Citation Nr: 21066505 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 16-53 739A DATE: November 1, 2021 ORDER Entitlement to an effective date earlier than December 11, 2012, for a grant of service connection for a skin disorder is denied. Entitlement to an effective date earlier than October 11, 2013, for a grant of service connection for erectile dysfunction is denied. As a timely substantive appeal was not filed regarding a February 2017 statement of the case, the appeal of the claim for timeliness of a substantive appeal for entitlement to service connection for neuropathy of the upper extremities is dismissed. REMANDED Entitlement to service connection for a thoracolumbar spine disorder is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. FINDINGS OF FACT 1. A final June 2011 Agency of Original Jurisdiction (AOJ) rating decision denied service connection for skin disorder. 2. VA received the Veteran's current claim for entitlement to service connection for a skin disorder on December 11, 2012. 3. VA received the Veteran's claim for entitlement to service connection for erectile dysfunction on October 11, 2013. 4. A May 2015 decision by the AOJ denied a claim of service connection for neuropathy of the upper extremities; the Veteran was notified of this decision, and his appellate rights, by letter dated May 13, 2015. 5. The Veteran was furnished a statement of the case (SOC) to the correct address of record on February 3, 2017. 6. The Veteran's substantive appeal filed in June 2017 is not timely. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 11, 2012, for a grant of service connection for a skin disorder have not been met. 38 U.S.C. §§ 5107, 5110, 7.104(b); 38 C.F.R. §§ 3.102, 3.156(b), 3.400, 20.1100. 2. The criteria for an effective date earlier than October 11, 2013, for a grant of service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 5107, 5110, 7.104(b); 38 C.F.R. §§ 3.102, 3.156(b), 3.400, 20.1100. 3. A timely substantive appeal regarding the May 2015 rating decision and the February 2017 SOC (with respect to a claim of service connection for neuropathy of the upper extremities) was not timely submitted or received, and the thus criteria for dismissal of the claim for timeliness of a substantive appeal have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.202, 20.302 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1969 to April 1971. 1. Entitlement to an effective date earlier than December 11, 2012, for a grant of service connection for a skin disorder 2. Entitlement to an effective date earlier than October 11, 2013, for a grant of service connection for erectile dysfunction Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increased, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). A claim is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). The Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to that date, the former regulations apply. In a June 2011 rating decision, the AOJ declined to grant service connection for a skin disorder. By a letter dated June 2011, the Veteran was notified of the denial and his appellate rights. However, the Veteran did not appeal or submit new and material evidence within the one-year appeal period after notice of the decision was provided. Hence, that decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103. The record reflects that the Veteran filed a new claim for entitlement to service connection for a skin disorder on December 11, 2012; and he filed an original claim for entitlement to service connection for erectile dysfunction on October 11, 2013. In an October 2016 rating decision, the AOJ granted entitlement to service connection for erectile dysfunction effective October 11, 2013, and entitlement to service connection for a skin disorder effective April 17, 2013. In a July 2018 rating decision, the AOJ granted an effective date of December 11, 2012, for entitlement to service connection for the skin disorder. The Board has also considered whether 38 C.F.R. § 3.157(b), in effect prior to March 2015, is applicable. This provision stated that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, the Court has held that this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in §3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). Specifically, VA medical records are not accepted as informal claims for disabilities where service connection has not been established, since the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999). Thus, any reference to PTSD in the VA clinic setting cannot constitute a formal or informal claim under 38 C.F.R. § 3.157(b). Pacheco, 27 Vet. App. 21 (2014); Sears, 16 Vet. App. at 249. Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. See 38 U.S.C. § 5110(a). As the assignment of an effective date for an award of service connection is specified by statute and regulation, the Board has no authority to disregard these requirements. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Therefore, under the laws and regulations pertaining to effective dates, December 11, 2012, is the appropriate effective date for the grant of entitlement to service connection for a skin disorder, and October 11, 2013, is the appropriate effective date for the grant of service connection for erectile dysfunction, as those are the dates of receipt of the Veteran's claims for service connection of those issues. 3. Timeliness of a substantive appeal for entitlement to service connection for neuropathy of the upper extremities The Veteran contends that he submitted a timely appeal with respect to a March 2015 AOJ decision which denied a claim of service connection for neuropathy of the upper extremities. The issue on appeal concerns the appellate rights in effect prior to the enactment of the Appeals Modernization Act effective February 2019 referred to as the Legacy system. Under the Legacy system, appellate review was initiated by the filing of a Notice of Disagreement (NOD) and completed by the filing of a substantive appeal after a statement of the case (SOC) had been furnished. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201. The filing of a substantive appeal, which consisted of a properly completed VA Form 9 or correspondence containing the necessary information, was the final step the appellant needed to take to perfect an appeal. 38 C.F.R. § 20.202. The substantive appeal had to be filed within sixty days from the date that the AOJ mailed the SOC to the appellant, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ended later. The date of mailing of the SOC was presumed to be the same as the date of the SOC for purposes of determining whether an appeal has been timely filed. 38 U.S.C. § 7105; 38 C.F.R. § 20.302(b). A substantive appeal consisted of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals." 38 C.F.R. § 20.202. Prior to March 24, 2015, such could also consist of correspondence containing the necessary information. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form). The Substantive Appeal should set forth specific allegations of error of fact or law related to specific items in the SOC and clearly identify the benefit sought on appeal. 38 C.F.R. § 20.202. Although the Board will construe all arguments advanced by a claimant in a liberal manner, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination or determinations being appealed or is not in conformity with VA law and regulations. 38 U.S.C. §§ 7105(d)(5), 7108; 38 C.F.R. § 20.202. The United States Court of Appeals for Veterans Claims (CAVC) has held that the 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). There is a presumption of administrative regularity in VA processes, procedures, and mailings allowing the assumption that VA properly discharged its duties and responsibilities. See Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (the "presumption of regularity" applies to the official acts of public officers, and in the absence of clear evidence to the contrary, it must be presumed they have properly discharged their official duties); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994). In pertinent part, the Board notes that a May 2015 decision by the AOJ denied a claim of service connection for neuropathy of the upper extremities. The Veteran was notified of this decision, and his appellate rights, by letter dated May 13, 2015. The Veteran submitted a timely NOD in December 2015. The Veteran was furnished an SOC to the correct address of record on February 3, 2017. The Veteran had until April 4, 2017, to file a timely substantive appeal. However, the record does not reflect a properly completed VA Form 9 filed between February 3, 2017, and April 4, 2017, which could be properly construed as a substantive appeal. The Board notes that the Veteran filed a notice of disagreement on February 14, 2017, regarding the issues of entitlement to service connection for neuropathy of the upper extremities and left ankle sprain. However, the Veteran did not, at that time, submit a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals," even though one was included in the February 2017 SOC. As a matter of law, the Veteran's February 14, 2017, filing cannot be considered a substantive appeal. 38 C.F.R. § 20.202 (2018). The Veteran did file a substantive appeal in June 2017, but this substantive appeal is not timely. The Board observes that the February 3, 2017, SOC was properly addressed to the Veteran's home address of record, was not returned as undeliverable and there is no showing of mailing irregularities. The Board also finds no actions on the part of the AOJ which implicitly or explicitly waived the substantive appeal requirements, including timeliness. Additionally, the VA has not taken any action which misled the Veteran to believe this claim had been timely appealed. Notably, the Veteran requested another copy of the relevant SOC, and one was provided to him on March 24, 2017. Even assuming the Veteran first received the SOC on this date, he would have had until May 23, 2017, to file a timely substantive appeal. However, the record does not reflect any filing between March 24, 2017, and May 23, 2017, which could be properly construed as a substantive appeal. Additionally, even considering these dates, the June 2017 substantive appeal still is not timely. As such, the Board finds a timely substantive appeal regarding the May 2015 rating decision and the February 2017 SOC (with respect to a claim of service connection for neuropathy of the upper extremities) was not submitted or received. Therefore, the criteria for dismissal of the claim for lack of a timely substantive appeal have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS FOR REMAND 1. Entitlement to service connection for a thoracolumbar spine disorder is remanded. During an August 2018 VA examination, the examiner determined the Veteran's thoracolumbar spine disorder is less likely than not related to service, opining that service treatment records do not contain evidence of a thoracolumbar problem, and treatment did not begin until 1999. While the examiner noted the Veteran's in-service work including carrying ammunition boxes and driving a tank, the examiner did not adequately address the Veteran's statement indicating lumbar injury during service. See, e.g., July 2018 Statement. Additionally, the Board notes that VA treatment records indicate chronic back pain prior to the 1999 date noted by the examiner. See, e.g., September 1995 VA Treatment Records. Finally, the Board notes that the Veteran claimed entitlement to service connection for a low back disorder as early as August 1971, four months after service, and an August 1971 VA examination reflects mild lumbosacral pain. A remand is needed to obtain a VA medical opinion adequate for rating purposes. 2. Entitlement to SMC based on aid and attendance is remanded. The Veteran most recently underwent a March 2017 examination to evaluate his need for aid an attendance. The examiner noted, among other diagnoses, degenerative disc disease and chronic back pain. The claims for entitlement to SMC based on aid and attendance is inextricably intertwined with the claim for entitlement to service connection for a thoracolumbar spine disorder. Issues are considered to be inextricably intertwined when a determination on one issue could have a significant impact on the outcome of another. Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, a remand for further consideration of entitlement to SMC based on aid and attendance is also warranted. The matters are REMANDED for the following action: 1. Obtain relevant VA treatment records since April 2019 and associate them with the claims file. 2. Forward the Veteran's claims file to a qualified examiner for an opinion addressing the nature and etiology of the Veteran's thoracolumbar spine disorder. The examiner should determine whether it is at least as likely as not that any thoracolumbar spine disorder is etiologically related to active duty service. In answering this question, the examiner is requested to explain whether there is any medical reason to accept or reject the Veteran's belief that his thoracolumbar spine disorder began during service. The examiner must also specifically address the following: August 1971 VA examination reflecting mild lumbosacral pain within a few months of discharge from service and whether it is at least as likely as not that any current disorder is etiologically related to this diagnosis of mild lumbosacral pain; and the Veteran's July 2018 statement that he injured his lumbar spine jumping off of a helicopter to avoid enemy fire, and had to carry heavy ammunition boxes and artillery rounds during service. If any examinations are needed, each one should be scheduled. A complete rationale must be provided for any opinions offered 3. After completing the actions detailed above, readjudicate the claim remaining on appeal, and then readjudicate the claim for entitlement to SMC based on aid and attendance. If any additional examinations are needed to adjudicate the SMC claim, those examinations should be scheduled. If any benefit is not granted to Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Howell, 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.