Citation Nr: A21017018 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 210505-158109 DATE: October 20, 2021 ISSUE Entitlement to an effective date earlier than March 23, 2021 for service connection for dermatitis with hyperpigmented lichenification of the bilateral dorsal hands and wrists, claimed as eczema and as a skin condition. ORDER Entitlement to an earlier effective date of March 3, 2021 for service connection for dermatitis with hyperpigmented lichenification of the bilateral dorsal hands and wrists, claimed as eczema and a skin condition, is granted. FINDING OF FACT The Veteran filed a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on March 3, 2021, and followed that with a VA Form 20-0995, Decision Review Request: Supplemental Claim, for entitlement to service connection for dermatitis dated March 23, 2021, and the dermatitis relationship to service was factually ascertainable as of that earlier date. CONCLUSION OF LAW The criteria for an earlier effective date of March 3, 2021, but no earlier, for the award of service connection for dermatitis with hyperpigmented lichenification of the bilateral dorsal hands and wrists have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to February 2002, and again from June 2006 to October 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2021 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in New York City, New York. On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA automatically applies to all claims for which VA issues notice of an initial decision on or after February 19, 2019, as here. See 38 C.F.R. § 3.2400(a)(1) (2021) (the modernized review system applies to all claims for which VA issues notice of an initial decision on or after the effective date of the modernized review system). This decision has been written consistent with the new AMA framework. On May 5, 2021, the Veteran filed a VA Form 10182, notice of disagreement in the modernized system, and selected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301 (2021). As such, the Board notes the allowable evidence window for the dermatitis service connection effective date claim commences with its date of claim of March 3, 2021. The limiting date for evidence submission for this claim by the Veteran is May 4, 2021, the day he was notified of the negative decision by the AOJ. The Board notes the Veteran has a separate claim for two other disabilities, also under the Board's jurisdiction. However, pursuant to the Board's internal policy and procedures regarding AMA appeals, that separate claim has a different docket number and will be adjudicated separately. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). Regarding the claim for an earlier effective date for service connection for PTSD, the assignment of an effective date is a downstream issue, and thus the notice provisions of the VCAA are not applicable. See VAOPGCPREC 8-2003 (Dec. 22, 2003). Since the rating decision the Veteran is appealing is the one that determined the effective date being appealed, statutory notice served its purpose and its application is no longer required. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Earlier Effective Date Regulations and Legal Considerations The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 (2012) and 38 C.F.R. § 3.400 (2021). 38 U.S.C. § 5110(a) provides that "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." Similarly, 38 C.F.R. § 3.400(b)(2) provides that for disability compensation for direct service connection, the effective date is 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." The term date entitlement arose is not specifically defined in the current statute or regulation. The United States Court of Appeals for Veterans Claims (Court or CAVC) has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). The essential requirements of a claim 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 38 C.F.R. §§ 3.155(b) (explaining how to file a claim), 3.1(p) (2020) (defining "claim" as a "written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit"). Where no intent to apply for a specific benefit is discernable, "a claim for entitlement to such benefit [ ] has not been reasonably raised." Criswell v. Nicholson, 20 Vet. App 501, 504 (2006). VA is required to read sympathetically a veteran's allegations in all benefits claims and apply all relevant laws and regulations. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (requiring the Secretary to give a sympathetic reading to a veteran's filings). Here, the Veteran asserted in a May 2021 Notice of Disagreement that his dermatitis had first been documented while in service in February 2008 and that he claimed that issue for service connection within one year of his discharge, thus asserting that his formal effective date of service connection should have been February 28, 2008, the date a medical examiner first documented eczema in the Veteran. 1. Entitlement to an effective date earlier than March 23, 2021 for service connection for dermatitis with hyperpigmented lichenification of the bilateral dorsal hands and wrists, claimed as eczema, is granted, with a new effective date of March 3, 2021. Here, the Veteran initially made a claim for entitlement to service connection for a skin condition, among other disability claims, as he was ending his active service, on July 19, 2010. The Veteran left active service on October 19, 2010. After an August 2010 VA general medical examination, which noted a mention in service of eczema from February 2008 but no current disability at the time of the examination, the RO issued a denial of the Veteran's skin condition service connection claim in a rating decision dated November 17, 2010, with notification to the Veteran dated November 23, 2010. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following that decision. