Citation Nr: 21070058 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 19-30 074 DATE: November 22, 2021 ORDER Entitlement to an effective date prior to January 8, 2018 for the grant of service connection for facial scars is denied. FINDING OF FACT No formal or informal claim for service connection for facial scars was submitted prior to January 8, 2018. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to January 8, 2018 for the grant of service connection for facial scars are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1960 to November 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In September 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 January 8, 2018 for the grant of service connection for facial scars is denied. The Veteran contends that he is entitled to an earlier effective date because there are, essentially, unadjudicated claims that were filed prior to the January 8, 2018 claim. See Hearing Transcript (September 2021). First, the Veteran requests an effective date in 1964 when he was hospitalized during service for a head injury, which resulted in facial scars that he has had since that time. See NOD (February 2019); Hearing Transcript (September 2021). Second, the Veteran asserts that he should be entitled to an effective date in 2010, when he applied for Veterans Health Administration (VHA) benefits, as it was his impression that when he applied for VHA benefits, he was also applying for compensation benefits. See Hearing Transcript (September 2021). The Board concludes that the preponderance of the evidence is against an effective date earlier than January 8, 2018, for the grant of service connection for facial scars. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). If a claim is filed within one year after separation from service, service connection will be effective as of the day after separation. 38 C.F.R. § 3.400(b)(2). Prior to March 24, 2015, a claim was "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 "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - 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). 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); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a facts found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. On January 8, 2018, the Veteran filed a claim for service connection for a craniectomy/cranioplasty. See VA 21-526EZ, Fully Developed Claim (January 2018). In April 2018, the RO granted service connection for facial scars related to a traumatic brain injury, status-post craniotomy, effective January 8, 2018. See Rating Decision (April 2018). Here, the date of claim is January 8, 2018. Prior to March 24, 2015, there is no formal or informal communication requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. On and after March 24, 2015, but prior to January 8, 2018, there is no claim that was submitted on a standardized form. The only documents associated with the claims file dated prior to January 8, 2018 are the Veteran's education file and a December 2010 letter that addresses a denial of VHA benefits. See Education General (October 1971); Notification Letter (September 2021). First, the documents in the education file do not show an intent to file a claim for compensation benefits. Although there is a request in 1970 for additional information regarding other veterans' benefits, the Veteran does not reference what kind of benefits, emphasizes his need for information regarding changes in educational benefits, and does not reference a claim or any disabilities. See Education General (October). The Board finds that upon a holistic reading of the submission with the other evidence of record, it does not contain an intent to apply for compensation benefits. While the VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon v. West, 12 Vet. App. 32 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Further, "a veteran's formal claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality." Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). Thus, there is no earlier communication in the education file that may be construed as a claim, informal or otherwise. Second, the 2010 letter addressed only the Veteran's application for VHA benefits. See Notification Letter (September 2021). The Veteran argues that because he thought when he applied for VHA benefits he was also applying for compensation benefits, he is entitled to an effective date in 2010. See Hearing Transcript (September 2021). The letter noted that the Veteran's income exceeded the maximum to obtain VHA benefits. See Notification Letter (September 2021). Although the letter noted that "[i]f you are awarded a VA monetary benefit... you will be enrolled automatically", the rest of the letter discussed income level restrictions and did not otherwise address a claim for compensation benefits. See Notification Letter (September 2021). At the Board hearing, the Veteran noted that he did not file a claim prior to 2018 as he had a good job with benefits. See Hearing Transcript (September). The lay evidence thus shows that, although the Veteran had a mistaken impression of the effect of his claim for VHA benefits, no actual claim for compensation benefits was made. Thus, a holistic review of the evidence does not support a finding that there was a submission showing an intent to apply for compensation benefits. Thus, there is no earlier claim, informal or otherwise. Finally, the Veteran asserted at the hearing that the evidence should be construed to find that the date of his first claim was in 1964 when he was hospitalized in the Navy. See Hearing Transcript (September 2021). When he was discharged a few months later, he was told he did not have a disability, so he did not apply for compensation benefits. See Hearing Transcript (September 2021); NOD (February 2019). Thereafter, he did not apply for compensation benefits because he had a good job with benefits. See NOD (February 2019). Although the Board recognizes the equitable nature of this assertion, the Board is bound by the applicable legal authority and is without authority to grant benefits out of equity. Harvey v. Brown, 6 Vet. App. 416, 425 (1994). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). The Board finds, then, that an earlier effective date is not warranted. The earliest claim was made on January 8, 2018. Even assuming that the date entitlement arose was in the 1960s, when the Veteran was first injured in service, the proper effective date is the later of the date of claim and date of entitlement. Therefore, the Board finds no basis upon which to assign an effective date prior to January 8, 2018. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.