Citation Nr: 21072723 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 18-45 679 DATE: December 6, 2021 ORDER Entitlement to an effective date prior to October 24, 2007 for the service-connected bilateral pes planus with degenerative arthritis disability is DENIED. FINDINGS OF FACT 1. On August 29, 2005, the agency of original jurisdiction (AOJ) denied the Veteran's claim for service connection for a bilateral foot disability. The Veteran did not submit new and material evidence during the one-year period following the AOJ's denial. 2. After the final denial on August 29, 2005, the Veteran did not submit a new claim for service connection for a bilateral foot disability until October 24, 2007. CONCLUSIONS OF LAW 1. The August 2005 rating decision that denied the Veteran's claim for service connection for a foot problems disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. 2. The criteria for an effective date earlier than October 24, 2007, for the grant of service connection for bilateral pes planus with degenerative arthritis, have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Marine Corps from September 1986 to August 1990. The Veteran also served honorably in the U.S. Air force from September 2001 to October 2002. Entitlement to an effective date prior to October 24, 2007 for the service-connected bilateral pes planus with degenerative arthritis disability is denied. On October 24, 2007, correspondence from the Veteran, and his former representative, was associated with the claims file. Thereby, the Veteran initiated a claim for service connection for myofascial pain of the bilateral feet. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110 (a). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims formal and informal for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.1 (p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board's decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). 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 VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). Again, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.1(p), 3.155(a). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). 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 intent to file a claim for VA benefits). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C. § 5107 (b). On October 22, 2004, the Veteran submitted a VA Form 21-526. Thereby, the Veteran initiated a claim for service connection for "feet problems." On August 29, 2005, the agency of original jurisdiction (AOJ) issued a rating decision. Therein, the AOJ denied service connection for foot problems. On the same day, the AOJ notified the Veteran that he had one year to appeal the service connection denial, and it supplied the Veteran with VA Form 4107. The Board has deliberately reviewed the claims file. After the August 2005 AOJ denial, the Veteran did not submit a claim or pertinent evidence related to the bilateral foot disability until he submitted his claim on October 24, 2007. Consequently, the August 2005 rating decision that denied the Veteran's claim for service connection for a foot problems disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. Again, on October 24, 2007, correspondence from the Veteran, and his former representative, was associated with the claims file. Thereby, the Veteran initiated a claim for service connection for myofascial pain of the bilateral feet. In March 2008, the AOJ issued a rating decision. Therein, the AOJ continued to deny service connection for foot problems (now claimed as myofascial pain of the bilateral feet) because the evidence submitted was not new and material. In October 2016, the AOJ issued a rating decision. Therein, the AOJ granted service connection for bilateral pes planus with degenerative arthritis and calcaneal spurs, effective October 24, 2007. In October 2017, the Veteran submitted a notice of disagreement (NOD). Therein, the Veteran disagreed with the October 2007 effective date assigned by the AOJ for the bilateral pes planus disability. In August 2021, the Veteran supplied sworn testimony to the undersigned Veterans' Law Judge (VLJ). When questioned by the undersigned, the Veteran confirmed that his feet have been giving him problems ever since he filed his initial claim in 2004. Upon deliberate and careful review of the evidence within the Veteran's claims file, the Board finds that an effective date before October 24, 2007 is not warranted for the grant of service connection for bilateral pes planus with degenerative arthritis and calcaneal spurs. Between August 29, 2005 and October 24, 2007, the record does not include any formal or informal communication indicating intent to apply for service connection for a bilateral foot disability. Thus, there was no intent to apply for service connection during the period in question. Therefore, the effective date for the Veteran's award of service connection for bilateral foot disabilities cannot be prior to October 24, 2007. 38 C.F.R. § 3.400 (b)(2). Ultimately, the Board concludes that the preponderance of the evidence stands counter to the Veteran's claim for an earlier effective date for his service-connected bilateral pes planus with degenerative arthritis disability. Since the preponderance of the evidence is against this claim, the provisions of 38 U.S.C. § 5107 (b), regarding reasonable doubt, are not applicable. The Veteran's claim for an earlier effective date for his service connected bilateral pes planus with degenerative arthritis disability must be denied, because the preponderance of the evidence weighs against his claim. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board RLBJ, 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.