Citation Nr: 21063845 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 15-06 205A DATE: October 18, 2021 ORDER An effective date earlier than April 27, 2012, for the grant of service connection for diabetes mellitus, type II, is denied. FINDING OF FACT Prior to April 27, 2012, there was no informal or formal claim, or written intent to file a claim, for service connection for diabetes mellitus, type II; and April 27, 2012, is the date of receipt of the VA Form 21-526EZ (Fully Developed Claim) for VA compensation purposes. CONCLUSION OF LAW The criteria for an effective date earlier than April 27, 2012, for the grant of service connection for diabetes mellitus, type II, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to February 1971. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the VA Regional Office (RO) in Chicago, Illinois. In July 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. Entitlement to an effective date earlier than April 27, 2012, for the grant of service connection for diabetes mellitus, type II. A June 2012 rating decision granted the Veteran service connection for diabetes mellitus and assigned an effective date of April 27, 2012. The Veteran appealed this decision. The Veteran seeks an earlier effective date than assigned for the grant of service connection for diabetes mellitus. In support of this argument, the Veteran argues that his effective date should be August 10, 2011, the date that he believes he signed, and his veteran service officer (VSO) submitted, his application for service connection for diabetes mellitus. See Hearing Transcript at 3 (July 2021). The Board concludes that the preponderance of the evidence is against an effective date earlier than April 27, 2012, for the grant of service connection for diabetes mellitus. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q). Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400. Prior to March 24, 2015, VA defined a "claim" 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) (2014); 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating the informal claims). An informal claim was defined as "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2014). Thus, the essential elements for a claim, whether formal or informal, were "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing" for the relevant time period for this appeal. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). By way of history, the record reflects that VA received a claim of entitlement to service connection for diabetes mellitus on April 27, 2012. Prior to this date, the record is absent any communication that could be reasonably construed as a claim of entitlement to disability benefits. It is noted that VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a veteran suffers from a disability does not establish intent on the part of the veteran to seek service connection for that disability. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski, 23 Vet. App. at 86-87. The Veteran, nevertheless, argues that he submitted his claim on August 10, 2011. In support of this contention, the Veteran submitted print screen documents detailing that on August 10, 2011, he met with J.F., an Illinois Department of Veterans' Affairs representative, and submitted his claim to VA at that time. See SHARE Print Screens (September 2012). The Veteran, in this regard, has also provided testimony that on August 10, 2011, he met with J.F., his VSO, and submitted his claim. See Hearing Testimony 3-4 (January 2015). The Veteran additionally testified that he was informed by his VSO that there was a change with their electronic filing system and that his claim may have been misplaced or not filed correctly. Id at 4. Nevertheless, the Board must emphasize that VSO representatives are not employees or agents of VA. Thus, applications for benefits received, or pending, at a VSO office are not considered as having been received by VA. Therefore, based on the above facts, the agency of original jurisdiction (AOJ) correctly found that the effective date for the award of service connection is April 27, 2012, as the effective date of compensation based on an original claim will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400. As such, the Board finds that the evidence of record provides no basis for an award of service connection for diabetes mellitus, type II, prior to April 27, 2012. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). Lastly, to the extent that the Veteran argues that his VSO submitted an application for benefits with VA prior to April 27, 2012, and VA employees or agents did not properly discharge their official duties, the Board finds that the presumption of regularity has not been rebutted. There is a presumption of regularity in the law to the effect the presumption of regularity supports the official acts of public officers, and in the absence of clear evidence to the contrary, courts presume they have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (quoting United States v. Chemical Foundation, 272 U.S. 1, 14-15 (1926)). While the Ashley case dealt with regularity in procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the presumption of regularity was applied to procedures at the AOJ level, such as in the instant case. It is clear from these cases that a statement of a claimant, standing alone, is not sufficient to rebut the presumption of regularity in AOJ operations. See Jones v. West, 12 Vet, App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 62, 64-65 (1992). Here, although the Veteran's representative argues that the VSO filed the claim on August 10, 2011, the record does not disclose an informal claim, formal claim, or written intent to file a claim, for service connection for diabetes mellitus, type II, and his statement, standing alone, is not sufficient to rebut the presumption of regularity in AOJ operations. See Fithian v. Shinseki, 24 Vet. App. 146 (2010) (the Court determined that the sworn affidavit in which the claimant states he mailed a motion to VA was not sufficiently clear evidence to rebut the presumption of regularity and was not sufficient to establish the presumption of receipt under the common law mailbox rule). Further, although records from the Illinois Department of Veterans' Affairs reveal that the Veteran submitted a claim for benefits on August 10, 2011, these records, however, cannot be construed as a claim for benefits with VA because, as explained above, applications for benefits received, or pending, at a VSO office are not considered as having been received by VA. In this instance, the record establishes that the AOJ date stamps documents once received, and there is no indication in the record that the Veteran's VA Form 21-526EZ was incorrectly date stamped. This is evidenced by at least three documents that were received on April 27, 2012. Thus, there is no evidence showing that VA's regular date stamping practices were not followed. As such, VA is presumed to have received the Veteran's VA Form 21-526EZ on April 27, 2012. Therefore, the Board finds the evidence is not sufficient to rebut the presumption of regularity. Accordingly, the claim is denied. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffey, Associate 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.