Citation Nr: 21069070 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-05 460 DATE: November 17, 2021 ISSUES 1. Entitlement to an effective date, prior to January 16, 2013 for the grant of service connection for a left Achilles tendon rupture status post repair. 2. Entitlement to an effective date, prior to January 16, 2013 for the grant of service connection for a lumbar back strain. 3. Entitlement to an earlier effective date, prior to January 16, 2013 for an increased rating of 20 percent for a cervical neck strain. ORDER Entitlement to an effective date, earlier than January 16, 2013 for the grant of service connection for a left Achilles tendon status post repair is denied. Entitlement to an effective date, earlier than January 16, 2013 for the grant of service connection for a lumbar back strain is denied. Entitlement to an effective date, earlier than January 16, 2013 for an increased rating of 20 percent for a cervical neck strain is denied. FINDINGS OF FACT 1. A July 2007 rating decision denied service connection for a left foot Achilles tendon rupture. The Veteran failed to file a timely Notice of Disagreement (NOD) and that denial became final. On January 16, 2013, the Veteran filed an informal claim to reopen his claim for service connection for a left foot Achilles tendon status post repair and the claim was subsequently granted; there are no documents that can be construed as a claim, informal claim or intent to file a claim of entitlement to service connection for a left Achilles tendon status post repair prior to January 16, 2013. 2. The Veteran filed an informal claim for service connection for a back disability (back pain) that was received on January 16, 2013; there are no documents that can be construed as a claim, informal claim or intent to file a claim of entitlement to service connection prior to January 16, 2013. 3. It is not factually ascertainable that the Veteran's cervical neck strain increased in severity within a year proceeding the January 16, 2013 intent to file date. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date, earlier than January 16, 2013 for service connection for left Achilles tendon status post repair have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 2. The criteria for entitlement to an effective date, earlier than January 16, 2013 for service connection for a lumbar back strain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.102, 3.155, 3.400. 3. The criteria for entitlement to an effective date, earlier than January 16, 2013 for a 20 percent evaluation for a cervical neck strain have not been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2, 1990 to January 16, 1991, from July 2, 1990 to January 14, 2003, from January 14, 2003 to October 8, 2003 and from January 20, 2007 to May 20, 2008. This matter comes before the Board of Veterans Appeals (Board) from an August 2014 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement (NOD) with this rating decision in August 2014. A statement of the case (SOC) was issued in December 2016 and the Veteran perfected a timely appeal in January 2017. See January 11, 2017 VA Form 9. In January 2021, the Veteran, through his Veteran's Service Organization (VSO), requested a videoconference hearing with respect to his claims. See January 15, 2021 Correspondence; See also, February 11, 2021 Correspondence. In August 2021 Correspondence, the Veteran withdrew his Hearing request pursuant to 38 C.F.R. § 20.704 (e). See August 6, 2021 Correspondence. An Informal hearing presentation (IHP) was submitted by the Veteran's VSO in October 2021. In this IHP, the Veteran urged the Board to ensure the correct monetary award has been paid the Veteran for the disabilities VA has already conceded as service-connected and to order payment of all additional money to which the Veteran is entitled. See October 4, 2021 IHP. The Board finds however that the issues of the correct monetary award and additional retroactive payments for the Veteran's conceded service-connected disabilities are not currently before the Board and will not be discussed in this decision. The Board finds that a brief procedural history of this case may be helpful in understanding the issues on appeal before the Board. The Veteran's original claim for an upper back condition and Achilles tendon condition of the left foot was filed on August 1, 2006. See VA Form 21-526. The Veteran was granted service connection for a cervical neck strain in a July 10, 2007 rating decision, with a zero percent evaluation, effective August 1, 2006, the date of the receipt of his claim. See July 10, 2007 rating decision. The Veteran was denied service connection for his left foot Achilles tendon condition. The Veteran did not file a Notice of Disagreement (NOD) with this July 10, 2007 rating decision. The Veteran filed a claim to reopen his claim for an Achilles tendon rupture condition on June 27, 2014. Additionally, the Veteran filed a claim for back pain, loss of mobility. See June 27, 2014 Correspondence; See also, VA Form 21-526EZ. In an August 13, 2014 rating decision, the Veteran was granted service connection for his left Achilles tendon rupture status post repair, with an evaluation of 30 percent from June 27, 2014. Service connection was also granted for residual scar, status post left ankle Achilles tendon repair, with an evaluation of zero percent effective June 27, 2014. Additionally, the Veteran was granted service connection for a lumbar back strain, with an evaluation of 10 percent from June 27, 2014. Last, the Veteran was granted an increased evaluation for his cervical neck strain, with an evaluation of 20 percent from June 27, 2014. (The Board observes that the RO construed the Veteran's June 27, 2014 claim as an increased rating claim for his service-connected cervical neck strain.) In his November 12, 2014 Notice of Disagreement (NOD), the Veteran stated that he disagreed with the effective date of his disabilities. See November 12, 2014 VA Form 21-0958. In a subsequent December 9, 2016 rating decision (Decision Officer Review), entitlement to an earlier effective date for the Veteran's service-connected left Achilles tendon rupture status post repair and lumbar back strain was granted, effective January 16, 2013, the date the VA National Call Center received a service request for the Veteran's ankle and upper back condition. See January 16, 2013 Service Request re: the Veteran called to file a compensation claim for the following conditions: one for ankle and upper back (VBMS). A January 16, 2013 effective date was assigned for the Veteran's 20 percent disability rating for his cervical neck strain. See December 9, 2016 rating decision. As referenced above in this decision a statement of the case (SOC) was issued in December 2016 and the Veteran perfected a timely appeal in January 2017. See January 11, 2017 VA Form 9. The Board's discussion and analysis below will begin with the Veteran's claim for entitlement to an earlier effective date, prior to January 16, 2013, for his claim of entitlement to service connection for his (1) left Achilles' tendon rupture status post repair and (2) lumbar back strain. This will be followed by discussion and analysis of his claim for entitlement to an earlier effective date, prior to January 16, 2013 for an increased rating of 20 percent for his (3) cervical neck strain. Effective Date The Veteran contends that an earlier effective date is warranted for his service-connected disabilities. Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active-duty service or date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b) (1); 38 C.F.R. § 3.400(b)(2). The effective date for a grant of service connection based on the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q) (1) (ii). A claim is 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 an intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155. VA administrative claims process recognizes formal and informal claims. A formal claim is one that has been filed in a form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action indicating an intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). The mere presence of medical evidence does not establish an intent to seek service connection. See Brannon, supra (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006). Entitlement to an effective date, prior to January 16, 2013 for the grant of service connection for left Achilles tendon rupture status post repair. As referenced in the introduction of this decision, the Veteran filed an original claim for service-connected benefits for his Achilles tendon condition in August 2006. See August 1, 2006 VA Form 21-526. The Veteran claimed that this Achilles tendon condition was a result of weekend training back in the states. The Veteran's claim was denied in a July 2007 rating decision. See July 10, 2007 rating decision. The Veteran did not file a timely NOD, and subsequent to the denial of the case, the record is silent with regard to any further claims for the appeal. To this end, during this time period after the initial denial, there was no indication of new and material evidence; in fact, the Board finds that the record is silent from July 2007, until the Veteran's claim to reopen in 2013. 38 C.F.R. § 3.156 (b). Thus, the July 2007 decision became final. 38 U.S.C. §§ 7104, 7105. The Board also notes that since the July 2007 rating decision became final, the decision is not subject to revision in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision). A review of the record does not show that a CUE claim was filed by the Veteran. Therefore, an earlier effective date of the date prior to January 16, 2013, is not warranted. Id. The Board acknowledges the Veteran's contention that his compensation for his claims should be retroactive from 2007. The Veteran asserts in June 2014 correspondence that after his July 2007 denial, he had no follow-up with a VA representative, nor did anyone reach out to him. The Veteran asserts that he should have been service connected for his Achilles tendon rupture in 2007. The Veteran indicated that he didn't understand the "file an appeal process" during that period in his life. The Veteran asserts that he was inexperienced and uneducated in the process or the way forward for contesting the decision; therefore, he provided no action. He was being a good Marine so to speak. The Veteran has also asserted that that he tried to contact the VA for the last 4 years for help to schedule an appointment. The Veteran has asserted that the VA has not answered his calls 99 percent of the time. The Veteran states that the two times he did speak to a VA representative, he was told, over 2 years ago that the claim has been filed and the paper is on the way. The Veteran contends that the 2nd time he spoke to a VA representative, he was told he was not in the system. The Veteran asserts that he was told by a VA representative that he could not be helped because the system was so backed up, but that if he got another organization, like the American Legion or VFW behind him for support, he might get into the system. See June 27, 2014 Correspondence; See also, VA Form 21-526EZ; See also, January 10, 2019 Correspondence re: the VA never answered the phone nor communicated with Veterans for years. The Board is sympathetic to the Veteran's contentions. However, the legal authority governing effective dates is clear and specific, and the Board is bound by that authority. There is no claim for service connection outstanding before the January 16, 2013 service request (informal claim) for his ankle condition with the VA National Call Center. No pertinent evidence was received within one year of the July 10, 2007 rating decision, and the Board can find no evidence of record from the Veteran or the Veteran's representative that can be inferred as a substantive appeal. See October 4, 2021 Informal Hearing Presentation (IHP). While the Veteran states that he was inexperienced