Citation Nr: 21075970 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 12-02 532A DATE: December 22, 2021 ORDER Entitlement to an earlier effective date for the grant of service connection for lung cancer for accrued benefit purposes is denied. FINDINGS OF FACT 1. On July 7, 2003, the Veteran underwent a right lower lobectomy resulting in his diagnosis of lung cancer. 2. On April 15, 2005, the Veteran submitted an informal claim for "cancer". 3. On April 23, 2005, VA sent the Veteran notice indicating that he must file his claim for benefits on standard form VA 21-526, Veterans Application for Compensation or Pension. 4. On June 7, 2007, the Veteran filed his initial VA 21-526 Veterans Application for Compensation or Pension for entitlement to service connection for lung cancer. CONCLUSION OF LAW The criteria for an effective date prior to June 7, 2007, for the grant of service connection for lung cancer have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1(p), 3.151, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1968 to January 1972. The Veteran died in August 2008, and the Appellant is his surviving spouse. This claim comes before the Board on appeal of an October 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In this regard, the Board must apologize to the Appellant for the delays in the full adjudication of her claim. In May 2021, the Appellant testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file and has been reviewed. Importantly, the undersigned has reviewed this case in detail. No request has been made for substitution in this case. The RO has not granted substitution, and the Board may not unilaterally grant substitution. The issue before the Board is for accrued benefit purposes. 1. Entitlement to an earlier effective date for the grant of service connection for lung cancer for accrued benefit purposes The Appellant asserts, in substance, that service connection for the Veteran's lung cancer disability should date back to the date he entered the VA hospital in July 2003 for treatment, or, in the alternative, it should date back to the date he filed an informal claim for cancer on April 15, 2005. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits 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. The Veteran underwent a right lower lobectomy in July 2003 at the Detroit VA Medical Center (VAMC) revealing that he had moderately differentiated adenocarcinoma of the lungs. Therefore, the date entitlement arose, July 2003, is not in dispute in this case. Accordingly, the central question the Board must answer is regarding the date of receipt of the claim. It is important for the Appellant to understand that the later date, as between the receipt of the claim and the date entitlement arose, shall be the effective date. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). VA regulations provide that any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. Such informal claims must identify the benefit sought. See Kessel v. West, 13 Vet. App. 9 (1999). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999) (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of a VA medical record will be accepted as the date of receipt of a claim when such record relates to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such record. 38 C.F.R. § 3.157(b). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 38 C.F.R. §§ 3.1 (p), 3.151, 3.155. The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to March 24, 2015, the former regulations will apply in this case. In this case, the Veteran filed an informal claim on April 15, 2005 indicating his intent for file a claim for benefits. VA sent notice requesting the Veteran fill out a formal claim on April 23, 2005 and to provide more information about his claim for benefits. The Veteran responded by filing a formal claim on June 7, 2007, which is more than one year after the informal claim was filed on April 15, 2005. Therefore, the date of receipt of the claim for the application for benefits for lung cancer is June 7, 2007 and no earlier. It is important for the Appellant to understand that the evidence of record provides highly probative evidence against this claim that the Board cannot, unfortunately, ignore, showing the Veteran did not file an actual application for benefits for lung cancer with the VA prior to June 7, 2007. As such, there is no other application date that is allowed by law, other than the June 7, 2007 effective date. Additionally, the Veteran and Appellant have brought up arguments for this appeal under the VA Adjudication Manual (M21) and Federal Tort Claims Act. See May 2008 VA Letter Regarding Administrative Tort Claim (denying Veteran's tort claim during his lifetime where he appealed a discretionary action (i.e., processing of benefit claims) which is specifically excluded from the Federal Tort Claims process). Nonetheless, the Board finds that the Appellant's Tort Claims Act and M21 arguments are both outside the scope of the Board's adjudicatory authority as the Board is charged with deciding Veterans' appeals under the laws and regulations of VA. Moreover, the M21 Adjudication Manual does not apply to the Board. Therefore, these contentions will not be addressed in this decision. The Board has reviewed this case in great detail and does acknowledge the Appellant's argument that the 2003 VA treatment records show treatment for lung cancer, and that the Veteran should have been told the Veteran to file a claim at that time. In this regard, it is important for the Appellant to understand that the VA treats thousands of Veterans every day for both service-connected and nonservice connected problems (many times more than one problem). It would be inconceivable for the VA Hospital System to tell every Veteran whether they should, or should not, file a claim after each treatment for every problem. The VA medical system would have no way of knowing which claim to file, or if a claim should be filed. In this regard, it is important for the Appellant to understand that not all evidence in this case supports the claim that this problem was related to service from January 1968 to January 1972, more than 30 years after service. In any event, the Veteran bears the burden of presenting and supporting his claim for benefits. See 38 U.S.C. § 5107(a). In this regard, as noted above, a report of examination or hospitalization may be accepted as an informal claim for benefits, but the date of a VA medical record will only be accepted as the date of receipt of a claim when such record relates to either (1) examination or treatment of a disability for which service-connection has previously been established (i.e., for increased rating purposes) or (2) when a claim specifying the benefit sought is received within one year from the date of such record (i.e., for service connection purposes). 38 C.F.R. § 3.157(b). In this case, the Veteran's lung cancer was diagnosed in July 2003 at a VA facility. He was not previously service-connected for lung cancer prior to this date. Moreover, the first record in the claims file that could reasonably construed as an informal claim is, April 2005, which is more than one year from the date of the July 2003 treatment record at the VA facility (i.e., not within one year from the date of such record). Accordingly, the July 2003 VA hospitalization report is not accepted as an informal claim for benefits because the Veteran was not already service connected for lung cancer prior to July 2003 and a claim specifying the benefit sought (i.e., lung cancer) was not received within one year from the date of the July 2003 VA hospital record. Therefore, the record does not show a claim (informal or formal) was filed by the Veteran within one year of the current date of June 7, 2007, which is the date of the first formal application received. There is no other evidence of record that could have acted as an earlier claim for service connection for lung cancer, for effective date purposes, prior to June 7, 2007. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a). (Continued on the next page) In this matter, and notwithstanding any claim to the contrary, an effective date of an award of service connection is not based on the earliest medical evidence showing treatment for a disability, but instead, the Board finds the effective date of the award of service connection is based on the date that the application for service connection was filed with VA, on June 7, 2017. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). Therefore, the Board finds that VA is precluded from granting an earlier effective date for the Veteran's lung cancer disability and this appeal must be denied. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher M. Davidson 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.