Citation Nr: 18153295 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 10-04 324A DATE: November 27, 2018 ORDER An earlier effective date than January 7, 2008 for the grant of service connection for bilateral posterior compartment syndrome (PCS)/exertional compartment syndrome (ECS) is denied. VETERAN’S CONTENTIONS The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for bilateral PCS/ECS. Specifically, the Veteran contends that he did not receive notification of the February 1978 denial of his claim for service connection and that his claim therefore remained pending. FINDINGS OF FACT 1. Service connection for bilateral PCS/ECS was initially denied in a final decision that was issued in February 1978; the Veteran did not appeal and new and material evidence was not submitted within a year of that decision. 2. The Veteran next communicated his desire to file claims for service connection for bilateral PCS/ECS in October 1980 and August 1987; these claims were subsequently abandoned when he did not respond to requests for evidence. 3. The record shows that the Veteran next communicated his desire to file a claim for service connection for bilateral PCS/ECS on January 7, 2008. 4. A March 2014 Board decision that granted service connection for bilateral PCS/ECS and the RO implemented this grant of service connection in a July 2014 rating decision with an effective date of January 7, 2008, the date VA received the Veteran’s claim to reopen the previously denied/abandoned claim. CONCLUSION OF LAW The criteria for an effective date earlier than January 7, 2008, for grant of service connection for bilateral PCS/ECS are not met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1976 to October 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. 1. Entitlement to an earlier effective date than January 7, 2008 for the grant of service connection for bilateral PCS/ECS Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (2017). The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Additionally, 38 U.S.C. § 5101(a) provides that "[a] specific claim in the form prescribed by the Secretary . . . must be filed in order for benefits to be paid or furnished to any individual." The Board acknowledges that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014) (eff. Mar. 24, 2015). As the Veteran's claim at issue was submitted prior to the effective date of the amendment, the prior law and regulations governing claims will be applied in this case. A "claim" is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1 (p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). It must "identify the benefit sought." Id. Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Thus, with respect to the earlier effective date claim on appeal here, the Board will focus the analysis on determining the proper date of the claim and the entitlement arose. Thereafter, the proper effective date is determined by taking the latter of the two dates determined. See 38 C.F.R. § 3.400(q)(2). By way of history, the Veteran filed an initial claim for service connection for bilateral PCS/ECS received on September 26, 1977, which was denied in a February 1978 rating decision. The Veteran was notified of this decision and his appellate rights in a March 1978 letter. The Veteran did not appeal this decision, or submit new and material evidence, including new claims, within one year of that decision and it became final. 38 U.S.C. § 7105(b)(2)(c); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.201, 20.302(a). Subsequently, in October 1980 and August 1987, the Veteran submitted claims to reopen service connection for bilateral PCS/ECS. The RO responded with December 1980 and October 1987 letters requesting medical evidence. However, the Veteran failed to respond to those letters. There is no indication of nonreceipt, nor were the letters returned as undeliverable. Where evidence requested in connection with a claim to reopen is not furnished within one year after the date of the request, the claim will be considered abandoned. 38 C.F.R. § 3.158(a); 38 C.F.R. § 3.158(a). After the expiration of the one-year period, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a). The Board finds that the October 1980 and August 1987 claims were abandoned as the Veteran did not furnish the evidence as requested. Where there is an abandoned claim, the Veteran must file a new claim, and the effective date will not be earlier than the date of receipt of the new claim, which in this case would be January 7, 2008, the current effective date assigned. 38 C.F.R. § 3.158(a). The Veteran filed a new claim for service connection for bilateral PCS/ECS on January 7, 2008. Service connection for bilateral PCS/ECS was granted in a March 2014 Board decision. Pursuant to the March 2014 Board decision, the RO implemented the grant of service connection for bilateral PCS/ECS effective January 7, 2008 in a July 2014 rating decision. The Veteran subsequently submitted a timely notice of disagreement (NOD). The RO issued a May 2018 statement of the case (SOC) denying an earlier effective date for service connection for bilateral PCS/ECS. Based on the foregoing, the Board finds that the date of the claim to reopen was January 7, 2008. Next, the Board determines the date entitlement arose. In this regard, the evidence of record contains a November 2009 VA examination report in which the examiner noted that physical examination and diagnostic tests did not account for the Veteran’s chronic leg pain. The examiner stated that there was no evidence of a vascular or neuropathic condition that would lead to the Veteran’s PCS. The examiner further stated that he was not certain that the Veteran had claudication despite his distant history of tobacco use. The