Citation Nr: 1321465 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-20 541 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date prior to August 1, 2006, for the grant of service connection for residuals of a neurilemmoma of the left foot. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL Veteran and M. W. ATTORNEY FOR THE BOARD J. Meawad, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from June 1967 to June 1969. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2007 of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the Veteran's file. In December 2011, the Board granted an effective date of August 1, 2006, and the Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). In February 2013, the Court granted a Joint Motion for Remand and remanded the matter to the Board for action consistent with the Court's order. FINDINGS OF FACT 1. In an October 1984 decision, the Board denied service connection for a left foot disability with postoperative removal of a benign growth from the sole of the left foot. 2. An application to reopen the claim of service connection for a left foot disability was received by the RO on March 15, 1994. 3. Based on the receipt of new and material evidence, the RO in an October 2007 rating decision reopened the claim and granted service connection for residuals of a neurilemmoma of the left foot, effective August 28, 2006. 4. After receipt of the March 1994 application to reopen the claim for service connection, the earliest evidence showing entitlement to service connection for residuals of a neurilemmoma of the left foot consisted of a medical report from a private podiatrist, dated July 17, 1998. CONCLUSION OF LAW An effective date of July 17, 1998, for the grant of service connection for residuals of a neurilemmoma of the left foot, the date entitlement arose after receipt of an application to reopen the claim with new and material evidence, is warranted. 38 U.S.C.A. §§ 5110(a), 7104, 7105 (West 2002); 38 C.F.R. § 3.400(q), (r) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the Veteran with content complying VCAA notice on the underlying claim of service connection for the left foot disability by letters, dated in July 2004, January 2005, and September 2006. Where, as here, service connection has been granted, the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement to the RO's effective date for the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. 38 C.F.R. § 3.159(b)(3). Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an earlier effective date for the grant of service connection for neurilemmoma, postoperative removal of benign tumor of the sole of the left foot, following the initial grant of service connection. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The Veteran was given an opportunity to testify at a hearing in July 2011 before the undersigned Veterans Law Judge. The RO obtained the service treatment records and VA records, and the Veteran submitted private medical records. However, given the nature of the earlier effective date claim, which is largely based on historical records, VA has not conducted a contemporaneous medical inquiry in an effort to substantiate the claim on appeal. 38 U.S.C.A. § 5103A(d). The Board notes that the evidence reviewed includes statements submitted by the Veteran historically, as well as medical evidence relevant to the left foot disability. As there is no indication of the existence of additional evidence to substantiate the claim decided, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that the effective date of the grant of service connection for residuals of a neurilemmoma of the left foot should be prior to August 1, 2006. He maintains that he has had a problem with his heel ever since his in-service surgery. At his hearing, the Veteran testified that the RO was aware through multiple adjudications in 1969, 1976, 1998, and 2004 that he had a recurrent left foot disability since 1969, yet the RO in the October 2007 rating decision determined that the effective date should be in 2006. The Veteran felt that in light of recent correspondence, wherein the Veteran sought copies of records from his claims file and the RO responded that it was unable to identify a VA record from the information he submitted, there was clear and unmistakable error in the assignment of the effective date because the RO must not have had all the pertinent evidence to consider at that time. He noted that he filed his initial claim within a year of his separation from service in 1969, and that he filed additional claims thereafter, which were denied and he appealed. The effective date for an award of service connection and disability compensation, based on an original claim, is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400 (b)(2). The Veteran was separated from active duty in June 1969. The Veteran filed his initial compensation claim for a left foot disability in June 1969, in the month of his discharge from service. The original claim for service connection was denied by the RO in a rating decision dated in July 1969, on the basis that although the medical evidence showed that a neurilemmoma was surgically removed from the left foot during service, the surgery was remedial in nature as the tumor pre-existed service and there was no aggravation shown in service. The Veteran was notified of the decision and of his appellate rights in a letter sent to him, but he did not initiate an appeal of the decision. The Veteran subsequently sought to reopen his claim of service connection for a left foot disorder, but the RO in a September 1976 decision denied the application on the basis that the Veteran did not submit new and material evidence to reopen the claim. The Veteran appealed that rating decision to the Board. In an October 1984 decision, the Board denied service connection for a left foot disorder, described as postoperative status removal, benign growth, sole of the left foot, on the basis that evidence received since the prior final decision did not present a new factual basis sufficient to support an allowance. Previous determinations that are final and binding will be accepted as correct in the absence of clear and unmistakable error. 