Citation Nr: 1807044 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 12-05 352 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an effective date prior to March 26, 2008 for the grant of service connection for loss of use of both lower extremities, residual of multiple sclerosis. WITNESSES AT HEARING ON APPEAL The Appellant and his brother ATTORNEY FOR THE BOARD Shauna M. Watkins, Counsel INTRODUCTION The Veteran served on active duty from September 1967 to June 1970. The Veteran died in February 2012, and the Appellant has been accepted as a substitute claimant for purposes of processing the claim to completion pursuant to 38 U.S.C. § 5121A (2012). See March 2012 correspondence to the Veteran. This case is before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In that rating decision, the RO granted service connection for loss of use of both lower extremities, residual of multiple sclerosis, effective from March 26, 2008. The Veteran disagreed with the effective date assigned for the grant of service connection and this appeal ensued. In June 2013, the Appellant and his brother testified at a personal hearing before the undersigned Veterans Law Judge at VA's Central Office in Washington, D.C. A transcript of their testimony is associated with the record. In May 2014, the Board remanded the appeal to the Agency of Original Jurisdiction (AOJ) for further development. The appeal has now been returned to the Board. The Board finds there has been substantial compliance with its May 2014 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) FINDINGS OF FACT 1. On July 20, 1992, the Veteran first raised a claim of entitlement to service connection for multiple sclerosis. 2. A February 1993 rating decision denied the claim, and the Veteran was notified of this decision that same month. 3. In July 1993, VA received a statement from the Veteran, in which he claimed his multiple sclerosis symptoms began during his active military service. 4. The July 1993 statement by the Veteran meets the criteria for a Notice of Disagreement (NOD) to the February 1993 rating decision. 5. In response, the RO did not issue a Statement of the Case (SOC); instead, the RO issued an additional rating decision in September 2005. 6. The July 1993 NOD placed the multiple sclerosis claim into appellate status and that claim was never resolved by a subsequent Board decision. 7. Subsequent rating decisions after the July 1993 NOD did not resolve the claim, since the NOD placed the claim into appellate status. 8. The Veteran's claim for entitlement to service connection for multiple sclerosis was granted in a September 2008 rating decision. CONCLUSION OF LAW The criteria for an effective date of July 20, 1992, for the award of service connection for loss of use of both lower extremities, residual of multiple sclerosis, have been met. 38 U.S.C. §§ 5110, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has duties to notify and assist claimants in substantiating their claims. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). There has been no allegation or suggestion of any lapse on VA's part in meeting these duties. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). A September 2008 rating decision granted service connection for the Veteran's multiple sclerosis and assigned an effective date of March 26, 2008. The Appellant contends that an earlier effective date is warranted for this award of service connection. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400, 3.400(b)(2). The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if claim is received within one year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). In the present case, the Veteran separated from the active military service in June 1970. It is not in dispute that he failed to submit a claim of entitlement to service connection for multiple sclerosis within one year from his discharge. Therefore, assignment of an effective date back to the day following discharge is not possible. On July 20, 1992, the Veteran first raised a claim of entitlement to service connection for multiple sclerosis. A February 1993 rating decision first denied the claim because multiple sclerosis was not shown on active duty and there were no symptoms that could be linked to the Veteran's diagnosis of multiple sclerosis twenty-two years after his military discharge. The Veteran was notified of this decision and his right to appeal in a letter dated in February 1993. In July 1993, VA received a statement from the Veteran, in which he again claimed that his multiple sclerosis symptoms began during his active military service. The Veteran addressed the arguments raised by the February 1993 rating decision - specifically, he described how he had experienced the same symptoms since his active military service and that these symptoms eventually led to his diagnosis of multiple sclerosis. The Board finds that the July 1993 statement by the Veteran meets the criteria for a NOD to the February 1993 rating decision. By statute, a NOD is a written communication by the claimant to the AOJ received within one year of notice of the rating decision and expressing the claimant's disagreement or dissatisfaction and a desire to contest or appeal. No particular form is required. See 38 U.S.C. § 7105(b)(1), (2) (2012); 38 C.F.R. § 20.201. The Veteran's July 1993 statement meets these requirements for a NOD. In response to the NOD, the RO did not issue a SOC; instead, the RO issued an additional rating decision in September 2005. The pending claims doctrine provides that a claim remains pending in the adjudication process - even for years - if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). If, after a valid NOD, VA fails to issue a SOC, the claim remains pending. Myers v. Principi, 16 Vet. App. 228, 235-236 (2002); Tablazon v. Brown, 8 Vet. App. 359, 261 (1995). However, most recently, the United States Court of Appeals for Veterans Claims (Court) ruled that "[w]here an appellant places a claim for one disability into appellate status by virtue of an NOD, that claim is resolved by a later appellate adjudication of a subsequent claim where both claims stem from the same underlying disorder and the claimed disabilities are identical or substantially similar." Jones v. Shinseki, 23 Vet. App. 122, 126 (2009) (emphasis added). The Court quoted from its decision in Juarez v. Peake indicating that "[o]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that was initiated but not completed." Jones, 23 Vet. App. at 125 (quoting Juarez, 21 Vet. App. 537, 543); see also 38 U.S.C. § 7105(a), (d)(1). The July 1993 NOD placed the multiple sclerosis claim into appellate status and that claim was never resolved by a subsequent Board decision. Subsequent rating decisions after the July 1993 NOD did not resolve the claim, since the NOD placed the claim into appellate status. See Manlincon v. West, 12 Vet. App. 238 (1998) (where there is an NOD, the Board has jurisdiction, and next step is SOC); Roy v. Brown, 5 Vet. App. 554, 555 (1993) ("appellate review of an RO decision is initiated by an NOD"). Thus, the July 20, 1992, claim for service connection for multiple sclerosis remained pending until the claim was finally granted by the RO in September 2008. Therefore, the Board finds that an earlier effective date of July 20, 1992, for the grant of service connection for multiple sclerosis is warranted. It is further noted that, under 38 C.F.R. § 3.157 (2017), a report of examination or hospitalization will be accepted as an informal claim for benefits. However, the provisions of 38 C.F.R. § 3.157 only apply once a formal claim for compensation or pension has been allowed or compensation disallowed because the disability is not compensable. Here, the Veteran's July 20, 1992, formal claim was not pre-dated by an adjudication of the type cited in 38 C.F.R. § 3.157(b), and, as such, that regulation does not afford a basis for finding that the claim, be it formal or informal, of entitlement to service connection for multiple sclerosis was filed earlier than July 20, 1992. 38 C.F.R. § 3.157; Crawford v. Brown, 5 Vet. App. 33 (1993). In sum, the Appellant is entitled to an earlier effective date of July 20, 1992, but no earlier, for the grant of service connection for multiple sclerosis. The benefit-of-the-doubt rule has been considered in making this decision. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An earlier effective date of July 20, 1992, for the grant of service connection for loss of use of both lower extremities, residual of multiple sclerosis, is granted. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs