Citation Nr: 21011984 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-04 525 DATE: March 3, 2021 ORDER Entitlement to an effective date earlier than November 14, 2014 for the grant of service connection for arteriosclerotic heart disease is denied. Entitlement to an effective date earlier than November 14, 2014 for the grant of service connection for primary anemia is denied. Entitlement to an effective date earlier than November 14, 2014 for the grant of service connection for peripheral neuropathy, right lower extremity is denied. Entitlement to an effective date earlier than November 14, 2014 for the grant of service connection for peripheral neuropathy, left lower extremity is denied. Entitlement to an effective date earlier than November 14, 2014 for the grant of a rating of 60 percent for gastroesophageal reflux disease (GERD) is denied. Entitlement to an effective date earlier than November 14, 2014 for the grant of a rating of 10 percent for hypertension is denied. Entitlement to an effective date earlier than November14, 2014 for the grant of a rating of 20 percent for spondylolysis/isthmic with spondylolisthesis and IVDS (previously rated as lumbar strain (claimed as low back pain and lumbago) is denied. FINDINGS OF FACT 1. On November 14, 2014, the RO received the Veteran’s claim for service connection for arteriosclerotic heart disease and anemia, and the claim for an increased rating for the service-connected lumbar strain, hypertension and GERD. 2. No claim, either formal or informal, alleging entitlement to arteriosclerotic heart disease and/or anemia was presented to VA before November 14, 2014. 3. No claim, either formal or informal, alleging entitlement to an increased rating for lumbar strain, hypertension and/or GERD was presented to VA before November 14, 2014 nor was it factually ascertainable that an increase in disability had occurred during the preceding year. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than November 14, 2014 for the grant of service connection for arteriosclerotic heart disease have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 2. The criteria for an effective date earlier than November 14, 2014 for the grant of service connection for anemia have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 3. The criteria for an effective date earlier than November 14, 2014 for the grant service connection for peripheral neuropathy, right lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 4. The criteria for an effective date earlier than November 14, 2014 for the grant of service connection for peripheral neuropathy, left lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 5. The criteria for an effective date earlier than November 14, 2014 for the grant of a rating of 60 percent for gastroesophageal reflux disease have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 6. The criteria for an effective date earlier than November 14, 2014 for the grant of a rating of 10 percent for hypertension have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 7. The criteria for an effective date earlier than November14, 2014 for the grant of a rating of 20 percent for spondylolysis/isthmic with spondylolisthesis and IVDS have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 1992 to November 2012. When this appeal was last before the Board in July 2020, the Board instructed that the Agency of Original Jurisdiction (AOJ) request that the Veteran clarify what specifically was being appealed with regards to the claims for the right shoulder and allergic rhinitis. Pursuant to 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. Except for appeals withdrawn on the record at a hearing, appeal withdrawals must be in writing. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his/her authorized representative. 38 C.F.R. § 20.204. In August 2020, the Veteran expressed that she was not appealing these conditions. The Board finds that this statement qualifies as a valid withdrawal of the appeal in accordance with the provisions of 38 C.F.R. § 20.204. In light of the Veteran’s withdrawal of the claims there remains no allegation of error of fact or law for appellate consideration. Therefore, the Board does not have jurisdiction to review these claims which are, therefore, dismissed. The Veteran appeals the denial of an effective date earlier than November 14, 2014 for the grant of service connection for arteriosclerotic heart disease, anemia, peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity. She also appeals the denial of an effective date earlier than November 14, 2014 for the grant of a 20 percent rating for spondylolysis/isthmic with spondylolisthesis and IVDS, the grant of a rating of 10 percent for hypertension, and the grant of a rating of 60 percent for gastroesophageal reflux disease. After review of the record, the Board finds that the currently assigned effective date of November 14, 2014 is the earliest possible effective date assignable in this case. Section 5110(a) of title 38, U.S. Code, governs the assignment of an effective date for an award of benefits: 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). The implementing regulation similarly states that except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase 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 amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 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. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Thus, prior to March 24, 2015, the standardized forms were not required. Here, the evidence shows that in September 2012 the Veteran submitted a pre-discharge claim for compensation for service connection for obstructive sleep apnea, a neuropsychological condition, depression and anxiety disorder, PTSD, GERD, allergic rhinitis, insomnia, hypertension, impingement (right shoulder), a low back disability, hearing loss, a thyroid condition and mastalgia (bilateral breasts). The Veteran separated from service on November 30, 2012. In October 2013, the AOJ granted the claims for service connection PTSD, sleep apnea, a right shoulder disability, lumbar spine disability, GERD, tinnitus, allergic rhinitis and hypertension. The Veteran was assigned an effective of December 1, 2012 for her disabilities, the day following her separation from service. On November 14, 2014, the AOJ received the Veteran’s VA 21-526EZ, Fully Developed Claim for compensation for various disabilities to include service connection for arteriosclerotic heart disease and anemia, and the claim for an increased rating for the already service-connected lumbar strain, hypertension and GERD. In a January 2015 rating decision, service connection for arteriosclerotic heart disease, anemia, peripheral neuropathy of the left lower extremity and peripheral neuropathy of the right lower extremity was granted. Also, at that time, spondylolysis/isthmic with spondylolisthesis and IVDS (previously rated as lumbar strain (claimed as low back pain and lumbago)) was increased from 10 percent to 20 percent, GERD was increased from 10 percent to 60 percent and hypertension was increased from 0 percent to 10 percent. An effective date of November 14, 2014 was assigned. Initially, the Board finds against the claim for an effective date earlier than November 14, 2014 for the grant of service connection for arteriosclerotic heart disease, anemia, peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity. In new service connection cases, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Here, the evidence shows that the Veteran submitted a claim for compensation for arteriosclerotic heart disease and anemia on November 14, 2014. Service connection was granted in January 2015. The AOJ assigned an effective date of November 14, 2014 as that was the date the claim was received by the RO. With regard to the grant of service connection for peripheral neuropathy of the left and right lower extremities, the Board notes that the Veteran was granted service connection as secondary to the service-connected lumbar strain. Thus, the effective date of November 14, 2014 was assigned as it was the date the Veteran submitted the claim for an increased rating for the service-connected lumbar strain. Prior to November 14, 2014, there is no evidence indicating a specific intent to file a claim for arteriosclerotic heart disease, anemia, peripheral neuropathy of the left lower extremity and/or peripheral neuropathy of the right lower extremity. No claim, either formal or informal, alleging entitlement to service connection for these disabilities was presented to VA before November 14, 2014. While VA must interpret a claimant’s submissions broadly, it is not required to conjure up issues not raised by a claimant. Under these circumstances, the effective date for the grant of service connection for arteriosclerotic heart disease, anemia, and peripheral neuropathy of the right and left lower extremity is governed by the date of receipt of the claim for compensation which is November 14, 2014. The Board has considered whether 38 C.F.R. § 3.157(b) is applicable. However, the Court has held that this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999). The Board also finds against the claim for an effective date earlier than November 14, 2014 for grant of a rating of 20 percent for spondylolysis/isthmic with spondylolisthesis and IVDS (previously rated as lumbar strain (claimed as low back pain and lumbago)), a rating of 60 percent for GERD and a rating of 10 percent for hypertension. To that end, the Board finds that the assigned effective date is the earliest possible effective date assignable in this case. As noted, in the October 2013 rating decision the Veteran was granted service connection for a lumbar spine disability, GERD and hypertension. She was assigned an effective of December 1, 2012, the day following her separation from service. The Veteran was notified of the decision in October 2013. The Veteran did not submit a notice of disagreement or new and material evidence pertinent to the claims, within one year of the October 2013 notification letter. Thus, the October 2013 rating decision became final and is not subject to revision absent clear and unmistakable error, which has not been alleged. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. On November 14, 2014, the AOJ received the Veteran’s claim for an increased rating for the service-connected lumbar strain, GERD and hypertension. The Board has reviewed the record to determine whether there were any unrecognized claims, informal claims or intent to file a claim for spondylolysis/isthmic with spondylolisthesis and IVDS, hypertension and/or GERD between the October 2013 rating decision and the November 14, 2014 claim for an increase. A review of the record reflects that there were none. The Board also notes that an effective date of any increase may precede the date of the receipt of the claim, if it was factually ascertainable that an increase in disability had occurred during the preceding year, provided that the application was received within one year after such date. Therefore, the Board must review the evidence of record to determine whether it is factually ascertainable that an increase in disability had occurred within the one-year period prior to November 14, 2014. See 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). A review of the record discloses that the December 2014 VA examination is the earliest showing of an increase in the Veteran’s disabilities. Outpatient treatment records of file for the one-year period prior to November 2014 primarily detail treatment for other disabilities and/or show treatment and/or a history of the claimed disabilities. There is no lay or medical evidence showing, however, that an increase in disability had occurred at any specific point during the preceding year for the lumbar spine, GERD and/or hypertension. There is also no report of medical examination or hospitalization for these disorders between the October 2013 and the current effective date of award which would suffice as an informal claim under 38 C.F.R. § 3.157(b). In the absence of any records showing increased symptoms associated with spondylolysis/isthmic with spondylolisthesis and IVDS, hypertension and/or GERD for the one-year period prior to November 14, 2014, it is not factually ascertainable that the Veteran’s disabilities warranted an increase prior to November 14, 2014. The Board is mindful that the Veteran argues that an effective date for the grant of service connection and the increased ratings should be effective November 20, 2013. The Veteran argues that she submitted a notice of intent to file on November 20, 2013. The record contains a screenshot as evidence of a submission of an intent to file dated as such. The AOJ has found, however, that after a thorough review of the claims folder it does not show any correspondence received by the Department of Veterans Affairs (VA) on or around November 20, 2013 that could reasonably be construed as an informal claim for compensation benefits. Rather, it was found that although the DAV memo is dated November 20, 2013, there is no evidence that it was submitted to and received by the VA. The AOJ noted that the earliest correspondence that can be considered as claim for this benefit is the application received November 14, 2014. The Board has reviewed the record and specifically the screenshot from a CMS Legacy Correspondence viewer which shows a November 29, 2013 cover letter for an “INFORMAL FULLY DEVELOPED CLAIM” noting that the Veteran intended to apply for compensation/pension benefits under the FDC program. At best, this screenshot evidences the creation of the cover letter but does not establish, in an of itself, that the application was actually transmitted to VA electronically or otherwise. At the hearing, the representative asserted that there was the possibility of error either on the part of VA or his national office. No personnel knowledge of the circumstances was voiced by the representative. The undersigned suggested to the representative to submit any business records from his organization reflecting that the application was actually filed rather than prepared, including any electronic date stamp of receipt by VA or some form of electronic evidence that the claim was submitted. No further evidence was submitted. As such, the record currently before the Board only establishes the creation of a cover letter and no evidence that the application was actually transmitted to VA. As such, the Board agrees with the findings of the AOJ. As noted, the Board has reviewed the record to determine whether there were any unrecognized claims, informal claims or intent to file a claim prior to November 14, 2014, the Board has found none to include a notice of intent to file on November 20, 2013. In sum, the assigned effective date of November 14, 2014 for the award of service connection for arteriosclerotic heart disease, anemia, peripheral neuropathy of the left lower extremity and peripheral neuropathy of the right lower extremity, and increased ratings for the service connected lumbar strain, hypertension and GERD is the earliest possible effective date assignable in this case. The preponderance of the evidence is against the Veteran’s claims, there is no reasonable doubt to be resolved, and the claims must be denied. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.