Citation Nr: 21075440 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-55 648 DATE: December 20, 2021 ORDER An effective date earlier than January 13, 2017 is denied for the awards of service connection for (1) cervical spine disc herniation, (2) right shoulder labral and rotator cuff tears/bursitis, (3) left shoulder labral and rotator cuff tears/bursitis, (4) left shoulder scar, (5) lumbosacral spine degenerative disk disease, (6) mid/low back scar, (7) peripheral neuropathy of the left sciatic nerve, (8) peripheral neuropathy of the left external popliteal/anterior tibial/anterior crural nerves, (9) peripheral neuropathy of the right sciatic nerve, (10) left knee status post meniscal tear, (11) left knee scar, (12) right knee status post meniscal repair, (13) right knee scar, and (14) right ankle lateral collateral ligament sprain. An effective date earlier than January 13, 2017 for the award of basic eligibility for Dependents' Educational Assistance (DEA) is denied. FINDINGS OF FACT 1. The Veteran made an informal claim for service connection for various disabilities in February 2009. 2. In March 2009, VA provided the Veteran a formal application for service connection and requested that he complete the form within one year; thereafter, the record does not reflect that a formal claim for benefits was received by VA until January 13, 2017. 3. Service connection is not in effect for any disability prior to January 13, 2017. CONCLUSIONS OF LAW 1. The criteria for an effective date prior January 13, 2017 have not been met for the awards of service connection for (1) cervical spine disc herniation, (2) right shoulder labral and rotator cuff tears/bursitis, (3) left shoulder labral and rotator cuff tears/bursitis, (4) left shoulder scar, (5) lumbosacral spine degenerative disk disease, (6) mid/low back scar, (7) peripheral neuropathy of the left sciatic nerve, (8) peripheral neuropathy of the left external popliteal/anterior tibial/anterior crural nerves, (9) peripheral neuropathy of the right sciatic nerve, (10) left knee status post meniscal tear, (11) left knee scar, (12) right knee status post meniscal repair, (13) right knee scar, and (14) right ankle lateral collateral ligament sprain. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.400. 2. The criteria for an effective date earlier than January 13, 2017 for the award basic eligibility for DEA have not been met. 38 U.S.C. § 3501; 38 C.F.R. §§ 3.807, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from December 1988 to December 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. 1. An effective date earlier than January 13, 2017 is denied for the awards of service connection for (1) cervical spine disc herniation, (2) right shoulder labral and rotator cuff tears/bursitis, (3) left shoulder labral and rotator cuff tears/bursitis, (4) left shoulder scar, (5) lumbosacral spine degenerative disk disease, (6) mid/low back scar, (7) peripheral neuropathy of the left sciatic nerve, (8) peripheral neuropathy of the left external popliteal/anterior tibial/anterior crural nerves, (9) peripheral neuropathy of the right sciatic nerve, (10) left knee status post meniscal tear, (11) left knee scar, (12) right knee status post meniscal repair, (13) right knee scar, and (14) right ankle lateral collateral ligament sprain. The Veteran asserts that he should be awarded an effective date back to February or March of 2009 because he previously filed a formal claim for benefits with VA at that time. See, e.g., September 2017 notice of disagreement ("I Disagree with the effective date of award. I originally filed in March of 2009."). From the Veteran's recollection, "I filled out my form like I was supposed to and went to the VA and filled it out and handed it over to them, and it was --had the VA had my medical records, then that process would've proceeded forward, but without your medical records they obviously couldn't proceed forward." Board hearing transcript, p. 13. As an initial matter, the Board recognizes that the RO granted service connection and assigned an effective date of January 13, 2017 for the following disabilities in an August 2017 rating decision: (1) cervical spine disc herniation, (2) right shoulder labral and rotator cuff tears/bursitis, (3) left shoulder labral and rotator cuff tears/bursitis, (4) left shoulder scar, (5) lumbosacral spine degenerative disk disease, (6) mid/low back scar, (7) peripheral neuropathy of the left sciatic nerve, (8) peripheral neuropathy of the left external popliteal/anterior tibial/anterior crural nerves, (9) peripheral neuropathy of the right sciatic nerve, (10) left knee status post meniscal tear, (11) left knee scar, (12) right knee status post meniscal repair, (13) right knee scar, and (14) right ankle lateral collateral ligament sprain. Because the Veteran filed a timely notice of disagreement with the August 2017 rating decision that established the effective date for the awards of service connection for these disabilities, and thereafter perfected his appeal, the Board properly has jurisdiction over the effective date issues. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no such thing as a freestanding claim for an earlier effective date). The determination with respect to the effective date of an award of compensation is generally governed by 38 U.S.C. § 5110(a), which states that "[u]nless specifically provided otherwise . . ., the effective date of an award based on an initial claim . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." Provided, however, that if the application for benefits is received within one year of the date of the veteran's discharge from service, the effective date will be the day following separation from active service or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). With exceptions not applicable here, VA regulations define "date of receipt" as the date on which a claim, information, or evidence was received in the Department of Veterans Affairs. 