Citation Nr: 21077240 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 16-56 898 DATE: December 29, 2021 ORDER Entitlement to an effective date of March 6, 2015, but no earlier, for service-connected left upper extremity radiculopathy as secondary to a cervical spine disability with osteophytes is granted. FINDING OF FACT VA received the Veteran's original claim of entitlement to service connection for left upper extremity radiculopathy as secondary to a cervical spine disability with osteophytes on March 6, 2015. CONCLUSION OF LAW The criteria for an effective date of March 6, 2015, for the grant of service connection for left upper extremity radiculopathy as secondary to a cervical spine disability with osteophytes have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1967 to October 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the matter in July 2021 for further development. It has since been returned to the Board for further appellate review. In a September 2021 rating decision, the RO granted service connection for left upper extremity radiculopathy with an evaluation of 20 percent effective October 22, 2020. In a September 2021 Supplemental Statement of the Case (SSOC) the RO denied entitlement to service connection for left upper extremity radiculopathy, to include as secondary to a cervical spine disability with osteophytes from March 6, 2015 to October 21, 2020. As such, the issue has been recharacterized as entitlement to an earlier effective date prior to October 22, 2020 for a grant of service connection for left upper extremity radiculopathy. 1. Entitlement to an effective date of March 6, 2015, but no earlier, for service-connected left upper extremity radiculopathy. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall 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. Prior to March 24, 2015, a claim was "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). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 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); 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). VA must look to all communications from a Veteran which may be interpreted as applications or claims-formal and informal-for benefits. VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). For claims or appeals filed on or after March 6, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. With regard to the date of entitlement, the term date entitlement arose is the date when the claimant met the requirements for the benefits sought, on a fact found basis. 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). These facts found include the date the disability first manifested and the date entitlement effective date and service connection to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the RO receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. Service connection for the Veteran's left upper extremity radiculopathy secondary to his service-connected degenerative joint and disc disease with subluxations was awarded in a September 2021 rating decision. The RO established an effective date of October 22, 2020. On March 6, 2015 VA received a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, in which the Veteran claimed entitlement to service connection for left upper extremity radiculopathy secondary to his cervical spine disability. There are no other claims, including informal claims for service-connected benefits for this condition. Thus, March 6, 2015 is the earliest date of claim for service-connected benefits for left upper extremity radiculopathy. The Veteran's service treatment records (STRs) document reports of symptoms of his upper extremity. Additionally, VA treatment records show subjective complaints of neck pain into the left shoulder as early as April 2006. Moreover, a February 2009 VA treatment record found mechanical dysfunction of the upper extremity with mild to moderate muscle spasm and inflammation. Therefore, the date the entitlement arose predates the March 6, 2015 date of the claim, the date of the claim is later in time and therefore the controlling effective date. Thus, entitlement to an effective date of March 6, 2015, but no sooner, for the grant of service connection for left upper extremity radiculopathy as secondary to service-connected degenerative joint and disc disease with subluxations is warranted. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, 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.