Citation Nr: 22045720 Decision Date: 08/11/22 Archive Date: 08/11/22 DOCKET NO. 16-19 676A DATE: August 11, 2022 ORDER Entitlement to an effective date of December 20, 2005, but no earlier, for the award of a separate noncompensable rating for a pulmonary embolism associated with residuals of a kidney transplant from end-stage renal disease is granted. Entitlement to an effective date of December 20, 2005, but no earlier, for the award of service connection for a left popliteal artery aneurysm associated with residuals of a kidney transplant from end-stage renal disease is granted. Entitlement to an effective date earlier than November 1, 2011 for the grant of a 60 percent rating for residuals of kidney transplant from end-stage renal disease is dismissed. FINDINGS OF FACT 1. The Veteran's claim for entitlement to a separate compensable rating for a pulmonary embolism associated with residuals of a kidney transplant from end-stage renal disease arose from a December 20, 2005 informal claim for an increased rating for a service-connected end-stage renal disease. 2. On December 20, 2005, a statement written by the Veteran was received which, based on contemporaneous medical evidence of record, could have been reasonably construed to encompass a claim for service connection for a left popliteal artery aneurysm; there were no other communications from the Veteran prior to this date which could be so construed. 3. The claim for an effective date earlier than November 1, 2011 for the award of a 60 percent rating for residuals of kidney transplant from end-stage renal disease is moot because the Veteran is currently in receipt of a 100 percent rating for residuals of kidney transplant from end-stage renal disease effective September 20, 2001. CONCLUSIONS OF LAW 1. The criteria for an effective date of December 20, 2005, but no earlier, for the award of a separate noncompensable rating for a pulmonary embolism associated with residuals of a kidney transplant from end-stage renal disease have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400. 2. The criteria for an effective date of December 20, 2005, but no earlier, for the award for service connection for a left popliteal artery aneurysm associated with residuals of a kidney transplant from end-stage renal disease have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400. 3. The appeal of the issue of entitlement to an effective date earlier than November 1, 2011 for the award of a 60 percent rating for residuals of kidney transplant from end-stage renal disease is moot. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Coast Guard from January 1981 to February 1982. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision that granted an increased 60 percent rating for residuals of kidney transplant from end-stage renal disease, effective November 1, 2011, granted a separate 0 percent rating for pulmonary embolism, effective November 1, 2011, and granted service connection for a left popliteal artery aneurysm associated with residuals of a kidney transplant rated noncompensable, effective November 1, 2011, by the Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to the Veteran's April 2016 VA Form 9, he was scheduled for and attended a Board hearing along with his attorney in February 2022 before the undersigned Veterans Law Judge. As reflected in the hearing transcript, the Veteran and her attorney chose not to provide testimony on these issues. The issues of entitlement to service connection for breast cancer, entitlement to service connection for residuals of hysterectomy and entitlement to special monthly compensation for loss of use of a creative organ will be adjudicated in a separate decision by a panel of three judges. Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. The Veteran has not advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Effective Dates The effective date for an award of service connection is the day following separation from active duty, or the date entitlement arose, if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. The effective date of an award based on a claim reopened after final adjudication 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; 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. Under the law prior to the amendment, a claim was 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) (2014) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2014) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims formal and informal for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, reports of examination or hospitalization from VA or a uniformed service or private medical records may constitute informal claims for increase. 38 C.F.R. § 3.157(b) (2014). Upon receipt of an informal claim for benefits, if a formal claim for benefits had not been filed, VA was required to provide the Veteran with a formal claim form for the Veteran to complete and return. 