38 C.F.R. § 3.1(r). The U.S. Court of Appeals for Veterans Claims (Court) has explained that "[t]he presumption of regularity supports the official acts of public officers, and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties." Romero v. Tran, 33 Vet. App. 252, 254 (2021). A claimant may rebut the presumption of regularity by producing clear evidence that VA's practices are not regular or that regular practices were not followed. Ashley v. Derwinski, 2 Vet. App. 307, 309 (1992). When a claimant submits clear evidence sufficient to rebut the presumption, the burden shifts to the Secretary to establish by a preponderance of evidence that the appropriate action occurred. Id. at 267. Here, the claims file contains a copy of a February 2009 VA Form 21-0820 (Report of General Information) documenting a contact from the Veteran in which he informally communicated his intent to apply for service connection for various disabilities. Thereafter, in a March 2009 letter, VA responded to the informal claim, providing the Veteran a formal application for service connection (VA Form 21-526) and asking him to complete and return the form along with a certified copy of his DD Form 214 and any other military documents in his possession. He was notified that he should complete and return the form as soon as possible, and that if the form was not returned within a year of the date of VA's letter, benefits may not be paid for any period prior to the date VA received his completed formal claim. The Veteran testified at the June 2021 Board hearing that, following receipt of the March 2009 letter advising him that he needed to follow-up his informal claim with a formal claim for benefits, "I filled out my form like I was supposed to and went to the VA and filled it out and handed it over to them." Board hearing transcript, p. 11. He further explained: It was [at] a Regional VA Office in Los Angeles, so it was actual VA claims --it was the claims office, the VA claims office, the [] VA claims office in [.] I can see and picture the room. It's got [] 20 chairs in the center and it's got multiple desks surrounding that central waiting[] area, and you go in, [] you sign in, and [] I don't know if they keep those records. Back then, it was a book, but I signed in and I sat and waited for the VA rep, and he sat down, and he reviewed this and said, you know, you're missing this block, fill this in, so there was a few things that I was missing on the form. He had me add a few things, and it's like okay, well, we'll submit this, where's your medical record? I said you guys have them. Well, you know, we can't proceed forward with a medical claim of disability without your medical records. I said you guys have them, and then . . . it went to the search for my medical records. Id., p. 10. Thus, the Veteran's testimony indicates that he went to VA with a claim form in 2009 and discussed incomplete portions of the application and was informed that there were outstanding service treatment records that were needed before his claim could move forward. In Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010), the Court addressed a case in which a claimant had claimed that he mailed a letter for reconsideration to the Board, which the Board claimed it never received. If the claimant had filed his letter with the Board, the Court said, the Board, acting in its regular course of business and following its regular processes, would have placed the letter in his claims file and acted on it in some way. Fithian, 24 Vet. App. at 151. Because no letter was found in the claims file and the Board did not respond to it in any way, the Court presumed that the letter was not received by the Board and also found that the claimant's statements that he mailed the letter were not sufficient to rebut the presumption of regularity. Id. Since the Court's decision in Fithian, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has provided further guidance on these sorts of matters, partially overruling portions of Fithian. In Anania v. McDonough, 1 F.4th 1019 (Fed. Cir. 2021), the Federal Circuit clarified that, in matters where VA's receipt of a document is at issue, there is no per se rule that self-serving statements through affidavit on the part of a veteran or his representative are insufficient to establish receipt. Rather, the statements must be weighed in the context of all of the other evidence in determining whether or not a document was received. Although Anania involved application of the common law mailbox rule, and not in-person delivery of a document, it would appear to be instructive in a case involving in-person delivery as well, at least in terms of its holding that there is no per se rule that self-serving statements on the part of a veteran or his representative are insufficient to establish receipt. In the present case, in regard to assessing the evidence as whole, the Board notes that the presumption of regularity applies to the RO's actions. Acting in its regular course of business and following its regular processes, if the RO had received a formal application form in 2009, the RO would have placed the application in the Veteran's claims file and acted on it in some way. Here, there is no clear evidence that those processes were not followed. The Board has very carefully reviewed each of the documents available in the electronic claims folder to date, and there are no records of a 2009 formal application as having been received by VA, despite the fact that there is indeed evidence of the Veteran's attempts to obtain copies of his service records from the RO, as well as directly from the National Personnel Records Center (NPRC) and other service department contacts. A February 2010 VA Form 21-0820, for instance, reflects that he informed the RO that he requested his Navy medical records from NPRC and was informed that all of his treatment records were sent to the RO. See February 2010 Report of General Information. There are also various BIRLS, COVERS, and DPRIS printouts, but none of them discuss whether there was a formal application received following the Veteran's informal claim of February 2009. Crucially, the Board notes that on his January 13, 2017 formal application, the Veteran was asked "Have you ever filed