Citation Nr: 21065910 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-55 736 DATE: October 27, 2021 ORDER Entitlement to an effective date of September 1, 1992 for lumbosacral strain with degenerative arthritis of the spine (back disability) is granted. Entitlement to an effective date of September 1, 1992 for service connection for residuals of inversion injury of the right foot (right foot disability) is granted. REMANDED Entitlement to an initial rating higher than 20 percent for back disability is remanded. Entitlement to an initial compensable disability rating for right foot disability is remanded. FINDING OF FACTS The Veteran submitted a claim for service connection for back disability and foot disability in November 1992, less than one year after his separation from active service on August 31, 1992. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 1,1992 for the grant of service connection for back disability have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of September 1,1992 for the grant of service connection for right foot disability have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1988 to August 1992. The claims were appealed to the Board of Veterans' Appeals (Board) from a January 2017 rating decision. The Veteran filed a notice of disagreement (NOD) in June 2017, which resulted in a September 2017 statement of the case (SOC). The Veteran subsequently filed a substantive appeal in September 2017 and elected to have a videoconference hearing, which was held in July 2021. Transcript of the hearing is of record. Notably, the Veteran did not specifically list the issues regarding his right foot disability on his substantive appeal. However, he did mention the right foot disability on the form and explained that he intended to appeal the issues regarding the right foot disability during the hearing. Because it is in the Veteran's best interest for the Board to interpret his filings liberally, the Board has taken jurisdiction of the issues regarding the effective date for right foot disability and increased rating for right foot disability. 1. Entitlement to an effective date of September 1, 1992 for back disability is granted. 2. Entitlement to an effective date of September 1, 1992 for service connection for right foot disability is granted. The Veteran contends that an effective date of August 26, 1992 is warranted for his service-connected back and right foot disabilities. Generally, 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. Alternately, disability compensation may be effective the day following separation from active service if the claim is received within one year after separation from service. 38 C.F.R. § 3.400 (b)(2)(i). Where evidence requested in connection with an original claim is not furnished within 1 year after the date of request, the claim will be considered abandoned. C.F.R. § 3.158 (a). Furthermore, a claim would be considered abandoned if the claimant failed to respond to an order to report for a VA examination within 1 year from the date of the request. 38 C.F.R. § 3.158 (b). After the expiration of the 1-year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, compensation based on such evidence shall commence not earlier than the date of filing of the new claim. C.F.R. § 3.158 (a). In this case, the Veteran initially filed a claim for back and foot disabilities in November 1992, which is less than one year after his separation from active service on August 31, 1992. The Board recognizes that the Veteran did not specifically indicate that his claim was for a right foot disability on the application in 1992, and he has a service-connected left foot disability. However, since the Veteran's left foot disability is secondary to his right foot disability, which is related to an injury in service, he was likely seeking service connection for the right foot disability at the time. See November 2016 VA examination. Moreover, the Veteran's testimony shows that he had symptoms related to his right foot disability in 1992. See hearing transcript at 24. Based on the foregoing, the Board resolves reasonable doubt in the Veteran's favor, and finds that his initial application for compensation filed in November 1992 was for right foot disability. At the time he filed his initial claim, the Veteran was living in Massachusetts. VA exam worksheet from December 1992 reflects that the agency of original jurisdiction (AOJ) requested back and foot examinations. The Veteran was informed that he was going to be scheduled for VA examinations. Subsequently, in January 1993, the Veteran informed VA that he changed his address and provided an address in Michigan (MI). A notice of transfer reflects that his record was sent to VA regional office in Detroit, MI. According to a VA exam worksheet from September 1993, exams were requested again. A document titled VA 21-2507a (Request for Physical Examination) shows that the examinations were cancelled in October 1993 because the notification sent came back undelivered. It is unclear to the Board where the notification for the examinations was sent. In February 1994, the Veteran was sent a letter informing him that his claim for disability was delayed. That letter was also returned, but it was sent to an address different from the one the Veteran listed on the communication informing VA about his change of address. The Board resolves reasonable doubt in the Veteran's favor and presumes that the notification for the examination was likely sent to the same address as the letter informing the Veteran about the delay in adjudication of his claims. If that was the case, the notification for the examinations was also sent to an incorrect address. Because the Veteran did not have proper notice of the examinations scheduled, he had adequate reason for not reporting to the exams for his back and foot disabilities. The record does not reflect that any other attempts were made to reach the Veteran regarding his claims. Nor was there an adjudication of the claims until he filed the intent to file a new claim in January 2016. Under these circumstances, the Board finds that the date of the Veteran's claim was November 23, 1992. The Veteran credibly testified that his back and right foot symptoms have been present since he separated from the military. See hearing transcript at 16, 24. Based on this evidence, the Board concludes that entitlement to service connection for back disability and right foot disability arose at that time. Because his claim was filed within less than one year from the date of his separation on August 31, 1992, the Board concludes that the effective date for the claims for back disability and right foot disability is September 1, 1992, a day after his separation from service. REASONS FOR REMAND 3. Entitlement to an initial rating higher than 20 percent for back disability is remanded. The Veteran testified that he has been seeking treatment for his back disability at the VA since he filed his claim in 2016 and that he was given VA examination in December 2020. See hearing transcript at 13, 14. These VA treatment records, and the examination report are not in the claims file. Therefore, there are outstanding VA examination report and treatment records. A remand to get these records is necessary before the claim can be adjudicated. 4. Entitlement to an initial compensable disability rating for right foot disability is remanded. The Veteran contends that a compensable rating is warranted for his service-connected right foot disability. The record has two VA foot examinations from November 2016 and October 2017. Notably, the October 2017 VA examination focused on the Veteran's left foot disability and the AOJ did not get an opportunity to consider it because it was added to the claims file after the SOC was issued in September 2017. The Board may not consider this evidence in the first instance. Notwithstanding, during the hearing, the Veteran testified that his toes bend at the joints causing him pain. See hearing transcript at 21. There was testimony that the frequency of his symptoms has increased recently. Thus, the Board concludes that the VA examinations of record do not reflect the current severity of his right foot disability. As such, a remand to obtain a current examination is necessary before the claim can be adjudicated. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records, to include any outstanding VA examination reports (the AOJ should note that the Veteran testified that he was given VA back examination in December 2020 and that he has been receiving treatments at the VA since 2016). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right foot disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Solomon 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.