Citation Nr: 20036733 Decision Date: 05/28/20 Archive Date: 05/28/20 DOCKET NO. 19-28 775 DATE: May 28, 2020 ORDER Entitlement to an effective date earlier than March 16, 2018, for the assignment of a 100 percent rating for service-connected multi-vessel coronary artery disease, status post numerous stent placements, is denied. FINDING OF FACT The Veteran submitted correspondence on September 23, 2016, that was not on the standardized form for a formal claim; VA received a claim on a standardized form on March 16, 2018. CONCLUSION OF LAW The criteria for an effective date earlier than March 16, 2018, for the assignment of a 100 percent rating for service-connected coronary artery disease, status post numerous stent placements, have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.150, 3.155, 3.160, 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 21, 1967 to March 20, 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before a Decision Review Officer (DRO) in November 2019. A transcript of that hearing is of record. 1. Entitlement to an effective date earlier than March 16, 2018, for the assignment of a 100 percent rating for service-connected multi-vessel coronary artery disease, status post numerous stent placements The Veteran contends that the effective date for the assignment of a 100 percent rating for service-connected coronary artery disease, status post numerous stent placements, should be September 23, 2016, the date that VA received his correspondence requesting that VA review treatment records and determine whether his coronary artery disease rating should be amended. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. Otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o); Hazan v. Gober, 10 Vet. App. 511 (1997). Regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Prior regulations held that a claim was 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) (2013). Effective for claims filed on or after March 24, 2015, 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); 38 C.F.R. § 3.151 (a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155 (a). The regulation also allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155 (b). There are three ways in which a claimant may submit an intent to file a claim: (i) saved electronic application- when an application otherwise meeting the requirements of paragraph (b) is electronically initiated and saved in a claims-submission tool with a VA web-based electronic claims application system, (ii) written intent, signed and dated on the intent to file a claim form prescribed by the Secretary, and (iii) oral intent communicated to designated VA personnel, recorded in writing, and documented in the claimant’s records. Id. In written correspondence dated and received in September 2016, the Veteran requested that VA review enclosed medical records and determine whether his "coronary artery disease rating should be amended due to the complications he was enduring. The Veteran’s September 2016 correspondence was not made on the form prescribed by VA, and thus does not meet the requirements for a formal claim. It cannot legally be treated as an informal claim because the law no longer allows for informal claims. It cannot be treated as an intent to file a claim because it does not meet any of the three formats for an intent to file a claim discussed above. Therefore, the September 2016 correspondence acts only as a request for an application for benefits; it cannot be an actual placeholder for the effective date of his claim. See 38 C.F.R. § 3.155. The lawmakers in the Federal Register understood that claimants mistakenly operating under the old informal claim process would face such an outcome and continued to make the change in order to streamline the process for all claimants. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014). The Veteran’s representative contends that he called the VA several times and was told that the September 2016 correspondence had been accepted as a claim. However, there is no record of these calls or what was said during them. The bare assertion that phone calls occurred in which VA falsely told the Veteran’s representative that the September 2016 correspondence had been accepted as a claim is not sufficient to overcome the presumption of regularity. See Ashley v. Derwinski, 2 Vet. App. 307 (1992) (there is a presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties). The Veteran has also argued that VA failed in its duty to assist by not informing the Veteran that his September 2016 correspondence did not meet the requirements for a formal claim until March 2018. It is unfortunate that VA did not respond the September 2016 correspondence until March 2018, and the Board sympathizes with the Veteran’s frustration. However, 38 C.F.R. § 3.155 states that upon the receipt of a request for an application for benefits, VA shall notify the claimant and the claimant’s representative of the information necessary to complete the application form. It does not impose any timeframe within which VA must respond to a request for an application for benefits. Indeed, VA’s difficulty identifying informal claims and responding to them in an efficient manner is one of the reasons for the switch to the system requiring standardized claims. 79 Fed. Reg. 57660, 57661 (Sept. 25, 2014). The amount of time that passed between the Veteran’s September 2016 correspondence and the March 2018 letter informing the Veteran of the requirements for submitting a formal claim is not grounds for assigning an earlier effective date. While the Board appreciates that the Veteran believed that his September 2016 correspondence was sufficient to open a claim and sympathizes with his frustration, VA and the Board are bound by the laws and regulations in place. See 38 C.F.R. § 19.5 (2016) (“In the consideration of appeals, the Board is bound by applicable statutes, regulations of the Department of Veterans Affairs, and precedent opinions of the General Counsel of the Department of Veterans Affairs.”). The record reflects that the date of the claim for an increased rating was March 16, 2018. The medical evidence that the Veteran points to as supporting the increase is from August 2016, which is not within one year of the receipt of the March 16, 2018 claim. There are thus no legal grounds to support the assignment of an effective date earlier than March 16, 2018, and the Veteran’s claim must be denied. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.