Citation Nr: 20008170 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 19-25 969 DATE: January 30, 2020 ORDER Entitlement to an effective date of August 26, 2013, but no earlier, for the grant of service connection for non-Hodgkins lymphoma is granted. FINDINGS OF FACT 1. On August 26, 2014, the Veteran filed his first and only informal claim for service connection for non-Hodgkins lymphoma. 2. The August 2014 claim was considered a fully developed claim by the June 2015 rating decision which initially denied the claim. 3. The Veteran was first diagnosed with non-Hodgkins lymphoma in July 2012. CONCLUSION OF LAW The criteria for an effective date of August 26, 2013, but no earlier, for the grant of service connection for non-Hodgkins lymphoma have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.114, 3.151, 3.155, 3.400, 3.861. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1986 to July 1986 and from July 1987 to August 1987. 1. Entitlement to an effective date earlier than March 14, 2016 for service connection of non-Hodgkins lymphoma. The Veteran asserts that he is entitled to an effective date earlier than March 14, 2016 for the grant of service connection for non-Hodgkins lymphoma. Specifically, the Veteran’s attorney contends that the effective date of March 14, 2016 is incorrect as it is based simply on the date the law which allowed the grant of service connection took effect. He asserts that at minimum the claim should be granted an effective date one year prior to the initial claim on a direct basis. Under VA laws and regulations, 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 laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). In general, the effective date of an award based on an original claim, or a claim reopened after final adjudication of compensation, shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. During the pendency of this appeal, VA amended it regulations 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 and eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims. See 79 Fed. Reg. 57,696 (Sep. 25, 2014) (effective Mar. 24, 2015). Prior to this change, 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, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. 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). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114. To be eligible for a retroactive payment under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and must have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). If a claim is reviewed at the claimant’s request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the veteran met all the criteria of the liberalizing law or issue as of the effective date of the liberalizing law. 38 C.F.R. § 3.114 (a)(3). The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America’s Veterans Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012. Section 506 of the Act amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013 through August 5, 2015. Under the Act, an effective date of up to one year prior to submission of the claim may be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim. The Board finds that based on the statues and regulations above, the correct effective date for the Veteran’s claim is August 26, 2013. In this case, the Veteran filed an informal claim for service connection for non-Hodgkins lymphoma as a result of exposure to contaminated water at Camp LeJeune on August 26, 2014, within the timeframe specified above. The Board notes that as the Veteran’s claim was not made via the VA Form 21-526EZ, it must make a finding of whether or not the claim can be considered a fully-developed claim (FDC) before the statutory provisions set forth in 38 U.S.C. § 5110 (b)(2)(A) are applied. Here, the Board finds that the claim was accepted by the RO as a fully developed claim by its own characterization of such in the June 2015 rating decision which initially denied the claim for service connection; therefore, the Board will not disturb this finding. The RO eventually awarded service connection for non-Hodgkins lymphoma in June 2017, effective March 14, 2016. The Veteran timely appealed the assigned effective date in August 2017. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision). In addition, the record does not indicate the Veteran filed either a formal or informal claim for entitlement to service connection for non-Hodgkins lymphoma prior to August 2014. For a Veteran’s FDC claim to be eligible for a one-year retroactive effective date, there must be evidence demonstrating that the disability existed for one year prior to submission of the claim. See 38 U.S.C. § 5110. In this case, medical treatment record reflect the Veteran was diagnosed with non-Hodgkins lymphoma in July 2012. As such, the records demonstrate the Veteran had non-Hodgkins lymphoma one year prior to the submission of the claim. Accordingly, the Veteran is eligible for a one-year retroactive effective date, and the correct effective date for the Veteran’s service-connected non-Hodgkins lymphoma is August 26, 2013. However, the Veteran is not entitled to an effective date earlier than August 26, 2013. VA cannot pay benefits unless a claim is filed. In this case, the Veteran did not file his claim for service connection until August 2014. The Board acknowledges that the Veteran was diagnosed with non-Hodgkins lymphoma in 2012. However, VA cannot award benefits back to 2012 because no claim was filed until August 2014. Although the Veteran may have demonstrated the disorder at issue prior to 2014, VA cannot assign an effective date of an award of service connection based on the earliest medical evidence showing a causal connection to service; rather, it must assign the date that it received the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999). As noted above, the Veteran is entitled to a one-year retroactive effective date based on the application of Public Law 112-154, Section 506. However, an effective date prior to August 26, 2013, is not warranted. Based on the laws and regulations, the Veteran is entitled to an effective date of August 26, 2103, but no earlier, for the grant of service connection for non-Hodgkins lymphoma. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Peden 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.