Citation Nr: 1754533	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  16-01 124	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California


THE ISSUES

1. Entitlement to an effective date earlier than January 3, 2012 for the grant of service connection for cold injury residuals of the left foot.

2. Entitlement to an effective date earlier than January 3, 2012 for the grant of service connection for cold injury residuals of the right foot.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

M. Sopko, Counsel



INTRODUCTION

The Veteran had active duty from August 1978 to April 1985 and from January 2001 to April 2001.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA).  The Veteran was granted service connection for cold injury residuals in the Veteran's feet in this rating decision.  VA rated each injury as 30 percent disabling, effective January 3, 2012.  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C.A. § 7107(a)(2) (West 2014).


FINDINGS OF FACT

1. VA denied service connection for cold injury residuals in the Veteran's feet in a December 2004 rating decision.  

2. VA mailed the December 2004 rating decision to the incorrect address, so the Veteran did not receive notice of the denial.  

3. The December 2004 rating decision did not become final.


CONCLUSION OF LAW

The criteria for an effective date earlier than January 3, 2012, for the grants of service connection for cold injury residuals in the Veteran's feet are met.  38 U.S.C.A. §§ 5103, 5103A, 5107, 5108, and 5110 (West 2014); 38 C.F.R. §§ 3.156, 3.158, 3.160 and 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Earlier Effective Date Claim

The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110.  Except as otherwise provided, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400.  Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  

Merits Analysis

The Veteran submitted an initial claim for service connection for the cold injury residuals in his feet in August 2003.  He provided a mailing address in Redwood City, California.  

In April 2004, VA mailed the Veteran a letter notifying him of actions it was taking prior to adjudicating his claim.  The letter contains a typewritten address in Sacramento, California, but a VA employee manually struck this address and handwrote the Veteran's Redwood City, California address on the letter.  There is no indication the United States Postal Service (USPS) did not deliver this letter.  

In December 2004, VA mailed the Veteran a letter notifying him it denied his claim.  Again, the letter contains a typewritten address in Sacramento, California.  This time, however, there was no manual annotation of the address.  Therefore, the Board presumes this letter was mailed to the Sacramento, California address.  While there is no indication the USPS did not deliver this letter, there is also no indication that the Veteran received it.  

The origin of the Sacramento, California address is unclear.  Nevertheless, the Veteran cannot be blamed for VA not using the Redwood City, California address he provided in August 2003.  Accordingly, the Board finds the Veteran never received VA's August 2004 denial, so he never received notice of his appellate rights.  By extension, the August 2004 rating decision never became final.  As such, the date VA received the initial claim - August 14, 2003 - is the proper effective date for the grants of service connection.


ORDER

An effective date of August 14, 2003 for the grant of service connection for cold injury residuals of the left foot is granted.

An effective date of August 14, 2003 for the grant of service connection for cold injury residuals of the right foot is granted.



____________________________________________
KELLI A. KORDICH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs