Citation Nr: 21064065 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 18-39 801 DATE: October 19, 2021 ORDER Entitlement to an effective date earlier than March 13, 2017, for service connection for residuals of a fractured left heel with arthritis is denied. Entitlement to an effective date earlier than March 13, 2017, for service connection for residuals of a fractured right heel with arthritis is denied. REMANDED Entitlement to an increased rating for a left heel disability is remanded. Entitlement to an increased rating for a right heel disability is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for a bilateral ankle disability in January 1978 and VA denied that claim in June 1978. That June 1978 rating decision is final. 2. The Veteran filed to reopen a claim for service connection for a bilateral ankle disability in August 1988. In September 1988, the Veteran was notified that he was previously denied that claim as a result of willful misconduct and not in the line of duty. 3. The Veteran filed a claim for service connection for fractures of both heel bones in February and August 1998. In September 1998 and October 1998, the Veteran was notified that the claim could not be granted because the underlying conditions were due to a misconduct origin. 4. The Veteran filed a claim for service connection for a bilateral ankle disability in February 2001 and VA denied that claim in an August 2002 rating decision. The Veteran withdrew an appeal of that decision in April 2003. That August 2002 rating decision is final. 5. VA received a claim of entitlement to service connection for residuals of fractured right and left heels on March 13, 2017. In July 2017, VA established entitlement to service connection for residuals of fractured left and right heels with arthritis, and assigned 30 percent ratings, effective March 13, 2017, the date the claim was received by VA. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than March 13, 2017, for the establishment of entitlement to service connection for residuals of a fractured left heel with arthritis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 2. The criteria for entitlement to an effective date earlier than March 13, 2017, for the establishment of entitlement to service connection for residuals of a fractured right heel with arthritis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1977. This matter comes to the Board of Veterans' Appeals (Board) on appeal from July 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. Effective Date 1. Entitlement to an effective date earlier than March 13, 2017, for service connection for residuals of a fractured left heel with arthritis. 2. Entitlement to an effective date earlier than March 13, 2017 for service connection for residuals of a fractured right heel with arthritis. Generally, the effective date for service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date 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. For reopened claims, the effective date shall be the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(r). Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed but was not perfected, may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c), (d)(3); 38 C.F.R. § 20.1103. If new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). A claim is considered abandoned when a claimant does not supply information requested by VA within one year of the request. 38 C.F.R. § 3.158. Where there is an abandoned claim, the Veteran must file a new claim and the effective date will not be earlier than the date of receipt of the new claim. 38 C.F.R. § 3.158(a). The Veteran filed a claim for service connection for a bilateral ankle disability in January 1978, approximately 6 months after separation from service. A June 1978 rating decision denied service connection for broken ankles because the claimed disabilities were the result of the Veteran's own willful misconduct. The Veteran was notified of the June 1978 decision and of his appellate rights, but did not initiate an appeal of those issues. There is no indication that new and material evidence was received within the one year following that decision that was pertinent to those claims. 38 C.F.R. § 3.156(b). Thus, that decision became final. 38 U.S.C. §§ 7104, 7105. Therefore, in the absence of clear and unmistakable error, an effective date in January 1978 is not warranted. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Subsequently, the Veteran filed to reopen a claim for service connection for a bilateral ankle disability in August 1988. In a September 1988 VA administrative letter, the Veteran was notified that claim was previously denied as a result of willful misconduct and the disability was not in the line of duty. The Veteran filed claims for service connection for fractures of both heel bones in February 1998, August 1998, and March 1999. In September 1998, October 1998, and April 1999 letters from VA adjudication officers, the Veteran was notified that the claims could not be granted because the underlying conditions were due to a misconduct origin. The Veteran filed a claim for service connection for a bilateral ankle disability in February 2001. VA denied that claim in an August 2002 rating decision. The Veteran filed a timely appeal to that decision. However, the Veteran withdrew the appeal of that decision in April 2003. Therefore, the August 2002 rating decision became final. 38 U.S.C. §§ 7104, 7105. On March 13, 2017, the Veteran filed to reopen a claim for service connection for residuals of fractured right and left heels. In July 2017, VA established entitlement to service connection for residuals of fractured left and right heels with arthritis, and assigned 30 percent ratings, effective March 13, 2017, the date the Veteran filed to reopen the claim. The Board notes that, after filing the claim to reopen on March 13, 2017, the Veteran underwent VA foot examination in June 2017. After review of the claims file and in-person examination, the June 2017 VA examiner opined that the claimed heel disabilities were at least as likely as not (50 percent or greater probability) incurred in or caused by the claimed in-service injury, event, or illness. It is the June 2017 VA examination that served as the underlying basis to establish of service connection for residuals of fractured left and right heels with arthritis. The Veteran, through the representative, contends that he is entitled to an earlier effective date of January 12, 1978, for service connection for residuals of fractured left and right