Citation Nr: 21008398 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 20-30 330 DATE: February 16, 2021 ORDER Entitlement to an earlier effective than April 25, 2013 for the grant of service connection for chorioretinal scar of the right eye (right eye disability) is denied. FINDING OF FACT There are no informal or formal unadjudicated claims for service connection for a right eye injury, dated prior to April 25, 2013, which can provide a basis for an earlier effective date. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than April 25, 2013, for the grant of service connection for a right eye disability have not been met. 38 U.S.C. §§ 1110, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1959 through October 1962. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from September 2018 and April 2020 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board takes notice that the Veteran originally appealed the claims of entitlement to an earlier effective date and an increased rating for his right eye disability under the legacy process. In November 2020, the Veteran opted to have his increased rating claim processed under the Appeals Modernization Act (AMA) process. As such, separate Board decisions will be issued for each claim. The decision herein addresses solely entitlement to an earlier effective date for his right eye disability. Entitlement to an earlier effective than April 25, 2013 for the grant of service connection for a right eye disability The Veteran contends that he is entitled to an earlier effective date in April 2012, the date for which he contends he first filed a claim for disability. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. However, earlier effective dates can be established in some cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a). Under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114 (a). The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America’s Veterans Act), Public Law 112-154, Section 506, 126 Stat. 1165 was signed into law on August 6, 2012. Section 506 of the Act amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013, through August 5, 2015. Under the Act, an effective date can be assigned as early as one year prior to submission of the claim when evidence demonstrates that the disability existed for one year prior to submission of the claim. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. 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 the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. pp. 79, 86-87 (2009). In this instance, The Veteran seeks an effective date earlier than April 25, 2013, for the award of service connection for a right eye disability. In his November 2020 Form 9, he asserted the effective date of the award for this disability should be in April 2012, the date he alleged he filed his original claim “as VA stated”. Following a review of the record, the Board finds that an effective date earlier than April 25, 2013, is not warranted. The Veteran first filed a Fully Developed Claim (FDC) claim for benefits for his eye in on April 25, 2014. The record does not show a claim for benefits, formal or informal, prior to April 25, 2014. In an August 2020 Board decision, the Veteran was granted service connection for a right eye disability. In a September 2018 rating decision implementing the Board’s grant, the AOJ established service connection for this disability, and assigned an effective date of April 25, 2014. The Veteran submitted a timely appeal. In an April 2020 rating decision, the AOJ granted an earlier effective date of April 25, 2013 for the grant of service connection for a right eye disability, which is one year prior to VA’s receipt of the Veteran’s claim based on a liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § 3.114 (a); Public Law 112-154, Section 506, 126 Stat. 1165 (August 6, 2012). Although the Veteran has asserted that he filed a claim for benefits for a right eye disability in April 2012, the record is devoid of any medical evidence or claims prior to April 25, 2014. Of note, neither the Veteran nor his represented has cited to specific evidence of record that would indicate that entitlement to an earlier effective date is warranted. Further, while the Veteran has alluded to the VA’s acknowledgement of an April 2012 claim for benefits for his right eye, this notation in the February 2018 Board decision appears to be a typographical error when compared with the existing record. Having determined that the Veteran’s formal claim seeking this benefit was filed no earlier than April 25, 2014, the Board finds that the appropriate effective date for the grant of service connection for a right eye disability is April 25, 2013, the effective date assigned by the AOJ in the April 2020 rating decision based on the liberalizing law. 38 U.S.C. § 5110 (g); 38 C.F.R. § § 3.114 (a), 3.400; Public Law 112-154, Section 506, 126 Stat. 1165 (August 6, 2012). As there is no legal basis for the assignment of an earlier effective date for this disability, the claim for an earlier effective date must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, 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.