Citation Nr: 1754489 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 13-34 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUE Entitlement to an effective date prior to October 15, 2007 for the award of service connection for status post right total hip arthroplasty. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD L. Sinckler, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1967 to August 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island, that awarded service connection for status post right total hip arthroplasty, effective October 15, 2007. The Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ) in March 2017. A transcript is of record. FINDING OF FACT A service connection claim for a right hip disorder was not filed before October 15, 2007. CONCLUSION OF LAW The criteria for an effective date prior to October 15, 2007 for the award of service connection for status post right total hip arthroplasty are not satisfied. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Except as otherwise provided, the effective date of an evaluation and 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 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. With respect to the date of claim, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under VA law. 38 U.S.C.A. §§ 501, 5101 (West 2014); 38 C.F.R. § 3.151 (2017). Effective prior to March 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2017); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Although this regulation is no longer extant, because it was in effect during the pendency of this appeal, it is applicable to the present case. The Veteran initially submitted a claim for service connection for a right hip disorder on October 15, 2007. See October 2007 Veteran's statement; March 2017 Board Hearing. The claim was denied in a June 2008 rating decision, and the Veteran perfected an appeal. In January 2012, the Board granted the Veteran's claim for service connection for status post right total hip arthroplasty. In the January 2012 rating decision on appeal, the RO implemented the Board's decision awarding service connection for status post right total hip arthroplasty and assigned an effective date of October 15, 2007, the date of receipt of the Veteran's claim. In a March 2017 Board Hearing, the Veteran affirmed that he did not file a claim for service connection for a right hip disorder prior to October 15, 2007. However, he asserted that he should be awarded an effective date of May 1, 2007, as that was the date his right hip surgery occurred. See January 2013 Notice of Disagreement; March 2017 Board Hearing. The Board acknowledges that the Veteran underwent right hip surgery on May 1, 2007. However, the effective date of the award of service connection is not based on the date of the earliest medical evidence demonstrating a disability, but on the date that the application upon which service connection was eventually awarded was filed. Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that 'the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.'). The mere existence of medical evidence of a diagnosis and treatment does not establish an intent to seek service connection or entitlement to an earlier effective date. Id.; Brannon v. West, 12 Vet. App. 32, 35 (1998). While evidence contained in treatment records may constitute an informal claim in certain circumstances under 38 C.F.R. § 3.157, such provision explicitly applies only to cases where service connection has already been established or has been denied on the basis that the condition is noncompensable. See MacPhee v. Nicholson, 459 F.3d 1323, 1325- 26 (Fed. Cir. 2006); Lalonde, 12 Vet. App. at 382 . Such circumstances are not shown here. Accordingly, as a matter of law, an effective date of service connection for a right total hip arthroplasty earlier than October 15, 2007 cannot be established. Brannon, 12 Vet. App. at 34-5. Because the outcome of this issue is determined by the application of law to facts that are not in dispute, the benefit-of-the-doubt rule does not apply. See Sabonis v. West, 6 Vet. App. 426, 430 (1994); see also 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Entitlement to an effective date prior to October 15, 2007, for the award of service connection for a right total hip arthroplasty is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs