Citation Nr: 1321156 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 08-01 053 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUE Entitlement to an effective date prior to January 7, 2002 for the grant of service connection for bilateral foot neuropathy, residuals of a cold injury. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Bredehorst INTRODUCTION The Veteran served on active duty from July 1962 to July 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision of the Waco RO that granted service connection for bilateral foot neuropathy and assigned a 10 percent rating for each foot, effective January 7, 2002. The Veteran also perfect an appeal of the initial ratings assigned for the bilateral foot disabilities; however, he withdrew his appeal in April 2010. In March 2013, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of this hearing is located in the Veteran's electronic ("Virtual VA") file. FINDINGS OF FACT 1. The Veteran's original claim for service connection for a bilateral foot disorder, which was claimed as trench foot, was received in March 1969 and then denied in an unappealed May 1969 rating decision; the decision is final. 2. The RO received petitions to reopen the claim of service connection in March 1993 and February 1995, and the Veteran did not appeal the subsequent rating decisions in September 1993 and August 1995; the decisions are final. 3. In April 1997, the RO received a petition to reopen the claim of service connection; a September 1997 rating decision denied the claim and the Veteran perfected his appeal of this decision. 4. In an April 2000 decision, the Board reopened the claim for service connection for a bilateral foot disorder, claimed as trench foot, but then denied the claim on a de novo basis; this decision is final. 5. On July 28, 2000, the RO received the Veteran's petition to reopen the claim for service connection for a bilateral foot disorder. 6. There was no communication from the Veteran or his representative between the Board's April 2000 denial and July 28, 2000 that can be construed as a formal or informal petition to reopen the claim. 7. An October 2000 rating decision reopened the claim but then denied service connection on a de novo review of the record. 8. In June 2001, the RO received additional evidence from the Veteran related to his bilateral foot disorder in service. 9. The evidence received in June 2001 was received within a year of the October 2000 rating decision and constituted "new and material" evidence; therefore, the rating decision did not become final. 10. The October 2000 rating decision was still pending and not final when the RO received, on 7, January 2002, another petition to reopen the claim for service connection for a bilateral foot disorder. 11. Following an appeal of the July 2002 rating decision, a March 2007 rating decision granted service connection for bilateral foot neuropathy. CONCLUSION OF LAW The criteria for the assignment of an effective date of July 28, 2000, but no earlier, for the grant of service connection for bilateral foot neuropathy have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist As provided for by the VCAA, the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). However, the United States Court of Appeals of the Federal Circuit has held that, with regard to claims for an earlier effective date, once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Regarding the duty to assist, all relevant records have been obtained and the Veteran was afforded Travel Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the officer presiding over a hearing, in this case a VLJ, fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the March 2013 hearing, the VLJ noted the issue on appeal, discussed the prior denials of the claim, and explained the concept of finality of unappealed decisions. The VLJ also elicited testimony regarding evidence that may support the claim, such as filing any claims between October 2000 and January 2002. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has either one identified any prejudice in the conduct of the Board hearing. Based on the above, the Board finds the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating his claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As such, the Board may proceed in adjudicating this appeal. Legal Criteria and Analysis The Veteran contends that earlier effective dates are assignable for the award of service connection for bilateral foot neuropathy. He initially asserted in his August 2007 notice of disagreement (NOD) that service connection should be granted dating back to 1993 when he filed an earlier claim. During his hearing in March 2013, he also asserted that his disability started in service in 1963 rather than later when service connection was granted, suggesting that the effective date should be the day following his separation from service. See page 11 of the hearing transcript. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The second and third requirements may be satisfied with evidence of a chronic disease shown during service or a continuity of symptomatology. See 38 C.F.R. § 3.303(b); see Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); see also Walter v. Shinseki, 708 F.3d 1331 (Fed. Cir. 20130. Generally, the effective date of an award based on an original claim or 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. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). When service connection is awarded on a direct basis, the effective date may not be earlier than the day following separation from active service or date entitlement arose if the claim is received within 1 year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by VA 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)); 38 C.F.R. §3.151. A "claim" is 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). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). The mere receipt of medical records cannot be construed as an informal claim of service connection as "[t]he mere presence of the medical evidence [in the record] does not establish an intent on the part of [a] veteran" to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). In making all determinations, the Board must consider all of the evidence, including that received prior to previous final decisions and the lay evidence of record. Hazan v. Gober, 10 Vet. App. 511 (1997); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Previous RO decisions that are final and binding will be accepted as correct in the absence of clear and unmistakable error (CUE); however, if the evidence establishes CUE in a prior final decision, such decision will be reversed or amended. A finding of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a) (2012). The Federal Circuit, in determining the correct interpretation of the "new and material" evidence language found in § 3.156(b), found that definition for the phrase "new and material" contained in § 3.156(a) applies to § 3.156(b). Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). The Federal Circuit stated that both subsections fall under the general heading "[n]ew and material evidence." Id. In light of this, it was found logical that the terms "new" and "material" have the same meaning throughout the entire section. Id. Under 38 C.F.R. § 3.156(b), "new and material evidence" received prior to the expiration of the appeal period, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156 (b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242 (2010). Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained it was particularly reluctant to presume the VA considered, but rejected, the possibility a submission contained new and material evidence relating to an earlier claim. See Bond at 1368. The Federal Circuit noted the Board's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Id. The Veteran separated from service in June 1964. He initially submitted a claim for service connection for a bilateral foot disorder, claimed as trench foot, which was received by the RO in March 1969. The claim was then denied in a May 1969 rating decision. This unappealed rating decision is final. See 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). In March 1993, the Veteran attempted to reopen the claim of service connection; however, this claim was denied in September 1993 on the basis that new and material evidence was not submitted; the RO noted that the service treatment records submitted were duplicates of records already considered. The Veteran initiated an appeal of this denial with the filing of an NOD, but he did not perfect the appeal within the prescribed time period following the issuance of the October 1994 statement of the case (SOC). 38 C.F.R. § 20.301 (2012). Thus, this decision also became final. 38 C.F.R. § 20.1103. A second attempt to reopen the claim of service connection was received in February 1995 and was denied in an August 1995 letter; no appeal followed this denial; therefore, it is final. Id. In April 1997, the RO received another petition to reopen the claim of service connection. The Veteran did, however, perfect an appeal of the September 1997 rating decision that declined reopening the claim. In April 2000, the Board reopened the claim on the basis that the record now contained evidence of a current disability, but then denied service connection based on a de novo review of the record finding that there was no nexus evidence that specifically linked the current disability to the Veteran's military service. This decision is final. § 20.1100 (2012). In July 2000, the RO received another petition to reopen the claim of service connection. In October 2000, the RO reopened the claim in light of a positive nexus opinion, but the claim was denied on the basis that while the Veteran submitted a nexus opinion that was not vague as to the etiology of the disability, there was still an absence of evidence of foot disorder from 1963 to 1993 and the absence of a diagnosis on the April 1969 VA examination, which rendered the positive opinion speculative. Finally, the Veteran attempted to reopen the claim of service connection in January 2002. Although the claim was initially denied in July 2002, the Veteran appealed the denial. In December 2004, the Board reopened the claim of service connection and remanded the matter for additional development. After a second remand in August 2006, the RO granted service connection for bilateral foot neuropathy due to cold injury and assigned a 10 percent rating for each foot, effective January 7, 2002, which was the date the most recent claim was received. Based on the evidence of record and inconsideration of pertinent laws and regulations, an earlier effective date of July 28, 2000 is assigned for the grant of service connection for the Veteran's bilateral foot neuropathy. Although there is no submission or communication from the Veteran that may be construed as a notice of disagreement with the October 2000 rating action, VA was in receipt of new and material evidence within one year of a rating decision addressing the claimed disability and, therefore, it must relate back to this earlier claim. 38 C.F.R. § 3.156(b) (2012); see also Buie at 252-52; see also Bond at 1367. The evidence received in July 2001 was a buddy statement from N. R., who served with the Veteran in Germany while the Veteran was having foot problems, which lent credence to the Veteran's assertion that he had a bilateral foot disorder in service despite the absence of records showing treatment in service. Since this evidence was not a duplicate of a statement already submitted and previously considered, and the claim was not readjudicated following receipt of this statement, the October 2000 rating decision was not final and was still pending when the January 2002 claim was received. See Charles v. Shinseki, 587 F.3d 1318, 1323 (Fed. Cir. 2009); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). Although the Veteran desires and effective date back to 1993 and possibly dating back to service, there is no legal basis for an effective date any earlier than July 28, 2000. While the Veteran's bilateral foot disability may have had its onset during service, it is not equivalent to finding a claim for that disability. The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2012). A claim for service connection must be received within one year of discharge from service in order to establish an effective date going back to the day following separation from service. 38 C.F.R. § 3.400(b)(2). Here, the initial claim was not received until March 1969 and, as noted, the denial of this claim became final and binding since the Veteran did not appeal the adverse decision. Similarly, the subsequent rating decisions in September 1993 and August 1995, and the Board's April 2000 decisions are final. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a) (2012). According to 38 C.F.R. § 3.105(a), in order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. CUE must be pled with specificity. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim, as a collateral attack. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Since the Veteran did not file a valid CUE claim regarding any prior final decision, therefore, the prior final decisions remain in effect. The Federal Circuit Court has determined that, even when a Veteran has a claim to reopen, "he cannot obtain an effective date earlier than the reopened claim's application date." Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date"). Thus, because the Veteran did not appeal the Board's April 2000 decision and he did not file another claim until July 28, 2000, at the earliest, July 28, 2000 is the earliest possible effective date that can be assigned for the grant of service connection. See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007) and McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date). Therefore, to summarize, an effective date of July 28, 2000 is assigned as the effective date for the grant of service connection for bilateral foot neuropathy based on evidence that the subsequent October 2010 rating decision was not final, a preponderance of the evidence is against an effective date earlier than July 28, 2000. ORDER An earlier effective date of July 28, 2000 for the grant of service connection for bilateral foot neuropathy is granted. ____________________________________________ JOHN Z. JONES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs