighe, 7 Vet. App. 30. As stated above, the statute in this case specifically provides that payment of monetary benefits based on compensation may not be made for any period prior to the first day of the calendar month following the month in which the award became effective. The Veteran's award became effective November 20, 2012, and payments began December 1, 2012. Since benefits are paid at the beginning of each month for the prior month, the earliest date of his first payment is January 1, 2013. 38 C.F.R. § 3.31 ORDER The claim for an effective date prior to November 20, 2012, for the award of service connection for diabetes mellitus, type II is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs