Citation Nr: 18142481 Decision Date: 10/16/18 Archive Date: 10/16/18 DOCKET NO. 09-17 139 DATE: October 16, 2018 ORDER Entitlement to an effective date of December 15, 1988, for the grant of service connection for bilateral pes planus is granted. REMANDED Entitlement to an initial rating higher than 20 percent for chronic lumbar strain with degenerative arthritis is remanded. FINDINGS OF FACT 1. The Veteran’s original claim for service connection for a bilateral foot condition was received by the VA on December 15, 1988. In April 1989, the RO denied his claim, essentially on the basis that it was unable to verify his service dates and character of discharge. 2. Within one year of the April 1989 RO decision, new and material evidence was associated with the claims file in the form of a June 1989 statement from the Veteran, which provided further information regarding his foot injury resulting from an accident during ACDUTRA and documenting his continued problems with his feet since discharge. 3. The Veteran’s most recent claim for service connection for bilateral pes planus was received by VA on November 28, 2006. 4. In an August 2015 rating decision, the RO granted the Veteran’s claim of service connection for bilateral pes planus, effective May 12, 2011; the Veteran appealed the effective date assigned. 5. As new and material evidence was submitted within one year of the April 1989 RO decision, the April 1989 RO decision is non-final for VA purposes. CONCLUSION OF LAW An earlier effective date of December 15, 1988, is warranted for the Veteran’s award of service connection for bilateral pes planus. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.156(b), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had a period of active duty for training (ACDUTRA) from March 1978 to August 1978, and served in the Georgia Army National Guard from November 1977 to March 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to an effective date earlier than May 12, 2011, for the grant of service connection for bilateral pes planus The Veteran is seeking an effective date prior to May 12, 2011, for the grant of service connection for his bilateral pes planus. He argues the correct effective date should be 1988 or 2006, when he first filed his claim. See May 2016 notice of disagreement and August 2018 brief. Specifically, the Veteran argues that because there is medical and lay evidence which demonstrates he had pes planus or symptoms of pes planus at the time he filed his initial claim for service connection in 1988, he is entitled to an effective date of December 15, 1988, the date of receipt of his initial claim which remained pending. See August 2018 brief. Here, the RO granted service connection for bilateral pes planus in an August 2015 rating decision, assigning an effective date of May 12, 2011 (the date of a VA treatment record noting a diagnosis of bilateral pes planus). In general, except as otherwise provided, the effective date of an evaluation an 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 the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. For claims of entitlement to service connection, the effective date will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service, otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i) (2017). The Board finds that the evidence supports assigning an earlier effective date of December 15, 1988, for the grant of service connection for bilateral pes planus. In Buie v. Shinseki, 24 Vet. App. 242 (2010), the United States Court of Appeals for Veterans Claims (Court) vacated and remanded an earlier effective date claim because the Board did not discuss the application of § 3.156(b) in its decision, but instead focused on the question of whether statements submitted within the appeal period following a rating decision satisfied 38 C.F.R. § 20.201 and were notices of disagreement. Buie, Vet. App. at 252. Essentially, the Court indicated that, because the statements were submitted within one year of the corresponding RO decision, the Board should have considered whether the statements included the submission of new and material evidence. Id. The Veteran’s original claim for service connection for a bilateral foot condition was received by the VA on December 15, 1988. In an April 1989 decision, the RO denied his claim essentially on the basis that it was unable to verify his service dates and character of discharge. Within one year of the April 1989 rating decision, new and material evidence was associated with the claims file in the form of a June 1989 statement from the Veteran, which provided further information regarding his foot injury resulting from an accident during ACDUTRA and documenting his continued problems with his feet since discharge. The Board finds this statement was “new” and “material” to his claim filed in 1988. 38 C.F.R. § 3.156(b) (2017). This evidence is thus considered to have been filed in connection with the December 1988 claim. It is reasonable to conclude that the pending claim would have then remained open until the RO readjudicated the issue and finally granted the claim in August 2015. See Buie, supra. The Board finds that the April 1989 RO decision was non-final for VA purposes as new and material evidence was associated with the claims file within 1 year of the April 1989 decision. Summarily, the Board finds that the April 1989 RO decision is “non-final” for VA purposes. Thus, the Board finds that the Veteran has pursued a claim of service connection for bilateral foot condition since he filed his claim for service connection for bilateral pes planus on November 28, 2006. Under regulations in effect both at the time that the Veteran filed the claim of service connection in 1988 and today, the appropriate effective date is the date of the claim or the date that entitlement arose, whichever is the later. In this case, the date of the Veteran’s claim is December 15, 1988. Accordingly, the Board finds that the criteria for an earlier effective date of December 15, 1988, for a grant of service connection for bilateral pes planus have been met. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). The claim is granted. REASONS FOR REMAND Regarding the claim of entitlement to an initial rating higher than 20 percent for chronic lumbar strain with degenerative arthritis, the Veteran submitted a timely notice of disagreement with the October 2016 rating decision, but a statement of the case has not yet been issued. See April 2017 notice of disagreement. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: Send a statement of the case that addresses the issue of entitlement to an initial rating higher than 20 percent for chronic lumbar strain with degenerative arthritis. If the Veteran perfects an appeal, the issue should be returned to the Board. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs