Citation Nr: 20021512 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 20-00 585 DATE: March 26, 2020 ORDER Entitlement to an effective date earlier than February 15, 1996, for the award of service connection for left lower extremity peripheral neuropathy affecting the internal saphenous nerve (previously rated as peripheral neuropathy involving the left foot) is denied. FINDING OF FACT The present claim is the result of a claim to restore service connection that was wrongly severed in 2004; the effective date for the award of service connection for this condition was established by a final, unappealed November 1997 rating decision, and this claim is now a free-standing earlier effective date claim. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than February 15, 1996, for the award of service connection for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 5110, 7104, 7105; 38 C.F.R. §§ 3.104, 3.400; Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1978 to October 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2016 rating decision. Entitlement to an effective date earlier than February 15, 1996, for the award of service connection for left lower extremity peripheral neuropathy The Veteran’s left foot disability has been service-connected since March 1986. Pursuant to a claim received in August 1993, the Veteran received a decision denying a claim for an increase in compensation for this condition in November 1993. At the time of this decision, the Veteran had not been diagnosed with peripheral neuropathy of the left foot. The Veteran did not submit new and material evidence or a notice of disagreement within a year of that decision. In fact, it does not appear that that the Veteran corresponded with VA regarding his left foot disability until March 1997 when he submitted treatment records in support of a claim for an increased rating for his service-connected left foot condition that he filed a completed claim form to formalize in June 1997. Consequently, the November 1993 rating decision was final. 38 U.S.C. §§ 501, 5103A, 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.203(a), 20.1103. Pursuant to the claim formalized by the June 1997 claim form, the Veteran was provided with a VA examination in July 1997. The July 1997 VA examination diagnosed the Veteran with a variety of disabilities of his left foot, including peripheral neuropathy of the left foot. The examiner stated that he was unable to determine the etiology of the Veteran’s left foot peripheral neuropathy. Nevertheless, the Veteran was provided with a rating decision in December 1997 that provided for an increase in his disability rating for his left foot condition, now styled “hammer toe deformity, left 2nd through 5th toes, with associated callus deformities and peripheral neuropathy involving the left foot” effective February 15, 1996. The reason for the effective date of February 15, 1996, is somewhat obscure from the record. As previously discussed, the Veteran had not maintained an active claim for an increased rating prior to the March 1997 correspondence. Consequently, it would appear that, in the ordinary course, the earliest that an effective date for any increase could have been was March 21, 1996, that is, one year before the Veteran submitted medical records in support of his, later completed, claim. 38 U.S.C. §§ 501, 5110; 38 C.F.R. §§ 3.155(b), 3.400(o). Whatever the reason that the effective date for this increase was granted with an effective date more than one year before any intent to submit a claim for an increase was submitted by the Veteran, this effective date became a final as part of the November 1997 decision because the Veteran once again did not submit new and material evidence or a notice of disagreement within one year of it being promulgated. 38 U.S.C. §§ 501, 5103A, 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.203(a), 20.1103. In January 2004, the Veteran received a rating decision that, in relevant part, denied an increase in his left foot condition, which it now styled as “hammer toe deformity left 2nd through 5th toes, with associated callus, left foot” without the language that had previously been included regarding peripheral neuropathy. The January 2004 rating decision also denied entitlement to service connection for right lower extremity peripheral neuropathy and left lower extremity peripheral neuropathy. The Veteran objected and in statements submitted, such as the statement from March 2011, argued that he had in fact been diagnosed with and service-connected for peripheral neuropathy of the left foot since February 15, 1996, pointing to the November 1997 rating decision. This objection was ultimately adjudicated in the Veteran’s favor by a June 2016 Board decision that found that the January 2004 rating decision improperly severed service connection for left lower extremity peripheral neuropathy. A rating decision in July 2016, which was transmitted to the Veteran August 8, 2016, restored service connection with the effective date of January 26, 2004. The Veteran responded in November 2016 that the effective date should be February 15, 1996, and a notice of disagreement followed in August 2017. In a November 2019 statement of the case, VA took the position that complying with the June 2016 Board decision to restore service connection for this condition required nothing more than issuing a decision stating that peripheral neuropathy was part of the Veteran’s service-connected left foot condition. However, after the Veteran filed his substantive appeal in December 2019, VA reconsidered. A February 2020 rating decision issued a decision setting the effective date of February 15, 1996, for the award of service connection for the Veteran’s left lower extremity radiculopathy, which had previously been claimed as peripheral neuropathy involving the left foot. First, the Board observes that the Veteran’s argument has always been that the award of service connection for this condition should be harmonized with the effective date granted by the November 1997 decision. Consequently, it appears that the February 2020 rating decision provides precisely the benefit the Veteran has been seeking. To the extent that the Veteran is seeking an effective date earlier than February 15, 1996, the Board finds that the criteria for an earlier effective date for the award of service connection for left lower extremity peripheral neuropathy have not been met. As discussed above, the effective date of February 15, 1996, was actually granted by a November 1997 rating decision. The February 2020 decision that sets February 15, 1996, as the effective date for this award was not a new grant, it was simply effectuating the Board’s June 2016 decision restoring service-connection for a condition that was wrongly severed. Consequently, the relevant decision fixing the effective date for this award is the November 1997 rating decision, a decision the Veteran did not contest by filing a notice of disagreement or by submitting new evidence within a year and is therefore final. 38 U.S.C. §§ 501, 5103A, 5108, 7105; 38 C.F.R. §§ 3.156(a), 20.203(a), 20.1103. As a result of the finality of the 1997 decision fixing the effective date for this condition, any claim the Veteran is making subsequent to the 2004 decision that severed service connection for an effective date earlier than the one set in the November 1997 decision is a now free-standing earlier effective date claim. Free-standing claims for an earlier effective date are not permitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Such a claim can only be pursued by specifically claiming clear and unmistakable error. Id. The Veteran has not made such a claim. Finally, even if this were not a free-standing earlier effective date claim, the facts of this case would not meet the criteria. As previously discussed, prior to the March 1997, the Veteran was not pursuing a claim for an increased rating for his left foot condition. VA regulations provide that the earliest effective date that may be granted for an increased rating claim is one year prior to the date that a claim was received. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). Thus, it appears that the effective date awarded by the 1997 decision predates the effective date that could be set by regulation (which would have been one year prior to the March 1997 correspondence), and consequently, the facts of this case would certainly not warrant an effective date earlier than the date assigned in the November 1997 decision which appears to be an error that has benefited the Veteran. Consequently, for the reasons discussed, entitlement to an effective date earlier than February 15, 1996, is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven Johnston, Associate Counsel 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.