Citation Nr: 20022586 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 18-46 092 DATE: April 1, 2020 ORDER An effective date earlier than April 24, 2017 for the grant of service connection for tinnitus is denied. An effective date earlier than April 24, 2017 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. An effective date prior to April 24, 2017 for the assignment of a 20 percent disability rating for right foot plantar fasciitis is denied. An effective date prior to April 24, 2017 for the assignment of a 10 percent disability rating for a low back disorder is denied. FINDINGS OF FACT 1. The February 2015 rating decision denying the reopening of the issue for service connection for tinnitus is final. Thereafter, on April 24, 2017, the Veteran filed an application to reopen the issue of service connection for tinnitus. 2. The February 2015 rating decision denying the issue of service connection for PTSD is final. Thereafter, on April 24, 2017, the Veteran filed an application to reopen the issue of service connection for posttraumatic stress disorder (PTSD). 3. The February 2015 rating decision denying a compensable rating for the Veteran’s service-connected right foot plantar fasciitis is final. Thereafter, the Veteran filed an increased rating claim on April 24, 2017. 4. The February 2015 rating decision denying a compensable rating for the Veteran’s service-connected low back disorder is final. Thereafter, the Veteran filed an increased rating claim on April 24, 2017. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 24, 2017 for the grant of service connection for tinnitus are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than April 24, 2007 for the grant of service connection for PTSD are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to April 24, 2017 for the assignment of a 20 percent disability rating for a right foot plantar fasciitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400. 4. The criteria for an effective date prior to April 24, 2017 for the assignment of a 10 percent disability rating for a low back disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2005 until August 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2017, October 2017 and July 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). 1. & 2. An effective date earlier than April 24, 2017 for the grant of service connection for tinnitus and PTSD is denied. In his Notice of Disagreement and Form 9, the Veteran asserted that VA should assign an earlier effective date for the grant of service connection for tinnitus and PTSD because he had first filed a claim for the issues in around August 2009. He also requested an exception for failing to respond to the prior rating decisions denying his claims because he was dealing with pain and PTSD and trying to manage on his own. By way of procedural history, the Veteran filed a claim on June 24, 2009 for the issues of entitlement to service connection for tinnitus and PTSD. In an August 2009 rating decision, the RO denied the claims. The Veteran was notified of the decision on September 1, 2009. The Veteran did not appeal decision. Then in December 2010, the Veteran filed a claim to reopen the issue of service connection for tinnitus. On May 8, 2011, the RO denied the claim to reopen the issue of service connection for tinnitus. The Veteran was notified of the decision on May 11, 2011. The Veteran did not appeal the decision. On May 1, 2014, the Veteran filed a claim to reopen the issues of service connection for tinnitus and PTSD. In February 2015, the RO denied the claim to reopen the issue of service connection for tinnitus and denied the issue of service connection for PTSD on the merits. The Veteran was notified of the decision on February 12, 2015. The Veteran did not appeal the decision or submit any correspondence indicating the status of his condition regarding his pain and PTSD. On April 24, 2017, the Veteran filed another claim to reopen the issues of service connection for tinnitus and PTSD. In an October 2017 rating decision, the claim to reopen the issues was granted, and based on new evidence, the RO established service connection for tinnitus and PTSD effective April 24, 2017. In October 2017, the Veteran filed a notice of disagreement as to the effective date for the grant of service connection for tinnitus and for the grant of service connection for PTSD. Except as otherwise provided, the effective date of an evaluation and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Generally, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a). Prior to March 24, 2015, however, a claim was accepted as either 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 March 24, 2015). Therefore, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. 38 C.F.R. § 3.155. Moreover, VA law provides that a decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision or a substantive appeal is filed within 60 days of the statement of the case (SOC). 38 U.S.C. § 7105; 38 C.F.R. § §§ 20.302, 20.1103. As stated above, the Veteran was notified of the previous denials for service connection for tinnitus and PTSD (either on the merits or reopening of the issues) in September 2009, May 2011 and February 2015. The Veteran did not appeal any of the decisions within one year from the date of the notice letters. Therefore, the claim was closed as there was no disagreement regarding the decisions within one of year of the date of the September 2009, May 2011 and February 2015 notifications. The Board acknowledges the Veteran’s statements that he was dealing with pain and PTSD and therefore could not respond to the letters that notified him of the denial of his claim for the issues of service connection for tinnitus and PTSD. However, the Board is bound by all of the laws and regulations in effect and has no legal authority to operate outside those requirements. VA law specifically directs the Board that if a Veteran receives an unfavorable decision on a claim for VA benefits, the claimant may initiate appellate review by filing a notice of disagreement (NOD). 38 U.S.C. § 7105 (a). The claimant “shall” file the NOD within one year from the date on which the Agency of Original Jurisdiction (AOJ) mails notice of the unfavorable decision. 38 U.S.C. § 7105 (b)(1). If the claimant does not file an NOD within the one-year period, the rating decision “shall become final.” Id. Thus, the filing of an NOD is jurisdictional, and the lack of a timely NOD is a bar to appellate consideration that cannot be waived, unlike the timeliness of a substantive appeal. See generally Percy v. Shinseki, 23 Vet. App. 37 (2009). Moreover, prior to April 24, 2017 claim, there was no informal or formal claim filed for the issues of service connection for tinnitus or PTSD. In fact, there were no other claims for any disabilities filed prior to April 24, 2017 (but after the February 2015 rating decision). Therefore, since VA law specifies that the effective date will be based on the receipt date of a claim reopened after a final disallowance, the Board finds that the effective date of April 24, 2017 for the grant of service connection for tinnitus and PTSD is proper. