BVA9502563 DOCKET NO. 93-07 764 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an effective date earlier than November 13, 1989, for the award of service connection for residuals of frostbite of the toes and residuals of a right orchiectomy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.W. Engle, Counsel INTRODUCTION The appellant served on active duty from June 1979 to September 5, 1985. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision dated in April 1992 by the Reno, Nevada, Department of Veterans Affairs Regional Office (VARO). CONTENTIONS OF APPELLANT ON APPEAL The appellant contends, in essence, that an effective date earlier than November 13, 1989, for the award of service connection for residuals of frostbite of the toes and residuals of a right orchiectomy is warranted. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the preponderance of the evidence unequivocally establishes that the effective date for the award of service connection for residuals of frostbite of the toes is September 6, 1985, and the effective date for the award of service connection for residuals of a right orchiectomy is November 1, 1989. FINDINGS OF FACT 1. A claim for service connection for frostbite and trench foot was received by VA on March 18, 1986, wherein the veteran requested that the VA should schedule the medical examination by the Army in Germany as he planned to return to Germany in a couple of months. 2. A VA letter to the appellant dated on April 11, 1986, notified the appellant that he had been scheduled for a VA medical examination on April 25, 1986, in Seattle, Washington, in conjunction with his claims for service connection; on April 25, 1986, he was classified as "failure to report" for physical examination. 3. On April 18, 1986 VA had received a letter from the appellant's mother, in connection with the April 11, 1986, notification of VA medical examination scheduled for April 25, 1986, who indicated that the appellant had moved back to Germany and provided the German address where he was receiving his mail. 4. A rating decision dated in May 1986 denied the veteran entitlement to service connection based upon frostbite and trench foot having not been shown in service. Notice of that denial was sent to the address in Germany, and there was no appeal initiated within one year after that notification. 5. A report of contact to the VA dated on July 14, 1986, noted that the appellant was now residing in the United States, that his "new" address was to be noted, and that a compensation examination was to be scheduled. 6. In September 1986 the appellant submitted a request for copies of his service medical records and was informed by the VA in November 1986 that his "original paper work" could not be located and in February 1987 that his VA claims folder could not be found, but that when it is located, he would be furnished copies of his service medical records. 7. On November 1, 1989, the appellant submitted a follow-up claim for service connection for frostbite of the feet wherein he provided specifics of medical treatment in service. 8. A rating decision dated in November 1990 implemented the October 1990 Hearing Officer's decision which awarded service connection for residuals of frostbite of the toes. A 10 percent disability evaluation was assigned effective from November 13, 1989. 9. The July 14, 1986, report of contact is considered to be an informal claim for service connection for residuals of frostbite of the toes. 10. In April 1992, a rating decision implemented the April 1992 Board decision which granted service connection for residuals of a right orchiectomy and assigned an effective date from November 13, 1989. 11. The record reveals that the appellant submitted his original claim specific for service connection for residuals of a right orchiectomy on November 1, 1989. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 6, 1985, for an award of service connection for residuals of frostbite of the toes are met. 38 U.S.C.A. §§ 5107, 5110 (West 1991); 38 C.F.R. §§ 3.155, 3.400 (1993). 2. The criteria for an effective date of November 1, 1989, for an award of service connection for residuals of a right orchiectomy are met. 38 U.S.C.A. § 5110 (West 1991); 38 C.F.R. § 3.400 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claims are well grounded. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78 (1990). The pertinent evidence may be summarized as follows: On March 18, 1986, a VA Form 21-526, Veteran's Application for Compensation or Pension was received by VA. The appellant claimed entitlement to service connection for frostbite and trench foot, a right ankle disorder and for a tumor (construed by the RO as multiple nevi without neurofibroma) and indicated that the VA should schedule the medical examination by the Army in Germany, as he planned to return to Germany in a couple of months. On April 11, 1986 VA notified the appellant at the Aberdeen, Washington, address provided in his claim for compensation, that he had been scheduled for a VA examination on April 25, 1986, in Seattle, Washington in conjunction with his claims for service connection. On April 18, 1986, VA received a letter from the appellant's mother, in conjunction with the April 11, 1986, notification of VA medical examination scheduled for April 25, 1986, who indicated that the appellant had moved back to Germany and noted that he was receiving his mail at the following address: David Roberts, c/o Gisela Firsching, Amschlossgraben #22, 8608 Memmelsdorf, West Germany. In May 1986 VARO denied the entitlement to service connection for all of the appellant's claims including frostbite and trench foot. Notice of that denial was sent to the address in Germany as follows: David Roberts, c/o Gisela Firsohing, Aschlossgraben #22, 8608 Memmelsdorf, West Germany, and there was no appeal initiated within one year of that notification. On July 14, 1986, the appellant contacted VA and indicated that he had returned to the United States. He also provided VA with his address in Aberdeen, Washington. The VA Form 119, Report of Contact, noted that the appellant was now residing in the United States, that his new address was to be noted and that he was to be scheduled for a compensation examination. Unfortunately, it does not appear that he was scheduled for a VA compensation examination after that report. In September 1986 the appellant submitted a request for a copy of his service medical records, and was informed by the VA in November 1986 and February 1987 that his VA claims folder could not be found, but that when it is located, he would be furnished copies of his service medical records. On November 1, 1989, the appellant resubmitted a claim for