Citation Nr: 20006263 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 16-57 825 DATE: January 24, 2020 ORDER Entitlement to an effective date earlier than March 16, 2009 for the grant of service connection for hepatitis C is denied. Entitlement to an effective date of September 3, 2009, but no earlier, for the grant of service connection for major depressive disorder, insomnia disorder, and neurocognitive disorder is granted. Entitlement to an effective date earlier of September 3, 2009, but no earlier, for the grant of service connection for thrombocytopenia is granted. Entitlement to an effective date of September 3, 2009, but no earlier, for the grant of service connection for anemia is granted. Entitlement to an effective date of April 14, 2010, but no earlier, for the grant of service connection for cirrhosis of the liver is granted. REMANDED Entitlement to a TDIU is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that VA received a claim from the Veteran for entitlement to service connection for hepatitis C on a formal or informal basis prior to March 16, 2009. 2. Resolving all reasonable doubt in favor of the Veteran, his September 3, 2009 claim for entitlement to service connection for major depressive disorder, insomnia disorder, and neurocognitive disorder was not finally adjudicated prior to the September 2014 rating decision which granted service connection for the condition. 3. Resolving all reasonable doubt in favor of the Veteran, his September 3, 2009 claim for entitlement to service connection for thrombocytopenia was not finally adjudicated prior to the September 2014 rating decision which granted service connection for the condition. 4. Resolving all reasonable doubt in favor of the Veteran, his September 3, 2009 claim for entitlement to service connection for severe anemia was not finally adjudicated prior to the September 2014 rating decision which granted service connection for the condition. 5. Resolving all reasonable doubt in favor of the Veteran, he submitted an informal claim for entitlement to service connection for cirrhosis of the liver on April 14, 2010, which was not finally adjudicated prior to the September 2014 rating decision which granted service connection for the condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than March 16, 2009 for the grant of service connection for hepatitis C have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). 2. The criteria for entitlement to an effective date of September 3, 2009, but no earlier, for the grant of service connection for major depressive disorder, insomnia disorder, and neurocognitive disorder have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 3. The criteria for entitlement to an effective date of September 3, 2009, but no earlier, for the grant of service connection for thrombocytopenia have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 4. The criteria for entitlement to an effective date of September 3, 2009, but no earlier, for the grant of service connection for severe anemia have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 5. The criteria for entitlement to an effective date of April 14, 2010, but no earlier, for the grant of service connection for cirrhosis of the liver have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Effective Dates Generally, the effective date for the grant of service connection for a disease or injury is the day following separation from active duty or the date entitlement arose if a 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. The effective date of an award based on a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Court of Appeals for Veterans Claims (Court) discussed the case law and regulations regarding the scope of a veteran’s claim in DeLisio v. Shinseki, 25 Vet. App. 45 (2011). In relevant part, the Court stated that a claim for VA benefits requires “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). However, a claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition; rather, he sufficiently files a claim for benefits “by referring to a body part or system that is disabled or by describing symptoms of the disability.” Id. at 86. This is because a claimant is not expected to have medical expertise and generally “is only competent to identify and explain the symptoms that he observes and experiences.” Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). Effective on March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 79 Fed. Reg. 57660 (Sept. 25, 2014). A veteran, or other eligible persons listed in 38 C.F.R. § 3.155 (a), who indicates a desire to file for benefits by a communication or action that does not meet the standards of a complete claim is considered a request for an application form for benefits under 38 C.F.R. § 3.150(a). 38 C.F.R. § 3.155(a). Upon receipt of such a communication or action, VA shall notify the claimant of the information necessary to complete the application or form prescribed by the Secretary. However, prior to March 24, 2015, a “claim” was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34 35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2015). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim prior to March 24, 2015, if a formal claim had not been filed, the Agency of Original Jurisdiction (AOJ) would forward an application form to the claimant for execution. If the AOJ received a complete application from the claimant within one year from the date it was sent, then the AOJ would consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2015). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). 1. Entitlement to an effective date earlier than March 16, 2009 for the grant of service connection for hepatitis C The Veteran contends that he is entitled to an effective date earlier than March 16, 2009 for the grant of service connection for hepatitis C, as the condition had its onset earlier than that date. The record reflects that VA received the Veteran’s application for entitlement to service connection for hepatitis C on March 16, 2009. There is no indication from the record that he filed, or VA received, a claim for entitlement to service connection for hepatitis C on a formal or informal basis prior ot that date. Therefore, entitlement to an effective date earlier than March 16, 2009 for the grant of service connection for hepatitis C is not warranted. See 38 C.F.R. § 3.400. 