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Regarding the Veteran’s argument in his Substantive Appeal that he should be awarded benefits when he had first filed because he exhibited such symptoms at that time, VA law states that the effective date of an award of service connection is not assigned based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability. Rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See Lalonde v. West, 12 Vet. App. 377, 382-383 (1999). While it is understandable why the Veteran may believe he should be awarded an earlier effective date, VA is bound by its law governing effective dates in this claim. The law holds that the proper effective date for the issues is April 24, 2017, which is the current effective date assigned to the Veteran’s service-connected tinnitus and PTSD. 3. & 4. The effective date prior to April 24, 2017 for the assignment of a 20 percent disability rating for service-connected right foot plantar fasciitis and the assignment of a 10 percent disability rating for service-connected low back disorder is denied. In his Notice of Disagreement and Form 9, the Veteran asserted that his compensable disability ratings for his right foot plantar fasciitis and low back disorder should be assigned prior to April 24, 2017 because he had first filed the claims for entitlement to service connection for those issues around August 2009. By way of procedural history, the Veteran filed a claim on June 24, 2009 for entitlement to the issues of service connection for right foot plantar fasciitis and low back disorder. In an August 2009 rating decision, the RO granted service connection for the right foot plantar fasciitis and low back disorder with a 0 percent disability rating for both the service-connected disabilities. The Veteran was notified of the decision on September 1, 2009. The Veteran did not appeal the initial disability rating. Then on December 23, 2010, the Veteran filed a claim for increased ratings for his service-connected right foot plantar fasciitis and low back disorder. On May 8, 2011, the RO denied the claim for entitlement to compensable ratings for both disabilities. The Veteran was notified of the decision on May 11, 2011. The Veteran did not appeal the decision. On May 1, 2014, the Veteran filed a claim for increased disability ratings for his service-connected right foot plantar fasciitis and low back disorder. In February 2015, the RO denied the claim for compensable disability ratings. The Veteran was notified of the decision on February 12, 2015. The Veteran did not appeal the decision or submit any correspondence indicating the status of his condition regarding his pain and PTSD. On April 24, 2017, the Veteran filed another claim for increased disability ratings for his service-connected right foot plantar fasciitis and low back disorder. In an August 2017 rating decision, the disability rating for his low back disorder was increased to 10 percent and in an October 2017 rating decision, the disability rating for his right foot plantar fasciitis was increased to 20 percent. The effective date for the assignment of the compensable disability ratings was on April 24, 2017. The Veteran appealed the decision. The Veteran now contends that the effective date should be in August 2009, the year when he first filed the claim for entitlement to service connection for those disabilities. One year prior to the date of receipt of claim Generally, VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper, 10 Vet. App. at 126. In this case, the lay and medical evidence of record does not demonstrate that there was an increase in severity of his service-connected low back disorder or his right foot plantar fasciitis during the time period from April 24, 2016 through April 24, 2017. Significantly, the Veteran did not contend that his right foot and low back condition had worsened within that one year period but stated that he should be assigned to an earlier effective date because he filed the original claim back in 2009. Absent any evidence that can be factually ascertainable that the Veteran’s service-connected right foot plantar fasciitis and low back disorder had worsened from April 24, 2016 through April 24, 2017, the proper effective is the date when the claim for an increased rating was received. The effective date after the final disallowance The Veteran asserts that he had filed a claim for entitlement to service connection for right foot plantar fasciitis and low back disorder in 2009 and that the effective date should be based on his original claim. Generally, except as otherwise provided, the effective date of an 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 later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of decision or the SOC is perfected within 60 days. 38 U.S.C. § 7105; 38 C.F.R. § §§ 20.302, 20.1103. As stated above, the Veteran was notified of the previous denials for compensable disability ratings for his service-connected right foot plantar fasciitis and low back disorder in August 2011 and February 2015. The Veteran did not appeal any of the decisions within one year from the date of the notice letters. Therefore, the claim was closed as there was no disagreement regarding the decisions within one of year of the date of the August 2011 and February 2015 notices. Similarly, the Veteran did not appeal the initial noncompensable disability rating after he received the notice letter in August 2009. Because there was no disagreement filed as to the rating decisions, the decisions became final. See 38 U.S.C. § 7105 (b)(1) and discussion in section 1 and 2 (if the claimant does not file an NOD within the one-year period, the rating decision shall become final.) After the issuance of the February 2015 rating decision, which became final when the Veteran did not appeal the decision within one year, the Veteran then filed a claim for an increased disability rating for his service-connected right foot plantar fasciitis and low back disorder on April 24, 2017. Prior to April 24, 2017 claim, there was no informal or formal claim filed for an increased disability rating for either of the service-connected disabilities. In fact, there were no other claims for any disabilities filed prior to April 24, 2007 (but after the February 2015 rating decision). Therefore, since VA law specifies 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 and the effective date of an award of increased evaluation shall not be earlier than the date of receipt of the application therefor, the Board finds that the effective date of April 24, 2017 for the assignment of a 20 percent disability rating of the Veteran’s service-connected right foot plantar fasciitis and an assignment of 10 percent for the Veteran’s service-connected low back disorder is proper. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee, 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.