Citation Nr: 0007291 Decision Date: 03/17/00 Archive Date: 03/23/00 DOCKET NO. 98-06 579A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to a higher initial evaluation for systemic lupus erythematosus. 2. Entitlement to an effective date prior to December 12, 1994, for a grant of service connection for systemic lupus erythematosus. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD L. J. Nottle, Counsel INTRODUCTION The veteran served on active duty from November 1963 to April 1971. His claim comes before the Board of Veterans' Appeals (Board) on appeal from June 1997 and April 1998 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa (RO), in which the RO granted the veteran service connection and assigned him a 30 percent evaluation for systemic lupus erythematosus, effective from December 12, 1994, and then denied him an earlier effective date for this grant of service connection. The Board notes that the veteran has initiated, but not perfected, an appeal of the RO's November 1998 denial of entitlement to service connection for a heart condition secondary to service-connected lupus and entitlement to service connection for hemorrhoids. In a letter received in January 1999, he expressed disagreement with the November 1998 denial. In January 1999, the RO issued a statement of the case in response. To date, however, the veteran has not filed a substantive appeal referring to these issues; therefore, these issues are not now before the Board for appellate review. FINDING OF FACT The RO received the veteran's claim for service connection for lupus on December 12, 1994. CONCLUSION OF LAW The veteran does not satisfy the requirements for an effective date prior to December 12, 1994, for a grant of service connection for systemic lupus erythematosus. 38 U.S.C.A. §§ 5101, 5110 (West 1991); 38 C.F.R. §§ 3.151, 3.160, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran seeks an earlier effective date for a grant of service connection for lupus. He claims that he tried to apply for service connection in 1974 or 1975, but individuals advised him to file a pension claim instead. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 1991); 38 C.F.R. § 3.151(a) (1999). Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (1999). However, the effective date of an award of disability compensation shall be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. 38 C.F.R. § 3.400(b)(2)(i). "Claim" is defined broadly to include 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) (1999); Brannon v. West, 12 Vet.App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet.App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a) (1999); Servello, 3 Vet.App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet.App. 129, 134 (1992). In this case, there is no evidence of record that the veteran submitted an original claim for service connection for lupus, informal or otherwise, prior to December 12, 1994. In December 1976, the RO received a VA Form 21-526 (Veteran's Application for Compensation or Pension) from the veteran, which referred to the veteran's back. Thereafter, in July 1983, the veteran submitted an informal claim for ulcers. This document did not include a reference to lupus. On December 12, 1994, the RO received another VA Form 21-526 (Veteran's Application for Compensation or Pension) from the veteran, which specifically noted lupus as the disease for which the claim was being made. The RO construed this document as an original claim of entitlement to service connection for lupus, and accepted its receipt date as the date of the claim for purposes of determining the effective date of the award of service connection. In written statements received during the pendency of this appeal, and during a hearing held before the undersigned Board Member in January 2000, the veteran asserted that the effective date of the grant of service connection should be earlier than December 12, 1994. He maintains that his claim is warranted on two bases: (1) The initial manifestations of his lupus first arose in service, when he was shown to have a positive VRDL; and (2) He tried to file a claim for service connection for residuals of Agent Orange exposure in 1974 or 1975, but individuals told him that, because he had not served in Vietnam, he should file a claim for pension benefits instead. With regard to the first contention, the Board notes that, under 38 C.F.R. § 3.400(b)(2)(i), it may only assign an effective date of the day following separation from active service in a case in which the RO received the claimant's claim within one year after separation from service. In this case, the veteran does not claim, nor does the evidence show, that the RO received a claim for service connection for lupus within a year of the veteran's April 1971 separation from service. With regard to the second contention, the Board acknowledges that the VA Form 21-526 (Veteran's Application for Compensation or Pension) received by the RO in December 1976 could possibly be construed as a claim for both pension and service connection. See 38 C.F.R. § 3.151(a); Stewart v. Brown, 10 Vet.App. 15, 18 (1997) (holding that a claim for pension may be considered a claim for compensation in some circumstances and that the VA Secretary may exercise his discretion regarding the contents of the veteran's application). However, the veteran's application cannot be construed as a claim for service connection for lupus because it contains no reference to lupus. The only medical condition mentioned in the application is a back disorder. Based on the foregoing, the Board finds that the evidence does not satisfy the requirements for an effective date prior to