Thom as Ellington, Jr. v. R. Jam Es Nicholson

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 04-0403

THOM AS ELLINGTON, JR., APPELLANT ,

V.

R. JAM ES NICHOLSON,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided July 25, 2007 )

Sandra E. Booth, of Columbus, Ohio, was on the brief for the appellant.

Tim S. McClain, General Counsel; R. Randall Campbell, Assistant General Counsel; and

Jason G. Wodogaza, all of Washington, D.C., were on the brief for the appellee.

Before GREENE, Chief Judge, and HAGEL, and LANCE, Judges.

LANCE, Judge: The appellant, veteran Thomas Ellington, Jr., through counsel, appeals a March

8, 2004, decision of the Board of Veterans' Appeals (Board). Record (R.) at 1-16. In that decision, the

Board denied the appellant's claims for earlier effective dates for his secondarily service-connected diabetes

mellitus and hypertension. Id. There are two questions presented on appeal. First, does the effective date

for a secondarily service-connected disability relate back to the date that a prior claim was filed for the

antecedent disability? Second, does a veteran file a claim for disability benefits by providing a list of his

or her current symptoms in response to a VA medical examination questionnaire? For the reasons stated

herein, the Court holds that the effective date assigned for a secondarily service-connected disability does

not relate back to the filing date of a prior claim for the antecedent disability. The Court further holds that

a veteran does not file a claim for disability benefits by simply providing a list of his or her current symptoms

in response to a VA medical examination questionnaire. Accordingly, the Court will affirm the Board's

March 8, 2004, decision.

I. FACTS

The appellant served on active duty in the U.S. Navy from October 1963 through September

1967. Record (R.) at 20. In October 1990, the appellant filed a claim for service connection for non-

lymphocytic leukemia with the Cleveland, Ohio, VA Regional Office (RO). R. at 23-26. In June 1992

and January 1993, the RO denied this claim. R. at 126-27, 139-40. The appellant appealed. R. at 180.

On October 6, 1993, the appellant received a VA Compensation and Pension Rating Examination.

R. at 202-04. As part of this examination, he completed and submitted VA Form 21-2545, Report for

Medical Examination for Disability Evaluation (Form 21-2545). R. at 207. In his response to Question

17 on the Form 21- 2545,"PRESENT COMPLAINT (symptoms only, not diagnosis)," the appellant

provided the following information: "FATIGUE, SKIN PROBLEMS FROM CHEMOTHERAPY; EAR

PROBLEMS, HIGH BLOOD PRESSURE; BORDERLINE DIABETIC." Id. (capitalized in original).

In February 1996, the appellant's service representative submitted a written statement in support

of his appeal. R. at 337. The statement characterized the only "[i]ssue" before the Board as "[s]ervice

connection for leukemia." Id. One month later, the appellant submitted his own written statement. R. at

367. Therein, the appellant said that "[he] d[id] not have any further comments or information to submit

at this time in reference to the issue on appeal." Id. (capitalization omitted). In September 1996, the Board

granted the appellant's claim for "[e]ntitlement to service connection for leukemia." R. at 373-74. The

following month, the RO assigned an effective date of October 31, 1990, for that condition. R. at 404-06,

408-09. The appellant never appealed either of these decisions.

On September 10, 1998, the RO received a letter from the appellant's representative. R. at 417-

22. This letter was characterized "as an informal claim [for] . . . [s]ervice [c]onnection for [d]iabetes

[m]ellitus and hypertension," and, in that letter, the appellant's representative acknowledged "that

no . . . [VA] action will be undertaken until such time as we obtain and submit evidence to constitute a

formal claim." R. at 417. The RO received two more letters from the appellant's representative shortly

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thereafter. R. at 419-22. In those letters, the appellant's representative asserted that the appellant's

diabetes and hypertension were caused by his service-connected leukemia. R. at 419-20. The RO initially

denied both of those claims. R. at 562-64, 573-75. However, in March 2002 the Board awarded the

appellant secondary service connection for his diabetes and hypertension. R. at 641-50. One month later,

the RO assigned each disability an effective date of September 10, 1998, the date the RO received the first

letter from the appellant's representative. R. at 653-58. The appellant appealed that decision to the Board.

