Citation Nr: 18106970 Decision Date: 06/01/18 Archive Date: 05/31/18 DOCKET NO. 13-01 916 DATE: June 1, 2018 ORDER Entitlement to an effective date prior to February 27, 2009 for the grant of service connection for lupus is denied. FINDINGS OF FACT 1. An unappealed rating decision denied service connection for lupus in May 2004; no additional pertinent evidence was received within a year of this decision. 2. There were no open and pending claims that involved lupus prior to the filing of the claim received on February 27, 2009. 3. An unappealed May 2016 rating decision found there was no clear and unmistakable evidence (CUE) in the May 2004 rating decision. 4. On February 27, 2009, the RO received the Veteran's application to reopen the claim for service connection for lupus. There are no communications between the May 2004 decision and the February 27, 2009 submission that may be considered an informal or formal claim for service connection. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to February 27, 2009 for the grant of service connection for lupus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.156, 3.157 (in effect prior to March 24, 2015); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty for training from November 1984 to April 1985 and then later served on active duty from August 1985 to June 1988. This appeal to the Board of Veterans' Appeals (Board) is from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2014, the Board remanded the matter so the RO could adjudicate a claim alleging clear and mistakable error (CUE) in the May 2004 rating decision that was inextricably intertwined with the matter on appeal. In March and November 2017 correspondence, the Veteran's attorney asked the RO to adjudicate the CUE claim; however, the record shows that the CUE claim was denied in May 2016 and that a copy was sent to the Veteran's attorney at his current address. See May 2016 Rating Decision – Narrative and Notification Letter and February 2016 Power of Attorney. There is no evidence that the decision was returned as undeliverable, so the presumption of regularity stands. March v. Nicholson, 19 Vet. App. 381 (2005). An “assertion of nonreceipt, standing alone, does not rebut the presumption of regularity in VA’s mailing process.” Jones v. West, 12 Vet. App. 98, 102 (1998). Consequently, the Board may proceed in adjudicating the claim on appeal. In August 2017, the Veteran's attorney requested an additional 90 days to review evidence and submit a brief by November 22, 2017; the Board received the additional argument on November 17, 2017. In March 2017, the Veteran's attorney alleged that the case must be remanded because VA had not satisfied its duty to assist the Veteran. See March 2017 Correspondence. He states that the RO only obtained service treatment records from the Veteran's period of active duty but did not obtain ACDUTRA records based on a determination that they were not required. However, his subsequent November 2017 correspondence essentially withdrew his objection since he obtained and submitted the ACDUTRA records on his own. Therefore, the Board concludes that the duty to assist has been met. 1. Entitlement to an effective date prior to February 27, 2009 for the grant of service connection for lupus. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The Veteran's attorney has advanced several arguments as to why an earlier effective date for the grant of service connection is warranted. See Correspondence received in March and November 2017. Prior to granting the claim for service connection for lupus in a June 2010 rating decision, the RO denied his original claim in a May 2004 rating decision, which he did not appeal. This decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). His attorney raised two exceptions to the finality of this decision. The Veteran's current attorney alleged CUE in the May 2004 rating decision and the RO denied the CUE claim in a May 2016 rating decision. There is no evidence of record that this issue was timely appealed. Consequently, there is no need for any further discussion of the CUE claim. His attorney also asserts that the addition of new, relevant service treatment records requires reconsideration of the original claim for service connection since they were not previously considered. The Veteran's first attorney had a similar assertion except that he contended there were no service treatment records available when the claim was first denied in May 2004 as the records were not listed in the evidence section. See June 2011 NOD. The Board notes 38 C.F.R. § 3.156(c)(1) provides that notwithstanding any other section in 38 C.F.R. Part 3, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a). An award made based all or in part on the records identified by 38 C.F.R. § 3.156(c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. In addressing the first attorney’s assertion, there is ample evidence to find that the Veteran's service treatment records were available when the claim was initially denied in May 2004. First, even though the May 2004 rating decision did not list the service treatment records in the evidence section, it clearly states the Veteran's service treatment records were reviewed. Specifically, “Review of your service medical records do not show you were treated for or diagnosed with lupus during your military service” is stated in the rating