Citation Nr: 21072330 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-07 048 DATE: December 2, 2021 ORDER Entitlement to an effective date earlier than July 28, 2014, for the grant of entitlement to service connection for a right knee disability is denied. Entitlement to an effective date earlier than July 28, 2014, for the grant of entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The Veteran filed a claim of entitlement to service connection for an ankle disability in May 1973. That claim was finally denied in an October 1973 rating decision. 2. The Veteran filed a claim of entitlement to right ankle and left leg disabilities in August 1982. That claim was finally denied in a September 1982 rating decision. 3. The Veteran received notice of the 1973 and 1982 denials by, at the latest, March 1995. 4. The Veteran filed a claim of entitlement to service connection for bilateral knee disabilities on July 28, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier July 28, 2014 for the grant of service connection for a right knee disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.157, 3.159, 3.400. 2. The criteria for entitlement to an effective date earlier July 28, 2014 for the grant of service connection for a left knee disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.157, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1969 to March 1973. The Veteran testified before the undersigned at an April 2021 Board Hearing. The claims file contains a transcript of the hearing. The record contains evidence not yet considered by the agency of original jurisdiction (AOJ); however, the evidence is either cumulative of evidence already of record (e.g., duplicate copies of prior filings) or is not pertinent to these claims (e.g., VA examinations related to other conditions, medical records generated after the relevant effective dates). Therefore, the Board may proceed to the merits. See 38 C.F.R. § 20.1305(c). EARLIER EFFECTIVE DATE FOR THE GRANT OF SERVICE CONNECTION The Veteran argues that he is entitled to an earlier effective date for the grant of entitlement to service connection for his right and left knee disabilities. He has put forth several theories in support of his claim. Primarily, he alleges that he filed an initial claim in 1973 and that he believes this claim remains pending. Alternatively, he alleges that he filed a claim to reopen in 1982 and that this claim remains open. See June 2015 Notice of Disagreement (noting original claim in 1973 and later claim in 1982); April 2021 Board Hearing Tr., generally (indicating an initial filing in 1974, but, from context, referencing the May 1973 claim and otherwise indicating the prior claims remained pending due to misdirected mail). A July 2016 rating decision granted entitlement to service connection for right and left knee disabilities with an effective date of July 28, 2014, the date VA received his July 2014 Notice of Disagreement which argued that, in his original 1973 claim, he "requested that [his] knees be examined, also was part of the claim." Legal Standards Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 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 (a); 38 C.F.R. § 3.400. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). 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. See 38 C.F.R. § 3.1(p). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases, the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. §§ 3.400(r), 3.400(q)(2); Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed.Cir. 2003). As to what constitutes a claim, 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); 3.155 (2015). Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to a veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; see also Norris v. West, 12 Vet. App. 413, 421 (1999). The Board also notes that, under 38 C.F.R. § 3.157(b)(1) (2014), a report of examination or hospitalization may constitute an informal claim. However, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit." Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Thus, 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); see also 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 an intent to file a claim for VA benefits). Section 3.157 was amended effective March 24, 2015, to eliminate the provisions providing for constructive receipt of VA records of hospitalization or examination and other medical records as informal claims. Factual Summary The Veteran alleges that he initially filed a claim of entitlement to service connection for bilateral knee disabilities in May of 1973. See June 2015 Notice of Disagreement; April 2021 Board Hearing Tr. at 4 (indicating an initial filing in 1974, but, from context, referencing the May 1973 claim). That claim was for "Rt ankle hurt while playing football". The claim was denied due to the failure of the Veteran to attend two scheduled VA examinations. The Veteran claims that he did not receive notice of the examinations due to VA sending correspondence to the wrong address. See April 2021 Board Hearing Tr. at 6-7. The Veteran next filed an August 1982 VA 21-526 seeking entitlement to service connection for "Fracture of Left Leg" and "Left ankle condition." Those claims were denied in a September 1982 rating decision. VA notified the Veteran of that rating decision via September 1982 correspondence sent to a Lakeland, Florida address which is the last address which he had provided to VA. The claims file reveals that the Veteran did not provide a new address (in Decatur, Georgia) until April 1993. Thus, any failure to receive the notice because of an incorrect address was due to the Veteran's own failure to keep VA notified of his current address. Moreover, the Veteran later explicitly acknowledged receiving the notification. See June 2015 Notice of Disagreement (acknowledging receipt of the September 1982 notice letter regarding the denial of his claim). Thereafter, he inquired in 1993 about the status of his "claim." VA sent a January 1994 notification letter, an April 1994 notification letter, and a March 1995 notification letter, each of which informed him of the prior denial of his claims "because the evidence of record does not show that the [in-service] injuries resulted in any residual disability." The letter was sent to the address he provided VA in April 1993 and the Veteran acknowledges receiving one or more of these notifications. See June 2015 Notice of Disagreement (noting he received the March 1995 notification letter regarding the 1982 denial). The Veteran requested that VA "reference" the April 1994 notification letter in considering his claim of entitlement to an earlier effective date. See June 2015 Notice of Disagreement. However, he does not explain how the letter supports his claim. Rather, the letter explicitly states: "We have advised you of the best type of evidence to submit if you wish to reopen your claim for service connection for these conditions." The record does not establish that the Veteran filed any claim to reopen subsequent to the 1982 denial, subsequent to the April 1994 notification letter, or at any time until 2014. The first time he explicitly raised the issue of any knee disability was in a July 2014 Notice of Disagreement. Analysis The Board finds that the 1973 claim cannot reasonably be construed as encompassing a claim of entitlement to service connection for any knee disability, but was, rather, explicitly limited by its language to a right ankle disability. However, even giving the Veteran the benefit of every doubt, including his allegation that he requested examination of his knees during the development of the claim, the Board also finds that the claim was denied due to the failure of the Veteran to appear for scheduled VA examinations, that the Veteran was notified of the denial via an October 1973 Letter sent to his address of record at that time, and he failed to appeal or to submit additional evidence within one year of that decision. Therefore, the 1973 decision became final. 38 C.F.R. § 20.1103. Similarly, the August 1982 VA 21-526, as interpreted by the Board, did not encompass claims of entitlement to service connection for right or left knee disabilities. Therefore, the date of that claim cannot be used as the effective date for the award of service connection for any knee disability. However, again, even giving the Veteran the benefit of every doubt, including his argument that a claim relating to a fractured left leg (which was not near the knee but "in the mid-shin bone area") and right ankle injury could somehow encompass bilateral knee conditions, that claim was denied in a September 1982 rating decision. To the extent the language used in the 1982 claim encompassed the knees, the September 1982 rating decision used the same language and, so, also would reasonably encompass the knees. Moreover, the decision expressly found that the Veteran did not have "clinical residuals" of either the specified right ankle injury or the left leg injury. This further put the Veteran on notice that any pending knee claim had been denied. The Veteran was informed of this decision at his address of record at the time via a September 1982 notification letter. The Veteran did not timely appeal that rating decision and did not submit additional evidence within one year of that decision. In fact, his next communication to VA was in 1993. Therefore, the September 1982 rating decision became final. 38 C.F.R. § 20.1103. The Veteran subsequently submitted various communications requesting the status of his prior claims and alleging that he has "problems with [his] leg and ankles." See, e.g., December 1994 Correspondence from Veteran. In response, as detailed above, VA sent a January 1994 notification letter, an April 1994 notification letter, and a March 1995 notification letter, each of which informed him of the prior denial of his claims and of how he could request a reopening of those claims. Moreover, despite the Veteran's stated concerns about whether mail was sent to the correct address, the letters were sent to the Veteran's address of record at the time and, as noted above, the Veteran has acknowledged receiving at least the March 1995 letter. Despite receiving notice of the prior denials and the process for requesting that a claim be reopened, the Veteran did not submit any claim to reopen until he filed a March 2013 VA 21-526b (requesting, in part, that VA reopen a claim of entitlement to service connection for a "right leg injury"). The RO interpreted this as referring to the right ankle injury which was documented during service. The Board finds that this is the most natural and proper reading of the claim and, importantly, that the claim does not reasonably encompass either a left or right knee disability. The RO adjudicated the claim in a February 2014 rating decision and granted entitlement to service connection for a right ankle disability and bilateral pes planus. In response, the Veteran filed a July 28, 2014 Notice of Disagreement in which he argued that the May 1973 claim should have encompassed his bilateral knees. The RO interpreted this statement as an initial claim of entitlement to service connection for the bilateral knees. The Board agrees. The July 28, 2014, claim is the first claim of entitlement to service connection for the Veteran's knees and, therefore, July 28, 2014, is the earliest possible effective date for the award of service connection for the knees. 38 C.F.R. § 3.400. In the alternative, even if either of the earlier claims should be interpreted to include claims of entitlement to service connection for one or both knees, those claims became final in 1973 and 1982 decisions as discussed above. Consequently, the date of his most recent claim to reopen (July 28, 2014) is the earliest possible effective date for the award of service connection for the knees. 38 C.F.R. § 3.400. The Board will not discuss in detail the Veteran's arguments that he is entitled to an earlier effective date because he has had knee trouble for many years prior to the assigned effective date, including surgery in 2004. The law does not permit an award of an effective date based on the timing of onset of the condition except in very limited circumstances, such as where a claim is made within one year of separation from service or the severity of the condition prevented an earlier filing of the claim (and only then if a claim is received within one year). See, e.g., 38 C.F.R. § 3.400(b)(1) and (2). The Veteran does not argue, nor does the record support, that he made any claims other than the claims and correspondence discussed above. He does not claim that there were hospital reports or examinations which should be interpreted as a claim of entitlement to service connection for a right or left knee disability. The Board's review of the record does not reveal any such informal claim prior to July 28, 2014. In short, the Veteran first filed a claim seeking entitlement to service connection for a knee disability on July 28, 2014. That is the earliest possible effective date for the grant of service connection for the knee disabilities. Even if the 1982 decision were interpreted as denying claims that would encompass knee disorders, then the July 2014 claim was the next claim after that denial and subsequent to his March 1995 receipt of repeat notice of that denial and notice of the process for reopening the previously denied claims. Therefore, even on these alternative factual findings, the July 28, 2014, is the earliest effective date for the grant of service connection for a right or left knee disability warranted on this record. Entitlement to an effective date prior to July 28, 2014, for the grant of entitlement to service connection for a right and left knee disabilities is denied. Duties to Notify and Assist The Veteran has not raised any specific issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Therefore, the Board does not need to discuss VA's compliance with the duties to notify and assist. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kerry Hubers 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.