38 C.F.R. § 3.155(a) (2014). If a formal claim for benefits was then filed within one year of the date the formal claim form was sent to the Veteran, the formal claim was considered to have been filed as of the date of receipt of the informal claim. Id. Following the March 2015 amendment, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151. A veteran may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA must provide the claimant with the appropriate claims form. Id. If a complete application for benefits on the form prescribed by the Secretary is received by VA within one year of receipt of the intent to file, VA will consider the formal claim to have been filed as of the date the intent to file a claim was received. Id. An intent to file a claim must be submitted using one of three approved methods and must identify the general benefit and the claimant. Id. When all the evidence is assembled, VA is responsible for determining whether the weight of the evidence is in approximate balance. If the positive and negative evidence is evenly or approximately balanced, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 1. Entitlement to an effective date of December 20, 2005, but no earlier, for the award of a separate noncompensable rating for a pulmonary embolism associated with residuals of a kidney transplant from end-stage renal disease is granted. This effective date claim stems from the Board's initial award of a separate compensable rating for a pulmonary embolism associated with residuals of a kidney transplant due to end-stage renal disease granted in December 2014 rating decision, effective November 1, 2011, the date the evaluation for the kidney transplant was reduced and based solely on the level of renal dysfunction, warranting a separate evaluation for a pulmonary embolism. The Board notes that the 100 percent evaluation for the Veteran's residuals of a kidney transplant has since been restored. As this determination established entitlement to compensation for a disability, as opposed to deciding how much compensation should be awarded for a disability, the Board will evaluate this effective date claim pursuant to the statutes and regulations governing the assignment of effective dates for the award of service connection, and not those governing the award of increased ratings. As noted above, generally, the effective date for an award of compensation shall be no earlier than the date of receipt of the claim therefor. See 38 U.S.C. § 5110(a). Any communication or action from a claimant, indicating an intent to apply for one or more benefits under the laws administered by VA, may be considered an informal claim. 38 C.F.R. § 3.155 (2014). The Board has carefully reviewed the record to determine whether any communications by or on behalf of the Veteran were submitted prior to the November 1, 2011 effective date that could be construed as an informal claim for service connection for a pulmonary embolism. See 38 C.F.R. § 3.1(p). The Board finds that there are communications of record that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a). Private treatment records associated with the claims file at that time show that the Veteran was treated for an acute pulmonary embolism due to a deep vein thrombosis caused by a popliteal aneurysm in April 2004 following a March 2004 kidney transplant surgery, therefore meeting the criteria for a noncompensable evaluation which is assigned unless there is symptomatology following resolution of pulmonary thromboembolism which would warrant an evaluation of 30 percent rating. See 38 C.F.R. § 4.97, Diagnostic Code 6817. A letter received by VA on December 20, 2005 regarding the Veteran's conditions arising due to her March 2004 kidney transplant could reasonably be construed as a request that evidences a belief in entitlement to service connection for a pulmonary embolism. The Board finds there were no other pending, unadjudicated informal or formal claims for service connection for a bilateral hand disability prior to December 20, 2005. The RO subsequently continued a 100 percent evaluation for the Veteran's end stage renal disease with pulmonary emboli in a March 2006 rating decision, thereby establishing service connection for a pulmonary embolism. The Board acknowledged that the subsequent decisions throughout the appeal period to deny service connection for a pulmonary embolism were therefore improper. As such, December 20, 2005 is the earliest possible date of receipt for a claim for service connection for the Veteran's pulmonary embolism. Because the date of the Veteran's claim for service connection is later than the date entitlement arose, the date of the claim is the correct date for the Veteran's award of benefits. Upon careful review of the record, the Board finds that the earliest communication received from the Veteran that could reasonably be construed as a request for a determination of entitlement, or that evidences a belief in entitlement to a separate rating for a pulmonary embolism is the letter regarding the Veteran's conditions arising due to her recent kidney transplant, which was received on December 20, 2005. Therefore, December 20, 2005, the date the informal claim for entitlement to service connection for a pulmonary embolism was received, is the appropriate effective date for the grant of a separate noncompensable rating for a pulmonary embolism. See 38 C.F.R. § 3.400. Because the date of the Veteran's claim for service connection is later than the date entitlement arose, the date of the claim is the correct date for the Veteran's award of benefits. Accordingly, after resolving any remaining reasonable doubt in the Veteran's favor, the claim for an earlier effective date of December 20, 2005, but no earlier, for a separate noncompensable rating for service connection for a pulmonary embolism is granted. 