Citation Nr: 18145016 Decision Date: 10/29/18 Archive Date: 10/25/18 DOCKET NO. 14-38 524A DATE: October 29, 2018 ORDER Entitlement to an effective date earlier than October 1, 2007 for the payment of VA benefits is denied. FINDINGS OF FACT 1. In April 1986, the Veteran elected to receive military retirement benefits in lieu of VA monetary benefits. 2. After the Veteran’s election to receive military retirement benefits, the Veteran’s claim received September 21, 2007 is the first formal or informal request to receive monetary benefits from the VA. CONCLUSIONS OF LAW Entitlement to receipt of retroactive VA compensation prior to October 1, 2007 is not warranted. 38 U.S.C. §§ 3104, 3105 (1985); 38 U.S.C. §§ 5107, 5110, 5304, 5305, 7104 (2017); 38 C.F.R. § 3.750 (1985); 38 C.F.R. §§ 3.1, 3.31, 3.400, 3.700, 3.750 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1985 to October 1985. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2018. A transcript from the hearing has been associated with the claims file. Entitlement to an effective date earlier than October 1, 2007 for the payment of VA benefits The Veteran contends that she is entitled to an effective date earlier than October 1, 2007 for the payment of VA benefits. Factual Background In August 1985, the Veteran suffered an in-service left knee injury. The Veteran’s DD-214 shows that the Veteran was placed on the Temporary Disability Retired List (TDRL), with a 30 percent disability retirement from the Navy due to her left knee injury. In February 1986, the Veteran submitted a claim to the VA for service connection for her left knee disability. Service connection was awarded in an April 1, 1986 rating decision. However, in a document signed by the Veteran on April 18, 1986, the Veteran requested that the VA not pay her at that time so that she could continue to receive retirement pay from the Navy. The Veteran continued to receive retirement pay from the Navy until April 1988. On September 21, 2007, the VA received a new claim for compensation from the Veteran for a right knee injury. The Veteran referenced her in-service injury, and this claim may have actually been intended as a claim of service connection for her left knee injury which led to her placement on TDRL. The Veteran has been receiving VA compensation related to her left knee injury since October 1, 2007, the first day of the month following her request for VA compensation. 38 U.S.C. § 5111. The Veteran contends that she is entitled to back pay for the period from April 1988, when her retirement payments ended, to October 2007, when her VA monetary benefits began. Legal Analysis Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400 (2017). A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello, supra. At the time of the Veteran’s release from active duty, 38 C.F.R. § 3.750 (1985) permitted veterans entitled to retirement pay and VA compensation benefits to elect which of the benefits they desire to receive. In this case, the Veteran, via a signed document, elected to receive her military retirement benefits rather than VA benefits in April 1986. The Veteran’s September 21, 2007 service connection claim was the first formal or informal communication in writing requesting VA compensation in lieu of military retirement benefits. The Veteran may believe that she was entitled to military retirement back pay for the period after April 1988. However, the award of military retirement pay to members of the Navy on the temporary disability retired list is determined by the Secretary of the Navy, not the Secretary of Veterans Affairs. See 10 U.S.C. § 101(a)(9)(B); 1202. Thus, seeking further information about the payment or non-payment of military retirement pay to the Veteran would not establish her eligibility for retroactive VA disability compensation benefits, even if new information were to show that she did not receive her due military retirement pay. The Board has no jurisdiction to order retroactive military retirement pay, if any, owed to the Veteran. Because the Veteran voluntarily waived her right to receive service-connected compensation benefits from VA in lieu of military retirement pay, and the evidence does not show that she subsequently sought to elect payment of VA compensation prior to her claim in 2007, she is not entitled to retroactive VA compensation for the period prior to October 1, 2007. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Casey, Associate Counsel