Citation Nr: 21003801 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 20-17 504 DATE: January 22, 2021 ORDER Entitlement to an earlier effective date prior to March 3, 2016, for the grant of service connection for follicular lymphoma associated with herbicide exposure is denied. REMANDED Entitlement to an earlier effective date for the grant of a 100 percent rating prior to May 2, 2017 for follicular lymphoma associated with herbicide exposure is remanded. FINDINGS OF FACT 1. The Veteran submitted a formal claim via VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits on March 3, 2016 seeking compensation for lymphoma, more than one year after his separation from active duty. 2. The Veteran has been service connected for follicular lymphoma since March 3, 2016. There was no completed formal claim pending for follicular lymphoma prior to March 3, 2016. CONCLUSION OF LAW The criteria for an effective date prior to March 3, 2016 for the grant of service connection for follicular lymphoma associated with herbicide exposure have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Navy from October 1962 to June 1965 and in the U.S. Army from November 1970 to April 1972 and from May 1972 to December 1978. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans’ Law Judge at a September 2020 Board virtual hearing. A transcript of the hearing has been associated with the claims file. Earlier Effective Date The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for his follicular lymphoma. The Veteran contends that an earlier effective date in 2014 is warranted for service connection for his follicular lymphoma. Generally, the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date of an award of compensation for service connection will be the “[d]ay following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400(b)(2) (2019); see also 38 U.S.C. § 5110(a) (2012); Sears v. Principi, 16 Vet. App. 244 (2002). Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the local Regional Office (RO). These amendments, however, are only applicable with respect to claims filed on or after March 24, 2015 and applicability will be discussed below. Prior to March 24, 2015, VA recognized formal and informal claims. A claim is defined as 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 any communication or action indicating intent to apply for one or more benefits and must identify the benefit sought. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims both 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). Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Treatment records or examination reports may only be considered as an informal claim when such reports relate to examination or treatment of a disability for which service connection has previously been established (i.e., an increased rating claim), or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. 38 C.F.R. § 3.157. Entitlement to an earlier effective date prior to March 3, 2016, for service connection for follicular lymphoma The Veteran submitted a formal claim via VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits seeking compensation for lymphoma on March 3, 2016. Prior to March 2016, there is no pending formal claim seeking entitlement to service connection for follicular lymphoma. VA outpatient treatment records show that the Veteran reported a lump on his neck during a November 2014 visit. He reported that the lump was first noted three months earlier. The mass was excised in March 2015 and diagnosed as follicular lymphoma. A VA examination in November 2018 noted non-Hodgkin’s lymphoma. The VA examiner noted the Veteran reported an onset of symptoms in 2014 with a lump in his neck which was later removed. The Veteran underwent chemotherapy and recently radiation had been recommended. The examiner noted that the Veteran is currently in remission. The Veteran underwent surgery and mass removal in 2015 and 2017 and antineoplastic chemotherapy in 2015. VA and private treatment records have been associated with the claims file and note that the Veteran presented with a right side posterior neck mass in March 2015 and a biopsy was consistent with follicular lymphoma Stage II. Prior treatment records note ongoing follow up and treatment for follicular lymphoma. November 2014 primary care treatment records note that the Veteran reported a lump on his neck which he first noticed 3 months prior. Follow-up was recommended for a biopsy/removal of the cervical mass. The Veteran’s service treatment and personnel records have been associated with the claims file. The Veteran reported that while serving aboard the U.S.S. Bellatrix he served aboard the inland waterways of Vietnam and this exposure to herbicides resulted in his lymphoma. Personnel records note the Veteran served aboard the U.S.S. Bellatrix from November 1963 to June 1965. A September 2016 rating decision denied service connection for lymphoma. The rating decision noted no evidence the Veteran served in Vietnam during the applicable time period or was exposed to herbicides during service. The Veteran was notified of the rating decision in September 2016 correspondence. In an October 2016 notice of disagreement, the Veteran reported serving months in the South China Sea and he was exposed to herbicides through the drinking water of the ship, which was from water out of the South China Sea and the inland waterways. Information from the Naval History and Heritage Command notes that the Bellatrix II after August 1964 was concentrated on serving the fleet operating off the coast of Vietnam to support the efforts in defense of the South Vietnamese Republic. A November 2018 rating decision granted service connection for follicular lymphoma associated with herbicide exposure rated as noncompensable effective March 3, 2016. The rating decision also granted a 100 percent evaluation from May 2, 2017 forward. The rating decision noted that the