38 C.F.R. § 3.105(a). In connection with the appeal, the Veteran has not made specific allegations of clear and unmistakable error in a prior final decision. This matter was discussed at his hearing in July 2011, but the Veteran has only alleged error by the RO in its October 2007 rating decision in regard to the RO's assignment of the effective date of the award of service connection. Inasmuch as the Board's decision in October 1984 is final, the effective date of the grant of service connection for residuals of a neurilemmoma of the left foot must be determined in relation to the subsequent claim to reopen. A final decision can be reopened upon the submission of new and material evidence. 38 U.S.C.A. §§ 5108, 7105; 38 C.F.R. § 3.156. The law provides that when a claim is reopened with new and material evidence after a final disallowance, the effective date of service connection will be the date of VA receipt of the claim to reopen, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(q), (r). After the Board's denial of the claim in October 1984, the next application to reopen the claim of service connection for residuals of a neurilemmoma of the left foot was received by the RO on March 15, 1994. The RO in an April 1998 rating decision denied the application to reopen the claim of service connection for a left foot disability on the basis that new and material evidence had not been presented. The Veteran perfected an appeal to the Board by filing a substantive appeal in September 1998. However, after many years wherein the Veteran pursued other claims, and before the Board could consider the appeal regarding the left foot disability, the RO in an October 2007 rating decision reopened the claim based on receipt of new and material evidence, and granted service connection for residuals of a neurilemmoma of the left foot, effective August 28, 2006. The new and material evidence cited by the RO consisted of an opinion from a VA examiner in September 2007 and a private podiatrist's report dated August 1, 2006, which was received by the RO on August 28, 2006, along with a statement from the Veteran in which he requested that his claim for service connection for neurilemmoma of the left foot be reopened based on the report of the private podiatrist's. The RO assigned August 28, 2006, as the effective date on the basis of the Veteran's statement that was received on that date. In the statement, the Veteran requested that the claim be reopened on report of private doctor that he enclosed. However, the RO did not appreciate that the Veteran had perfected an appeal to the Board many years earlier from the rating decision in April 1998 wherein the RO denied the reopening of the claim. In other words, ever since the application to reopen the claim for service connection received by the RO in March 15, 1994, the Veteran had pursued his claim without a final decision being rendered until October 2007. In this case the Board must consider March 15, 1994, as potentially the earliest effective date permitted for the grant of service connection, because the law provides that after a final decision it is the date of RO receipt of the application to reopen the claim supported by new and material evidence, or the date entitlement arose, whichever is later, that is the operative date for purposes of assigning an effective date for an award of service connection. As previously noted, the Board denied the Veteran's claim for service connection for the left foot disability in an October 1984 decision. The decision is final, and between that decision and the claim filed in March 1994, the file discloses no evidence of the Veteran's intent to file an application to reopen his claim. Accordingly, the Board looks to March 15, 1994, as the starting point at which to consider whether on that date there is also evidence to show that entitlement to the benefit sought arose. The record shows that in |a report dated July 17, 1998, a private podiatrist, Dr. A. W., related the Veteran's left heel disability to the in-service surgery stating that the Veteran had a 1.5cm scar tissue of the plantar lateral left heel with hyperkeratotic build-up at the site of the previous neurilemmoma surgery. The diagnosis was neurofibrosis of the left heel secondary to neurilemmoma surgery. In August 2006, another private podiatrist, Dr. R.D., stated that the Veteran's pre-existing left foot disability was aggravated by the Veteran's military duties as a foot soldier to the point of infection and surgical correction. In September 2007, a VA examiner expressed the opinion that the Veteran's current left foot pain was the result of surgery for a neurilemmoma. Based on the reports, the evidence of an increase in the severity of the underlying, pre-service condition was first shown by the July 17, 1998, report as this was the earliest evidence relating the Veteran's left foot condition to service following the Veteran's claim to reopen in 1994. There is no evidence of aggravation of the left foot disability before July 17, 1998. To the extent that the Veteran has asserted that his left foot disability was aggravated during service, whereas here the determination involves a question of aggravation, under certain circumstances, a lay person is competent to offer an opinion on a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this case, whether the Veteran's left foot disability was aggravated beyond natural progression during service cannot be determined by the Veteran's own personal observation without having specialized education, training, or experience. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, 469 (1994). And it is not argued or shown that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on aggravation of his pre-service left foot disability. Where, as here, a lay opinion on the aggravation of the left foot disability is not competent evidence, competent medical evidence is required to substantiate the claim, which was accomplished by opinions of private podiatrists, beginning with the opinion of July 17, 1998. As the report of the private podiatrist, Dr. A.W., is dated later than the date of receipt of the claim to reopen in March 1994, then under the applicable provisions for establishing an effective date, July 17, 1998, is the proper effective date for the grant of service connection by aggravation of a pre-existing condition on the basis of new and material evidence. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q), (r). ORDER An effective date of July 17, 1998, for the grant of service connection for residuals of a neurilemmoma of the left foot is granted. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs