Citation Nr: 21001666 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-43 498 DATE: January 11, 2021 ORDER Entitlement to an earlier effective date for service-connected hepatitis C is denied. FINDING OF FACT The Veteran first filed his claim for service connection for hepatitis C on August 23, 2016. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date for service-connected hepatitis C have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to January 1975. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in a November 2020 hearing. Entitlement to an earlier effective date for service-connected hepatitis C Generally, the effective date of an award of disability compensation based on an original claim shall 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. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Prior to March 24, 2015, 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). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (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); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. Here, the Veteran filed his formal claim for benefits on August 23, 2016. Accordingly, the latter standard will apply. With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. Here, the Veteran asserted on his March 2017 Notice of Disagreement and August 2017 appeal that VA incorrectly decided the claim because he believes his effective date should be the date of his discharge, January 17, 1975. He stated that nobody informed him that the hepatitis would be a lifelong and possibly deadly condition, and that he did not know he should have gone to VA when he separated from service. In an August 2017 statement, the Veteran explained that he contracted hepatitis C while doing tattoos with homemade needles, and that he did not understand the concept of cross contamination. He stated that when he went to the Long Beach Naval Hospital, he was told that he had non-A, non-B hepatitis, and that nobody understood the implications of this new disease. The Veteran spent a long time in the hospital while they waited for his liver to stabilize and function properly. He explained that nobody ever informed him that the disease could follow him for the rest of his life, even shortening it, or leading to cirrhosis or liver cancer. He explained that he had to take medicine for 48 weeks in 2003, and that the debilitating effects of the medicine had a serious effect on the ability to do his job, leading to almost losing his house to foreclosure all while trying to support his family. The Veteran asserted that the hepatitis C has caused medical issues affecting his appetite and his mental health. At his November 2020 Board hearing, the Veteran again shared his experience staying in the Long Beach Naval Hospital for weeks while nobody understood what his medical condition really was. He expressed that while there, they changed his diagnosis to hepatitis A in order to keep people from falsely suspecting he may be abusing drugs. The Veteran explained that going through separation from service was very simple, and that he was just told to make sure that he had his DD-214 as it would help him with going to college and buying a house. He stated that he was never given any information regarding medical benefits, or that he should file a claim with VA. The Veteran expressed that he only finally learned that he could file for benefits many years after separation when he went to work at the Naval Base, and he encountered other Veterans who told him of their experiences. The Veteran shared that he has worked very hard forever, so he was upset to find that when he finally did go to VA to file his claim, he encountered great difficulty and frustration. He explained that the hepatitis C and the troubles it has caused him since separation has had a great effect on his mental health. The Board finds that there was no formal claim for benefits prior to August 23, 2016. Unfortunately, VA regulations require that the effective date will not be earlier than the date of receipt of the claimant’s application. The Board is sympathetic to the Veteran’s claim. This was a straightforward and obvious grant of benefits for the now service-connected hepatitis C. The circumstances leading to the current effective date are unfortunate, in particular, because the disease has certainly caused great trouble to his health, to his family, to his livelihood, and to his mental health. The Board has no reason to question the Veteran’s sincerity with respect to his claim, but is bound by the law and is without authority to grant benefits on the basis of equity. 38 U.S.C. §§ 503, 7104 (2012); Harvey v. Brown, 6 Vet. App. 416 (1994). "[N]o equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith v. Derwinski, 2 Vet. App. 429, 432-3 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Thus, the current effective date is proper, and the claim for an earlier effective date is denied. The Board notes that the Veteran has asserted that the service-connected hepatitis C and resulting treatment has greatly affected his mental health, and that he receives mental health treatment from VA. Should he believe that any mental health disorders he has are related to the service-connected hepatitis C, he should file a claim for benefits on the appropriate form as prescribed by the Secretary. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.