Citation Nr: 1618264	
Decision Date: 05/06/16    Archive Date: 05/13/16

DOCKET NO.  13-09 285A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUES

1.  Entitlement to an effective date prior to June 24, 2010, for the award of service connection for open dislocation of metatarsophalangeal joint right great toe, and fractured base of third metatarsal (residuals of a right foot injury).

2.  Entitlement to an initial disability rating in excess of 10 percent for residuals of a right foot injury.

3.  Whether there is clear and unmistakable error (CUE) in a July 2004 rating decision denying entitlement to service connection for residuals of a right foot injury.


REPRESENTATION

Veteran represented by:	Veterans of Foreign Wars of the United States



WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

A. Vieux, Associate Counsel


INTRODUCTION

The Veteran had active duty service from July 1998 to August 2003, with service in Iraq.  His decorations include the Iraq Campaign Medal and the Bronze Star Medal.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA) in Roanoke, Virginia.  

In March 2016, the Veteran testified before the undersigned Veterans Law Judge.  A transcript of that hearing has been associated with the claims file.

The issue of entitlement to an initial disability rating in excess of 10 percent for residuals of a right foot injury is addressed in the REMAND portion of the decision and is REMANDED to the Agency of Original (AOJ).  VA will notify the Veteran if further action is required.


FINDINGS OF FACT

1.  On December 2, 2003, within one year of separation from service on August 17, 2003, the Veteran filed a claim of entitlement to service connection for residuals of a right foot injury.
2.  In a July 2004 rating decision, the RO denied entitlement to service connection for residuals of a right foot injury; the Veteran initiated but did not perfect an appeal of that decision, and new and material evidence was not received within the remainder of the appeal period. 

3.  On June 24, 2010, the Veteran petitioned to reopen his service connection claim for residuals of a right foot injury.

4.  On December 21, 2010, the RO received November 26, 2002, service treatment records documenting the initial injury of the right foot and the operative report that were not previously associated with the claims file.

5.  The RO's May 2012 award of service connection for residuals of a right foot injury was based, in part, on the November 26, 2002 records.

6.  In March 2016, prior to the promulgation of a decision, the Veteran withdrew his appeal as to the issue of whether there is CUE in the July 2004 rating decision that denied service connection for residuals of a right foot injury.


CONCLUSIONS OF LAW

1.  The criteria for the assignment of an effective date of August 18, 2003, for the award of service connection for residuals of a right foot injury are met.  38 U.S.C.A. §§ 5107(b), 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.156(c), 3.400 (2015).

2.  The criteria for withdrawal of a substantive appeal concerning the issue of whether there is CUE in July 2004 rating decision denying entitlement to service connection for residuals of a right foot injury are met.  38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Effective Date

The Veteran contends that the effective date for entitlement to service connection for residuals of a right foot injury should be August 18, 2003.  See March 2016 Board Hearing Transcript at 3, 16.  As explained below, an August 18, 2003, effective date is warranted, and the Veteran's request is satisfied in full.

Generally, the effective date of an evaluation or award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(a).  Notwithstanding the foregoing, if a claim for service connection is received within 1 year after separation from service, the effective date of a grant based on such a claim should be the day following separation from active service.  38 C.F.R. § 3.400(b)(2).

In December 2003, less than 1 year after separation from service, the Veteran applied for entitlement to service connection for residuals of a right foot injury.  In July 2004, the RO denied the claim, noting that "[s]ervice medical records do not contain evidence of treatment for the initial injury."  The Veteran initiated an appeal of that decision, and a Statement of the Case was issued in May 2005.  However, he did not perfect his appeal with a timely VA Form 9, nor was new and material evidence received within the remainder of the one-year period.  Thus, the decision became final.  38 U.S.C.A. § 7105(d); 38 C.F.R. §§ 3.156(b), 20.1103.

However, "if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim."  38 C.F.R. §3.156(c).  Service department records which may warrant reconsideration, rather than reopening, of a claim include, "service records that are related to a claimed in-service event, injury, or disease."  Id.  When 38 C.F.R. § 3.156(c) is invoked, "the original claim is not just re-opened, it is reconsidered and serves as the date of the claim and the earliest date for which benefits may be granted."  Vigil v. Peake, 22 Vet. App. 63, 66-67 (2008); see also 38 C.F.R. § 3.156(c)(3).

In December 21, 2010, the RO received the November 26, 2002, service treatment records documenting the initial injury of the right foot and the operative report.  The November 26, 2002, service treatment records are newly submitted service departments records as contemplated by 38 C.F.R. § 3.156(c).  Further, the May 2012 rating decision that granted service connection for residuals of a right foot injury relied in part on the November 26, 2002, service treatment records.  

Thus, having found that VA received relevant official service department records that existed and had not been associated with the claims file when the claim was previously decided, the Board finds that the date of the claim for effective date purposes is the Veteran's original application that was received in December 2003, which was within 1 year of separation from service.  In this regard, the Board acknowledges that the initial denial of the claim in 2004 was based on lack of a current diagnosis.  However, the May 2012 VA examiner specifically determined that the Veteran's currently diagnosed open dislocation of metatarsophalangeal joint right great toe, and fractured base of third metatarsal had been present since 2002.  Affording the Veteran the benefit of the doubt, the Board finds that a current disability was present at the time of the filing of his initial claim in 2003.

Accordingly, August 18, 2003, the day following the Veteran's separation from active duty, is the appropriate effective date for the grant of service connection for residuals of a right foot injury.  38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.156(c)(3), 3.400(b)(2).


Withdrawal

Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed.  Withdrawal may be made in writing or on the record at a hearing by the veteran or by an authorized representative.  38 C.F.R. § 20.204.
The Veteran's perfected appeal included a petition alleging CUE in the July 2004 rating decision that denied entitlement to service connection for residuals of a right foot injury.  However, the Veteran and his representative expressly withdrew this issue from appellate consideration on the record at the beginning of the March 2016 Board hearing.  See Board Hearing Transcript at 2.  Moreover, in light of the Board's award of an earlier effective date above, the issue has become moot.

As there is no allegation of error of fact or law for Board consideration on this issue, the Board does not have jurisdiction to consider an appeal in this matter, and it must be dismissed.


ORDER

An effective date of August 18, 2003, for the award of service connection for residuals of a right foot injury is granted.

The petition alleging CUE in a January 2004 rating decision denying entitlement to service connection for residuals of a right foot injury is dismissed.


REMAND

Regarding the issue of entitlement to an initial disability rating in excess of 10 percent for residuals of a right foot injury, an updated examination is necessary because the Veteran's Board testimony and an April 2016 statement from the Veteran's spouse reflect a potential worsening of symptoms since he was last examined by VA in May 2012.  

Accordingly, the case is REMANDED for the following actions:

1.  Schedule the Veteran for a VA examination to assess the current severity of his right foot disability.  All indicated tests and studies shall be conducted.  All relevant records, including a copy of this remand, must be sent to the examiner for review.

The examiner shall report the nature and severity of all signs and symptoms of the Veteran's right foot disability, and fully describe the impact of the disability on his occupational functioning.

2.  Then, after taking any additional development deemed necessary, readjudicate the Veteran's claim of entitlement to an initial disability rating in excess of 10 percent for his right foot disability from August 18, 2003.  

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).



______________________________________________
S. BUSH
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs