Citation Nr: 21062749 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-28 873A DATE: October 12, 2021 ORDER Entitlement to an effective date for right foot arthritis prior to April 28, 2015, is granted. FINDINGS OF FACT 1. The Veteran filed an informal claim for a right foot disability on October 29, 2009. CONCLUSIONS OF LAW 1. Resolving any doubt in favor of the Veteran, the criteria for entitlement to an effective date of October 29, 2009, for service connection of right foot arthritis have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.2500. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1988 to April 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from November 2010, August 2015, and May 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Baltimore, Maryland. In her June 2017 substantive appeal, the Veteran limited her issues before the Board to "Arthritis % rating." In addition, the Veteran did not provide a response to the question of whether she was requesting a hearing before a Board Veterans Law Judge. Page four of the Form 9 instructions state: "If you do not check any of the boxes [in Block 10, "Optional Board Hearing"], the Board will assume that you DO NOT [sic] want a Board hearing, and your case will be decided taking into consideration the arguments already made, including your explanation on this form as to why you think VA decided your case incorrectly." See June 2017 VA Form 9, Appeal to Board of Veterans' Appeals. The case is before the Board for consideration of the Veteran's appeal. Duty to Notify and Assist Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a). The duty to notify was satisfied by March and April 2010 VA VCAA / DTA Letters. See also November 2010 VA Rating Decision Narrative, August 2015 VA Rating Decision Narrative, July 2016 VA Correspondence, May 2017 VA Rating Decision Narrative, and May 2017 Statement of the Case. VA's duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA's assistance to the Veteran, service treatment records and VA and private treatment records were obtained and associated with the claims file and evidence of record. The Veteran has not identified any additional, outstanding records relevant to the claim decided herein. See October 2015 Veteran 5103 Notice Acknowledgement ("I have enclosed all the remaining information or evidence that will support my claim, or I have no other information or evidence to give VA to support my claim. Please decide my claim as soon as possible."). Further, the entire record was available to the December 2013 VA medical examiner, a Flatfoot examination was performed, and the testing was sufficient to adequately address all potential rating criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 4.71a. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) and in keeping with principles of basic fairness, in the spirit of the non-adversarial nature of VA benefits adjudication, to assist the Veteran. See Gambill v. Shinseki, 576 F.3d 1307 (Fed. Cir. 2009) (quoting Prickett v. Nicholson, 20 Vet. App. 370, 382 (2006) ("[C]reating a procedural right in the name of fair process principles [for applicants for VA disability benefits] is primarily based on the underlying concept of the VA adjudicatory scheme, not the U.S. Constitution."). All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. 1. Entitlement to an effective date prior to April 28, 2015, for service connection of right foot arthritis. The Veteran contends that the effective date of her award for service connection of right foot arthritis "should be retroactively paid for starting 2010 (the year of my original condition / claim)." See August 2015 VA Form 21-0958, Notice of Disagreement. The Board liberally construes her substantive appeal of June 2017 and finds that the effective date issue is also on appeal. Effective Dates of Claims The provisions governing the assignment of the effective date of a claim for compensation, or an increased rating are set forth in 38 U.S.C. § 5110(a) and (b), and 38 C.F.R. § 3.400(b) and (o). The general rule regarding effective dates is: "Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, 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 thereunder." See 38 U.S.C. § 5110(a); see also 38 C.F.R. 3.400, General ("Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later."). For claims of disability compensation filed under 38 C.F.R. § 3.4(b), which includes "[b]asic entitlement...if the veteran is disabled as the result of a personal injury or disease (including aggravation of a condition existing prior to service) while in active service," the effective date of claims is: "Day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later." See 38 C.F.R. 3.400(b)(2)(i) The provisions of 38 C.F.R. § 3.157 commence with a restatement of the general rule that the effective date of pension or compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is later. The regulation further provides: "A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or Department of Veterans Affairs issue, if the report relates to a disability which may establish entitlement. Acceptance of a report of examination or treatment as a claim for increase or to reopen is subject to the requirements of § 3.114 with respect to action on Department of Veterans Affairs initiative or at the request of the claimant and the payment of retroactive benefits from the date of the report or for a period of 1 year prior to the date of receipt of the report." See 38 C.F.R. § 3.157(a). According to 38 C.F.R. § 3.157(b): "Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of one of the following will be accepted as an informal claim for increased benefits or an informal claim to reopen...