Citation Nr: 18142249 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-14 102 DATE: October 15, 2018 ORDER Entitlement to an effective date earlier than September 24, 2013, for the grant of service connection for a left knee disability, is denied. FINDING OF FACT 1. A September 24, 2013, statement (date-stamped) was an informal claim for entitlement to service connection for a left knee disability. The Veteran filed a formal claim that same day. 2. There is no evidence of any earlier formal or informal claim for a left knee disability prior to September 24, 2013. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than September 24, 2013, for the grant of service connection for a left knee disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.157 (in effect prior to March 24, 2015), 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1963 to October 1965, and from December 1965 to August 1990. This matter is on appeal from a March 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge during a July 2018 hearing. Entitlement to an effective date earlier than September 24, 2013, for the grant of service connection for a left knee disability The Veteran is seeking an effective date earlier than September 24, 2013, for the grant of service connection for his left knee disability. The Veteran essentially contends that in 2006, he brought forward his left knee condition to his representative at the time, American Legion, and his representative submitted a claim for him in 2006 and again in 2007. See July 2018 hearing transcript. He acknowledged that there is no documentation of this claim being placed in his file, but contends that he did request the claim be filed. Id. He noted that he also provided medical records in 2007 that discussed his knee problems, and thought he was sending these records in support of a pending claim. Id. He seeks an effective date back to 2007, noting that is the date when he notified VA he wanted it looked at. Id. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection will be 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 effective date is the date of receipt of claim, or date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). Following a review of the record, the Board finds that an effective date prior to September 24, 2013, for the grant of service connection for a left knee disability, is not warranted. The record contains a VA Form 21-4138, Statement in Support of Claim, date-stamped on September 24, 2013, in which the Veteran requested that his left knee injury be considered as part of his claim for unemployability. He indicated that he injured his left knee while on active duty. The Board considers this statement an informal claim for entitlement to service connection for a left knee disability. The Veteran filed a formal claim for entitlement to service connection for a left knee disability on that same date. On his formal claim, he indicated that he had been claiming the left knee for years, but it was never addressed. In a March 2014 rating decision, the RO granted service connection for a left knee disability, effective September 24, 2013, the date of the Veteran’s claim for service connection for a left knee disability. Here, the evidence shows that the Veteran submitted claims for various specifically described physical disabilities prior to September 2013, but did not seek compensation benefits for a left knee disability or symptoms. Likewise, there is no communication from the Veteran that could be construed as a claim seeking service connection for a left knee disability. The Veteran did not assert a claim seeking benefits for symptoms of a left knee disability, nor did he make a general statement of an intent to seek service connection for disabilities occurring during active duty service that were reasonably identifiable in his service treatment records. See Sellers v. Wilkie, No. 16-2993, 2018 U.S. App. Vet. Claims LEXIS 1114 (Vet. App. Aug. 23, 2018) (holding that an informal claim for benefits may be raised where a claimant makes a general statement of intent to seek benefits for unspecified disabilities and there is evidence of reasonably identifiable in-service diagnoses in service treatment records in the possession of the RO). With respect to the Veteran’s argument that in 2006, he brought forward his left knee condition to his representative at the time, and his representative submitted a claim for him in 2006 and again in 2007, there is no communication from the Veteran in 2006 or 2007 that could be construed as a claim seeking service connection for a left knee disability. Unfortunately, it appears that the Veteran’s representative at the time may have failed to file his claim. Although the September 2013 informal claim was dated June 13, 2006, it was date-stamped as being received at the RO on September 24, 2013. The Board acknowledges that the September 2013 informal claim was also scanned into the claims file as being received on December 3, 2009. However, this document does not contain a December 3, 2009, date-stamp and is only date-stamped as being received on September 24, 2013. As the Veteran has not argued that he submitted this claim on December 3, 2009, and the document is date-stamped as being received on September 24, 2013, along with a formal claim on that same date, the Board finds that the preponderance of the evidence indicates that the date of receipt in December 3, 2009, was most likely a scanning error. To the extent the Veteran asserts that his January 2007 VA examination report noting left knee problems should serve as an informal claim for benefits pursuant to 38 C.F.R. § 3.157, the Board finds this argument unavailing because that regulation does not apply in this instance. According to 38 C.F.R. § 3.157(b), in effect for claims filed prior to March 24, 2015, a report of examination or hospitalization may be accepted as an informal claim for benefits if it meets the requirements of § 3.157(b). Section 3.157(b) provided that receipt of a VA outpatient or hospital examination or admission to a VA hospital could be accepted as an informal claim for increased benefits or an informal claim to reopen “[o]nce a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree.” 38 C.F.R. § 3.157(b). This provision does not apply in this case because service connection was not established for a left knee disability at the time of the examination, nor was a claim disallowed for the reason that the service-connected disability was not compensable in degree. Cf. MacPhee v. Nicholson, 459 F.3d 1323, 1328 (Fed. Cir. 2006) (holding that VA medical records did not constitute an informal claim for benefits pursuant to § 3.157 because service-connection was not in effect for the disability at issue); cf. Crawford v. Brown, 5 Vet. App. 33, 35-36 (1993) (holding that § 3.157 did not apply because there had not been a prior allowance or disallowance of a formal claim for compensation or pension). There is no evidence in the record that the Veteran filed a claim for service connection for a left knee disability at any time prior to September 24, 2013. While the Board is sympathetic to the Veteran’s contentions, for the reasons described above, the preponderance of the evidence is against the claim for entitlement to an effective date earlier than September 24, 2013, for the award of service connection for a left knee disability. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs