Citation Nr: 21062237
Decision Date: 10/06/21	Archive Date: 10/06/21

DOCKET NO. 98-13 225
DATE: October 6, 2021

ORDER

Entitlement to an effective date prior to February 28, 2011 for service connection for acne is denied.

FINDING OF FACT

No claim of service connection for acne was received prior to February 28, 2011. 

CONCLUSION OF LAW

The criteria for entitlement to an effective date prior to February 28, 2011 for service connection for acne have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.157, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

Entitlement to an effective date prior to February 28, 2011 for service connection for acne is denied. 

The Veteran had active service in the Army from December 1960 to May 1964. This matter returns to the Board of Veterans' Appeals (Board) following a February 2021 order by the Court of Appeals for Veterans Claims (CAVC) implementing a Joint Motion for Partial Remand (JMPR) by the Veteran and the Department of Veterans Affairs (VA). In the JMPR the parties agreed that the Board had erred in an April 2020 decision granting an effective date of February 28, 2011, but no earlier, for service connection for acne, by failing to consider the Veteran's explicitly raised argument that he was entitled to service connection for acne as early as March 1997. 

Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date, "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). Thus, the operative question is whether VA received a claim for service connection for acne prior to February 28, 2011. 

As discussed by CAVC in its February 2021 order, in a piece of November 2019 correspondence the Veteran, through counsel, argues that a March 1997 written statement to VA, construed at the time as a claim of asbestosis and an acquired psychiatric disability, also encompassed a claim of service connection for acne. The Veteran, through counsel, argues that his March 1997 statement, read in conjunction with other evidence of record, was sufficient to trigger VA's obligation develop a claim of service connection for acne. 

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, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (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); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006). VA is obligated to liberally construe claims based on the reasonable expectations of a non-expert claimant and to determine all potential claims raised by the evidence. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009); Clemons v. Shinseki, 23 Vet. App. 1, 5 (U.S. 2009).

In March 1997 VA received a Statement in Support of Claim from the Veteran. The Veteran opened his written statement as follows: 

"It is requested that I be granted service connection for asbestosis and stress." 

The Veteran's written statement continues, describing his contentions concerning exposure to asbestos. The Veteran then turns to describing the details concerning his claim for "stress", stating, in pertinent part:

"As far as the claim on stress . . . I was interrogated extensively [in relation to an alleged crime] . . .This happened while I was stationed at [location] with [military unit]. I was being treated for an acne condition in which I had to wear the medication on my face at night. The military CIA(SECURITY) [sic] came to my barracks and came to my bunk and took me to a room so they could interrogate me for some time . . ."

The statement continues from that point on with no further mention of acne. 

In October 1998 the Veteran testified at a VA hearing and, as in his March 1997 written statement, discussed the circumstances of his in-service interrogation for an alleged crime and referenced his acne medication:

". . .I've always had acne, even now and I wore cream over my face at night. And . . . these officers came in one night and they pointed me out and said I was the one. And I had no earthly idea what was going . . . they said I was the one, I was the one what [?] . . . And all the soldiers told 'em, they said, well [he] hasn't been out of the building tonight and which I hadn't . . ."

The Veteran's service treatment records (STRS) include an October 1962 treatment note documenting facial acne. 

In his November 2019 correspondence the Veteran, through counsel, argues that his March 1997 reference to acne, read in conjunction with his STRs and October 1998 hearing testimony, is sufficient to constitute a claim of service connection for acne as raised by the evidence.

The Veteran, through counsel, relies on Sellers v. Wilkie, 965 F.3d 1328, 1337 (Fed. Cir. 2020) for the proposition that identifying a disability at a high level of generality is sufficient for the purpose of determining whether a benefit has been adequately identified; on this basis, contends the Veteran, his March 1997 reference to acne identified a disability sufficient to warrant development of a claim for service connection for acne. The Veteran, through counsel, further argues that the STRs noting acne in service and October 1998 VA hearing testimony referencing acne were sufficient to trigger development of a claim for service connection for acne on the basis of the VA's duty to "generously construe a pro se veteran's filings to discern all possible claims raised by the evidence", citing to Harris v. Shinseki, 704, F.3d 946, 948 (Fed. Cir. 2013). 