examiner opined that the Veteran’s PCS was not caused by his lumbar disc disease with stenosis and claudication. The examiner did not provide an opinion as to whether the lumbar disc disease and/or PCS were related to the Veteran’s service. In November 2011, the Board noted that the evidence presented conflicting indications as to the nature and etiology of the Veteran’s claimed disability and requested a medical advisory opinion from the Veterans Health Administration (VHA). In November 2011, a VA orthopedic surgeon stated that the Veteran might have ECS (formerly known as PCS), and that he also had multilevel lumbar spondylosis without associated stenosis. The orthopedic surgeon further stated that neither of the disabilities were congenital; both were acquired disabilities. The orthopedic surgeon opined that if the Veteran had ECS it was likely related to his service, as it appeared as though the condition had its onset in service. The orthopedic surgeon ultimately recommended that the Veteran have his compartment pressures measured at rest and with exertion to determine whether elevated compartment pressures were noted with exertion; if elevated compartment pressures are noted with exertion, then it most likely developed while in service. In March 2012, the Board remanded the claim for a VA examination in accordance with the recommendation of the VHA advisory opinion and a January 2013 VA examination report was associated with the claims file. The January 2013 VA examiner diagnosed the Veteran with ECS and opined that the Veteran’s ECS was at least as likely as not related to his service. The January 2013 VA examiner reasoned that elevated pressures had been documented and decompression surgery offered on two occasions. Based on the foregoing evidence, it can be reasonably concluded that the Veteran’s bilateral PCS/ECS has been present since the time of his military service in 1977. Therefore, the Board finds that the date entitlement arose was in 1977. To reiterate the aforementioned law, 38 C.F.R. § 3.400(q)(2) states that the later either of the date of the claim (in this case, January 7, 2008) or the date upon which entitlement arose (in this case, 1977) controls, and is the appropriate effective date. The date of the claim January 7, 2008, is later than the date entitlement arose, 1977; therefore, the date of the claim controls. As previously stated, the Veteran is currently in receipt of a January 7, 2008 effective date. The Board considered the Veteran’s contention that his claim for service connection, filed in September 1977, remained pending because he never received notification of the February 1978 denial. However, there is a presumption of administrative regularity in VA processes, procedures, and mailings, under which it may be assumed that VA has properly discharged its duties and responsibilities. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (providing that the "presumption of regularity" applies to the official acts of public officers, and in the absence of clear evidence to the contrary, it must be presumed they have properly discharged their official duties). Although this presumption is rebuttable, to the extent that the Veteran contends that he did not receive the notification letter, the presumption is not rebutted here. The record provides no clear evidence of non-delivery, such as the March 1978 notification letter being returned to VA as undeliverable by the United States Postal Service, or requests from the Veteran regarding the status of his claim. Further, even assuming arguendo that the Veteran did not receive the March 1978 notification letter, a review of the evidence of record reveals that the Veteran did nothing to pursue his claim until 1980, and therefore it was abandoned. Accordingly, to the extent that the Veteran asserted any issue with respect to receiving proper notice of the February 1978 rating decision, his contention does not impact the Board's conclusions regarding entitlement to an earlier effective date. Moreover, the Veteran has demonstrated actual knowledge that his September 1977 claim had been denied by VA. In an undated statement received by VA on November 5, 1980, the Veteran wrote that he had tried filing for disability in 1977, that he was told he was ineligible for this disability, and that he was submitted a copy of his DD Form 214 to correct the dates of active duty shown in his computer file. This submission was undated; however, it was submitted along with a DD Form 214 that is dated stamped as received by VA on November 5, 1980. A December 18, 1980 letter from VA to the Veteran informed him that service connection could not be allowed for his claimed posterior compartment syndrome, that he was informed of his outcome in a March 1978 letter and explained that new evidence was necessary to reopen his claim. Although the Veteran has asserted that he was not informed of the denial of his September 1977 claim due the notice letter being sent to an incorrect address, his November 1980 statement shows that he had actual knowledge of the denial. See e.g., Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (explaining that actual knowledge is established by statements or actions by the claimant or the claimant’s representative that demonstrate an awareness of what was necessary to substantiate his or her claim). This argument is therefore without merit. In sum, the Board finds that an earlier effective date than January 7, 2008 for the grant of service connection for bilateral PCS/ECS is not warranted. The claim for entitlement to an earlier effective date than January 7, 2008 for grant of service connection for bilateral PCS/ECS is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Smith-Jennings, Associate Counsel