2. Entitlement to effective dates earlier than August 13, 2013 for the grants of service connection for major depressive disorder, insomnia disorder, and neurocognitive disorder; service connection for thrombocytopenia; and anemia The Veteran contends that he is entitled to effective dates earlier than August 13, 2013 for the grants of service connection for major depressive disorder, insomnia disorder, and neurocognitive disorder; service connection for thrombocytopenia; and anemia, as the effective dates assigned by the AOJ do not reflect the date of his original claims for the respective conditions. The Board notes that except in the case of simultaneously contested claims, a claimant, or his or her representative, must file a Notice of Disagreement (NOD) with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105(b)(1); 38 C.F.R. § 19.52(a). After the AOJ issues a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC), the Veteran must initiate a substantive appeal to continue a claim denied by the AOJ. A substantive appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. 38 C.F.R. § 19.22. The term information means nonevidentiary facts, such as the claimant’s Social Security number or address, or the name of the educational institution that the claimant is attending. 38 C.F.R. § 21.1029(f). If the SOC and any prior SSOCs addressed several issues, the substantive appeal must either indicate that the appeal is being perfected as to all of those issues or must specifically identify the issues appealed. The substantive appeal should set out specific arguments relating to errors of fact or law made by the AOJ in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the SOC and any prior SSOCs. The Board will construe such arguments in a liberal manner for purposes of determining whether they raise issues on appeal, but the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination, or determinations, being appealed. The Board will not presume that an appellant agrees with any statement of fact contained in a SOC or SSOC which is not specifically contested. Proper completion and filing of a substantive appeal are the last actions the appellant needs to take to perfect an appeal. 38 C.F.R. § 19.22. In a July 2009 statement, the Veteran indicated that after beginning treatment for his hepatitis C in February 2009, the medication that he was treated with resulted in anemia, “lack of blood,” and pancytopenia. He claimed that the adverse reaction to the medication also caused neurological damage, which resulted in an “inability to speak without a stutter and lapses of thought.” He additionally noted that the incident left him with a gait problem, which did not allow him to stand or walk for any length of time. In an August 2009 rating decision, the AOJ denied the Veteran’s claim for entitlement to service connection for hepatitis C. In a statement received by VA on September 3, 2009, the Veteran stated that he had additional evidence to support his hepatitis C claim and that he would also like to claim service connection for residuals of the treatment that he received for hepatitis C. In his October 2009 NOD, the Veteran stated that he disagreed with the AOJ’s decision to deny his claim for entitlement to service connection for hepatitis C and its residual effects. In a February 2010 rating decision, the AOJ denied the Veteran’s claims for entitlement to service connection for severe anemia, thrombocytopenia, and neurological damage. The record reflects that VA sent him notice of the adverse decision in a letter dated February 3, 2010. In his NOD dated February 1, 2011, and received by VA on February 3, 2011, the Veteran indicated that he was unsure whether he had previously sent a NOD concerning his claims for service connection for residual conditions related to his hepatitis C. He stated that he wished to appeal those decisions. In a February 2011 VA Form 9, the Veteran appealed the AOJ’s decision to deny his claim for entitlement to service connection for hepatitis C. In February 2012, the AOJ issued a Statement of the Case (SOC) continuing the denial of the Veteran’s claims for entitlement to service connection for severe anemia, thrombocytopenia, and neurological damage. The AOJ also issued a Supplemental Statement of the Case (SSOC) continuing the denial of entitlement to service connection for hepatitis C. In April 2012, the Veteran indicated that he was responding to the SOC and SSOC, and noted that he wanted to make sure that his appeal was still on track to be heard at a videoconference hearing before the Board. The AOJ granted the Veteran’s claim for entitlement to service connection for hepatitis C in an August 2013 rating decision. The Veteran submitted a supplemental claim for compensation, received by VA August 13, 2013, requesting to reopen his previously denied claims for right renal tenderness, severe anemia, thrombocytopenia, and neurological damage, each as due to his service-connected hepatitis C. Although the Veteran did not file a VA Form 9 specifically regarding the SOC denying his claims for entitlement to service connection for severe anemia, thrombocytopenia, and neurological damage, the record reflects that the AOJ had the required information necessary for a substantive appeal through his VA Form 9 submitted in response to the denial of his claim for entitlement to service connection for hepatitis C. Additionally, he specifically indicated that he wished to ensure the continuation of the appeals regarding both the SOC and SSOC issued by the AOJ. Thus, the AOJ was aware that the Veteran wished to appeal the SOC denying his claims, and also had the necessary information to continue his appeal, or at the very least to inquire