decision. Second, there are handwritten notations on the envelope for the service treatment records that are dated in August and September 2000, which reflects that the STRs were of record at the time of the May 2004 rating decision. Third, an October 2003 statement of the case (SOC) in a different appeal notes the service treatment records in the evidence section, as does a June 2002 rating decision that also includes references to specific evidence in the service treatment records. The Board finds, therefore, that service treatment records for the Veteran's period of active duty and subsequent reserve duty were available and reviewed in May 2004 and are not new relevant service records to be considered under 38 C.F.R. § 3.156(c)(1). As for the current attorney’s argument, a pivotal question here is if the additional service treatment records from the Veteran's initial ACDUTRA are relevant. The Board finds that the additional service treatment records obtained by the Veteran's attorney and submitted in November 2017 are not relevant in the sense that they do not require reconsideration of the claim under 38 C.F.R. § 3.156(c)(1). Service records are not “relevant” for purposes of § 3.156(c) unless they relate to an element that is in dispute. In Kisor v. Shulkin, 869 F.3d 1360 (Fed. Cir. 2017), the Court held that if a record is one that VA had no obligation to consider because it would have not mattered in light of the other evidence, then it cannot trigger reconsideration under § 3.156(c). The Court also noted that the Board found “relevant” as used in 38 C.F.R. § 3.156(c)(1) to mean noncumulative and pertinent to the matter at issue in the case and in turn interpreted this to mean that the later-submitted service records were not relevant to the determination of the claim. See Id. at 1368. It is under this definition that the Board finds the records submitted by the attorney are not relevant. The records deemed relevant by the Veteran's attorney are records obtained from the Veteran's period of ACDUTRA and include the Veteran's October 1983 enlistment examination and medical history reports, a December 1983 record from the Montgomery County Health Department, a December 1983 medical report, a health record/syphilis record, and laboratory report from the Dwight Eisenhower Medical Center. These records show the Veteran had a positive RPR when he enlisted and that syphilis was suspected, but since the FTA test was negative the Veteran was not found to have syphilis. See November 2017 Correspondence. The Board does not find this evidence relevant for reconsideration of the original claim since the information was essentially cumulative of service treatment records that had been considered. The December 1985 service treatment record that was of record in May 2004 showed the March 1985 RPR test was positive and that additional testing showed the Veteran did not have syphilis. See August 2000 STR-Medical. There was also a March 1985 record from the Alabama Department of Public Health that showed the March VDRL was reactive but the results of the FTA were non-reactive, and that the results indicated the Veteran did not have syphilis. Id. Thus, the new service records are not relevant as they contained information that was already known and not in dispute at the time of the May 2004 rating decision. In the November 2017 correspondence, the attorney attests to the relevancy of the new service treatment records. He states, “[t]he August 2009 C&P examiner based his positive nexus opinion on the blood test taken in March 1985. This is prima facie evidence that these records are relevant.” He also noted that the May 2004 decision denied the claim for lupus because the Veteran had not submitted evidence to show his disability occurred during service and he added that the “new service records contain lab tests and other evidence showing the onset of his lupus was prior to [M]arch 1984.” The Board disagrees as to the relevancy of the records and finds that the additional records did not affect the outcome of the decision. In a February 2009 VA opinion, the examiner based the opinion, in part, on review of service treatment records that were already of record as of August 2000. As noted, the August 2009 examiner based the favorable opinion, in part, on the blood test in 1985. In particular, the examiner opined: Based on review of the Veteran’s C-file the Veteran did have a positive RPR prior to active duty on a screening examination from March of 1985 and did not begin his active duty until August 6, 1985. However, the Veteran’s symptoms did not manifest until he presented for complaints of fatigue in February of 1986 as well as numerous times also noted within the veterans C-file to include September 1986, February and March 1989. Based on this fact I do feel the Veteran’s false positive RPR is at least as likely as not related to his diagnosis of systemic lupus erythematosus. I also feel that the Veteran’s symptoms of fatigue related to his systemic lupus erythematosus at least as likely as not manifested while on active duty. Notably, the favorable August 2009 VA opinion is based on the examiner’s review of the Veteran's claims file, to include “multiple tabs documented within the service treatment records, private medical records, and VA records were noted.” The Board observes that all referenced STRs are contained within the service treatment