Citation Nr: 21004832 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 21-00 040 DATE: January 28, 2021 ORDER Entitlement to an effective date prior to December 13, 2016 for the award of service connection for cold injury residuals of the right foot is denied. Entitlement to an effective date prior to December 13, 2016 for the award of service connection for cold injury residuals of the left foot is denied. FINDING OF FACT The Veteran’s claims of entitlement to service connection for cold injury residuals of his right and left feet were received by VA on December 13, 2016. CONCLUSION OF LAW The criteria are not met for an effective date earlier than December 13, 2016, for the award of service connection for cold injury residuals of the right and left feet. 38 U.S.C. §§ 511, 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.160, 3.400.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1963 to March 1965. This appeal to the Board of Veterans’ Appeals (Board) is from a January 2018 rating decision a Department of Veterans Affairs (VA) Regional Office (RO) that, in relevant part, granted service connection for cold injury residuals of the right and left feet retroactively effective from December 13, 2016. The Veteran has appealed for an earlier effective date for this award. In December 2019, the Board decided some of the other claims the Veteran also had appealed, but instead remanded these earlier effective date claims back to the RO for issuance of a Statement of the Case (SOC) concerning these claims. See Manlincon v. West, 12 Vet. App. 238 (1999). The RO provided him this required SOC concerning these claims in November 2020, and in January 2021, in response, he filed a VA Form 9 (Substantive Appeal) to complete the steps necessary to “perfect” his appeal of these claims to the Board. See 38 C.F.R. § 20.200 (2018). Also in December 2019, the Board remanded claims of entitlement to initial ratings in excess of 20 percent for the cold injury residuals of the left and right feet and for a total disability rating based on individual unemployability (TDIU) because they, too, needed to be further developed before being decided on appeal. But that additional development concerning these other claims is still being completed, and, if they continue to be denied on remand, they will be the subject of a separate Board decision issued at a later date. Earlier Effective Date Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim or reopened claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The applicable statutory and regulatory provisions require that VA look to all communications from the veteran which may be interpreted as applications or claims – formal and informal – for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 511(b)(2); 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits. See Lalonde v. West, 12 Vet. App. 377, 380-381 (1999). 1. Entitlement to an effective date prior to December 13, 2016 for the award of service connection for cold injury residuals of the right foot. 2. Entitlement to an effective date prior to December 13, 2016 for the award of service connection for cold injury residuals of the left foot. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran’s claims for an effective date earlier than December 13, 2016, for the awards of service connection for cold injury residuals of his right and left feet.   The Veteran was discharged from military service in March 1965. No communications were received from him within the year following his discharge from service related to cold weather injuries involving his feet – meaning by March 1966, which, in turn, would now allow assigning an effective date back to the day following his discharge from service for the eventual grant of service connection for these consequent disabilities. The earliest effective date that could be assigned in this circumstance is when the Veteran eventually filed a claim for service connection for these disabilities. Prior to March 24, 2015, a claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § § 3.1(p). Effective March 24, 2015, VA regulations no longer recognize an informal claim for benefits. That is, a claim for benefits must be submitted on the application form prescribed by the Secretary. 38 C.F.R. § 3.1(p), 3.155, 3.160 (effective March 24, 2015). However, the final rulemaking is only applicable with respect to claims and appeals filed on or after March 24, 2015. The term "claim" or "application" is used interchangeably and, as mentioned, means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement to a benefit. 38 C.F.R. § 3.1(p) (2015). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Here, to this end, the Veteran submitted a VA Form 21-526b (Veteran’s Supplemental Claim for Compensation) that VA received on December 13, 2016, on which he claimed entitlement to service connection for cold injury to his feet. The RO since has granted service connection for cold injury residuals affecting his right foot and left foot with an effective date of December 13, 2016, coinciding with the date of receipt of his claim for these disabilities.   As there was no communication or submission of evidence from the Veteran evincing an intent to apply for benefits or identifying the benefits sought before the December 13, 2016 claims, an earlier effective date is not warranted. Although there is evidence in the record indicating the Veteran’s disabilities arose prior to filing his December 13, 2016 claims, this does not provide grounds for assigning any earlier effective date. The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support the claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). The effective date for an award of service connection is not based on the earliest medical evidence demonstrating diagnosis and/or a causal connection to service, but instead on the date of receipt of the claim for service connection. See Lalonde v. West, 12 Vet. App. 377 (1999); McGrath, 14 Vet. App. at 35 (2000). Medical evidence reflecting treatment for and diagnosis of a condition does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155(a) "because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek" service connection for that condition. See MacPhee, 459 F.3d at 1326. All that said, the Board is certainly grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA... the evidence must rise to the   requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. J. In, 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.