R. at 660, 678.

In March 2004, the Board issued the decision here on appeal. R. at 1-16. The Board assigned

an effective date of September 10, 1998, for both of these disabilities, i.e., the date the RO received the

first letter from the appellant's representative. R. at 2. The Board further found that the appellant had not

filed a claim for either of these conditions prior to the date in question. Id. The Board also rejected several

other arguments advanced by the appellant's representative, including his assertion that a claim for service

connection for a disability necessarily includes a claim for any secondarily service-connected conditions.

R. at 11-16.

On September 13, 2006, the Court affirmed the Board's decision in a single-judge decision.

Thereafter, the appellant filed a timely motion for single-judge or panel reconsideration. We grant the

appellant's motion for panel consideration, withdraw the September 13, 2006, single-judge decision, and

issue this opinion in its stead.

II. ANALYSIS

The parties dispute whether the appellant is entitled to an earlier effective date for his secondarily

service-connected diabetes and hypertension. The appellant argues for an effective date of either October

31, 1990, the date that the VA received his original claim for service-connected leukemia (R. at 23-26),

or the date that his diabetes and hypertension otherwise became capable of diagnosis, whichever is later.

Brief (Br.) at 15-22. In the alternative, he argues for an effective date of either October 6, 1993, the date

he submitted his Form 21-2545 (R. at 207), or the date that his diabetes and hypertension otherwise

became capable of diagnosis, whichever is later. Br. at 5-15. The Secretary argues that the proper

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effective date for both of these disabilities is September 10, 1998, the date that the Board found the

appellant had submitted his informal claims for secondary service connection for diabetes and hypertension.

R. at 417.

A. The Effective Date Awarded for a Secondarily Service-Connected Disability

In general, the effective date awarded to a service-connected disability can be no earlier than the

date that VA received the claim for that particular disability. Section 5110(a) of title 38, U.S. Code,

provides, in relevant part:

[T]he 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); see also 38 C.F.R. § 3.400 (2007); but see 38 U.S.C. §§ 5110(b)(1) (authorizing

an effective date as of the date of discharge for claims filed within one year therefrom), (2) (authorizing an

effective date up to one year prior to the filing of a claim for increased compensation); 38 C.F.R.

§§ 3.400(b)(ii)(B)(2), (o). The Board's determination of the effective date for a service-connected

disability is a finding of fact that the Court reviews under the "clearly erroneous" standard set forth in 38

U.S.C. § 7261(a)(4). See Evans v. West, 12 Vet.App. 396, 401 (1999); Hanson v. Brown, 9 Vet.App.

29, 32 (1996). "A factual finding 'is "clearly erroneous" when although there is evidence to support it, the

reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been

committed.'" Hersey v. Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum

Co., 333 U.S. 364, 395 (1948)).

The appellant's first argument is that the effective date assigned for his secondarily service-

connected diabetes and hypertension should relate back to the date he filed his original claim for service-

connected leukemia. In support of his argument, the appellant offers a novel interpretation of two

regulations, 38 C.F.R. §§ 3.310, 3.400 (2007). The first of these authorizes an award of service

connection for disabilities that are "proximately due to or the result of a service-connected disease or injury"

and states that "[w]hen service connection is thus established for a secondary condition, the secondary

condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). The second

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provides, in relevant part, that "the effective date of an evaluation and award of . . .

compensation . . . based on an original claim . . . will be the date of receipt of the claim or the date

entitlement arose, whichever is the later." 38 C.F.R. § 3.400. The appellant argues that the effective date

assigned for his secondarily service-connected diabetes and hypertension must relate back to his "original

claim" for service-connected leukemia, 38 C.F.R. § 3.400, because the regulation awarding service

connection for secondary conditions states that a "secondary condition shall be considered a part of the

original condition." 38 C.F.R. § 3.310(a). The appellant's argument lacks merit.