service connection for frostbite of the feet and also specified the removal of one testicle. On November 13, 1989, a letter was received from the appellant's mother which the RO construed as an informal claim for service connection for frostbite. In November 1990, a rating decision implemented the October 1990 Hearing Officer's decision which awarded service connection for residuals of frostbite of the toes. A 10 percent disability evaluation was assigned effective from November 13, 1989. In April 1992, a rating decision implemented the April 1992 decision by the Board which granted service connection for residuals of a right orchiectomy. A 10 percent disability evaluation was assigned effective from November 13, 1989. In November 1992 a hearing was held before a hearing officer. The appellant testified that the address on the notification of the May 1986 rating decision was incorrect and that he had been living in Aberdeen, Washington, all along at that time. He reported that although he did receive correspondence from VA at the Aberdeen address, he did not receive any information regarding an appeal. He further noted that he had been notified in 1986 that his claims had been denied. However, he subsequently indicated that he had no contact whatsoever with VA from 1986 to 1989 when he submitted the letter from his mother in support of his claims. He noted that he did not contact VA regarding his claims because he did not think there was a claim pending since he believed that VA did not have his records. Analysis The effective date for the appellant's claim is governed by 38 U.S.C.A. § 5110(a) (West 1991) which provides, in pertinent part, that unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application therefor. 38 U.S.C.A. § 5110(a) (West 1991). Subsection (b)(1) further provides that: The effective dated of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. Right Orchiectomy Review of the relevant evidence of record reveals that the appellant's claim for service connection for the right orchiectomy, characterized as removal of a testicle, was not filed until November 1, 1989. Accordingly, the earliest possible effective date for the award of service connection for residuals of a right orchiectomy is November 1, 1989. 38 U.S.C.A. 5110(a) (West 1991). The Board notes that in response to the assignment of the November 13, 1989, effective date for residuals of a right orchiectomy, of which he was notified in May 1992, the appellant submitted a timely notice of disagreement in June 1992. While the assigned effective date was November 13, 1989, the date of receipt by VA of the letter from the appellant's mother, close review of the claims folder reveals that a VA Form 21-4138, Statement in Support of Claim, clearly identifies the appellant's claims for service connection for frostbite of the feet and removal of a testicle were received by VA on November 1, 1989. Therefore, the appropriate effective date for the award of service connection for residuals of a right orchiectomy is November 1, 1989, the date the appellant's original claim was received by VA. 38 U.S.C.A. § 5110(a) (West 1991). However, it is further noted that while entitlement to an effective date of November 1, 1989 is warranted, this decision will not result in any earlier payment of benefits as 38 U.S.C.A. § 5111 provides, in pertinent part: Notwithstanding section 5110 of this title or any other provision of law and except as provided in subsection (c) of this section, payment of monetary benefits based on an award or an increased award of compensation, dependency and indemnity compensation, or pension may not be made to an individual for any period before the first day of the calendar month following the month in which the award or increased award became effective as provided under 5110 of this title or such other provision of law. Residuals of Frostbite of the Toes With regard to the appellant's claim to an earlier effective date for service connection for frostbite of the toes, the appellant has argued that the effective date should be evaluated in light of his original claim filed in March 1986 and, therefore, pursuant to 38 U.S.C.A. § 5110(b)(1) (West 1991) it should be effective the day after discharge from service, September 6, 1985. After review of the pertinent evidence of record, the undersigned concludes that the report of contact by the appellant on July 14, 1986, may be construed as an informal claim pursuant to 38 C.F.R. § 3.155 (1993). At that time, the appellant was led to believe that he was being scheduled for a VA examination. Shortly thereafter, he was told in 1986 and again in 1987 that his claims file had been lost or misplaced, that the VA was searching for his claims file, and that he could expect to hear from the VA when his claims file was located. The appellant next inquired of the VA on November 1, 1989, when he submitted a VA Form 21-4138, Statement in Support of Claim, which indicated that he was seeking service connection for frostbite and removal of a testicle. He further specified names, dates and locations in connection with treatment for his feet and testicle while serving on active duty, and requested that the morning reports be secured from 1979 to 1983 if his service medical records were found to be silent on all this. There is no indication that any efforts were made to obtain the records identified by the appellant. Given the above circumstances, and the fact that the appellant could plausibly have believed that he had a claim pending in relation to the July 14, 1986, contact with VA and that it is not unreasonable to conclude that he was, in fact, waiting for response from VA concerning the whereabouts of his claims file and his requested copies of the service medical records, the undersigned concludes that the July 14, 1986, contact is sufficient to meet the criteria for an informal claim to compensation benefits. 38 C.F.R. § 3.155 (1993). Accordingly, pursuant to 38 U.S.C.A. § 5110, Subsection (b)(1) (West 1991), when viewed in light of the fact that the July 14, 1986, claim essentially remained open, the effective date of the award of service connection for residuals of frostbite of the toes is found to be the day following the date of discharge or release, specifically September 6, 1985, since the July 14, 1986, claim falls within the one year period following the appellant's discharge from active duty. ORDER An effective date of November 1, 1989, for an award of service connection for residuals of a right orchiectomy is granted. An effective date of September 6, 1985, for an award of service connection for residuals of frostbite of the toes is granted. C.P. RUSSELL Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.