Citation Nr: 18159614 Decision Date: 12/19/18 Archive Date: 12/19/18 DOCKET NO. 16-24 493A DATE: December 19, 2018 ORDER Entitlement to an effective date earlier than March 13, 2013, for grant of service connection for right ankle strain with ventral calcaneal spur (hereinafter a “right ankle disability”), is denied. Entitlement to an effective date earlier than March 13, 2013, for grant of service connection for bilateral pes planus, is denied. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to service connection for an ankle disability in August 1982, which was denied by the RO in a September 1982 rating decision. 2. The Veteran did not appeal the September 1982 rating decision, nor submit new and material evidence with a one-year period. The September 1982 rating decision is final. 3. The Veteran filed a petition to reopen a claim of entitlement to service connection for a right ankle disability on March 13, 2013, which was granted by the RO with an initial disability rating of 10 percent. 4. The Veteran filed a claim for entitlement to service connection for bilateral pes planus on March 3, 2013, which was granted by the RO with an initial disability rating of 30 percent. 5. The Veteran did not submit any other document that can be construed as claims of entitlement to service connection for a right ankle disability or for bilateral pes planus prior to March 3, 2013. CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than March 13, 2013 for the grant of service connection for a right ankle disability. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400 (2018). 2. The criteria are not met for an effective date earlier than March 13, 2013 for the grant of service connection for bilateral pes planus. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active air service from June 1969 to March 1973. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. Effective Date Claims The Veteran contends he is entitled to effective dates earlier than March 13, 2013 for the grants of service connection for a right ankle disability and bilateral pes planus. Given the sequence of events in this case, the Board finds that effective dates earlier than March 13, 2013 for the grants of service connection for a right ankle disability and bilateral pes planus are not warranted. The provisions governing the assignment of the effective date of a claim for compensation or an increased rating are set forth in 38 U.S.C. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule regarding effective dates is that the effective date of an evaluation and award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim, whichever is the later. 38 C.F.R. § 3.400 (2017). The VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. 3.155. The provisions of 38 C.F.R. § 3.157 commence with notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is the later. However, this regulation goes on to provide that receipt of clinical reports of examination or hospitalization may serve as informal claims “for increase or to reopen” where the claim is for an already service-connected condition. The date of receipt of such clinical evidence may serve to form the basis for an earlier effective date for the subsequent award of VA benefits if such benefits derive from (1) a claim for increased evaluation or (2) an application to reopen a claim for compensation denied because the service-connected disability was not of compensable degree. The Board notes that effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1(p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Here, Veteran’s claim was received by VA prior to that date, and, as such, the former regulations apply. “Application” is not defined in the statute. However, in the regulations, “claim” and “application” are considered equivalent and are 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); see also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The Federal Circuit, in Rodriguez, supra, pointed out that for purposes of establishing the requirements and procedures for seeking veterans’ benefits, a claim, whether “formal” or “informal” must be “in writing” in order to be considered a “claim” or “application” for benefits, and that the provisions of 38 C.F.R. § 3.1 (p) defines “claim,” informal as well as formal, as a “communication in writing.” Further, the Federal Circuit stated that when 38 C.F.R. § 3.155 (a) refers to “an informal claim,” it necessarily incorporates the definition of that term in 38 C.F.R. § 3.1 (p) as a “communication in writing.” The Federal Circuit also pointed out the provisions of 38 C.F.R. § 3.155 (a) make clear that there is no set form that an informal written claim must take. All that is required is that the communication “indicat[e] an intent to apply for one or more benefits under the laws administered by the Department,” and “identify the benefits sought.” Here, the Veteran first filed a claim for service connection for a right ankle disability in August 1982. See August 1982 VA Form 21-4138. This claim was originally denied in a September 1982 rating decision. The Veteran did not appeal this rating decision, nor submit any new and material evidence within a one-year period. Thus, the September 1982 rating decision became final. 