Citation Nr: 21076094 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 18-00 193A DATE: December 22, 2021 ORDER Entitlement to an effective date prior to February 7, 2007 for service connection for myopathy with a history of rhabdomyolysis with myoglobinuria is denied. FINDING OF FACT The Veteran did not submit a notice of disagreement or new and material evidence to reopen his claim for service connection for myopathy with a history of rhabdomyolysis with myoglobinuria ("myopathy") within one year of the January 22, 2004 administrative denial or otherwise submit a formal or informal petition to reopen his claim for service connection between January 22, 2004 and February 7, 2007. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than February 7, 2007, for the grant of service connection for myopathy are not met. 38 U.S.C. § 5110 (2006); 38 C.F.R. §§ 3.156, 3.400 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1995 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Veteran provided testimony before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In March 2020, the Board remanded this matter to allow the RO the opportunity to develop and adjudicate the Veteran's informal claim of entitlement to an earlier effective date for service connection for myopathy on the basis of clear and unmistakable error (CUE) in an October 1996 rating decision. On remand, the RO sent the Veteran a letter requesting information to develop the CUE claim; however, the Veteran did not respond. The duty to assist is a two-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Accordingly, the Board finds that the development ordered in the March 2020 remand order has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an effective date prior to February 7, 2007 for service connection for myopathy with a history of rhabdomyolysis with myoglobinuria is denied. The Veteran seeks an effective date prior to February 7, 2007 for service connection for myopathy. Generally, the date of entitlement to an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). With regard to reopened claims, the date of an award of service connection based on a claim reopened after final disallowance will be the later of the date of receipt of the claim or the date entitlement arose. See 38 C.F.R. § 3.400(q). For the purposes of this matter, a "claim" includes 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) (2014). A formal claim is a specific claim in the form prescribed by the Secretary. 38 C.F.R. § 3.151 (2014). As it relates to this appeal, any communication or action indicating the intent to apply for a benefit under the laws administered by VA may be considered an informal claim, provided that it identifies generally, although not necessarily with specificity, the benefit sought. 38 C.F.R. §§ 3.155, 3.1(p) (2014). In this case, the Veteran filed his original claim for service connection for myopathy with a history of rhabdomyolysis with myoglobinuria on November 3, 1995. The RO denied the claim on October 21, 1996 because the Veteran did not establish a well-grounded claim showing a permanent residual or chronic disability related to service. The Veteran was notified of the decision and his appellate rights but he did not submit a notice of disagreement with the October 1996 rating decision. Further, he did not submit new and material evidence prior to the expiration of the one year appeal period. As such, the October 1996 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (1996). The Veteran filed to reopen his claim for service connection on May 16, 2003. On January 22, 2004, the RO administratively denied the claim because the Veteran did not provide new and material evidence in support of the claim. The Veteran was notified of the decision and his appellate rights but he did not submit a notice of disagreement. Further, he did not submit new and material evidence prior to the expiration of the one year appeal period. As such, the January 2004 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 The next correspondence from the Veteran was received on February 7, 2007. In the correspondence, the Veteran indicated his intent to reopen his claim for service connection for myopathy with a history of rhabdomyolysis with myoglobinuria. This document constitutes an informal claim and is the claim upon which service connection for myopathy was granted. The Board thoroughly reviewed the evidence but found no evidence of a formal or informal claim filed between January 22, 2004 and February 7, 2007. As such, February 7, 2007 is the date of claim, and is the later of the date of claim versus the date entitlement arose. As such, an effective date prior to February 7, 2007 for service connection for myopathy is not warranted. The appeal is denied. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. G. Alderman, 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.