Though Sellers dealt with a 1996 claim made via formal mechanisms (rather than the 1997 informal claim at issue here), the Federal Circuit held that the correct test of a purported claim's sufficiency is the same for both formal and informal claims. Sellers at 1338. The facts of Sellers are thus instructive in adjudicating the instant case. 

In Sellers, Mr. Sellers submitted a 1996 claim identifying several specific bodily injuries and also seeking service connection "for disabilities occurring during active-duty service." Sellers at 1330. Mr. Sellers would later argue that VA was in possession of both his STRs and VA treatment records, both of which included references to an acquired psychiatric disability, and that when these records were read in conjunction with his open-ended purported claim of service connection for "disabilities occurring during active-duty service", a claim of service connection for an acquired psychiatric disability was sufficiently raised. Id. at 1330  1332. The Federal Circuit characterized Mr. Sellers' argument as follows:

"According to Mr. Sellers, a formal claim specifying at least one identified condition for which benefits are sought invokes [VA's] duty to assist, not only to fully develop the specified condition but also to search the veteran's records to identify and fully develop any additional claim the record may support. Thus, according to Mr. Sellers, the law requiring some degree of identification in a claim of the sickness, disease, or injury for which benefits is sought is "unavailing," . . . and "invalid," . . . because it "is completely at odds," . . . with [VA's] statutory duty to assist the veteran in developing all claims the record may support.

Sellers v. Wilkie, 965 F.3d 1328, 1337 (Fed. Cir. 2020)

The Federal Circuit ultimately rejected Mr. Sellers' argument, finding that that Mr. Sellers' purported claim failed to meet even the "high level of generality" standard, and holding that he was not entitled to the earlier effective date he sought. The Sellers court held that VA's "duty to assist is not untethered . . . [u]ntil [VA] comprehends the current condition on which the claim is based, [VA] does not know where to begin to develop the claim to its optimum." Sellers at 1338. That is, notwithstanding that Mr. Sellers' claim both listed specific bodily injuries and further referenced "disabilities occurring during active-duty service", and Mr. Sellers' STRs and post-service treatment records reflected treatment for a psychiatric disability, Mr. Sellers' claim as filed in 1996 was insufficient to trigger VA's obligation to develop a claim for a psychiatric disability. 

In the instant case, the March 1997 statement in support of claim is a communication in writing. However, it lacks the requisite intent to apply for benefits for acne. In his March 1997 statement, the Veteran was able to clearly "request that [he] be granted service connection for asbestosis and stress." This statement reflects a clear intent to apply for benefits and a clear identification of the benefits sought. By contrast, the only reference to acne in the Veteran's March 1997 statement is a bare statement of fact that, at the time of events pertinent to his acquired psychiatric disability claim, he was wearing medication on his face as treatment for acne. Similarly, at his October 1998 VA hearing, the Veteran referenced his acne medication in the context of relating the circumstances surrounding his then-pending acquired psychiatric disability claim. It appears, in fact, that in the context of the hearing, the acne was mentioned as a possible explanation for why the Veteran was identified and interrogated, the circumstances of which were tied to his psychiatric claim.

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Moreover, the Board notes that the Veteran, through his representative at the time, confirmed at the October 1998 VA hearing that the only issues then on appeal were claims for a respiratory disability and an acquired psychiatric disability. 10/13/1998, Hearing Testimony, p. 1. Similarly, in subsequent written statements to VA received in May 1999, September 1999, January 2000, and March 2000, to include a Form 9 perfecting an appeal of other claims and a written brief by his then-representative, the Veteran clearly expressed intent to pursue specific claims relating to asbestosis, an acquired psychiatric disability, and hypertension, but did not reference any claim or intended claim for acne. At a June 2000 Board hearing, the Veteran confirmed, through his representative, that the only issues then on appeal were claims relating to asbestosis, an acquired psychiatric disability, and hypertension. 

In light of the foregoing, the Board concludes that the Veteran's March 1997 statement, whether read in isolation or in conjunction with other contemporaneous evidence of record, does not identify, even "at a high level of generality", an intent to seek service connection for acne. The Board further finds that the record does not reflect any claim of service connection for acne prior to February 2011. Accordingly, the criteria for entitlement to an effective date prior to February 28, 2011 for service connection for acne are not met, and the same is hereby denied. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.157, 3.400.

 

 

Eric S. Leboff

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Sametshaw, Eric C.

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.