Citation Nr: 18158721 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 17-01 372 DATE: December 18, 2018 ORDER Entitlement to an effective date of November 24, 2010 for the award of service connection for bilateral pes planus with calcaneal spurs is granted. FINDINGS OF FACT 1. In December 2001, the Regional Office (RO) denied entitlement to service connection for pes planus; that determination is final. 2. In August 2007, the Board of Veterans’ Appeals (Board) denied the request to reopen the claim for service connection for pes planus; that determination is final. 3. In June 2008, the RO declined to reopen the Veteran’s claims for service connection for pes planus; in November 2008, the RO reopened the previously denied claim for service connection for pes planus but denied the claim on the merits; that determination is final. 4. In April 2009, the RO declined to reopen the previously denied claim for service connection for pes planus. The Veteran subsequently initiated an appeal of this determination (by the filing of a notice of disagreement (NOD) in April 2009); and a statement of the case (SOC) was issued in January 2010. 5. The Veteran’s November 24, 2010 substantive appeal as to the April 2009 rating decision was untimely filed, and thus, the April 2009 determination is final. 6. The Veteran’s November 24, 2010, may be construed as an informal claim to reopen his claim for entitlement to service connection for pes planus. CONCLUSION OF LAW An effective date of November 24, 2010, is warranted for the award of service connection for pes planus. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1996 to June 2001. This matter comes before the Board from a May 2016 rating decision from a Department of Veterans Affairs (VA) RO. Entitlement to an earlier effective date prior to November 30, 2011 for the award of service connection for bilateral pes planus The Veteran contends that he is entitled to an effective date earlier than November 30, 2011 for the award of service connection for bilateral pes planus. The Board notes that the currently assigned date of November 30, 2011 was the date of an informal claim to reopen the Veteran’s claim for service connection for bilateral pes planus. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation (DIC) 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); 38 C.F.R. § 3.400. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2)(i). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE). 38 C.F.R § 3.105 (a). The United States Court of Veterans Appeals (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. But the dismissal should be without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a)(1); 38 C.F.R. § 3.151 (a). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155; 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). The Veteran’s original claim for service connection for bilateral pes planus was denied in a December 2001 rating decision. The Veteran did not appeal the decision; and new and material evidence was not received within one year of the decision. Therefore, the December 2001 rating decision is deemed final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. In December 2003, the Veteran requested his bilateral foot claim be reconsidered. In September 2004, the RO denied reopening the Veteran’s claim for bilateral pes planus because new and material evidence had not been provided as required to reopen the Veteran’s claim. In April 2004, the Veteran submitted an NOD concerning his bilateral foot claim. In September 2005, VA issued an SOC; and a Supplemental Statement of the Case (SSOC) in November 2005, addressing the Veteran’s bilateral pes planus claim. In December 2005, the Veteran submitted a VA Form 9 perfecting his appeal for reopening his claim for service connection of pes planus. In June 2006, VA issued another SSOC concerning the Veteran’s claim. Then in August 2007, the Board denied reopening the claim for service connection for pes planus. In general, Board decisions are final on the date stamped on the face of the decision. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. Therefore, the August 2007 Board decision denying the Veteran’s claim to reopen the claim for service connection for pes planus is final. In December 2007, the Veteran filed another claim for bilateral pes planus. In June 2008, the RO denied reopening the claim for service connection of pes planus because there was no new and material evidence. In September 2008, the Veteran requested VA to reconsider the June 2008 decision that denied reopening the service connection of pes planus. In November 2008, the RO reopened the Veteran’s claim for service connection of pes planus, but denied service connection for the disability on the merits. In April 2009, the RO reconsidered the Veteran’s claim for pes planus and continued its decision denying service-connection on the basis that new and material evidence had not been received to reopen the previously denied claim. In April 2009, the Veteran filed an NOD concerning his denied pes planus claim. The Veteran filed a VA Form 9 in June 2009. However, the Veteran had not been issued a SOC and the Form 9 was considered a lay statement concerning his ongoing claim. In January 2010, VA issued an SOC for the Veteran’s pes planus claim. In November 2010, the Veteran filed a Form 9 concerning the January 2010 SOC. A Substantive Appeal consists of a properly completed VA Form 9 or correspondence containing the necessary information. See 38 C.F.R. § 20.202. As a general rule, a Substantive Appeal must be filed within 60 days from the date that the AOJ issued the SOC or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later, to perfect an appeal of any claim adjudicated by the RO. See 38 U.S.C. § 7105 (a), (b)(1); 38 C.F.R. § 20.302. If an appeal is not perfected within the time specified, the RO’s determination becomes final and binding on the Veteran based on the evidence then of record. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.1103. In this case, the Veteran’s November 2010 Form 9 was file after the 60 days of the issuance of the SOC and more than one year after the April 2009 RO rating decision. Thus, the April 2009 rating decision is deemed final. Therefore, the question before the Board is whether there is an informal claim prior to November 30, 2011 and after final April 2009 final rating decision. The Board finds that the November 24, 2010 untimely Form 9 submitted may be construed as an informal claim. In the November 2010 Form 9, the Veteran stated that he had attached new evidence concerning his pes planus disability. Providing the Veteran the benefit of the doubt, the Board finds that this meets the requirements of an informal claim to reopen the Veteran’s claim of entitlement to service connection for bilateral pes planus. The Board finds that the Veteran’s disability arose prior to the Veteran’s November 24, 2010 claim to reopen his pes planus, as the Veteran’s disability is considered a condition that preexisted service and was aggravated by it. Based upon the evidence of record, the Board finds that the April 2009, RO decision is final and that the Veteran’s VA untimely November 24, 2010 VA Form 9 with accompanying statement constituted an informal claim to reopen his claim for entitlement to service connection for a pes planus. Therefore, the Veteran’s claim for entitlement to an earlier effective date for the award of service connection for bilateral pes planus is granted, effective November 24, 2010. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Robert Batten, Associate Counsel