We recently rejected an analogous interpretation of § 3.310(a) in Roper v. Nicholson,

20 Vet.App. 173 (2006). In that case, we considered whether the ratings assigned to secondarily service-

connected disabilities were subject to 38 C.F.R. § 4.25 (2007). This regulation establishes a complex grid

of combined rating tables for veterans who suffer from more than one disabling condition. 38 C.F.R.

§ 4.25; Roper, 20 Vet.App. at 174-175. The appellant in Roper argued that § 4.25 does not apply to a

veteran who is service connected for a primary and secondary condition. 20 Vet.App. at 177. Instead,

he argued that VA must simply add the disability ratings assigned for a primary and any secondary

conditions because § 3.310(a) clearly states that a "secondary condition shall be considered a part of the

original condition." Id. However, we held that § 3.310(a) "govern[s] only entitlement [to] secondary-

service-connection claims[,]. . . not their disability ratings[.]" Id. at 180. We further held that "the plain

meaning of [§ 3.310(a)] is and has always been to require VA to afford secondarily service-connected

conditions the same treatment (no more or less favorable treatment) as the underlying service-connected

conditions for all determinations." Id. at 181. We, therefore, concluded that exempting secondarily

service-connected conditions from § 4.25 would contravene the core purpose of § 3.310(a)–to afford

primary and secondary conditions the same treatment for all purposes, including when determining a proper

disability rating. Id.

Roper is controlling here. As we held in that case, § 3.310(a) "govern[s] only entitlement [to]

secondary-service-connection claims." 20 Vet.App. at 180 (emphasis added). The other elements of a

secondary-service-connection claim, including the effective date of an award, are not included within its

reach. Id. at 178 (citing Collaro v. West, 136 F.3d 1304,1308 (Fed. Cir. 1998)). Indeed, the Secretary

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did not cite the effective date statute when promulgating § 3.310(a), see 38 U.S.C. § 5110(a), and the

words "effective date" are not even mentioned in the regulation. Second, and as important, § 3.310(a)

requires direct and secondarily service-connected conditions to be afforded the same treatment for all

purposes. Roper, 20 Vet.App. at 181. This includes the assignment of an effective date. Accordingly,

we hold that, as with any other claim, the effective date assigned for a secondarily service-connected

condition is governed by § 3.400. We further hold that the effective date for the appellant's secondarily

service-connected conditions is based solely on the date VA received his diabetes and hypertension claims,

i.e., it does not relate back to the date the appellant filed his leukemia claim.

B. An Informal Claim Based on the Submission of a VA Medical Questionnaire

The appellant further argues that he is entitled to an earlier effective date because he filed an

informal claim for hypertension and diabetes when he submitted his VA Form 21-2545. We disagree. A

claim for VA benefits can be either formal or informal. Cf. 38 C.F.R. § 3.151(a) (2007) with 38 C.F.R.

§ 3.155(a) (2007). However, the claim must be in writing; it must request "a determination of entitlement

or evidenc[e] a belief in entitlement to a benefit," 38 C.F.R. § 3.1(p) (2007); and it must adequately

"identify the benefit sought." 38 C.F.R. § 3.155(a); see Rodriguez v. West, 189 F.3d 1351 (Fed. Cir.

1999) (holding that an informal claim application must be written); Crawford v. Brown, 5 Vet.App. 33,

35 (1993) (affirming Board's finding that a written request for authorization for outpatient treatment was

not an informal claim for disability benefits); Westberry v. West, 12 Vet.App. 510, 513 (1999) (phone call

from veteran's estranged widow informing the VA of the veteran's death was a request for information, not

an informal claim for death pension benefits). VA is also required to "sympathetically read"a veteran's filing

"in determining whether . . . an informal claim for [benefits has been made.]" Moody v. Principi, 360 F.3d

1306, 1310 (Fed. Cir. 2004). In so doing, VA "must determine all potential claims raised by the evidence,

applying all relevant laws and regulations, regardless of whether the claim is specifically labeled as a claim

for [a particular benefit.]"Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001); see also Szemraj

v. Principi, 357 F.3d 1370, 1376 (Fed. Cir. 2004); Moody, 360 F.3d at 1310. The Board's substantially

factual determination of whether an informal claim has been filed is reviewed under the "clearly erroneous"

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standard. See Moody, 360 F.3d at 1310; Beverly v. Nicholson, 19 Vet.App. 394, 405 (2005); see also

Hersey, supra.