heels with arthritis. The Veteran contends that January 12, 1978, is the date the Veteran first filed a claim for service connection for broken ankles. Specifically, the Veteran asserts that the claims were originally denied because VA determined that the underlying cause of the heel injuries was willful misconduct and not in the line of duty. However, nothing changed from the time of the accident in-service in 1976 and the grant of service connection in March 2017. Therefore, the Veteran contends that the conduct was incorrectly deemed willful misconduct in 1978 and service connection should have been established in 1978. Having reviewed the evidence of record, the Board finds that March 13, 2017, is the earliest effective date legally assignable for service connection for residuals of fractured left and right heels with arthritis. The Board emphasizes that previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears v. Principi, 16 Vet. App. 244 (2002). For the Veteran to be awarded an effective date based on an earlier claim, he would have to show CUE in a prior denial of the claim. Flash v. Brown, 8 Vet. App. 332 (1995). However, neither the Veteran nor representative has alleged CUE in any prior rating decision. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (breach of the duty to assist cannot form the basis for a CUE claim). A final decision can only be revised on the basis of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). The Board does not have jurisdiction to adjudicate in the first instance assertions of CUE in AOJ decisions. Jarrell v. Nicholson, 20 Vet. App. 326 (2006) (assertion of CUE in an AOJ decision must first be presented to and decided by the AOJ before the Board has jurisdiction to decide the matter). However, the Veteran has not alleged any specific CUE that could be referred to the AOJ for adjudication. The Board is aware that the Veteran seeks an effective date of January 1978. However, without having perfected an appeal as to allegations of clear and unmistakable error in the June 1978 rating decision denying entitlement to service connection, the Veteran may not now vitiate the finality of that decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). The rating decision from June 1978 is final. The Veteran was notified of that decision and his appeal rights and did not initiate a timely appeal. No new and material evidence was received within one year of the June 1978 rating decision. The Veteran cannot be awarded an effective date based on that earlier claim, in the absence of CUE. The Veteran does not allege CUE. Therefore, an earlier effective date cannot be granted based on that rating decision or that claim. The August 2002 rating decision is final. The Veteran withdrew the appeal of the August 2002 rating decision in April 2003. The Veteran cannot be awarded an effective date based on that earlier claim, in the absence of CUE. The Veteran does not allege CUE. Therefore, an earlier effective date cannot be granted based on this rating decision. The assignment of an effective date for service connection based on an original claim or a claim to reopen is essentially governed by the date of receipt of the claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the current effective date corresponds to the date VA received the Veteran's application to reopen the claim for service connection for residuals of fractured left and right heels with arthritis, following a previous final denial. The Board has carefully reviewed the record in its entirety and can identify no communication, informal or formal, from the Veteran that may be a claim to reopen the previously denied claim of entitlement to service connection for a foot or ankle disability at any time since the last final rating decision in August 2002, and prior to March 13, 2017. Servello v. Derwinski, 3 Vet. App. 196 (1992) (Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). Moreover, neither the Veteran nor representative has identified any earlier claim after the August 2002 decision. The Board is not authorized to rule in equity but is bound by the applicable statutes and regulations. Any claim in equity should be pursued with the Secretary of VA. 38 U.S.C. § 503. Accordingly, after reviewing the record, the Board finds that the preponderance of the evidence is against a finding that an effective date prior to March 13, 2017, for service connection for residuals of fractured left and right heels with arthritis is warranted. Therefore, as the preponderance of the evidence is against the assignment of any earlier effective date, the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an increased rating for a left heel disability is remanded. 2. Entitlement to an increased rating for a right heel disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claims of entitlement to an increased rating for a bilateral heel disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The record shows that the Veteran was most recently provided a VA foot examination in February 2019, over two years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the most recent examination remote, but the examinations appear to no longer indicate the Veteran's current level of disability. Specifically, the Board notes that, during a May 2021 Board hearing, the Veteran alleged a worsening in severity of both service-connected disabilities. Therefore, the Board finds that updated examinations are warranted to access the current severity and manifestations of the service-connected disabilities. After all outstanding medical records are associated with the claims file, more contemporaneous examination is needed to rate the claim for an increased rating for the bilateral heel disabilities. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran is notified that it is his responsibility to report for any scheduled examination and to cooperate in the development of these claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 2. Then, schedule the Veteran for a VA foot examination conducted by a medical doctor or podiatrist to assist in determining the current nature and severity of service-connected right and left foot disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner should also opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the foot disabilities and the other service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should describe what type of work and what accommodations would be necessary due to the service-connected disabilities. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.