Citation Nr: A20008024 Decision Date: 05/11/20 Archive Date: 05/11/20 DOCKET NO. 190903-25649 DATE: May 11, 2020 ORDER Entitlement to an effective date prior to March 2, 2018 for the award of service connection for a left ankle disability is denied. FINDINGS OF FACT 1. The Veteran’s claim seeking service connection for an ankle disability was received by VA in August 2016. 2. A left ankle disability was not shown prior to March 2, 2018. CONCLUSION OF LAW The criteria for an effective date prior to March 2, 2018, for the award of service connection for a left ankle disability have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The appellant is a Veteran who served on active duty from September 1976 to January 1982. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2018 Department of Veterans Affairs (VA) rating decision (which awarded service connection for a left ankle disability, rated 10 percent effective March 2, 2018). In September 2019, the Veteran opted into the Appeals Modernization Act (AMA) review system by submitting a VA Form 10182 after the issuance of the July 2019 statement of the case (SOC). 38 C.F.R. § 3.2400(c)(1). He selected the direct review lane when he opted into the system. Therefore, the Board’s review is limited to evidence on record at the time of the July 2019 SOC. Effective Dates Except as otherwise provided, the effective date of an award of compensation based on an initial claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term “claim” or “application” means 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). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). While “the date entitlement arose” is not defined in statute or regulation, the U.S. Court of Appeals for Veterans Claims (Court) has interpreted it as the date the claimant met the requirements for the benefit sought (here, when a left ankle disability and nexus to service were shown). See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The instant claim of service connection for an ankle disability was received August 11, 2016. He reported he had not received treatment for his claimed disabilities. The November 2016 VA examination of the spine included muscle strength testing of the ankles, which was normal on plantar and dorsiflexion. January 2017 and May 2017 VA treatment records note full range of motion of his ankles without pain or crepitus was observed on physical examination. On March 2017 VA examination, a radiographic report of the tibia and fibula noted the ankle joints were maintained. On March 2, 2018 VA examination, the Veteran reported that his left ankle had been getting progressively worse and now hurt every day. Diagnostic testing found degenerative arthritis in his left ankle, and degenerative arthritis was diagnosed. On physical examination, left ankle range of motion was abnormal; there was objective evidence of localized tenderness/pain on palpation and crepitus of the left ankle. Because the Veteran’s initial claim of service connection for a left ankle disability was received August 11, 2016, more than a year following his discharge from service, that date represents the earliest possible effective date for the award of service connection for a left ankle disability. 38 U.S.C. § 5110. Because 38 C.F.R. § 3.400(b)(2) provides that with an award of direct service connection the effective date of the award is the date of receipt of claim or the date entitlement arose, whichever is later, the analysis turns to when entitlement to service connection arose (i.e., it was shown that the Veteran had a left ankle disability, related to service). Under 38 U.S.C. § 5110 and 38 C.F.R. § 3.400, if the date entitlement arose is later than the date the claim was received, the date entitlement arose must be the effective date assigned for the award of service connection (and any compensation warranted). A degenerative arthritis disability should be established by x-ray findings. 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5003. The Board notes, that even without an accompanying diagnosis of a present disease, such as arthritis, pain alone can qualify as a disability if it reaches the level of functional impairment of earning capacity. Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018). While the Veteran reported during the March 2018 VA examination that his left ankle had been getting progressively worse, neither the medical evidence of record nor the Veteran’s statements reflect that he had a level of functional impairment due to left ankle pain that affected earning capacity prior to March 2, 2018. Notably, the Veteran did not submit lay statements to VA indicating left ankle pain or functional impairment prior to March 2, 2018. Further, VA treatment records dated prior to March 2, 2018 do not show complaints of left ankle pain and do not note any abnormal range of motion of the left ankle. Diagnostic testing on March 2017 VA examination found his ankle joints were maintained. On March 2, 2018 VA examination, degenerative arthritis of the left ankle was found and limitations of motion were observed. Accordingly, the threshold legal requirement for establishing service connection for a left ankle disability (evidence that the Veteran had such disability) was not met prior to March 2, 2018. (Continued on the next page)   An effective date prior to March 2, 2018 for the award of service connection for a left ankle disability is not warranted. As the Regional Office has already assigned the earliest possible effective date of award of service connection for a left ankle disability under governing law given the undisputed facts in this case, the law is dispositive in this matter. See 38 C.F.R. § 3.156 (b); Sabonis v. Brown, 6 Vet. App. 426 (1994). Therefore, the appeal in this matter must be denied. AMANDA G. ALDERMAN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Naumovich, 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.