(1) Report of examination or hospitalization by Department of Veterans Affairs or uniformed services. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim...The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. (2) Evidence from a private physician or layman. The date of receipt of such evidence will be accepted when the evidence is furnished by or in behalf of the claimant is within the competency of the physician or lay person and shows the reasonable probability of entitlement to benefits. (3) State and other institutions. When submitted by or on behalf of the veteran and entitlement is shown, date of receipt by the Department of Veterans Affairs of examination reports, clinical records, and transcripts of records will be accepted as the date of receipt of a claim if received from State, county, municipal, recognized private institutions, or other Government hospitals." See 38 C.F.R. § 3.157(b). Under 38 C.F.R. § 3.400(o), Increases, the effective date of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. However, "if a complete claim or intent to file a claim is received within 1 year of such date," the effective date of the claim is the "[e]arliest date as of which it is factually ascertainable based on all evidence of record than an increase in disability had occurred." In addition, "When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the dae of the report of examination, hospitalization, or medical treatment." The regulation clarifies that the provisions apply only to reports of examination or treatment of disabilities for which service connection had already established. See 38 C.F.R. § 3.400(o)(1) and (2). Factual Background The Veteran initially filed a claim for service connection of "Right Foot" on December 4, 2009. See December 2009 VA Form 21-526, Veterans Application for Compensation. The claim for service connection was denied in a November 2010 rating decision. See November 2010 VA Rating Decision Narrative ("Service connection for right foot condition is denied."). In January 2011 correspondence, the Veteran filed a notice of disagreement with the "letter received dated December 8, 2010." See January 2011 Veteran Correspondence ("I disagree with your decision."). Receipt of the notice of disagreement was acknowledged by VA in January 2011. See January 2011 VA Appeal Process Request Letter ("We received your written disagreement with the Department of Veterans Affairs (VA) decision of November 12, 2010...Issue on Appeal: Denied service connection for right foot condition."). Pursuant to a duty to assist the Veteran, VA continued to develop evidence to substantiate the claim. See February 2011 Medical Treatment Record Government Facility, July 2013 VA Miscellaneous C & P Correspondence, September and December 2013 VA Forms 21-6789, Deferred Rating, December 2013 Medical Treatment Record Government Facility, December 2013 VA Form 21-2507a, Request for Physical Examination, December 2013 VA Examination Letter, December 2013 VA C & P Examination, August 2014 VA Email Correspondence, June 2015 VA Form 21-3101, Request for Information, and August 2015 VA Rating Decision Narrative. Analysis Pursuant to 38 C.F.R. § 3.2500(c)(1), "A claimant may continuously pursue a claim or an issue by timely and properly filing one of the follow administrative review options, as specified (except as otherwise provided in paragraphs (c), (e), and (f) of this section), after any decision by the agency of original jurisdiction...(1) Following notice of a decision on an initial claim or a supplemental claim, the claimant may file a supplemental claim, request a higher-level review, or appeal to the Board of Veterans' Appeals." See 38 C.F.R. § 3.2500. To be eligible for an effective date prior to April 28, 2015, for service connection of right foot arthritis, the Veteran would have to had continuously pursued her claim by completing a "timely" review option, which includes an appeal to the Board under 38 C.F.R. § 3.2500(c)(1). The Veteran timely filed a written notice of disagreement to the November 2010 VA rating decision in January 2011, "[w]ithin one year from the date on which the agency of original jurisdiction issues a notice of a decision on a claim or issue." See 38 C.F.R. § 3.2500(a)(1). Because the Veteran continuously pursued her claim for service connection of right foot arthritis, the November 2010 rating decision did not become final. See 38 C.F.R. § 21.412. Once her claim for service connection was granted in the August 2015 rating decision, the provisions of 38 C.F.R. § 3.400(b)(2)(i), "date of receipt of claim," The Veteran filed an informal claim for flat feet and bunions, which the will liberally be construed as a right foot claim on October 29, 2009, and subsequently filed a formal claim on December 4, 2009. The former date is the proper effective ive date for disability benefits of right foot arthritis. Conclusion In summary, the evidence is at least in equipoise regarding entitlement to service connection for right foot arthritis prior to the April 28, 2015, effective date assigned by VA. The November 2010 adjudication denying service connection for "right foot condition" did not become final. At the time of the August 2015 rating decision, the Veteran was still in continuous pursuit of the December 2009 claim as evidenced by the unaddressed notice of disagreement. Given the continuous pursuit of the claim following the November 2010 adjudication, the earliest possible date on which the Veteran's initial grant of service connection could be granted was the October 29, 2009, VA receipt of the informal claim. Therefore, an earlier effective date for the Veteran's right foot arthritis is warranted, and the appeal is allowed. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.