Citation Nr: 21065850 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-59 300 DATE: October 27, 2021 ORDER An earlier effective date of September 7, 2007, and no earlier, for the grant of service connection for post Q fever chronic fatigue syndrome (hereinafter fever disability) is granted. FINDINGS OF FACT 1. VA received an informal claim for entitlement to service connection for fever as a manifestation of an undiagnosed illness on September 7, 2007. 2. A June 2008 rating decision denied the Veteran's claim of entitlement to service connection for fever as a manifestation of an undiagnosed illness; a timely informal notice of disagreement was received on July 16, 2008, within one year of the rating decision. CONCLUSION OF LAW The criteria for an earlier effective date of September 7, 2007, and no earlier, for the grant of service connection for fever disability are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156(c)(3), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1981 to April 1987, from October 2001 to January 2003, and from June 2005 to January 2006. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. 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 prior to April 12, 2013, for the grant of service connection for fever disability. An October 2013 rating decision granted the Veteran service connection for fever disability and assigned an effective date of April 12, 2013. The Veteran appealed this decision. The Veteran, and his representative, seeks an earlier effective date than assigned for the grant of service connection for fever disability. Specifically, the Veteran requests an effective date of August 31, 2007, the date he signed his informal claim for service connection for fever as manifestation of undiagnosed illness. See Hearing Transcript at 4 (July 2021). The Board concludes that the evidence supports an earlier effective date of September 7, 2007, for the grant of service connection for fever disability. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. With respect to the phrase "the date entitlement arose," the Court of Appeals for Veterans Claims (the Court) has stressed what that phrase does not mean. In McGrath v. Gober, 14 Vet. App. 28, 35 (2000), the Board had found the earliest date that a VA examiner had diagnosed posttraumatic stress disorder as "the date entitlement arose" and used that date, rather than a much earlier date of receipt of claim, as the effective date. The Court soundly rejected that rationale. The Court stressed that the date of the medical evidence itself is irrelevant where an initial service connection claim is pending, even if it was submitted over twenty years after the time period in question. The Court offered, under the circumstances of an original claim for service connection, the date that the Veteran submitted the claim or the date the Veteran was released from active service, whichever applies, ultimately controls the effective date for benefits. Id. This conclusion is borne out in Lalonde v. West, 12 Vet. App. 377 (1999), where the Court stressed that the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. 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). Turning to the evidence of record, on September 7, 2007, the Veteran submitted an informal claim of entitlement to service connection for fever as a manifestation of an undiagnosed illness. A June 2008 rating decision subsequently denied the Veteran's claim for service connection. In July 2008, the Veteran submitted a timely informal notice of disagreement. See VA Form 21-4138 (July 2008). It is noted that a notice of disagreement is a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ) and a desire to contest the result. Claims submitted prior to March 24, 2015, do not have to be on a form prescribed by the Secretary or include specific language. See 79 Fed. Reg. 57694 -57697 (Sept. 25, 2014). Instead, VA has been liberal in determining what constitutes a notice of disagreement. See 38 C.F.R. § 20.201 (2015) (notice of disagreement does not require special wording); Palmer v. Nicholson, 21 Vet. App. 434, 437 (2007) ("VA has always been, and will continue to be, liberal in determining what constitutes a Notice of Disagreement") (quoting 57 Fed. Reg. 4088, 4093 (Feb. 3, 1992)). Here, the July 2008 VA Form 21-4138 was received within one year of the June 2008 rating decision and specifically indicates dissatisfaction with the AOJ's denial for service connection for fever as a manifestation of an undiagnosed illness. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). As such, the Board finds that the July 2008 VA Form 21-4138 constitutes an informal notice of disagreement to the June 2008 rating decision and, accordingly, consideration of the appropriate effective date for the Veteran's claim for entitlement to service connection for fever disability dates back to the date that VA received his informal claim, September 7, 2007. As the informal claim of service connection for fever disability was received on September 7, 2007, the only remaining question with regard to assignment of the effective date is whether the date of claim is the latter of the date of receipt of the claim, or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). Although medical evidence reveals a diagnosis for Q fever in March 2013, the Board points out, however, that the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service. Rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. Lalonde, 12 Vet. App. at 382-383. As an aside, the Board observes that, although there was no diagnosis for Q fever at the time of the September 7, 2007, claim, the record shows that the Veteran had had a viral infection in service with symptoms of diarrhea, fever, and fatigue; and that he also had symptoms of diarrhea, fever, and cough in February 2008 per treatment records, again diagnosed as a viral infection. Accordingly, the Board finds that the effective date for the award of service connection for fever disability should revert back to September 7, 2007, the date VA received the Veteran's informal claim. Lastly, the Board finds that the preponderance of the evidence is against a finding that an effective date earlier than September 7, 2007, is warranted. Although the September 2007 VA Form 21-4138 reveals that the Veteran signed it on August 31, 2007, the form was not received by VA until September 7, 2007. This is evidenced by a date stamp on the form. Moreover, as discussed above the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. 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. Brannon v. West, 12 Vet. App. 32, 34, 35 (1998). Further, the Federal Circuit Court has held that the mere mention of a condition in a medical record, alone, cannot be construed as a claim for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. §§ 3.155, 3.157. As set out above, the relevant regulation requires that a claim, or at least some application that reasonably viewed can be considered a claim, be filed. Here, there was no such claim prior to September 7, 2007. (Continued on the next page) Thus, the Board finds that the preponderance of the evidence is against a finding that an effective date earlier than September 7, 2007, for the grant of service connection is warranted, and the benefit of the doubt doctrine is therefore not for application in this regard. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 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.