records received in August 2000. Therefore, the additional service records had no bearing on the outcome of the claim and the decision to grant the claim was not based in whole or in part on the service treatment records the attorney submitted in November 2017. Concerning the evidence that showed the Veteran had lupus prior to March 1984, there was a December 1983 test that shows the Veteran was RPR reactive and that he suspected of having syphilis. Since service treatment records previously considered indicated the Veteran was thought to have syphilis in 1980, the December 1983 document is essentially cumulative and would not have affected the outcome of the May 2004 decision. As to the suggestion that the new records were relevant to the RO’s finding that the Veteran had not submitted evidence to show his condition occurred during service, the only evidence that does show the condition occurred during service were the February 2009 medical opinions and these opinions were based on the previously considered service treatment records. In short, the additional service treatment records are superfluous and their inclusion in the record does not require reconsideration of the original claim. See Kisor, supra. The attorney’s next argument is that an earlier effective date is warranted since the December 2001 claim was still pending when the claim was granted in the June 2010 rating decision. Multiple claims were filed related to lupus, starting with the December 2001 claim. The chronology of events is as follows. The December 2001 claim was for “nerves(breakdown),” bilateral knees, bilateral feet, hearing loss, PTSD, hands arthritis, and lung problems, which were denied in June 2002 rating decision. In January 2003, the Veteran reported that the July 2002 rating decision had been sent to the wrong address. The correspondence stated “that in regards claim for service connection for a psychiatric condition.” The attorney stated that there is a handwritten notation on the Veteran's letter that states “work as appeal.” It is noted on that same Memorandum, “it is respectfully requested that the aforementioned be used in support of the Veteran’s request to re-open his claim for service-connected for a psychiatric condition.” A March 14, 2003 letter to the Veteran acknowledged the NOD. On May 8, 2003, the Veteran submitted a claim for lupus and stated his depression, which was on appeal, was related to lupus. A SOC was issued in May 2003 and October 2003 that denied the psychiatric claim but did not address the contentions of the May 2003 statement. The attorney states the Veteran sent another letter in October 2003 fashioned as a late appeal to the July 2002 rating decision in which he explained that the conditions claimed in December 2001 were residuals of his lupus. Lupus was denied in a May 2004 decision but it did not address the October 2003 letter. The decision also denied the claim for a psychiatric disorder but a supplemental statement of the case was not issued. The next relevant evidence was the Veteran’s February 2009 claim for lupus that was granted in a June 2010 decision. The Veteran's attorney contends that Clemons v. Shinseki, 23 Vet. App. 1 (2009) applies as does 38 C.F.R. § 3.156(b). The attorney explained that the December 2001 claim for a psychiatric claim transformed into a claim for depression and lupus in May 2003 and it was further “morphed” into a claim for lupus, depression, and other orthopedic conditions in the October 2003 claim. This claim remained pending until it was granted in June 2010 when the disability was characterized as systemic lupus erythematous with glomerulonephrosis, alopecia, and depression. He asserts that the December 2001 claim encompassed all psychiatric disorders including depression. The Veteran initiated an appeal of the July 2002 decision that denied a psychiatric disorder and the May 2003 statement transformed the claim for depression into a claim for depression and lupus. The RO was required to issue a SOC that directly responded to the May 2003 statement; however, it only addressed depression. Therefore, under 38 C.F.R. § 3.156(b) and Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed. Cir. 2014), the appeal remained pending since the May 2003 statement was not addressed. The attorney further contends that even though the May 2004 rating decision addressed the May 2003 statement, the law requires that the SOC address the statement because the issue was on appeal. He further adds that the Veteran submitted a statement within 30 days of the SOC that explained his lupus included the orthopedic complaints addressed in the December 2001 claim. This statement was new and material evidence that kept the October 2003 SOC pending. The October 2003 statement was never addressed by VA before service connection was granted, therefore, the effective date for lupus with depression should be December 27, 2001. The Board disagrees with the purported evolution of the claims. Contrary to the attorney’s statement, the May 2003 statement did not transform the December 2001 claim into a claim that encompassed depression and lupus. The Veteran clearly did not mention lupus in the December 2001 claim and it is mentioned for the first time in the May 2003 statement when he specifically claims service connection for lupus. He also states that he believes his mental health disorders are the result of his