Citation Nr: 1626268 Decision Date: 06/30/16 Archive Date: 07/11/16 DOCKET NO. 13-10 869 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an effective date earlier than December 1, 2010, for the grant of service connection for status post left Achilles' tendon repair with pain hypersensitivity state (left ankle). 2. Entitlement to an effective date earlier than December 1, 2010, for the grant of service connection for status post right Achilles' tendon repair with pain hypersensitivity state (right ankle). 3. Entitlement to an effective date earlier than December 1, 2010, for the grant of service connection for scar, left ankle status post tendon repair (left ankle scar). 4. Entitlement to an effective date earlier than December 1, 2010, for the grant of service connection for scar, right ankle status post tendon repair (right ankle scar). REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Joshua Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1998 to April 2008. This matter is before the Board of Veterans' Appeals (Board) on appeal of a July 2011 rating decision of the Winston-Salem, North Carolina, Regional Office (RO) of the Department of Veterans Affairs (VA). In April 2016, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. The issues have been recharacterized as claims for an earlier effective date for the award of service connection, instead of whether there is clear and unmistakable error (CUE) in the July 2011 rating decision concerning earlier effective dates for the award of service connection. See 38 U.S.C.A. § 5109A (West 2014); 38 C.F.R. § 3.105(a) (2015). Although a request for revision of a decision based on CUE may be made at any time after the decision is made (as the Veteran did here in September 2011), the burden for proving CUE is higher (undebatable) compared to the standard appeal burden (as likely as not). Thus, it is more advantageous to the Veteran to have the issues be considered a standard appeal for an earlier effective date rather than a CUE revision request. FINDINGS OF FACT 1. On April 30, 2008, the Veteran was separated from active service. 2. On April 23, 2009, the Veteran filed a claim of service connection for bilateral ankle disabilities. 3. Entitlement arose for the disabilities as of the time of the claim. 4. The Veteran submitted a timely notice of disagreement with a November 2009 rating decision. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of May 1, 2008, for the award of service connection for left ankle disability have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 2. The criteria for entitlement to an effective date of May 1, 2008, for the award of service connection for right ankle disability been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 3. The criteria for entitlement to an effective date of May 1, 2008, for the award of service connection for left ankle scar have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 4. The criteria for entitlement to an effective date of May 1, 2008, for the award of service connection for right ankle scar have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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. See 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). The effective date of an original award of direct service connection 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, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). By way of background, the Veteran was separated from active service on April 30, 2008. Thus, May 1, 2008, is potentially an effective date for the award of disability compensation if a claim was filed within a year of separation and remains pending on appeal. The Veteran did submit an application for benefits within one year of separation. On April 23, 2009, he filed an application for benefits that included claims of service connection for bilateral ankle disabilities. However, in November 2009, the RO denied the Veteran's claims. The case turns on whether the Veteran timely filed a notice of disagreement (NOD) following that denial. Provisions pertinent to the case include that a timely NOD must be filed within one year form the date that the agency of original jurisdiction (AOJ) mails notice of its decision. 38 C.F.R. § 20.302(a) (2015). Additionally, a NOD is essentially a written communication expressing dissatisfaction or disagreement with an AOJ decision. 38 C.F.R. § 20.201 (2014) When VA regulations require that any written document be filed within a specified period of time, a response postmarked prior to the expiration of the applicable time period will be accepted as having been timely filed. Where the postmark date is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the statement by VA. In calculating this 5-day period, Saturdays, Sundays, and legal holidays will be excluded. 38 C.F.R. § 20.305(a) (2015). Although VA has amended the regulations to require the filing of a NOD on a standard VA form, given the timeframe of the matter in question, the new provisions do not apply to the Veteran's case. The Veteran was notified of the November 2009 rating decision by letter dated November 30, 2009. The Veteran subsequently submitted a supplemental claim for compensation that indicated the claims for bilateral ankle conditions were being reopened. The Board construes this as a NOD even if not labeled as such as it essentially expresses dissatisfaction and disagreement with the prior denial. The NOD is dated November 23, 2010, but is date stamped by VA on December 1, 2010, which potentially makes it untimely as it is outside of one year. As the statement does not bear a postmark, it is presumed to have been received by VA on Tuesday, November 23, 2010, when applying the postmark provisions excluding the weekend days and the Thanksgiving holiday. However, clear evidence that the statement was filed by the Veteran's representative, who received the statement on November 29, 2010 (date stamped by the representative's organization), rebuts the presumption that VA received the NOD earlier than that day. Nonetheless, it is reasonable to presume that VA received the statement on November 29 or 30 in light of testimony that the Veteran's representative's office is located in the same facility as the VA RO, the representative did not modify the statement, and the representative purports to have delivered it directly to the VA RO. Under these specific circumstances, the Board finds that the NOD was submitted within one year of the November 30, 2009, notice of the November 2009 rating decision. Accordingly, statement in question was a timely NOD to the November 2009 rating decision. In view of this procedure and evidence, the Veteran's April 23, 2009 claim pertaining to the bilateral ankles was pending on appeal at the time service connection was granted in the July 2011 rating decision. Because the April 23, 2009 claim was received within one year of the Veteran's separation from service, May 1, 2008, is the earliest effective date warranted for the grant of service connection for the disabilities on appeal. See 38 C.F.R. § 3.400(b)(2)(i). See also Ingram v. Nicholson, 21 Vet. App. 232, 254 (2007) (the appellant can argue than an earlier claim for the benefits should be considered part of the same claim stream that eventually resulted in the award of benefits for the purpose of establishing the effective date). Additionally, the Board finds that entitlement arose for the four disabilities in question as of the claim for benefits. Specifically, the Board affords significant probative value to the June 2011 VA examiner's opinion that the current ankle disabilities are a continuation of the left and right in-service, Achilles' tendon ruptures that required surgery during service. Conversely, the Board affords minimal probative value to the October 2009 VA examiner's report finding normal ankles as the presence of scars at the Achilles tendon area for both ankles would indicate that there was prior surgery by common sense. Overall, the Board finds entitlement arose at least by the time of the claim for benefits. Therefore, May 1, 2008, is the proper effective date for the four disabilities as it is the day after separation from active service. As this is the earliest possible effective date, no earlier effective date is permissible, and this is a full grant of benefits as to these issues. (CONTINUED ON NEXT PAGE) ORDER An effective date of May 1, 2008, for the award of service connection for left ankle disability is granted. An effective date of May 1, 2008, for the award of service connection for right ankle disability is granted. An effective date of May 1, 2008, for the award of service connection for left ankle scar is granted. An effective date of May 1, 2008, for the award of service connection for right ankle scar is granted. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs