Citation Nr: 21066292 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 16-34 588 DATE: October 29, 2021 ORDER An effective date earlier than July 18, 2013, for service connection for frostbite of the left foot is denied. An effective date earlier than July 18, 2013, for service connection for frostbite of the right foot is denied. FINDINGS OF FACT 1. In June 2002, the Veteran filed a claim for arthritis in his left ankle which was denied; the claim was denied and he did not timely appeal. 2. On July 18, 2013, the Veteran filed a claim for frostbite in both his left and right foot; prior to July 18, 2013, there were no prior unadjudicated formal claims, informal claims, or written intents to file a claim for service connection for frostbite of the bilateral feet. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than July 18, 2013, for service connection for frostbite of the left foot have not been met. 38 U.S.C. §§ 5107, 5110; 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). 2. The criteria for entitlement to an effective date earlier than July 18, 2013, for service connection for frostbite of the right foot have not been met. 38 U.S.C. §§ 5107, 5110; 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from November June 1985 to June 1989. This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2014 and February 2015 rating decisions issued by a VA Regional Office (RO). It was remanded by the Board in October 2019 for additional record gathering and review. Substantial compliance with the remand request having been achieved, the Board may proceed to consider the claim. 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). Preliminary Matters At the outset, the Board notes that in August 2014, the Veteran's claims file was regrettably "lost" and required rebuilding. When a Veteran's records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the Veteran in the development of his claim. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991); Pruitt v. Derwinski, 2 Vet. App. 83, 85 (1992). In cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. O'Hare, 1 Vet. App. at 367. In part, such a heightened duty obligates VA to advise a Veteran to submit alternative forms of evidence in support of his claim. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Dixon v. Derwinski, 3 Vet. App. 261 (1992). The VA first discovered that the file had been lost in August 2014 and immediately initiated a thorough search. After a ten-day internal search failed to uncover the missing documents, the VA began to reconstruct the file from documents in its electronic files system and by contacting other sources. In early October 2014 the Veteran was notified that the physical file was missing and that it was being rebuilt. The Veteran was encouraged to send all relevant materials in his possession to the VA in order to ensure that they were included in the rebuilt file. The Board remanded the claim in October 2019 after it received additional records, including Service Treatment Records (STRs), as part of the file reconstruction. Nevertheless, some documents prior to May 2013 are not included in reconstructed file, in particular the Veteran's 2002 claim for arthritis of the left ankle and the Rating Decision(s) denying service connection. The Board will use the documents recovered to fill in any gaps in the evidence. For example, documents such as the August 2013 Rating Decision Code Sheet, the April 2014 Rating Decision, and the May 2014 NOD establish that a July 2002 RO decision denied service connection for the Veteran's claim of left ankle arthritis and was not appealed. The United States Court of Appeals for Veterans Claims (Court) has considered a situation similar to this one, where the Board relied on the facts recorded in prior Board decisions because the initial claims folder was lost. Marciniak v. Brown, 10 Vet. App. 198 (1997). The Court held that in these circumstances, a presumption of regularity must be applied as to the Board's prior actions, including its findings of fact. Id. at 200. It is assumed that the RO accurately recorded the facts as they then existed and considered all relevant evidence in the prior decision. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926) (a presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, it is presumed that they have properly discharged their official duties); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying the presumption of regularity to official duties of the RO). The Board concludes VA's duty to assist has been satisfied. Attempts to rebuild the file have been made to the extent possible. The Veteran was notified of the lost file and was asked to submit any relevant documents in his possession. The claimant has at no time referred outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim and the Board may proceed. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). An effective date earlier than July 18, 2013, for service connection for the residuals of frostbite to both left and right foot is denied. The Veteran contends that the effective date for his claims of frostbite in both feet should be June 2002, the date on which he filed a claim for arthritis of the left ankle, rather than July 18, 2013, the date he filed his claims for frostbite. For reasons outlined below, the Board disagrees. Unless specifically provided otherwise, 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). The Veteran was diagnosed with frostbite in April 1988 while on active service. He filed a claim for arthritis in his left ankle in June 2002. The RO denied service connection. The Veteran failed to appeal the claim and it became final. He filed the present claim for frostbite in both feet on July 18, 2013, along with a claim for arthritis in his right ankle and a motion to reopen the decision denying service connection for arthritis in the left knee. The RO granted service connection for frostbite, rated at 20 percent for each foot, from the date he filed his claim, July 18, 2013; deferred the decision on the right ankle; and reopened, but denied on the merits, his claim seeking service connection for the left ankle. The Veteran filed a notice of disagreement (NOD) in July 2014 arguing that that the date for the award for frostbite should be the date of his claim for arthritis in his left ankle filed in July 2002. In a decision in February 2015, the RO denied service connection for the right ankle arthritis; determined that the Veteran had not presented new and material evidence sufficient to warrant reopening the left ankle arthritis claim; but did not address the issue of the effective date for the frostbite claims. The Veteran timely filed an NOD to the February 2015 decision in February 2016. In a Statement of the Case (SOC) issued in May 2016, the RO addressed the Veteran's contention that the effective date of his frostbite claims should be the date of the June 2002 claim. That claim, the RO observed, "had long since expired" when he filed his July 2013 claim. Under the applicable VA rules, the effective date was therefore the July 2013 date of the filing of the claim. In October 2019 the Board took up the April 2014 and February 2015 rating decisions and remanded a number of claims, including the present frostbite claims, to ensure that the RO reviewed an updated version of the rebuilt file. After complying with the remand, in November 2020 the RO denied the earlier effective date of June 2002 for the frostbite claims. The RO reasoned that under the applicable rules the date that the claim for frostbite was filed, July 18, 2013, was the effective date because the earlier June 2002 date had expired as the Veteran had failed to appeal it. As noted above, the effective date of a service connection claim must either be the date of receipt of the claim or the date entitlement arose, whichever is later. An effective date of an award of service connection is not based on the earliest possible showing of symptomatology of a condition or diagnosis, but rather on the date that the application upon which service connection was eventually awarded was filed with VA, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Since the appeal claim for the claim of ankle arthritis had, in the words of the RO, "long ago expired," the earliest date upon which service connection could be granted for frostbite in either foot could only be the date on which the claim was filed, July 18, 2013. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The Board recognizes the Veteran's contention that he is not a medical professional and did not at the time of the June 2002 claim understand exactly what disability he had. However, frostbite of the bilateral feet and left ankle arthritis are distinctly different enough anatomical conditions that laypersons could reasonably be expected to, for instance, claim a bilateral foot condition rather than just a condition in one ankle. Here, according to the rebuilt information in the record, the Veteran only claimed a left ankle condition in June 2002. Further, although the claims file no longer contains the actual documents, it is clear from the historical record kept by VA, that no timely appeal to the June 2002 denied claim was submitted by the Veteran. As such, that claim, regardless of the Veteran's intent at the time with regard to its scope, is final. Indeed, the Veteran has never contended that he ever appealed the June 2002 denial nor does he contend he submitted any communication, formal or informal, between June 2002 and July 2013 that could be construed as a claim for bilateral foot frostbite. VA treatment records constructively before VA prior to July 2013 contained no mention of frostbite residuals or any foot condition. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). The Board's analysis has been undertaken with its heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the Veteran. Russo v. Brown, 9 Vet. App. 46 (1996). Based on the information rebuilt in the claims file, and the Veteran's own contentions, it does not appear that there is any basis to award an effective date for service connection earlier than July 18, 2013. In light of the above, the preponderance of the evidence is against the claim and the benefit-of-the-doubt doctrine is not for application. The claim for an earlier effective date for service connection for residuals of frostbite to both left and right foot therefore must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). SHEREEN M. MARCUS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.