Veteran served in the waters offshore the Republic of Vietnam aboard the U.S.S. Bellatrix and such qualifies for the presumption of exposure to herbicides and applies to his diagnosis of non-Hodgkin’s lymphoma. The Veteran was notified of the November 2018 rating decision in January 2019 correspondence from VA. The Veteran submitted a notice of disagreement in March 2019 seeking an earlier effective date for the grant of service connection for follicular lymphoma. Prior to the Veteran’s formal claim for follicular lymphoma being received by VA on March 3, 2016, the evidence reflects no completed formal or informal submission to VA of a claim for entitlement to service connection follicular lymphoma. A November 2018 rating decision granted service connection for follicular lymphoma effective March 3, 2016. This subsequent appeal followed. The Board finds that an effective date prior to March 3, 2016 for the grant of service connection for follicular lymphoma is not warranted. As the effective date of an award based on an original claim or a claim reopened after initial adjudication of compensation shall not be earlier than the date of receipt of the application. The Veteran submitted a formal claim for compensation on March 3, 2016. An earlier effective date for the grant of service connection for follicular lymphoma is not warranted. The Board has considered the Veteran’s and his representative’s contentions and testimony that an earlier effective date for follicular lymphoma is warranted. The Veteran did not provide any reason for an earlier effective date for service connection other than the implication that the disease was onset and diagnosed at an earlier date. However, such is not the controlling factor in establishing effective dates for benefits. As noted above the Veteran submitted a formal claim in March 2016. The Board is constrained by the law and regulations governing the establishment of effective date for the award of compensation. Effective dates for service connection based on an original claim generally are not based on the date the condition began and cannot be any earlier than the date of receipt of a claim. See, e.g., Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that “the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA”). The Board finds that there is no interpretation of the facts of this case which will support a legal basis for favorable action with regard to the Veteran’s claims. The Veteran contends that he had symptoms of follicular lymphoma in 2014. VA treatment records note a diagnosis via biopsy in March 2015. However, treatment records or examinations reports may only be considered an informal claim when a claim specifying the benefit sough is received within one year from the date of treatment. However, the Veteran filed his claim after March 24, 2015, and as such a claim is required to be on a specific form and informal claims were no longer accepted. The Veteran submitted a formal claim via the appropriate form on March 3, 2016, the effective date of the Veteran’s award of service connection for follicular lymphoma. Accordingly, while the Board has considered the Veteran’s contentions and testimony the Board regrettably finds no basis in the law or facts in this case for an effective date for service connection for follicular lymphoma, earlier than March 3, 2016. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Herein, the appropriate effective date is the date of receipt of a formal claim by VA which is March 3, 2016. For these reasons, the claim is denied. The benefit of the doubt doctrine was considered; however, as a preponderance of the evidence is against this claim this doctrine is not for application. See 38 U.S.C. § 5107(2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s representative requested a copy of the hearing transcript which was provided in January 2021. The transcript was posted to the claims file in October 2020 and the representative had been granted access to the electronic file since 2019. Moreover, testimony did not address reasons for an earlier effective date for service connection; no further delay in adjudication is warranted. As such the Board finds that the effective date for a claim is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. Thus, March 3, 2016, the date entitlement arose, the date of receipt of the application is the earliest effective date possible under the relevant laws and regulations and the Veteran’s claim must be denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REASONS FOR REMAND Entitlement to an earlier effective date for the grant of a 100 percent rating prior to May 2, 2017 for follicular lymphoma associated with herbicide exposure The Veteran testified in September 2020 to ongoing private treatment relating to his follicular lymphoma. In particular the Veteran testified to undergoing treatment at the Southwest Mississippi Cancer Center and these treatments records were relevant to his claim for an earlier effective date as to the grant of an increased 100 percent rating. The Board held the record open for 60 days as requested but no additional evidence has been received. As the Veteran has identified potentially outstanding treatment records a remand is required to allow VA to obtain authorization and request these records. As such the Board finds that a remand is warranted for additional development. The matter is REMANDED for the following action: Ask the Veteran to complete a VA Form 21-4142 to identify and authorize for release any outstanding private treatment records to include Southwest Mississippi Cancer Center. Make two requests for the authorized records from any identified and authorized for release private treatment records, unless it is clear after the first request that a second request would be futile. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K.R. Kardian, 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.