Citation Nr: 21063704 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 16-49 272 DATE: October 15, 2021 ORDER Entitlement to an effective date earlier prior to October 23, 2015 for the award of service connection for furuncles (claimed as boils), is denied. Entitlement to an effective date prior to October 23, 2015, for the award of service connection for migraines, is denied. Entitlement to an effective date prior to October 23, 2015, for the award of service connection for a right ankle strain, is denied. Entitlement to an effective date prior to October 23, 2015 for the award of service connection for a right knee strain with shin splints, is denied. FINDINGS OF FACT 1. Prior to October 23, 2015, there was no formal claim, informal claim, or written intent to file a claim for service connection for furuncles (claimed as boils). 2. Prior to October 23, 2015, there was no formal claim, informal claim, or written intent to file a claim for service connection service connection for migraines. 3. Prior to October 23, 2015, there was no formal claim, informal claim, or written intent to file a claim for service connection for a right ankle strain. 4. Prior to October 23, 2015, there was no formal claim, informal claim, or written intent to file a claim for service connection for a right knee strain with shin splints. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier prior to October 23, 2015 for the grant of service connection for furuncles (claimed as boils) have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 2. The criteria for entitlement to an effective date prior to October 23, 2015, for the award of service connection for migraines have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 3. The criteria for entitlement to an effective date prior to October 23, 2015, for the award of service connection for a right ankle strain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 4. The criteria for entitlement to an effective date prior to October 23, 2015 for the award of service connection for a right knee strain with shin splints have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active-duty service from June 1985 to February 1998. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a VA Regional Office (RO). By way of background, the Veteran was originally granted service connection for the above disabilities in the April 2016 rating decision with an effective date of October 23, 2015. The RO based the effective date on the date VA received a formal claim for benefits. Subsequently, the Veteran filed a timely Notice of Disagreement (NOD) and an appeal to the Board asserting an earlier effective date was warranted. Specifically, the Veteran and his representative claim that sometime in 2014, the Veteran with help from his representative filed a claim seeking service connection for the same conditions which was never processed. In support of the claim, the Veteran referenced a 2016 email exchange with VA indicating "the VA Regional Office does show that a claim was received in 2014". The contentions by the Veteran and his representative, supported by the above referenced evidence, prompted the Board to remand the claims for further development in a December 2019 decision. Specifically, the Board requested that the RO ask the Veteran and his representative for additional evidence to support their contention that an earlier effective date is warranted. In addition, the Board requested the RO to determine if any paper records pertaining to the Veteran exist to support this assertion. A review of the claims file now shows that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Entitlement to an effective date earlier prior to October 23, 2015 for the grant of service connection for furuncles (claimed as boils), is denied. 2. Entitlement to an effective date prior to October 23, 2015, for the award of service connection for migraines, is denied. 3. Entitlement to an effective date prior to October 23, 2015, for the award of service connection for a right ankle strain, is denied. 4. Entitlement to an effective date prior to October 23, 2015 for the award of service connection for a right knee strain with shin splints, is denied. Generally, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will 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 effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, a "claim" was either a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). "Date of receipt" of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Effective March 24, 2015, all claims must be submitted on a form prescribed by the Secretary of VA. Here, the Veteran filed a formal claim for service connection for furuncles (claimed as boils), migraines, a right ankle strain, and right knee strain which was received by VA on October 23, 2015. The Veteran's claims file does not contain any earlier informal or formal claim for service connection for those disabilities. The Veteran was granted an effective date of October 23, 2015 for these conditions based on the date of claim. As noted above, the Veteran and his representative contend there was an earlier claim filed seeking service connection for the same disabilities in 2014. In support, they submitted statements by the Veteran's representative along with email correspondence from VA in July 2016. The email correspondence was attached to a May 17, 2016 award letter from VA indicating "a decision" was made for a claim "for additional benefits for your dependents received on May 17, 2016." The decision pertained to recoupment of separation pay as well as payment changes with the addition of a dependent. Attached to this decision, the July 18, 2016, email noted that the Under Secretary for Benefits reviewed the Veteran's inquiry and "the VA Regional Office does show that a claim was received in 2014." The email then outlined various options for appealing the prior decision. No further context was provided. The Board observes a lot of ambiguities with what the Veteran submitted. The Veteran submitted an email correspondence that purports to identify a claim that was received in 2014. However, the email also notes to the extent there was an earlier claim, there also was a prior decision that the Veteran could appeal. The email, further, was attached to an award letter that is wholly unrelated to the issues on appeal here. Rather, the award letter was related to dependency and recoupment of separation pay. Nonetheless, the Board previously afforded the Veteran the benefit of the doubt and previously remanded these issues in December 2019 to allow for the Veteran and his representative to provide any further evidence and argument to support their contentions. Subsequent to the Board's December 2019 remand, the RO sent notices to the Veteran and his representative, Veterans of Foreign Wars (VFW), on December 12, 2019 and again on August 7, 2020. At the time of this decision, no response has been received nor any indication that the notices were never received. A note in the Veteran's claims file dated October 15, 2020 indicated the RO had completed all remand directives including attempting to locate any paper filings by the Veteran and his representative earlier than October 2015. At the conclusion of the additional development by the RO, no evidence of a claim filed prior to October 23, 2015 was found nor any response with evidence has been submitted by the Veteran nor his representative since the Board's December 2019 decision. The Board notes, the VA has a duty to assist the Veteran in obtaining information, and the Veteran has a duty on his part to cooperate with VA in developing a claim. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that "[t]he duty to assist is not always a one-way street"). However, VA's duty must be understood as a duty to assist the Veteran in developing his claim, rather than a duty on the part of VA to develop the entire claim with the Veteran performing a passive role. Turk v. Peake, 21 Vet. App. 565, 568 (2008). In this instance, the Veteran must aid in the development of his claim by submitting the supporting evidence as requested by the RO. If the Veteran fails to do so, his claim will be decided based on the evidence of record. See 38 C.F.R. § 3.655. As previously explained in the Board's remand, absence clear evidence to the contrary, the Board can and will presume that public officers have properly discharged their official duties. Miley v. Principi, 366 F.3d 1343, 1347 (Fed. Cir. 2004). There is nothing clear about the evidence presented by the Veteran in this case as outlined above and the Veteran was given ample opportunity to provide further context and further support for his contentions. As no objective evidence has been found to support the Veteran's contention that an earlier effective date is warranted, the Board finds the presumption of regularity with regard to processes and procedures of VA administrative processes, has not be rebutted by "clear evidence to the contrary". Warfield v. Gober,10 Vet. App. 483, 486 (1997). Therefore, an effective date prior to October 23, 2015 for the grant of service connection for furuncles (claimed as boils), migraines, a right ankle strain, and right knee strain is denied. In reaching the above conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. F. Minnitte, 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.