38 C.F.R. §§ 3.104, 3.105 (2018). The Veteran then submitted a petition to reopen a claim of entitlement to service connection for a right ankle disability and a new claim for entitlement to service connection for bilateral pes planus on March 13, 2013. See March 2013 VA Form 21-526b. These claims were subsequently granted by the RO in a February 2014 rating decision with effective dates of March 13, 2013. Between August 26, 1982 and March 13, 2013, VA did not receive any correspondence or documents that could be construed as a claim for entitlement to service connection for a right ankle disability. Prior to March 13, 2013, VA did not receive any correspondence or documents that could be construed as a claim for entitlement to service connection for bilateral pes planus. As set forth above, the law provides that the effective date of an award of compensation based on a claim reopened after a final adjudication or a new claim for service connection shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). Turning first to the right ankle disability, the evidence of record indicates the Veteran sent correspondence to his senator, as well as to VA between the issuance of the September 1982 rating decision and March 13, 2013, concerning this disability. The Veteran’s first correspondence to VA after the September 1982 rating decision was in April 1993, where the Veteran requested a status update for his claimed left leg injury. The Veteran was notified in various correspondence from VA that his claim of entitlement to service connection for a right ankle disability was denied. He was also notified he needed to submit new and material evidence in order to reopen his claim. He did not submit new and material evidence within a one-year period from the September 1982 rating decision, nor did he submit any other document that could be construed as a petition to reopen this claim until March 13, 2013. Thus, the Veteran has not pointed to an earlier pending claim to reopen, formal or informal, and a review of the record reveals no communication which could be construed as a claim to reopen prior to March 13, 2013. See 38 C.F.R. § 3.151, 3.155. Further, the Veteran has not raised any arguments contested the finality of the prior September 2012 rating decision that initially denied the claim of entitlement to service connection for right ankle disability. As for the new claim of entitlement to service connection for bilateral pes planus, also received on March 13, 2013, while the Veteran argues, generally, that the medical evidence shows relevant symptomatology associated with his now service connected disability prior to that date, he has not pointed to an earlier pending claim, formal or informal, and a review of the record reveals no communication which could be construed as a claim prior to March 13, 2013. See 38 C.F.R. § 3.151, 3.155. As part of such review, the Board has considered the clinical evidence of record. Although clinical records may, in some instances, be considered informal claims under 38 C.F.R. § 3.157(b)(1), this provision is inapplicable, as the clinical evidence does not pertain to examination or treatment of a disability for which service connection has been previously established. Pacheco v. Gibson, 27 Vet. App. 21 (2014). See also Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff’d 724 F.3d 1325 (Fed. Cir. 2013) (section 3.157(b)(1) requires that a report of examination or hospitalization indicate that the Veteran’s service-connected disability worsened since the time it was last evaluated because, “[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1),” creating an unnecessary and unwarranted adjudicative burden on VA); MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed.Cir.2006) (stating that 38 C.F.R. § 3.157 (b)(1) “makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability.”) Although the record does show that the Veteran filed his previous claim of service connection for the right ankle disability in August 1982, this claim was denied because the evidence then of record did not support an award of service connection. Because the Veteran did not perfect an appeal of this determination, it is final. The Veteran’s application to reopen, received on March 13, 2013, was granted based on the receipt of new and material evidence, received after the date of the application to reopen. As for the bilateral pes planus disability, the evidence of record shows that the Veteran was first diagnosed with this disability in 1982. Nevertheless, as there are no communications in the claims file showing the Veteran’s intention to file a claim of entitlement to service connection for this disability prior to the date of receipt of his claim on March 13, 2013, the Board finds no basis upon which to grant an earlier effective date. The applicable law provides that the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Thus, for the reasons above, the date of the March 13, 2013 application to reopen the right ankle disability and the new claim of service connection for bilateral pes planus is the appropriate effective date of the award of service connection for these disabilities. There is no legal basis upon which to assign earlier effective dates for the grants of service connection under the facts of this case. See Flash v. Brown, 8 Vet. App. 332, 340 (1995) (“When a claim to reopen is successful and the benefit sought is awarded upon re-adjudication, the effective date is the date of the claim to reopen”). (Continued on the next page)   In sum, for the reasons expressed above, the benefit of the doubt has been considered, but it is inapplicable where the Board finds that the preponderance of the evidence is against the claims of entitlement to earlier effective dates for the awards of service connection right ankle disability and bilateral pes planus. T. BERRY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Mariah N. Sim, Associate Counsel