The Board did not commit clear error in ruling that the appellant's VA Form 21-2545 was not an

informal claim. VA Form 21-2545 is designed to elicit information from a claimant for diagnostic purposes

only. VA had no reason to assume–and the appellant had no reason to believe– that an application for

benefits was being filed each time he answered a question on the form by providing current medical

information. See, e.g., Brannon v. West, 12 Vet. App. 32, 34 (1998) ("[T]he Board is not required to

anticipate a claim for a particular benefit where no intention to raise it was expressed." (citing Talbert v.

Brown, 7 Vet.App. 352, 356-57 (1995))). To the contrary, the appellant was simply providing the

information needed to conduct a thorough, contemporaneous medical examination, so that his service-

connection claim for leukemia could be fully and fairly adjudicated. See Green v. Derwinski, 1 Vet.App.

121, 124 (1991) (citing Littke v. Derwinski, 1 Vet.App. 90, 92 (1990)). The appellant's

contemporaneous statements and those of his representative–none of which mentioned a pending claim for

any secondary conditions–confirm this conclusion. R. at 337 (characterizing the "[i]ssue" before the Board

on appeal as "[s]ervice connection for leukemia"); id. at 367 (appellant's statement that "[he] d[id] not have

any further comments or information to submit at this time in reference to the issue on appeal"); see Talbert,

7 Vet.App. at 356 ("The 'liberal reading' requirement does not require the Board to conduct an exercise

in prognostication, but only requires that it consider all issues reasonably raised by the appellant's

substantive appeal."). Indeed, no mention was ever made of a claim for either of the appellant's secondary

conditions until September 1998, when the appellant's representative submitted "an informal claim [for] .

. . [s]ervice [c]onnection for [d]iabetes [m]ellitus and hypertension" to the RO. R. at 417.

Moreover, requiring the Secretary to open an informal claim whenever a veteran provides medical

information in a VA questionnaire defies common sense. VA must have some means of distinguishing

between legitimate claims and ordinary medical paperwork. The basic procedural requirements imposed

by § 3.155 serve this purpose. The appellant asks that we erode those requirements by holding that his

VA Form 21-2545 was an informal claim. However, the appellant listed five different symptoms,

conditions, and complaints in this form, only two of which, he argues, should be construed as informal

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claims. The appellant does not offer any reasoned basis for making this distinction. Moreover, we can find

none after reviewing his VA Form 21-2545 and the information he provided therein. Cintron v. West,

13 Vet.App. 251, 259 (1999) (the VA "ha[s] no obligation to read the mind[] of the veteran"). This only

confirms the propriety of our conclusion. First, that requiring the Secretary to open an informal claim in

these circumstances is impracticable. Second, that forcing the Secretary to do so would eviscerate the

intent requirement and inundate VA with a flood of new claims, thereby delaying the adjudication of claims

filed by veterans who are fully committed to their final resolution.

We do not hold that the submission of a document in connection with a VA examination could

never constitute an informal claim. See 38 C.F.R. § 3.157(a) (opening an informal claim for increased

disability benefits whenever a VA medical report of a service-connected disability is received); see also

Norris v. West, 12 Vet.App. 413 (1999). Indeed, a veteran could file an informal claim by sufficiently

manifesting an intent to apply for benefits for a particular disease or injury in a VA form or questionnaire.

However, those facts are clearly not presented here. Accordingly, we hold that the Board did not clearly

err in finding that the appellant did not file an informal claim prior to September 10, 1998. We further hold

that Board did not clearly err in assigning the latter effective date for the appellant's secondarily service-

connected diabetes and hypertension.

III. CONCLUSION

Accordingly, the March 8, 2004, Board decision on appeal is AFFIRMED.

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