and uneducated at that time in his life, the Board observes that the Veteran does acknowledge notice of the "file an appeal" process. See June 27, 2014 Correspondence; See also, July 17, 2007 Notification Letter pg. 3 re: what you should do if you disagree with rating decision. In summary, the Board finds that a July 2007 decision denied service connection for the Veteran's left foot Achilles tendon rupture; the Veteran failed to file a timely Notice of Disagreement (NOD) and that denial became final. On January 16, 2013, the Veteran filed an informal claim to reopen his claim for service connection for Achilles tendon status post repair and the claim was subsequently granted. With full consideration of the Veteran's contention that he was inexperienced and uneducated in the process of appealing the August 2007 rating decision and that he tried to contact the VA for the last four years to schedule an appointment, there are no documents that can be construed as a claim, informal claim or intent to file a claim of entitlement to service connection for a left Achilles tendon status post repair prior to January 16, 2013. Additionally, a review of the record does not show that a CUE claim was filed by the Veteran. see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision). Thus, the Board finds that January 16, 2013, the date of receipt of the informal claim to reopen following a previous final denial of service connection, is the appropriate effective date for the now service-connected left Achilles tendon rupture status post repair, as that is the date of the application to reopen following a final disallowance of the prior claim for service connection. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Entitlement to an effective date, prior to January 16, 2013 for the grant of service connection for a lumbar back strain. As noted above, the Veteran submitted a completed VA Form 21-526EZ on June 27, 2014 for back pain, loss of mobility. In an August 13, 2014 rating decision, the Veteran was granted service connection for a lumbar back strain, with an evaluation of 10 percent from June 27, 2014. In a December 2016 rating decision, the RO granted service connection for a back disability effective January 16, 2013, the date the Veteran submitted a service request for his "upper back" disability at the VA National Call Center. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, a duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. The Veteran has not identified nor has the Board's review of the record disclosed a formal or informal claim for benefits prior to January 16, 2013. See 38 C.F.R. §§ 3.1 (p), 3.155(a). See also 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). The Board is reminded that the effective date of a rating and award of compensation on an original claim for compensation will be the day following separation from active-duty service or date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). In this case, the Veteran claims that his back disability began during service. See also August 12, 2014 Back Conditions examination, pg. 1 re: date of diagnosis (1990). The Veteran did not file his service connection claim for a back disability within one year after separation from service. Therefore, the effective date for his service connection claim will be the receipt of his claim or the date entitlement arose, whichever is later. In this case, the date the Veteran's claim was received by VA is later than the date entitlement arose and is thus the appropriate effective date for the grant of service connection is January 16, 2013. In summary, the Board finds that the Veteran filed an informal claim for service connection for his back disability that was received on January 16, 2013 (service request); there are no documents that can be construed as a claim, informal claim or intent to file a claim of entitlement to service connection prior to January 16, 2013. The evidence or record provides no basis for an award of service connection prior to January 16, 2013, the date in which the Veteran's informal claim for his back disability was received. Accordingly, the claim of entitlement to an earlier effective date prior to January 16, 2013 for his lumbar back strain is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). Entitlement to an earlier effective date, prior to January 16, 2013 for an increased rating of 20 percent rating for a cervical neck strain. Regarding the effective date for the 20 percent rating for his cervical neck disability: The Veteran's formal claim for an increased rating was received on VA Form 21-526EZ on June 27, 2014. An informal claim (service request) for an increased rating was received on January 16, 2013 through the VA National Call Center for his "upper back". See January 16, 2013 Service Request re: upper back (VBMS). An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). "[A]n increase in a veteran's service-connected disability must have occurred during the one-year period prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2)). A review of the evidence of record does not demonstrate that an increase in this Veteran's cervical neck disability was factually ascertainable within the one year preceding the filing date. See also, August 8, 2014 Back Conditions and Cervical Neck Conditions Examination re: medical history, pgs. 1-2. Consequently, the effective date of January 16, 2013 is the earliest allowable date under the law, and an earlier effective date for the increased rating for cervical neck strain is not warranted. See 38 U.S.C. § 5110 (b) (2); 38 C.F.R. § 3.400(o)(2). (Continued on next page.) As there is no legal basis for assignment of any earlier effective date, and because the preponderance of the evidence is against the claim for any earlier effective date, the Board finds that the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans Appeals Attorney for the Board C. Little, Associate 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.