Citation Nr: 18157423 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-35 695A DATE: December 12, 2018 ORDER Entitlement to an effective date earlier than January 28, 2014 for service connection for left ankle sprain (claimed as left ankle condition) is denied. REMANDED Entitlement to an effective date earlier than July 6, 2015 for a 100 percent rating for service-connected post-traumatic stress disorder is remanded. FINDING OF FACT The Veteran filed his first and only claim for service connection for left ankle sprain (claimed as left ankle condition) in January 2014. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than January 28, 2014 for service connection for left ankle sprain (claimed as left ankle condition) have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2010 & 2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1969 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2016 rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which assigned a 100 percent rating for post-traumatic stress disorder effective July 6, 2015 and an initial 10 percent rating for left ankle condition effective January 28, 2014. The Veteran filed a notice of disagreement (NOD) for these rating decisions in July 2016. A statement of the case (SOC) was issued with respect to the left ankle condition on May 2, 2018. No SOC was issued with respect to the post-traumatic stress disorder claim. The Board notes that no substantive appeal, VA Form 9, has been received with respect to the Veteran’s claims. However, the RO nevertheless issued a certification of appeal, VA Form 8, on May 18, 2018. Accordingly, the Board has waived the timeliness requirement of the substantive appeal, VA Form 9, in this case and assumes jurisdiction over the Veteran’s claims. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009) (the failure to file a timely substantive appeal is not jurisdictional and may be waived by the Board). The issue of entitlement to an effective date earlier than July 6, 2015 for a 100 percent rating for service-connected post-traumatic stress disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). Entitlement to an effective date earlier than January 28, 2014 for service connection for left ankle sprain (claimed as left ankle condition) The Veteran contends he is entitled to an effective date for left ankle condition earlier than January 28, 2014 on the theory that the disability was caused by an in-service event. Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). In general, the effective date of an award based on an original claim, or a claim reopened after final adjudication of compensation, shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). During the pendency of this appeal, VA amended its regulations 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, and eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims. See 79 Fed. Reg. 57,696 (Sep. 25, 2014) (effective Mar. 24, 2015). Prior to this change, a “claim” was 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. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Considering the evidence of record under the laws and regulations as set forth above, the Board finds that January 28, 2014 is the correct date for a grant of service connection for left ankle sprain (claimed as left ankle condition). The Veteran first filed a claim for left ankle sprain in January 2014. The claim was granted in a June 2016 rating decision and the RO assigned an effective date of January 28, 2014, the date of receipt of the claim. The Board has considered the Veteran’s statement in his July 2016 NOD that “in 2012 [he] applied for a left ankle condition.” However, a thorough review of the record does not indicate that the Veteran filed either a formal or informal claim prior to January 2014 for left ankle disability of any kind. The Board acknowledges that the Veteran first sought medical treatment for a left ankle sprain during service in 1971. However, VA cannot pay benefits unless a claim is filed. As such, VA cannot award benefits back to a date earlier than January 28, 2014, the date VA received the claim. Based on the laws and regulations, the Veteran is not entitled to an effective date earlier than January 28, 2014 for grant of service connection for left ankle sprain (claimed as left ankle condition). There is no reasonable doubt to be resolved in this case. REASONS FOR REMAND Entitlement to an effective date earlier than July 6, 2015 for a 100 percent rating for service-connected post-traumatic stress disorder is remanded. In a June 2016 rating decision, the RO assigned a 100 percent rating for post-traumatic stress disorder effective July 6, 2015. The Veteran filed an NOD in July 2016 as to the effective date of the 100 percent rating for post-traumatic stress disorder. No SOC has been issued with respect to this claim. Consequently, the Board must remand this claim at this time in order to issue an SOC. See Manlincon v. West, 12 Vet. App. 238 (1999); see also 38 C.F.R. § 19.9 (c) (2017). The matter is REMANDED for the following action: Furnish the Veteran an SOC with regard to the claim for entitlement to an effective date earlier than July 6, 2015 for a 100 percent rating for service-connected post-traumatic stress disorder. The issue should be returned to the Board only if a timely substantive appeal is received. JAMES G. REINHART Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Garver, Law Clerk