Citation Nr: A25035574 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 220422-515760 DATE: April 17, 2025 ORDER An effective date earlier than April 26, 2021 for the award of service connection for graft versus host disease associated with myelofibrosis is denied. FINDINGS OF FACT 1. The claim for service connection for myelofibrosis was denied in a July 2014 rating decision. 2. The Veteran did not perfect an appeal of the July 2014 rating decision. 3. The Veteran filed an intent to file on April 26, 2021, followed by a supplemental claim in June 2021 for myelofibrosis. CONCLUSION OF LAW The criteria for an effective date earlier than April 26, 2021 for the award of service connection for graft versus host disease associated with myelofibrosis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from September 2002 to April 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2022 decision of a Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). That decision is a higher-level review decision of an AOJ decision issued in August 2021. See 38 U.S.C. § 5104B; 38 C.F.R. §§ 3.2500(a)(1)(i), 3.2601. The Veteran filed a timely VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) in April 2022 and elected the Direct Review option. See 38 U.S.C. §§ 7105, 7113(a); 38 C.F.R. §§ 20.202, 20.203. Under the Direct Review option, the Board's decision will be based on the evidence of record at the time of the AOJ decision on the issue or issues on appeal. 38 U.S.C. § 7113(a); 38 C.F.R. §§ 20.301, 20.801(a). In the case of a higher-level review decision, the evidentiary record is limited to the evidence of record as of the date that the AOJ issued notice of the prior decision under review. 38 U.S.C. § 5104B(d); 38 C.F.R. § 3.2601(f). Accordingly, the Board may only consider the evidence of record at the time of the August 2021 AOJ decision, which was subject to higher-level review in the April 2022 decision on appeal. See id.; see also 38 U.S.C. § 7113(a); 38 C.F.R. §§ 20.300(a), 20.301, 20.801(a). If evidence was submitted by the Veteran or otherwise added to the claims file since the AOJ decision on appeal, the Board has not considered it at this time. See id. If the Veteran would like VA to consider any evidence that the Board could not in consider in this decision, he may file a Supplemental Claim (VA Form 20-0995) and submit or identify that evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. In March 2022, the Veteran filed a motion to revise or reverse a July 2014 rating decision based on clear and unmistakable error (CUE) with respect to the denial of service connection for myelofibrosis. See VA Form 20-0995 (Supplemental Claim). The agency of original jurisdiction (AOJ) rejected that CUE motion, stating in a March 2022 letter to the Veteran that the issue of entitlement to an earlier effective date for the award of service connection for myelofibrosis was already pending on appeal. However, the appeal of the effective date of service connection for myelofibrosis does not encompass the issue of CUE in the July 2014 rating decision. The AOJ has not adjudicated the issue of CUE in the July 2014 rating decision included in the March 2022 claim. Therefore, the Board cannot adjudicate that issue. The Veteran may resubmit the CUE claim to the AOJ or notify the AOJ that the issue is still pending. Effective Dates Except as otherwise provided, the effective date of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will 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. In claims for direct service connection, if the claim is received within one year after separation from active service, the effective date of the award is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. When new and material evidence is received after final disallowance of a claim, the effective date of the award is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). For reopened claims, the effective date is the date of the receipt of claim or date entitlement arose, whichever is later. § 3.400(r). A submission of an application form prescribed by the Secretary, whether paper or electronic, must meet the requirements of a complete claim as set forth in 38 C.F.R. § 3.160. A complete claim is required for all types of claims, and will generally be considered filed as of the date it was received by VA for an evaluation or award of benefits under the laws administered by VA. 38 C.F.R. § 3.155(d). A claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits 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 will furnish the claimant with the appropriate application form prescribed by the Secretary. Id. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Id. An intent to file a claim must identify the general benefit (e.g., compensation, pension) but need not identify the specific benefit claimed or any medical condition(s) on which the claim is based. 38 C.F.R. § 3.155(b)(2). If within one year of receipt of the intent to file a claim VA receives a complete application form prescribed by the Secretary as defined in 38 C.F.R. § 3.160(a) appropriate to the benefit sought, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). In Military-Veterans Advocacy v. McDonough, 7 F.4th 1110, 1147 (Fed. Cir. 2021), the United States Court of Appeals for the Federal Circuit invalidated the preamble to 38 C.F.R. § 3.155 to the extent it excludes supplemental claims from the intent-to-file framework. A claimant may continuously pursue a claim or an issue by timely and properly filing one of the following administrative review options (with certain exceptions not applicable here): 1. Following notice of a decision on an initial claim or a supplemental claim, the claimant may file a supplemental claim, request a higher-level review, or appeal to the Board of Veterans' Appeals. 2. Following notice of a decision on a higher-level review, the claimant may file a supplemental claim or appeal to the Board of Veterans' Appeals. (See appeal to the Board, 38 CFR 20.202.) 3. Following notice of a decision on an appeal to the Board of Veterans' Appeals, the claimant may file a supplemental claim or file a notice of appeal to the Court of Appeals for Veterans Claims. 