a claim with VA?" and he checked the box, "No." Later, a March 2017 VA Report of General Information reflects that he explained at that time that "he filed a claim in 2009 after retiring and was told he would need to get all of his [service treatment records] and personnel records together himself." This evidence diminishes the credibility of the Veteran's statements with respect to his current memory that he submitted a formal claim in 2009. Specifically, it suggests either that he may have been merely referencing his February 2009 informal claim in March 2017 and/or that he has been inconsistent in his recollections as to whether he actually submitted a prior formal claim to VA in 2009. In either case, based on the Veteran's descriptions of what transpired in 2009, it is at best unclear whether he actually submitted a formal application at that time or if he intended to submit it at a later date once he obtained his service records. At this juncture and considering the totality of the evidentiary record presently before the Board, the Board must conclude that the Veteran's statements are not sufficient to demonstrate that VA received a formal claim for service connection earlier than January 13, 2017. When viewed with the other evidence, including his own contradictory statement on his January 2017 claim form that he had not previously filed a claim for benefits, it cannot be said that there is "clear evidence" to rebut the presumption of regularity. Simply put, there has not been clear evidence presented to show irregularity in VA's processing of his claim. To the contrary, the record reflects that VA previously responded in a timely manner with written correspondence after receiving his informal claim in February 2009, and once his January 13, 2017 claim was received, VA proceeded with evidentiary development and the adjudication of the claim. Such actions appear to be consistent with the regular practice of VA with regard to ordinary claims development procedures. In arriving at this conclusion, the Board also recognizes that the Veteran's representative argued at the hearing, in part, as follows: On March 12th of 2009, the VA mailed [the Veteran] an acknowledgement of receipt and asked that he complete VA Form 21526 and return it along with a certified copy of his DD-214 and any other military documents in his possession. Thus began his journey of trying to obtain his Service Treatment Records. When looking through his VA files, you will see that he did everything in his power to retrieve the requested information but was continuously told that his records could not be found. Through no fault of his own, he was unable to retrieve his records until 2017. [He] lost eight years of benefits due to someone else's negligence. We ask that the Board take this into consideration when deciding in his claim. Board hearing transcript, p. 3. To the extent that it is being argued that an earlier effective date should be awarded because VA was negligent in failing to obtain the Veteran's service records in 2009, the argument appears to be one couched in equity. In other words, he asserts that it is unfair to deny an earlier effective date under circumstances where he did not have effective assistance in obtaining service department records in conjunction with his informal application for benefits in 2009. In point of fact, it still appears that service treatment records are missing and/or outstanding in this appeal; only service personnel records, as well as private treatment records from active duty submitted by the Veteran himself, have been associated with the electronic claims folder. The Board wishes to recognize the extraordinary efforts that the Veteran has made to obtain treatment records pertinent to his claims. Although sympathetic to his situation, however, the Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104 (2002); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). For the reasons stated, the Board finds that, with application of the presumption of regularity, the evidence supports the conclusion that no formal claim for benefits was received within a year of the VA's March 2009 letter. Thereafter, no further submission was received that can be considered a formal or informal claim until January 13, 2017, when a formal application form was received via facsimile on January 13, 2017. The Board emphasizes that the actual date that entitlement arose is of no issue in the present case, as even assuming that entitlement arose at an earlier time, the law mandates that the effective date shall be the later of the date entitlement arose or the date his claim was received. 38 C.F.R. § 3.400(r). As above, the Board must conclude that the Veteran did not respond with a formal application within one year from the date of the RO's March 2009 letter acknowledging his informal claim and, thereafter, no further claim for service connection was received until January 13, 2017. Thus, the effective date of the awards of service connection cannot precede January 13, 2017, as a matter of law. 2. Entitlement to an effective date earlier than January 13, 2017, for the award of basic eligibility for DEA is denied. In this case, the RO awarded basic eligibility to DEA benefits and assigned an effective date of January 13, 2017. As above, because the Veteran filed a timely notice of disagreement with the August 2017 rating decision that established the effective date for the award of DEA, and then perfected his appeal, the Board properly has jurisdiction over the effective date issue. See Rudd, supra. Eligibility for DEA benefits requires an underlying service-connected disability that is both total and permanent in nature. 38 U.S.C. § 3501(a)(1)(A)(ii), (D)(i); see 38 C.F.R. §§ 3.807(a)(1)-(2), 21.3021(a)(1)(iii), (3)(i). Here, service connection is not in effect for any disability prior to January 13, 2017. Accordingly, an effective date prior to that date for the award of basic eligibility for DEA benefits must be denied as a matter of law. DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Gielow, 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.