2. Entitlement to an effective date of December 20, 2005, but no earlier, for the award of service connection for a left popliteal artery aneurysm associated with residuals of a kidney transplant from end-stage renal disease is granted. In the December 2014 rating decision, the AOJ assigned an effective date of November 1, 2011 for the grant of service connection for a left popliteal artery aneurysm. This is the date VA reduced the 100 percent evaluation for the kidney transplant and therefore the date the left popliteal artery aneurysm was no longer being used to support the evaluation for the kidney transplant. The Board notes that the 100 percent evaluation for the Veteran's residuals of a kidney transplant has since been restored. The Veteran generally contends that an effective date earlier than November 1, 2011 is warranted for the award of service connection for a left popliteal artery aneurysm. For the reasons provided below, the Board finds that December 20, 2005 is the proper effective date for the grant of service connection for a left popliteal artery aneurysm. The Board finds that there are communications of record that could serve as the basis for an earlier effective date under 38 U.S.C. § 5110(a). In support of the claim for an increased rating for residuals of a kidney transplant, in December 20, 2005, private treatment records associated with the claims file show that the Veteran was treated for a pulmonary embolism due to a deep vein thrombosis caused by a popliteal aneurysm in April 2004 following a March 2004 kidney transplant surgery. As such, December 20, 2005 is the earliest possible date of receipt for a claim for the Veteran's left popliteal artery aneurysm. Because the date of the Veteran's claim is later than the date entitlement arose, the date of the claim is the correct date for the Veteran's award of benefits. See 38 C.F.R. § 3.157(b) Upon careful review of the record, the Board finds that the earliest communication received from the Veteran that could reasonably be construed as a request for a determination of entitlement, or that evidences a belief in entitlement to service connection for a left popliteal artery aneurysm is the letter regarding the Veteran's conditions arising due to her recent kidney transplant, which was received on December 20, 2005. 38 C.F.R. § 3.157(b). Therefore, December 20, 2005, the date the informal claim for entitlement to service connection for a left popliteal artery aneurysm was received, is the appropriate effective date for the grant of service connection for a left popliteal artery aneurysm. See 38 C.F.R. § 3.400. Because the date of the Veteran's claim for service connection is later than the date entitlement arose, the date of the claim is the correct date for the Veteran's award of benefits. Accordingly, after resolving any remaining reasonable doubt in the Veteran's favor, the claim for an earlier effective date of December 20, 2005, but no earlier, for service connection for a left popliteal artery aneurysm is granted. 3. Entitlement to an effective date earlier than November 1, 2011 for the award of the grant for the award of a 60 percent rating for residuals of kidney transplant from end-stage renal disease is dismissed as moot. The Veteran seeks an effective date earlier than November 1, 2011 for the award of a 60 percent rating for residuals of kidney transplant from end-stage renal disease. The Veteran has not made any specific contentions as to why she believes he is entitled to an earlier effective date. For the reasons outlined below, the Board finds that the issue of entitlement to an effective date earlier than November 1, 2011 for the award of a 60 percent rating for residuals of kidney transplant from end-stage renal disease is moot and is therefore dismissed. By way of background, a January 2002 rating decision granted the Veteran service connection for depressive disorder and assigned a 100 percent rating effective September 20, 2001. Thereafter, the RO, citing evidence that the Veteran's residuals of a kidney transplant had shown improvement, proposed to decrease the Veteran's disability rating from 100 percent to 60 percent. This reduction was effectuated in a December 2014 rating decision with an effective date of November 1, 2011. The Veteran appealed the reduction to the Board and in a June 2016 rating decision, the Board determined that the rating reduction was improper and granted the Veteran an increased rating of 100 percent for residuals of kidney transplant from end-stage renal disease effective November 1, 2011, the date of the reduction on appeal. This restoration was effectuated in a November 2016 rating decision. The Board notes that the November 2016 award of an increased rating effectively restored the Veteran's prior 100 percent rating for his residuals of kidney transplant from end-stage renal disease throughout the entire period on appeal. As such, the Veteran is currently in receipt of a 100 percent rating for her residuals of kidney transplant from end-stage renal disease from September 20, 2001 to the present, spanning the entire period on appeal. Accordingly, the Board finds that the Veteran's claim for an effective date earlier than November 1, 2011 for the award of a 60 percent rating for residuals of kidney transplant from end-stage renal disease is moot and must be dismissed as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Rosenthal, Ariana 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.