whether he wished to file a VA Form 9 related to the denial of his claims for entitlement to service connection for severe anemia, thrombocytopenia, and neurological damage. Accordingly, the Board finds that the Veteran’s claims for service connection for severe anemia, thrombocytopenia, and neurological damage were still pending at the time that he submitted the supplemental claim for compensation requesting to reopen those claims. While he noted that the treatment for his hepatitis C resulted in residual conditions in a July 2009 statement, it was not until his statement received by VA on September 3, 2009 that he indicated his belief that he was entitled to benefits (i.e., service connection) for the respective conditions. There is no indication from the record that the Veteran submitted a claim for entitlement to service connection for anemia, thrombocytopenia, major depressive disorder, insomnia disorder, or neurocognitive disorder on a formal or informal basis prior to September 3, 2009. Therefore, as the record indicates that the conditions existed at the time of his September 2009 statement, entitlement to an earlier effective date of September 3, 2009, but no earlier, for the grants of service connection for severe anemia, thrombocytopenia, and major depressive disorder, insomnia disorder, and neurocognitive disorder (claimed as neurological damage) is warranted. 3. Entitlement to an effective date earlier than August 28, 2013 for the grant of service connection for cirrhosis of the liver The Veteran contends that he is entitled to an effective date earlier than August 28, 2013 for the grant of service connection for cirrhosis of the liver, as the effective date assigned by the AOJ does not reflect the date of his original claim for the condition. In a statement received by VA on April 14, 2010, the Veteran claimed that his hepatitis C caused cirrhosis of his liver, which then caused additional secondary conditions. He stated that he felt that once his hepatitis C claim was approved, “we can move quickly to connect the associated problems….” In a statement received by VA on August 28, 2013, the Veteran indicated that he wished to “open a new claim for service connection” for residuals of cirrhosis of the liver. While the Veteran characterized his claim in his August 2013 statement as “new,” in his April 2010 statement, he clearly indicated that his cirrhosis was caused by his hepatitis C and that he believed that his “associated problems” due to his hepatitis C should be service connected after service connection was granted for hepatitis C. Therefore, resolving all reasonable doubt in favor of the Veteran, his April 2010 statement conveyed his belief that he was entitled to VA benefits for of cirrhosis of the liver, as secondary to his hepatitis C, and represented a communication in writing indicating an intent to apply for a benefit under the laws administered by the VA. There is no indication from the record that the Veteran submitted a claim for entitlement to service connection for cirrhosis on a formal or informal basis prior to April 14, 2010. Additionally, the record reflects that the Veteran was being treated for cirrhosis of the liver prior to April 14, 2010, including as described in a May 2009 private general examination report. Accordingly, entitlement to an earlier effective date of April 14, 2010, but no earlier, for the grant of service connection for cirrhosis is warranted. REASONS FOR REMAND Entitlement to a TDIU is remanded. The Board notes that the AOJ denied the Veteran’s claim for entitlement to a TDIU in the September 2014 rating decision which forms the basis of his instant appeal. The AOJ indicated that the claim was rendered moot in light of the assignment of a schedular 100 percent evaluation. In his September 2015 NOD with that rating decision, the Veteran specifically disputed the effective dates assigned for the grants of service connection for major depressive disorder, insomnia disorder, and neurocognitive disorder; hepatitis C; thrombocytopenia; cirrhosis of the liver; and severe anemia. He also stated that he had been “unable to work since [his] hospitalization for [the] reaction to the treatment for [his] hepatitis C on April 17, 2009.” In a statement supplementing the Veteran’s September 2015 NOD, received by VA in October 2015, the Veteran stated that he “disagree[d] with the effective date of [his] eligibility due to the fact that [he was] unable to work since the date of [his] hospitalization for a debilitating reaction to the drugs used to treat [his] hepatitis C. Although the assignment of a schedular 100 percent rating generally renders the issue of entitlement to a TDIU moot, the Board has extended the effective period for the Veteran’s service-connected disabilities. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). Further, the Veteran has indicated that his service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment prior to the period for which he is currently assigned a schedular 100 percent rating. Since the issue of entitlement to a TDIU has been raised by the record for the period that the Board has granted entitlement to earlier effective dates for the grants of service connection for major depressive disorder, insomnia disorder, and neurocognitive disorder; hepatitis C; thrombocytopenia; cirrhosis of the liver; and severe anemia but the AOJ has not yet assigned evaluations for that timeframe, the issue of entitlement to a TDIU is inextricably intertwined with the outcome of the Board’s decisions herein and must be remanded. See Rice, 22 Vet. App. at 454 (when entitlement to TDIU is raised during the appeal of a rating for a disability, it is part of the claim for benefits for the underlying disability); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. The AOJ should further develop and consider the issue of entitlement to a TDIU, as appropriate, in accordance with the Board’s decisions herein. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ferguson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.