Citation Nr: 21023552 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-46 405 DATE: April 21, 2021 ORDER A compensable rating for asbestosis related pleural plaques has been withdrawn. An effective date earlier than October 26, 2015, for the grant of service connection for asbestosis related pleural plaques is denied. FINDINGS OF FACT 1. On June 21, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, that a withdrawal of his appeal on the issue of an increase rating for asbestosis related pleural plaques is requested. 2. The Veteran’s claim of service connection for asbestosis related pleural plaques was received on October 26, 2015; the record does not show any earlier communication that could be construed as an informal claim for this disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant’s authorized representative on the issue of an increase rating for asbestosis related pleural plaques have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for an effective date earlier than October 26, 2015, for asbestosis related pleural plaques have not been met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to May 1969. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for asbestosis related pleural plaques, assigning a noncompensable (0 percent) rating effective October 26, 2015. The Veteran appealed this disability rating and effective date with a September 2016 notice of disagreement. The RO issued a statement of the case in June 2017, which erroneously stated that the effective date for the grant of service connection for asbestosis related pleural plaques was March 14, 2016, the date of the rating decision on appeal, but in the narrative stated that the effective date was based on the date of claim. Thus, the reference to March 14, 2016, appears to be a typographical error and did not alter the October 26, 2015, effective date assigned in the rating decision on appeal. The Veteran perfected his appeal on both issues with a July 2017 VA Form 9. Although the Veteran was scheduled to testified at a video conference hearing before a Veterans Law Judge in December 2019, he subsequently withdrew this hearing request through his attorney in a November 2019 communication. In a December 2020 communication, the Veteran’s attorney indicated that the Veteran wanted her to withdraw her representation of the Veteran. However, the Board finds that such withdrawal was not proper. It was received at the Board following certification of the appeal from the Court of Appeals for Veterans Claims. In addition, the attorney provided no good cause for withdrawing representation at this time. As such, to the extent that this was an attempt to withdraw representation, it does not comply with the provisions of 38 C.F.R. § 20.608 (b)(2). As noted below, the June 2018 correspondence only withdrew the pending issue of an increased rating for asbestosis related pleural plaques, not the earlier effective date issue. While the record seems to indicate that a withdrawal of both was intended, the Board can only dismiss the issue that was specifically withdrawn. Thus, the earlier effective date claim remains on appeal and the Veteran’s attorney cannot withdraw from her representation of the Veteran on this certified issue without good cause. Withdrawal 1. A compensable rating for asbestosis related pleural plaques The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the appellant, through his authorized representative, has withdrawn his appeal on the issue of an increase rating for asbestosis related pleural plaques and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. In this June 21, 2018 correspondence, the Veteran’s attorney specified that the Veteran wanted to withdrawal his pending claim for a “higher than zero percent rating for service connection asbestos,” but made no mention of the additional pending claim for an earlier effective date. Although subsequent correspondence suggests that this was intended to be a withdrawal of the entire appeal, the Board cannot infer a withdrawal and will therefore address the earlier effective date claim below. Earlier Effective Date 2. An effective date earlier than October 26, 2015, for service connection for asbestosis related pleural plaques The Veteran is seeking an effective date earlier than October 26, 2015, for service connection for asbestosis related pleural plaques. Unless specifically provided otherwise in Chapter 51 of Title 38 of the U.S. Code, 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). Generally, the effective date of an award of service connection is the date of separation from service if the claim is received within one year of separation; otherwise, the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2). Additionally, an award made under a liberalizing law may be entitled to an effective date of one year prior to the date of receipt of the veteran’s post-liberalization claim, if the veteran met all the criteria of the liberalizing law as of the effective date of the liberalizing law. 38 C.F.R. § 3.114 (a)(3). Under 38 C.F.R. § 3.400 (q)(2), the later either of the date of the claim to reopen or the date upon which entitlement arose controls, and is the appropriate effective date. 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 also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157 (2020). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the appellant’s claim was received by VA prior to that date, the former regulations apply and are applicable to his case. Previously, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the 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 the receipt of the informal claim. 38 C.F.R. § 3.155 (a)(2014). Thus, 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). VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See 38 C.F.R. § 3.1 (p) (2020); Brannon v. West, 12 Vet. App. 32, 34-35 (1998). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Here, the Veteran separated from service in May 1969. He did not submit any claims within one year of his separation from service. Indeed, his first documented contact with VA was in January 2009, decades later. That correspondence ultimately led to his claim of service connection for hearing loss, not a claim of service connection for asbestosis. As such, no claim for asbestosis was received within one year of separation. Likewise, the current grant of service connection was not made pursuant to a liberalizing law. Thus, the Board must look to the date of receipt of claim and the date entitlement arose, assigning an effective date based on the latter of these two dates. Finally, the record does not show any communication or action that could be construed as an informal claim of service connection for asbestosis related pleural plaques. In December 2011, the Veteran sought service connection for a skin disability that he attributed to asbestos exposure. The Veteran’s communication with VA related to that claim do not indicate that he was also seeking service connection for a lung condition associated with this exposure. His medical records during this period fail to show an asbestos-related lung condition. Instead, the July 2014 VA treatment record first noted pleural-based plaques and the Veteran filed his formal claim of service connection for asbestosis and asbestosis-related pleural plaques on October 26, 2015. Therefore, the record does not show any communication or action that could be construed as an informal claim of service connection for asbestosis related pleural plaques prior to the October 26, 2015 formal claim. The current effective date, October 26, 2015, reflects the date that VA received the Veteran’s claim of service connection. Although this condition may have prior to existed the October 26, 2015 filing, the Board notes that an effective date earlier than the date of the claim is not permitted. Under 38 C.F.R. § 3.400 (q)(2), the later either of the date of the claim to reopen or the date upon which entitlement arose controls, and is the appropriate effective date. VA received no earlier communications from the Veteran on this matter until the October 26, 2015 claim upon which the current effective date is based. The record does not show any informal claims from that period. As such, the Board finds that the Veteran is not entitled to an effective date earlier than October 26, 2015, for asbestosis related pleural plaques. (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Houbeck 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.