lupus, which is a reference to secondary service connection. They were, therefore, discussed as two separate claims. The RO construed the January 2003 statement as a notice of disagreement with the denial of service connection for a psychiatric disorder because this was the only disorder mentioned in the correspondence. Since a timely appeal was initiated for a psychiatric disorder, the May 2003 statement merely advances a new theory of entitlement for service connection for a psychiatric disorder. It also serves as a new claim for service connection for lupus. The evidence does not show, and the Veteran does not contend, that there was a timely substantive appeal for the October 2003 SOC that continued the denial of service connection for a psychiatric disorder. His contention is that this appeal remained pending and was therefore tied into the effective date for the grant of service connection for lupus since depression was eventually found to be a component of lupus. This argument is without merit. The attorney’s position that the RO was required to address the May 2003 statement in the SOC relies on 38 C.F.R. § 3.156(b) and Beraud. Regulation 38 C.F.R. § 3.156(b) requires that when new and material evidence is submitted prior to the expiration of an appeal period, it must be considered as having been filed in connection with the claim pending at the beginning of the appeal period. Similarly, Beraud held that VA must provide a determination that is directly responsive to the new submission and that until it does so the claim remains open. Neither applies in the present case since new and material evidence was not received. The May 2003 statement is not new and material evidence since it only set forth a new theory of entitlement (i.e., secondary service connection) regarding the pending appeal for service connection for a psychiatric disorder. The Court has held that failure to consider all possible theories that may support a claim is not an exception to finality. Bingham v. Principi, 18 Vet. App. 470, 474 (2004); aff’d 421 F.3d 1346, 1349 (Fed. Cir. 2005). Accordingly, there was no error when secondary service connection was not addressed in the SOC and it is not a basis for finding that the claim remained open. The present case is also distinguishable because unlike in Beraud, the RO did act when additional evidence was received in December 2003. The Veteran’s representative at the time submitted authorization forms for mental health treatment. The RO’s attempted to obtain these records and either received a negative response or no response at all. The additional development did not produce any new or material evidence to be considered, so readjudication was not required. To the extent that the Veteran’s October 2003 statement mentions problems with nerves in relation to his lupus, the Board has already noted that a new theory of entitlement does not keep a pending appeal open. As for the portion of the October 2003 letter that addressed orthopedic complaints that were first raised in the December 2001, the Veteran did not appeal the June 2002 denial of the orthopedic claims, so they had no connection to the October 2013 SOC. The January 2003 statement the RO construed as an NOD only referred to the psychiatric disorder, therefore, a SOC for the other issues denied in June 2002 rating decision was not necessary. The attorney also attempts to use the October 2003 letter to broaden the scope of the December 2001 claim to include lupus under Clemons v. Shinseki, 22 Vet. App. 1 (2009). In Clemons, the Veteran’s claim for posttraumatic stress disorder (PTSD) was found to include any other mental health disability that was reasonably encompassed in the claim by considering several factors to include the description of the claim, the symptoms described, and the information submitted in support of the claim. First, as stated previously, the October 2003 statement cannot retrospectively alter the issues raised in December 2001. Secondly, even if the scope of the December 2001 were construed to broaden the scope of the claim to include lupus the outcome would not change. The June 2002 decision denied them as individual disabilities, and May 2004 decision that denied service connection for lupus, which would include any of its symptoms and manifestations as well. Neither decision was appealed. In short, the December 2001 claim was not associated with an appeal that remained open when service connection for lupus was granted in June 2010. The Veteran did not submit a timely appeal after the October 2003 SOC was issued, so even if it was somehow connected to the lupus claim, the Veteran did not perfect an appeal and the decision became final. The attorney’s assertion that after the May 2004 rating decision the next relevant evidence received from the Veteran was his February 2009 claim for service connection for lupus is correct. See March 2017 Correspondence. The evidence does not show nor does the Veteran contend that he appealed the May 2004 rating decision that denied service connection for lupus, and as stated the next relevant piece of evidence was the February 2009 request to reopen the claim. Consequently, for the reasons stated, a preponderance of the evidence is against finding that an effective date for the grant of service connection for lupus is warranted. S. HENEKS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Bredehorst