Citation Nr: 20007634 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 18-25 685 DATE: January 30, 2020 ORDER Entitlement to an effective date prior to July 31, 2015, for the award of a 30 percent evaluation for bilateral pes planus is denied. FINDING OF FACT It is not factually ascertainable that the increase in disability of the service-connected bilateral pes planus first manifested within one year prior to receipt of the Veteran’s July 31, 2015 claim CONCLUSION OF LAW The criteria for entitlement to an effective date prior to July 31, 2015, for the award of a 30 percent evaluation for bilateral pes planus have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an effective date prior to July 31, 2015, for the award of a 30 percent evaluation for bilateral pes planus. The Veteran asserts that the assigned 30 percent evaluation for pes planus should be awarded prior to July 31, 2015. He appeals only the effective date of the 30 percent award. See February 2017 Notice of Disagreement, i.e. “NOD” (VA Form 21-0958). The law regarding effective dates states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in the disability occurred within one year from the date of claim. 38 U.S.C. §§ 5110(b)(2) (2012); 38 C.F.R. §§ 3.400(o)(1) and (2). A specific claim in the form prescribed by the Secretary of VA must be filed 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. The benefit sought must be identified, see Stewart v. Brown, 10 Vet. App. 15, 18 (1997), but need not be specific, see Servile v. Derwinski, 3 Vet. App. 196, 199 (1992). See 38 C.F.R. § 3.155(a) (2012). Here, the claim was filed on July 31, 2015, on the claim form required under the new regulations. See VA Form 21-526-EZ (received by VA’s Evidence Intake Center on July 31, 2015). The Board has thoroughly and sympathetically reviewed the evidence of record and finds that an effective date earlier than July 31, 2015, for the award of a 30 percent evaluation for bilateral pes planus is not warranted because the Veteran did not file a formal claim on the required form indicating his intent to file a claim for entitlement to an increased rating for this disabilities prior to July 31, 2015. As set out above, in claims for increased evaluations, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the date of receipt of the claim controls. 38 C.F.R. § 3.400(o)(2). (Continued on the next page)   The evidence, including VA treatment records, dated one year prior to July 31, 2015, do not show the severity of the Veteran’s bilateral pes planus at its current level, which was shown on VA examinations dated in November 2015 and March 2017. Records dated within the one-year period preceding the date of claim, i.e. back to July 31, 2014, document a history of pes planus and related foot complaints. However, the records are general and passing in nature, and do not reflect the severity of the disability. See e.g. July 28, 2015, VA PC Clinician note reflecting a history of plantar fasciitis, with a questionable neuropathy, and January 22, 2018, VA Form 10-038 noting idiopathic, i.e. of unknown etiology, neuropathy. Thus, the Board finds that an increase in the severity of the Veteran’s bilateral pes planus has not been shown to have occurred at an identifiable time within the one-year period prior to the date the Veteran submitted his claim on July 31, 2015. The date of receipt of the claim controls. Id. Thus, the preponderance of the evidence is against a basis on which an earlier effective date may be assigned for the award of a 30 percent evaluation for bilateral pes planus, and the proper effective date of this grant is July 31, 2015. Accordingly, the claim of entitlement to an effective date earlier than July 31, 2015, for the award of a 30 percent disability evaluation for bilateral pes planus is denied. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.