Citation Nr: 21066642 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-39 123 DATE: November 1, 2021 ORDER An effective date earlier than October 11, 2016, for the grant of service connection for cold injury residuals of the right foot is denied. An effective date earlier than October 11, 2016, for the grant of service connection for cold injury residuals of the left foot is denied. FINDINGS OF FACT 1. A May 2014 rating decision denied the Veteran's petition to reopen the claims of service connection for cold injury residuals of the right foot and left foot; VA received no appeal of that decision or new and material evidence prior to expiration of the one-year appeal period. 2. VA received the Veteran's petition to reopen the previously denied claim of service connection for cold injury to the feet on October 11, 2016; the effective date of the award of compensation cannot be earlier than the date of receipt of the claim to reopen. 3. After the May 2014 final disallowance and before the claim to reopen was received on October 11, 2016, there was no pending unadjudicated claim as to service connection for cold injury residuals of the right and/or left foot. CONCLUSIONS OF LAW 1. The May 1994 rating decision that denied the claims of service connection for cold injury residuals of the right foot and cold injury residuals of the left foot, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The criteria for an effective date earlier than October 11, 2016, for the grant of service connection for cold injury residuals of the right foot, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400. 3. The criteria for an effective date earlier than October 11, 2016, for the grant of service connection for cold injury residuals of the left foot, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.400(q), (r). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1971 to March 1973. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in May 2021. A transcript is associated with the record. As explained in greater detail below, as the May 1997 and May 2014 rating decisions are final, they are not subject to revision in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.105. Thus, any later action to alter the final decision would constitute a "freestanding" earlier effective date claim, which is simply not permissible absent a showing of CUE. See Leonard v. Principi, 17 Vet. App. 447 (2004), aff'd Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003); Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). A claim of CUE is not before the Board at this time. At the hearing, the Veteran and his representative were advised that, to the extent the Veteran believes there was CUE in the May 1997 and/or May 2014 rating decisions, a motion for revision based on CUE must be addressed in the first instance by the agency of original jurisdiction (AOJ) and that they may file a motion on such. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002); Jarrell v. Nicholson, 20 Vet. App. 326, 332-33 (2006). In December 2019, the Veteran was notified of the Board's ruling that, in the absence of sufficient cause, his motion to advance his claim on the Board's docket due to financial hardship was denied. See BVA Letter (December 2019). 1. Entitlement to an effective date prior to October 11, 2016, for the grant of service connection for residuals of cold injury, right foot. 2. Entitlement to an effective date prior to October 11, 2016, for the grant of service connection for residuals of cold injury, left foot. Issues 1&2. The Veteran seeks an effective date prior to October 11, 2016 for the award of service connection for cold injury residuals of the right foot and left foot. Specifically, he asserts that he is entitled to an earlier effective date because had his medical treatment providers referred him for neurological testing contemporaneous to his prior claims for service connection (i.e., August 1996 & January 2014), the findings would have shown he had cold injuries of the feet related to his exposure in service. See e.g., Correspondence (October 2016) & Hearing Transcript at 3, 5 (May 2021). The Board concludes that the preponderance of the evidence is against an effective date earlier than October 11, 2016, for the grants of service connection for cold injury residuals of the right foot and the left foot because the award is based on a reopened claim after a final disallowance. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400(q), (r). VA regulations state that, except as otherwise provided, the effective date of an award of compensation based on a claim to reopen after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400; see also 38 C.F.R. § 3.400(q)(2) (providing the same for awards of compensation based on new and material evidence received after final disallowance); 38 C.F.R. § 3.400(r) (providing the same for awards of compensation based on reopened claims). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. Prior to March 24, 2015, a claim was "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). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, or his or her duly authorized representative, may be considered an informal claim. 38 C.F.R. § 3.155. The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). While a claim for VA benefits must identify the benefit sought, when sympathetically reading a claim by a pro se claimant, the identification of the benefit need not be explicit in the claim-stating documents, but can be found indirectly through examination of evidence to which those documents point. Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019). See also, Sellers v. Wilkie, 30 Vet. App. 157 (2018) (holding that a veteran's claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality). Here, in a May 1997 rating decision, the AOJ denied the Veteran's claim of entitlement to service connection for cold injury to the feet because the evidence of record, including a VA examination of the lower extremities, failed to show he had a current disability related to residuals of cold injury. The Veteran was notified of this decision in a May 1997 letter and how to appeal. VA did not receive a notice of disagreement (NOD) within one year from the date of notification, nor did the Veteran submit new and material evidence prior to expiration of the appeal period. Therefore, the May 1997 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. In January 2014, the Veteran sought to reopen his claim for service connection for cold injuries of the right foot and left foot. In a May 2014 rating decision, the AOJ denied service connection for cold injury residuals of the right foot and cold injury residuals of the left foot because the evidence of record did not reflect a nexus or link between the Veteran's current symptoms and military service. VA notified the Veteran of this decision in a May 2014 letter and how to appeal. VA received no appeal or new and material evidence prior to expiration of the appeal period. Therefore, the rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156, 20.1103. On October 11, 2016, VA received VA Form 21-526EZ requesting to reopen the previously denied claims of service connection for peripheral neuropathy of the right and left lower extremities due to frostbite. The Veteran also submitted a VA nerve conduction study conducted on July 13, 2015 showing distal sensory and motor polyneuropathy which the examiner indicated may be cold weather induced due to the Veteran's history. See CAPRI (October 11, 2016). In addition, the Veteran submitted a private Disability Benefits Questionnaire (DBQ) signed on March 15, 2016 showing diagnoses of peripheral neuropathy and frostbite. See DBQ Veteran Provided (October 11, 2016). The Veteran underwent a new VA examination in January 2017 and the accompanying medical opinion found a positive nexus between the Veteran's foot symptoms and his cold injury during service. Given the foregoing, a February 2017 rating decision granted service connection for cold injury residuals of the right foot and cold injury residuals of the left foot. It is also noted that the AOJ denied service connection for peripheral neuropathy of the right and left lower extremities. Thereafter, in April 2017, the Veteran submitted a timely NOD, challenging the effective dates assigned for the grant of service connection for cold injury residuals of the bilateral feet. On his NOD, the Veteran argued that there was "no new information that was submitted on cold injury" in the present claim and as the previous rating decisions denied the same claims based on the same evidence, earlier effective dates were warranted for the award of service connection. See NOD (April 2017). The Board has carefully reviewed the record, and considered the Veteran's contentions and testimony, to determine whether any communication received after the May 2014 rating decision and prior to the October 11, 2016 claim to reopen, could be construed as an informal or formal claim, notwithstanding the regulatory amendment that on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Here, the Veteran testified that he did not appeal the May 1997 and May 2014 rating decisions. See Hearing Transcript at 4-5 (May 2021). In addition, the July 2015 VA nerve conduction study which showed possible cold injury to the lower extremities, was not performed within the one-year appeal period following the May 2014 rating decision. Lastly, the Veteran's claim to reopen, submitted on VA Form 21-526EZ, was received on October 11, 2016, more than one year after the final disallowance. Therefore, an effective date prior to October 11, 2016 is not warranted because the evidence reflects no communication prior to this date that may be construed as a claim for disability benefits that would serve as the basis for an earlier effective date. Based on the facts discussed above, the Board finds that the AOJ assigned the correct effective date of October 11, 2016 for the award of service connection for cold injury residuals of the right foot and the left foot. While the Board does not dispute that prior to October 11, 2016, the Veteran had clinical findings that may have been consistent with cold injuries in both feet, the applicable law requires that the effective date for a reopened claim after a final disallowance shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). Therefore, the law does not permit the assignment of an earlier effective date when the grant of benefits is based on a reopened claim. The Board is without authority to grant benefits out of equity. See Harvey v. Brown, 6 Vet. App. 416, 425 (1994). No equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress. Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Accordingly, the claim for entitlement to an earlier effective date for the grant of service connection for cold injury residuals of the right foot and cold injury residuals of the left foot is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Krunic, 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.