4. Following a decision on an appeal to the Court of Appeals for Veterans Claims, the claimant may file a supplemental claim. 38 C.F.R. § 3.2500(c). Under the statute, for purposes of determining the effective date of an award under 38 U.S.C. § 5110, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued as set forth above. 38 U.S.C. § 5110(a)(2). The implementing regulation provides, in pertinent part, and with certain exceptions not applicable here, that the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the above available review options within one year of the issuance of the decision. 38 C.F.R. § 3.2500(h)(1). Prior to March 2015, VA regulation defined a "claim" or "application" 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). An original claim for pension, compensation, or dependency and indemnity compensation was defined as an initial formal application on a form prescribed by the Secretary. 38 C.F.R. § 3.160(b). Regarding informal claims, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2013); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. Id. 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. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. The essential elements of 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). A claim for compensation "is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality." Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020). "The requirement to identify the benefit sought means that a claimant must describe the nature of the disability for which he is seeking benefits." Brokowski, 23 Vet. App. at 86. "A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability." Id. In addition, for informal claims, 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 38 C.F.R. § 3.155(a). Shea v. Wilkie, 926 F.3d, 1362, 1370 (Fed. Cir. 2019). Effective date of service connection for graft versus host disease associated with myelofibrosis. The Board finds that the criteria for an effective date earlier than April 26, 2021 for the award of service connection for graft versus host disease associated with myelofibrosis have not been met. The Veteran filed a claim for service connection for myelofibrosis in April 2014 (VA Form 21-526EZ, Fully Developed Claim). The claim was denied in a July 2014 rating decision. He filed a timely notice of disagreement (NOD) on VA Form 21-0958 in October 2014 and selected the Decision Review Officer (DRO) process. See 38 C.F.R. § 3.2600 (2014). He also requested a hearing "via phone or in person." See October 2014 NOD. A discussion by phone with a DRO was held in April 2016, in which the Veteran set forth contentions in support of the claim. The DRO then conducted de novo review of the claim based on consideration of the evidence, including evidence received since the July 2014 rating decision, and issued a statement of the case (SOC) in March 2017 which continued to deny the claim. The Veteran did not take further action, including submitting or identifying additional evidence or filing a substantive appeal to perfect an appeal to the Board. For the following reasons, the Board finds that the July 2014 rating decision is final. Under VA's legacy appeal system, which applies to decisions issued prior to February 19, 2019, see 38 C.F.R. § 19.2, a determination on a claim by the AOJ of which the claimant is properly notified is final if no NOD is filed within the prescribed time period, or an appeal is not perfected pursuant to 38 C.F.R. § 20.302. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2018) (setting forth requirements and time limits for initiating and perfecting an appeal under VA's legacy appeal system). Here, because the Veteran did not perfect an appeal following issuance of the March 2017 SOC by filing a substantive appeal (i.e., VA Form 9 or an equivalent document) the July 2014 rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The record shows that VA received an intent to file (VA Form 21-0966) from the Veteran on April 26, 2021, followed by a supplemental claim (VA Form 20-0995) in June 2021 for service connection for myelofibrosis. The record does not show that a claim or petition to reopen the claim for service connection for myelofibrosis was received by VA between the March 2017 SOC and the April 2021 intent to file. The Veteran does not state that he filed such a claim. The only documents in the file between the March 2017 SOC and the April 2021 intent to file concern an application to add dependents to his compensation award (VA Form 21-686c). That application cannot reasonably be construed, even in the light most favorable to the Veteran, as a claim for service connection. As the July 2014 rating decision and March 2017 SOC were issued years before the modernized review system went into effect, and as the Veteran did not otherwise continuously pursue the claim given that several years elapsed between the March 2017 SOC and the April 2021 intent to file, the effective date provisions of 38 C.F.R. § 3.2500 do not apply. Accordingly, the effective date of April 26, 2021 for the award of service connection for graft versus host disease associated with myelofibrosis is proper, as it is based on the supplemental claim he filed in June 2021, which was within one year of VA's receipt of his April 26, 2021 intent to file. 38 C.F.R. §§ 3.155(b), 3.400(q)(2). The Board has considered the arguments submitted by the Veteran, through counsel, in conjunction with his April 2022 VA Form 10182. Those arguments concern whether it was proper for the July 2014 rating decision to deny service connection for myelofibrosis, and have no bearing on the procedural history that, for the reasons explained, precludes assignment of an earlier effective date in this case. As discussed above, the Veteran may resubmit the March 2022 CUE motion to the AOJ or notify the AOJ that the issue is still pending. Because the appeal must be denied as a matter of law and without the weighing of positive and negative evidence, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b). P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Rutkin 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.