Citation Nr: 18160145 Decision Date: 12/27/18 Archive Date: 12/26/18 DOCKET NO. 17-17 819 DATE: December 27, 2018 ORDER Entitlement to an effective date earlier than December 26, 2000, for the grant of service connection for trochanteric bursitis of the right hip is denied. REMANDED Entitlement to service connection for a higher initial rating for right ankle arthritis due to a right medial malleolus fracture is remanded. Entitlement to a higher initial rating for trochanteric bursitis of the right hip is remanded.   FINDINGS OF FACT 1. A claim for service connection for trochanteric bursitis of the right hip was received by the VA on December 26, 2000. 2. There were no informal or formal claims, or written intent to file a claim for service connection for trochanteric bursitis of the right hip prior to the December 26, 2000 claim. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to December 26, 2000, for the award of service connection for trochanteric bursitis of the right hip have not been met. 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 July 1982 to July 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February 2007 and May 2007 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that in May 2018, the Board remanded the Veteran’s claims for service connection for a bilateral foot disorder, to include frostbite of the feet, pes planus, and/or as secondary to service connected right ankle arthritis, and to a total disability rating based on individual unemployability (TDIU) prior to February 14, 2002 for further development. As those issues remaining pending at the RO, no action will be taken by the Board on those issues at this time. They will be the subject of a later Board decision, if ultimately necessary. 1. Entitlement to an earlier effective date for service connection for trochanteric bursitis of the right hip The Veteran seeks an earlier effective date of October 10, 2000, for his claim for service connection for trochanteric bursitis of the right hip. For the reasons that follow, the Board finds that an earlier effective date is not warranted. A. Applicable Law 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 increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. One exception to this general rule is where an application for disability compensation is received within one year from separation from active service; in this situation, the effective date of an award “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). Prior to March 24, 2015, VA regulation provided that any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a) (2015); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). A “claim” or “application” is defined by VA regulation as “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) (prior to 2015). An informal claim is “[a]ny communication or action, indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155 (a) (prior to 2015). 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. Id. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. Id. Although this regulation is no longer extant, because it was in effect during the pendency of this claim, it is applicable to the present case. B. Discussion In this case, the question for the Board is whether the Veteran filed a service connection claim earlier than December 26, 2000, for trochanteric bursitis of the right hip and, if so, whether entitlement to service connection had arisen for the disability by that time. The Board finds upon careful review of the claims file that no earlier claim was filed. The Veteran filed an original claim of service connection on October 10, 2000. The Veteran claimed “Fx Rt Ankle – 11/83” and “Arthritis as a result of Fx Rt Ankle.” He handwrote that “I have a chronic foot problem [and] arthritis.” He identified treatment at VA facilities and requested those records be obtained. His medical records were obtained, and they reflect treatment for complaints of “hurting in right lower lateral leg,” which was diagnosed as strain of the anterior tibialis. His complaints involved “pain mainly from just below knee area down to right outside ankle area” with “occasional pain in right thigh.” The Veteran also submitted VA medical records, which referred to the ankle. that he had a chronic foot problem and arthritis, and could not perform his duty as a warehouse laborer. The Veteran reported that he could not do prolonged walking or standing on his feet due to his ankle injury. There is no menton of the hip. On December 26, 2000, the RO received a handwritten letter from the Veteran. He wrote that “I wish to claim additional disabilities for my back , around September 2000 incurred back pain similar to my right ankle and right leg.” It is from this letter that service connection for trochanteric bursitis of the right hip was ultimately granted in an August 2014 rating decision. In February 2001, the RO issued a rating decision denying service connection for a right leg disability. The Veteran appealed that decision, which was ultimately granted in a May 2007 rating decision. The original, October 2010 his claim did not sufficiently identify the benefit sought here. The claim of service connection for “arthritis” was too nonspecific to give a reasonable person an indication that he intended to claim the hip. The VA medical records likewise reflected complaints in the right leg, but centering on the lower right leg below the knee. Thus, the right hip was not reasonably identifiable from the information obtained or submitted. See Sellers v. Wilkie, 30 Vet. App. 157, 164 (2018). Thus, the October 2010 claim cannot be interpreted as a claim of service connection for trochanteric bursitis of the right hip. Absent this, an effective date prior to December 26, 2000, for the grant of service connection for trochanteric bursitis of the right hip is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a higher initial rating for right ankle arthritis due to a right medial malleolus fracture is remanded. 2. Entitlement to a higher initial rating for trochanteric bursitis of the right hip is remanded. The Veteran seeks a higher rating for trochanteric bursitis of the right hip and for right ankle arthritis due to a right medial malleolus fracture. In September 2015, the Board remanded the Veteran’s claims for a higher initial rating for trochanteric bursitis of the right hip and a higher initial rating for right ankle arthritis resulting from a right medial malleolus fracture. The Board directed the RO to issue an supplemental statement of the case (SSOC) once the remaining action was completed. Subsequently, an April 2018 rating decision awarded a partial grant of the claim for an increased initial evaluation for a higher rating for trochanteric bursitis of the right hip and continued the disability rating for right ankle arthritis, however because this was a partial grant the claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (where a claimant has filed a NOD as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). To date, a supplemental statement of the case has not been issued. Remand is required for the issuance of a supplemental statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA treatment records. 2. Issue a supplemental statement of the case for the claims to a higher initial rating for trochanteric bursitis of the right hip and to a higher rating for right ankle arthritis due to a right medial malleolus fracture. The issuance should include notice of the need to file a substantive appeal to perfect this claim to the Board. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Lauritzen, Associate Counsel