December 12, 1994, for a grant of entitlement to service connection for systemic lupus erythematosus. Therefore, the veteran's claim must be denied. ORDER Entitlement to an effective date prior to December 12, 1994, for a grant of service connection for systemic lupus erythematosus is denied. REMAND In a June 1997 rating decision, the RO granted the veteran service connection and assigned him a 30 percent evaluation for systemic lupus erythematosus manifested by synovitis with arthralgias and stiffness involving the shoulders, elbows, hands, fingers and knees, effective from December 12, 1994. The veteran initiated an appeal of this decision in July 1997. Subsequently, in a rating decision dated September 1997, the RO recharacterized the disability as systemic lupus erythematosus with synovitis and arthralgias of multiple joints and increased the evaluation assigned this disability to 60 percent, effective from June 2, 1997. In a rating decision dated April 1998, the RO granted separate 10 percent evaluations for each joint affected by lupus, effective from September 22, 1997, which resulted in a combined disability evaluation of 90 percent. The veteran claims that his lupus should be evaluated at 100 percent because it renders him totally disabled. The veteran is actually disputing the initial evaluation assigned his lupus. This fact is significant because, recently, the United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999) issued a decision distinguishing a claim for an increased evaluation from a claim for a higher initial evaluation, and allowing for the assignment of staged evaluations when the latter type of claim is involved. See Fenderson v. West, 12 Vet.App. 119, 126-27 (1999). As a result of this decision, there are three rating periods at issue in this case: prior to June 2, 1997, when a 30 percent evaluation was assigned; from June 2, 1997 to September 21, 1997, when a 60 percent evaluation was assigned; and from September 22, 1997, when separate 10 percent evaluations for each joint affected by lupus were assigned. As the record stands, the Board is unable to determine whether a higher initial evaluation is warranted for all of the rating periods at issue. Despite the fact that the veteran has received regular medical treatment since his discharge from service and there is an extensive amount of medical evidence of record, the file contains no treatment records dated after 1996 or VA examination reports dated after April 1998. Inasmuch as the veteran's representative testified at the January 2000 hearing that the veteran's lupus has deteriorated since the last VA examination conducted in April 1998, the Board believes that the veteran should be afforded another VA examination for the purpose of determining the current level of severity of his lupus. In addition, during the April 1998 examination and January 2000 hearing, the veteran mentioned that his lupus and other medical conditions necessitated the use of multiple prescription medications. The Board assumes these conditions, which are claimed to be totally disabling, also necessitate visits with physicians. To be certain, while this claim is in Remand status, the RO should contact the veteran and inquire as to whether there are any pertinent medical records outstanding. If there are pertinent medical records missing from the claims file, the RO should obtain them. To ensure that the Board's decision is based on a complete record, this case is REMANDED to the RO for the following development: 1. The RO should contact the veteran and request that he provide the names and addresses of all health care providers who have treated him since 1996 for lupus. After securing any necessary authorizations, the RO should obtain and associate with the claims file any such treatment records not already contained in the claims file. 2. After completing the above, the RO should afford the veteran a VA examination to ascertain the severity of his lupus. The RO should send notification of the scheduled examination to the veteran's latest address of record, and warn him that failure to report to the examination might result in an unfavorable decision. The RO should provide the examiner with a copy of this Remand and the veteran's claims file for review in conjunction with the examination. Following a comprehensive evaluation, during which all indicated studies deemed necessary are conducted, the examiner should indicate, utilizing the nomenclature set forth in the rating schedule, the level of impairment caused by the veteran's service-connected lupus. The examiner should discuss each joint affected by the lupus, and express the rationale on which he bases his opinion. 3. Following the above development, the RO should review the examination report to determine whether it complies with the previous instruction. If the report is deficient in any regard, the RO should take immediate corrective action. 4. Following the receipt of any additional evidence, the RO should readjudicate the veteran's claim. If the benefit sought is not granted, the RO should furnish the veteran and his representative a supplemental statement of the case and afford them an opportunity to respond thereto before the claims file is returned to the Board for further appellate review. The purpose of this REMAND is to obtain additional medical information, and the Board intimates no opinion, favorable or unfavorable, as to the merits of this claim. The veteran is free to submit any additional evidence he wishes to have considered in connection with his current appeal; however, he is not required to act unless otherwise notified. WARREN W. RICE, JR. Member, Board of Veterans' Appeals