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). On March 3, 2021, the Veteran submitted a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, that included a claim for service connection for "eczema, both hands." VA responded in a letter dated March 11, 2021 that the Veteran needed to file a different form, and pursuant to the instructions in the letter, the Veteran then filed a VA Form 20-0995, Decision Review Request: Supplemental Claim, and indicated the desire to file a claim for service connection for his eczema condition, among other disabilities. That application was received on March 23, 2021. The Veteran received a VA examination for his eczema condition on April 29, 2021, and also a positive opinion for service connection, both of which were uploaded to the claims file on May 3, 2021. The RO then granted service connection for dermatitis with hyperpigmented lichenification of the bilateral dorsal hands and wrists, claimed as eczema and as a skin condition, in a May 4, 2021 rating decision, with a 60 percent evaluation effective from March 23, 2021, the date the Veteran filed a supplemental claim for his skin condition. The Veteran then filed a Decision Review Request: Board Appeal (Notice of Disagreement) on May 5, 2021, asserting that he was entitled to an earlier effective date of service connection of February 28, 2008, because that was the day his eczema was first diagnosed by a medical examiner and that he had already filed a claim for service connection within one year of his discharge from active service. Analysis The Board notes at the outset that the Veteran did file a claim for service connection for his skin condition of eczema, primarily on each hand, back during active service in July 2010, but was denied in a November 2010 rating decision. Because the Veteran did not file a notice of disagreement or claim clear and unmistakable error in that rating decision, that rating decision became final. 38 U.S.C. § 7105(c) (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2009). The Board notes as well that the general rule for effective dates for service connection is that the assigned effective date will be either: the day after the date of separation from active service or, the date entitlement arose, if the claim is received within one-year after separation; otherwise the effective date shall be date of claim or date entitlement arose, whichever is later. (Emphasis added). See 38 C.F.R. § 3.400(b)(2). The Board also notes that in the case of a reopened claim, as here, in general, the effective date will be the date of the new claim (the petition to reopen) or the date entitlement arose, whichever is later. (Emphasis added). 38 C.F.R. § 3.400(r). 38 C.F.R. § 3.155 discusses the intent to file: "a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of claimant who is not of full age or capacity may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of § 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received." 38 C.F.R. § 3.155(b) (emphasis added). The Board notes the general rule that a claim must identify a disability existing "at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (emphasis added). A "medical diagnosis is not necessary to initiate a claim." Brokowski v. Shinseki, 23 Vet. App. 79, 90 (2009) (emphasis added); see also DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). Here, the Veteran indicated in his March 3, 2021 filing of his VA Form 21-526EZ that he intended to file a claim for service connection for his eczema skin condition, using specific language. The essential requirements of a claim 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 38 C.F.R. §§ 3.155(b) (explaining how to file a claim), 3.1(p) (2021) (defining "claim" as a "written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit"). The Board finds that the Veteran intended to file a claim for service connection for his eczema skin condition with his claim dated March 3, 2021. The Veteran filed the claim form that the general VA regulation specifies, the VA Form 21-526EZ, and he specifically identified the issue or condition for which he was claiming. Referring to the above language of 38 C.F.R. § 3.155(b), if VA receives a complete application form prescribed by the Secretary, as defined in paragraph (a) of § 3.160, appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received." 38 C.F.R. § 3.155(b) (emphasis added). The Board notes the record indicates the Veteran's initial attempt to file a service connection claim by his formal filing of his VA Form 21-526EZ was dated March 3, 2021, and finds there is no ambiguity or lack of clarity regarding this intent to file by the Veteran for his eczema condition that was subsequently completed on March 23, 2021 via the VA Form 21-0995 application for a supplemental claim. See Evans v. Shinseki, 25 Vet. App. 7, 15 (2011) (VA has a duty to clarify ambiguous statements which may limit the claim). The Board notes the general rule that a claim must identify a disability existing "at the time a claim for VA disability compensation is filed or during the pendency of that claim." McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (emphasis added). A "medical diagnosis is not necessary to initiate a claim." Brokowski v. Shinseki, 23 Vet. App. 79, 90 (2009) (emphasis added); see also DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The Board notes the Veteran's assertion that his diagnosis of an eczema skin condition during service on February 28, 2008, but also since that original claim for service connection dated November 17, 2010 went final due to no notice of disagreement being filed, that the claim cannot be used to justify an earlier effective date claim for service connection. In general, the effective date will be the date of the new claim (the petition to reopen) or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). While the Board notes the diagnosis of an eczema skin condition in February 2008, that service connection claim at that time has gone final without appeal. Here, that earlier date of claim cannot be used to establish an effective date of service connection because that original rating decision went final without any notice of disagreement or assertion of clear and unmistakable evidence. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. Accordingly, the Board finds that the effective date for the Veteran's service-connected dermatitis with hyperpigmented lichenification of the bilateral dorsal hands and wrists, claimed as eczema and as a skin condition, is March 3, 2021, the date the Veteran filed his VA Form 21-526EZ for his dermatitis claim for service connection. See 38 C.F.R. § 3.400(b)(2). Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 36970 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.