Citation Nr: 21007445 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-35 567A DATE: February 9, 2021 ORDER Entitlement to an effective date earlier than February 14, 2013, for the grant of service connection for asthma, to include on the basis of clear and unmistakable error (CUE) in prior VA decisions, is denied. REMANDED Entitlement to a rating in excess of 30 percent for asthma is remanded. FINDINGS OF FACT 1. A June 1988 rating decision denied the Veteran’s service connection claim for asthma; he was notified of this decision and his appellate rights but did not appeal that decision or submit new and material evidence within one year of that notification. 2. In February 2013, the Regional Office (RO) received the Veteran’s application to reopen his service connection claim for asthma; an application to reopen the claim, either formal or informal, was not received prior to this date. CONCLUSIONS OF LAW 1. The June 1988 rating decision that denied service connection for asthma is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for an effective date earlier than February 14, 2013, for the grant of service connection for asthma, to include on the basis of CUE in prior VA decisions, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to January 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April 2014 and March 2015 rating decisions from a Department of Veterans (VA) Regional Office (RO). In October 2019, the Veteran testified during a videoconference hearing before a Veterans Law Judge. A transcript of the hearing is of record. In February 2020, the Veteran was informed that the person who held the October 2019 hearing was no longer able to decide his claims. Although he was offered the opportunity to appear for another hearing before a Veterans Law judge, the Veteran did not respond or otherwise indicate that he wished to participate in another hearing. Earlier Effective Date The Veteran asserts he is entitled to an effective date earlier than February 14, 2013, for service connection for asthma. Generally, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). When an award of service connection is granted based upon new and material evidence received after a final disallowance of the prior claim, the effective date of such an award shall be the date of receipt of the Veteran’s reopened claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). For purposes of this appeal, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. This informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155. VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in a form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). The mere presence of medical evidence does not establish an intent to seek service connection. See Brannon, supra (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006). The Veteran’s original claim for service connection for asthma was received in May 1988. His claim was denied in June 1988. The Veteran did not file a Notice of Disagreement, nor did he submit new and material evidence during the appeal period. Accordingly, the June 1988 rating decision became final. The Veteran has not asserted, and the record does not show, any communication received after the June 1988 rating decision that could be interpreted as a formal or informal claim for service connection for asthma until February 14, 2013, when the Veteran’s claim to reopen the prior disallowance was received. Nor did the new and material evidence, both submitted the claim to reopen and associated with the claims file since the June 1988 rating decision, include service department records. 38 C.F.R. § 3.156(c). There simply is no basis to assign an effective date prior to the date of the Veteran’s request to reopen the previously denied claim for service connection. Accordingly, an effective date before February 14, 2013, for service connection for asthma is not warranted. 38 C.F.R. § 3.400(q)(2). In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning an effective date before that already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 30 percent for asthma is remanded. The Veteran contends that his disability rating does not properly account for the severity of his asthma. The Board notes that it has been four years since the Veteran’s last VA examination, in January 2017, and his service-connected asthma has seemingly worsened. In light of the foregoing, the Board finds that a new examination is necessary to determine the current severity of the Veteran’s condition. 38 C.F.R. § 3.327. The matters are REMANDED for the following action: 1. Obtain any outstanding treatment records and associated them with the claims file. 2. After all available and additional records are associated with the claims file, schedule the Veteran for an appropriate examination to determine the current severity of his service-connected asthma. The claims folder must be provided to the examiner in conjunction with the examination. The examiner must describe the nature and severity of all symptoms related to asthma and conduct any testing deemed appropriate. The Agency of Original Jurisdiction must ensure that the examination report includes all information necessary for rating purposes. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ferrando 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.