Citation Nr: 21064902 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 18-33 056 DATE: October 21, 2021 ORDER Entitlement to an effective date of June 18, 2001, but no earlier, for the award of service connection for left hip disability is granted, subject to controlling regulations governing the payment of monetary awards. REFERRED The issue of whether there was clear and unmistakable error (CUE) in a May 16, 1972 rating decision which denied service connection for left hip disability was raised by the Veteran during a June 2021 Board hearing. The agency of original jurisdiction (AOJ) has not adjudicated this CUE matter and the Board does not have jurisdiction to adjudicate in the first instance assertions of CUE in AOJ decisions. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (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). Therefore, the Veteran's CUE motion is referred to the AOJ for adjudication. 38 C.F.R. § 20.904(b) (continuing to provide for referral of unadjudicated claims). FINDING OF FACT An application to reopen a claim of service connection for left hip disability was received by VA on June 18, 2001; there is no unadjudicated formal or informal application to reopen the claim of service connection for left hip disability prior to June 18, 2001. CONCLUSION OF LAW The criteria for an effective date of June 18, 2001, but no earlier, for the award of service connection for left hip disability are met. 38 U.S.C. §§ 5110 (a), 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156(a)-(b), 3.400, 19.52(a), 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1970 to January 1972. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision, in which the AOJ awarded service connection for left hip joint replacement due to left hip stress fracture (previously claimed as left hip stress fracture with posttraumatic degenerative joint disease), effective from January 26, 2017. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a June 2021 hearing and a transcript of the hearing is associated with his claims file. As a final preliminary matter, the Board notes that a claim for entitlement to an earlier effective date is not inextricably intertwined with a CUE motion. While both are methods by which a veteran may obtain an earlier effective date, they are separate processes, each with distinct requirements for entitlement. See Phillips v. Brown, 10 Vet. App. 25 (1997) (noting that while a veteran may certainly seek an earlier effective date through a subsequent adjudication of a reopened claim while simultaneously pursuing a CUE claim, those issues are not inextricably related). Therefore, although the AOJ has not yet adjudicated the Veteran's CUE motion, as explained above, the Board may proceed to adjudicate the earlier effective date issue on appeal. Earlier Effective Date Generally, the effective date of an evaluation and award 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. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim of service connection for left hip disability was received before March 24, 2015, the amendments are not applicable in this case and will not be applied with regard to the earlier effective date matter on appeal. Under the former legal authority, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to an effective date earlier than January 26, 2017 for the award of service connection for left hip disability The Board finds, for the following reasons, that an effective date of June 18, 2001, but no earlier, for the award of service connection for left hip disability is warranted. The AOJ initially denied the Veteran's claim of service connection for left hip disability (characterized as left hip stress fracture) by way of a May 1972 rating decision on the basis that the disability pre-existed service and was not aggravated by service. Specifically, the AOJ explained that the Veteran's entrance examination noted a left hip and femur fracture and that he experienced left hip and back pain during service caused by a brace on the sole of his foot which needed replacement. Overall, there was a pre-service left hip fracture and the Veteran's service treatment records showed a left hip stress fracture, but there were no findings to support a conclusion that the stress fracture was the result of any incident of service. Rather, it was the result of a former injury, without evidence of active pathology during service. The evidentiary record failed to reflect increased disability as compared with the pre-service level of disability. The Veteran was notified of the AOJ's May 1972 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the May 1972 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 19.52 (a), 20.1103. An application to reopen the claim of service connection for left hip disability was denied in a September 2000 rating decision on the basis that new and material evidence had not been received. The Veteran was notified of the AOJ's September 2000 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the September 2000 decision became final. Id. In June 2001, the Veteran submitted a statement (VA Form 21-4138) in which he reported that he was prescribed a brace for his left foot boot during service to relieve pressure on an ingrown toenail. He continued to perform basic training with the brace and developed a severe pain in his left leg. X-rays revealed a left hip stress fracture, which was due to the fact that the Veteran was performing basic training with the left foot brace placed in the wrong location. He was placed on bedrest for six weeks and was then assigned to a convalescent ward for approximately 8 to 9 months. He was released with a permanent physical profile. The Veteran's June 2001 statement was received by VA on June 18, 2001. In light of the Veteran's June 2001 statement and resolving all reasonable doubt in his favor, the Board finds that the June 2001 statement included an informal claim of service connection for left hip disability. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009) (the essential elements of a claim are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." During the pendency of this claim, the report of an April 2017 VA hip examination and an April 2017 medical opinion from a VA physician were associated with the claims file. This opinion indicates that the Veteran's claimed left hip disability was likely related to service. Also, the Veteran reported during the June 2021 Board hearing that he had experienced continuous left hip symptoms ever since his symptoms in service. This reflects that entitlement arose prior to or at the time of the June 2001 informal claim. McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a statement regarding prior conditions may support an effective date prior to the date of the statement); Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA"). In the May 2017 rating decision, the AOJ awarded service connection for left hip disability (characterized as left hip joint replacement due to left hip stress fracture, previously claimed as left hip stress fracture with posttraumatic degenerative joint disease). The current appeal originates from the May 2017 decision. In sum, the April 2017 opinion was obtained during the pendency of the Veteran's June 2001 claim. There is no evidence of any unadjudicated formal or informal application to reopen the claim of service connection for left hip disability following the final September 2000 rating decision and prior to June 18, 2001. Therefore, an effective date of June 18, 2001, but no earlier, is warranted for the award of service connection for left hip disability. 38 U.S.C.§ 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.