Citation Nr: 21025361 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-26 657 DATE: April 27, 2021 ORDER Entitlement to an effective date prior to October 23, 2014, for the grant of service connection for chronic kidney disease, stage III, is denied. FINDINGS OF FACT 1. The Veteran’s claim for service connection for a kidney condition was previously denied by an August 2010 rating decision; the Veteran did not appeal the decision and documentation constituting new and material evidence was not actually or constructively received within the one-year appeal period. 2. After the August 2010 rating decision, the first communication that can be construed as a petition to reopen the claim of entitlement to service connection for a kidney condition was received on October 23, 2014. CONCLUSION OF LAW The criteria for an effective date earlier than October 23, 2014, for the grant of service connection for chronic kidney disease, stage III, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (prior to March 24, 2015).   REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1971 to July 1975, and from July 1981 to November 1985. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) which granted entitlement to service connection for chronic kidney disease, stage III, effective October 23, 2014. In January 2021, a hearing was held before the undersigned. A transcript of the hearing is of record. Entitlement to an effective date prior to October 23, 2014, for the grant of service connection for chronic kidney disease, stage III The Veteran has asserted that he is entitled to an effective date prior to October 23, 2014, for the grant of service connection for chronic kidney disease, stage III. The effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b). An action or determination becomes final when the Veteran does not appeal the decision and no new and material evidence is actually or constructively received within a year following the decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. VA amended its adjudication regulations effective 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. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the new amendments are not applicable and the regulations effective prior to March 24, 2015 will be applied. Under the earlier regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. The claim could be filed by 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. 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. 38 C.F.R. § 3.155(a) (2014). The term claim or application means 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). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Case law is clear that this means the claimant must describe the nature of the disability for which the claimant is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Additionally, case law indicates that where a claimant’s filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claimant has raised an informal claim for that disability under § 3.155(a). Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019). In this case, the Veteran filed an initial claim for service connection for a kidney condition in April 2010. In an August 2010 rating decision, the RO denied entitlement to service connection for chronic kidney disease because the RO found the condition neither occurred in nor was caused by service. Notice of the decision was sent to the Veteran on August 20, 2010. The Veteran did not file a notice of disagreement with the August 2010 rating decision and no new and material evidence was constructively or actually received within the one-year appeal period. An August 19, 2010 Report of General Information states that the Veteran was electing a Decision Review Office (DRO) review for his Notice of Disagreement. The rating decision was issued on August 18, 2010, but notice of the rating decision was not sent to the Veteran until August 20, 2010. The Veteran had filed a notice of disagreement with a prior rating decision denying service connection for sleep apnea in April 2010. Therefore, the evidence indicates the Report of General Information referred to a notice of disagreement with a prior rating decision and was not related to the award of service connection for kidney disease, as the Veteran had not been notified of that award at the time of the August 19, 2010 Report of General Information. There is no evidence that the Veteran filed a notice of disagreement with the August 2010 rating decision or that new and material evidence was constructively or actually received within the one-year appeal period. Thus, the August 2010 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156, 19.20. As the August 2010 rating decision is final, it is not subject to revision in the absence of clear and unmistakable error (CUE) in the decision. 38 U.S.C. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). The Veteran has not asserted that there was CUE in the August 2010 rating decision. The Veteran’s petition to reopen the claim for service connection for a chronic kidney condition was received by VA on October 23, 2014. In a March 2015 rating decision, the RO granted service connection for chronic kidney disease, stage III, with an effective date of October 23, 2014, the date of his petition to reopen his claim. At the January 2021 Board hearing, the Veteran stated that he filed a petition to reopen his claim for service connection for a kidney condition after the August 2010 denial and before the October 23, 2014 claim. His representative also asserted that the Veteran filed an informal claim prior to October 23, 2014 based on his diagnosis of kidney disease in 2007. The Board has carefully reviewed the record, and considered the Veteran’s contentions and testimony, to determine whether any communication received after the August 2010 rating decision and prior to October 23, 2014, could be construed as an informal or formal claim by or on behalf of the Veteran for service connection for a kidney condition. The Board finds that there are no communications of record identifying a request for entitlement to service connection for a kidney condition that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a). The Veteran filed claims for other disabilities, but he did not file a claim or correspondence relating to his kidney condition until the October 23, 2014 claim. His claims during this period were not general in nature and did not reference medical records related to the kidney condition such that an informal claim for the disability could have been construed. See Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020); Shea, 926 F.3d at 1370. The filing received on October 23, 2014 was the first instance of record in which the Veteran expressed a desire to seek service connection for a kidney condition following the August 2010 final rating decision. To the extent the Veteran experienced symptoms of kidney disease prior to October 23, 2014, the Board notes that while clinical records were previously recognized, in some instances, as informal claims under 38 C.F.R. § 3.157(b), this applied only if the evidence pertained to examination or treatment of a disability for which service connection had previously been established. Specifically, medical records were not accepted as informal claims for disabilities where service connection had 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). As such, even if medical records in the file indicate treatment for symptoms of kidney disease after the August 2010 rating decision and prior to October 23, 2014, these cannot alone be accepted as an informal claim for service connection and do not entitle the Veteran to an earlier effective date. In sum, having reviewed all communications in the claims file, the Board finds that a preponderance of the evidence is against a finding that the Veteran submitted any formal or informal communications with respect to reopening his claim for service connection for a kidney condition prior to October 23, 2014. Accordingly, the Board concludes that entitlement to an earlier effective date for the award of service connection for chronic kidney disease, stage III, is not warranted. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Marenna, 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.