Citation Nr: 18154518 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 17-16 753 DATE: November 30, 2018 ORDER An effective date earlier than July 16, 2014, for an award of a 40 percent rating for residuals of a shrapnel fragment wound (SFW) of the right thigh is denied. An effective date earlier than July 16, 2014, for an award of a 40 percent rating for residuals of a SFW of the left thigh is denied. An effective date earlier than July 16, 2014, for an award of a 30 percent rating for residuals of a SFW of the right calf is denied. FINDINGS OF FACT 1. The Veteran submitted a claim for a separate rating for muscle injury of the right thigh on July 16, 2014. 2. The Veteran submitted a claim for a separate rating for muscle injury of the left thigh on July 16, 2014. 3. The Veteran submitted a claim for a separate rating for muscle injury of the right calf on July 16, 2014. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than July 16, 2014, for an award of a 40 percent rating for residuals of a SFW of the right thigh have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than July 16, 2014, for an award of a 40 percent rating for residuals of a SFW of the left thigh have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date earlier than July 16, 2014, for an award of a 30 percent rating for residuals of a SFW of the right calf have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from July 1982 to March 1985. Entitlement to an Earlier Effective Date The Veteran’s claims are on appeal from a March 2015 rating decision that awarded separate 40 percent ratings for muscle injury of each thigh and a 30 percent rating for muscle injury of the right calf, all effective from July 16, 2014. It is noted that service connection for multiple SFWs of each lower extremity was granted by a rating decision in August 1985, with a 10 percent rating being awarded for the right leg and a noncompensable rating for the left leg. The Veteran did not appeal these determinations. The rating for the right leg was decreased from 10 percent to 0 percent by a November 1987 rating decision after the Veteran failed to report for a scheduled examination. In August and December 2002 rating decisions, the ratings for the multiple SFWs of the left lower extremity and right lower extremity were combined with disability associated with left and right knee disabilities, each rated 10 percent disabling. The Veteran did not appeal any of these ratings. He appealed the effective date assigned in March 2015. It is initially noted that effective on and after March 24, 2015, VA updated the regulations concerning the filing of claims. 38 C.F.R. Parts 3, 19, and 20. In part, the Department replaced the informal/formal claims process with a standardized and more formal process. 38 C.F.R. § 3.155 (2016). As a result of the rulemaking, a complete claim on an application form is required for all types of claims. 38 C.F.R. § 3.155(d) (2016). However, as these new regulations only became effective as of March 24, 2015, they do not apply to the current appeal. Prior to March 24, 2015, except as otherwise provided, the effective date of an evaluation and award of 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 later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(a), (b). The effective date for the grant of service connection is 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, it is the date of receipt of claim, or the date entitlement arose, whichever is later. Id. The effective date for an increased rating will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, provided a claim is received within one year from such date; otherwise, the effective date for an increased rating will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)(b); 38 C.F.R. § 3.400(o). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next of friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). Once 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 or a claim for pension denied for the reason the disability was not permanently and totally disabling, receipt of one of the following may be accepted as an informal claim for increased benefits or an informal claim to reopen: The date of outpatient or hospital examination or date of admission to a VA hospital or uniformed services hospital. The date of receipt of evidence from a private physician when evidence furnished by or on behalf of the claimant is within the competence of the physician. 38 C.F.R. § 3.157(b). The mere receipt of medical records cannot be construed as an informal claim for the benefit. See 38 C.F.R. § 3.157; Brannon v. West, 12 Vet. App. 32, 35 (1998). As noted, service connection for multiple SFWs of the right and left lower extremities was awarded by rating decision in August 1985. The Veteran contends that an earlier effective date is warranted for his muscle injuries of the bilateral calf and right calf because they started in service and should have been included in that initial August 1985 rating decision. A review of the record shows that at the time of the Veteran’s original claim for service connection in April 1985, he requested service connection for only the amputation of his left foot and ulnar median nerve damage to his right arm. These were granted in the August 1985 rating decision along with service connection for multiple SFWs of each lower extremity, based on the evidence shown at that time. Thereafter, while the Veteran submitted multiple claims for additional compensation benefits, a separate evaluation for muscle injury of the right thigh, muscle groups XIV and XV, was not claimed until a VA Form 21-526EZ form was received on July 16, 2014. At that time, the Veteran specifically requested service connection for muscle injuries as a result of SFWs of the right thigh and calf. The separate awards were made following a January 2015 VA examination establishing muscle injury. While the Veteran contends that these injuries were sustained in service at the time of the traumatic amputation of his left foot, review of the medical records and VA examinations prior to January 2015 do not demonstrate more than superficial wounds of the legs. Moreover, the Veteran did not identify a request for the specific benefit of service connection for muscle injury of either leg prior to his July 2014 claim submission. Thus, while an X-ray study a month earlier, in June 2014, may have demonstrated metallic foreign bodies in the deeper tissue of the right lower extremity, this medical record does not constitute an informal claim for benefits. Id. Under these circumstances, there is no basis for an effective date earlier than the date of claim and the appeal must be denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph P. Gervasio