Citation Nr: 21009560 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 20-01 464 DATE: February 22, 2021 ORDER Entitlement to an effective date of June 13, 2017, but no earlier, for service connection for right hip osteoarthritis with osteopenia, left hip osteoarthritis with osteopenia, and bilateral linear hip scars, is granted. FINDING OF FACT VA received the Veteran’s intent to file a claim on June 13, 2017, followed by an incomplete application on May 17, 2018; the Veteran then filed a complete application on August 9, 2018. CONCLUSION OF LAW The criteria for an effective date of June 13, 2017, but no earlier, for service connection for bilateral hip osteoarthritis with osteopenia and bilateral linear hip scars have been met. 38 U.S.C. §§ 5102, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty military service from March 1959 to June 1960. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in January 2021. A transcript of the hearing has been associated with the file. The appeal is advanced on the docket pursuant to 38 C.F.R. § 20.900(c). Legal Background The effective date for an award of disability compensation is the day following separation from service or the date entitlement arose if a claim is received within one year of separation. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). Claimants may indicate their desire to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). If VA then receives a complete application form, as defined by 38 C.F.R. § 3.160(a), within one year of receipt of the intent to file, the complete claim is considered filed as of the date of receipt of the intent to file. Id. Upon receipt of an incomplete application form, VA must notify the claimant of the information necessary to complete the application. 38 U.S.C. § 5102(b); 38 C.F.R. § 3.155(c). If a complete claim is then submitted within one year of the incomplete application form, VA will consider it filed as of the date VA received the incomplete application. 38 C.F.R. § 3.155(c). In the event that VA receives both an intent to file a claim and an incomplete application before the complete claim is filed, the complete claim will be considered filed as of the date of whichever was filed first provided it is perfected within the necessary timeframe, but in no event will the complete claim be considered filed more than one year prior to the date of receipt of the complete claim. 38 C.F.R. § 3.155(d)(1)(ii). Entitlement to an earlier effective date for service connection for right hip osteoarthritis with osteopenia, left hip osteoarthritis with osteopenia, and bilateral linear hip scars. The Veteran seeks an effective date earlier than May 17, 2018 for the award of service connection for right hip osteoarthritis with osteopenia, left hip osteoarthritis with osteopenia, and bilateral linear hip scars. He contends that the effective date should be June 13, 2017, the date VA received his intent to file a claim, because he did not receive the written notification of his defective VA Form 21-526EZ because it was sent to his Lakewood, California address. See Hearing Testimony, January 2021. Upon review, the Board finds that an earlier effective date is warranted. The record shows that the Veteran originally submitted an intent to file a claim on June 13, 2017. The agency of original jurisdiction (AOJ) then mailed the Veteran a letter confirming the date of receipt and instructing him to “complete, sign, and return a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits” within one year of that date. The AOJ did not enclose a copy of the VA Form 21-526EZ. The notification letter was sent to the Veteran’s Carson, California address. On May 17, 2018, the Veteran filed a VA Form 21-526EZ, prior to the one-year deadline. However, the form was inadvertently not signed. The application identified the Veteran’s address in Lakewood, California. On May 17, 2018, the Veteran also submitted a statement in support of his claim, reflecting his home address in Carson, California. On June 22, 2018, the AOJ notified the Veteran by letter that the VA Form 21-526EZ he submitted May 17, 2018 was not signed. This notification was sent to the Lakewood, California address. The Veteran contends he did not receive his letter, as it went to his business address. He was informed his application was missing his signature through correspondence from his county representative. See Hearing Testimony, January 2021. As instructed, the Veteran submitted the signature page of the VA Form 21-526EZ on August 9, 2018. Section 3.155(c) provides that a claimant has one year to cure the defects of an incomplete application by submitting a complete claim. That is precisely what the Veteran did here. Again, under 38 C.F.R. § 3.155(d), when VA receives both an intent to file a claim and an incomplete application prior to the complete claim, the complete claim is considered filed as of the date of whichever was filed first, as long as it was perfected within the necessary timeframe. In this case, VA received an intent to file on June 13, 2017, followed by a timely, but incomplete, application on May 17, 2018. The Board finds that the Veteran perfected his claim within the necessary timeframe by submitting a complete claim on August 9, 2018, less than two months after the AOJ’s June 22, 2018 notification letter. Further, the award of an earlier effective date is in accordance with the holding in Comer v. Peake, 552 F.3d 1362, 1369 (Fed. Cir. 2009), that “the VA disability compensation system is not meant to be a trap for the unwary, or a stratagem to deny compensation to a Veteran who has a valid claim, but who may be unaware of the various forms of compensation available to him.” The Veteran filed made all efforts to ensure that his application defects were cured once requested by the AOJ. He filed an intent to file, followed by what he thought was a completed application within one year of the intent to file. However, he failed to sign the application. Within two months of being notified that his application was not signed, he submitted a signed application for benefits. (Continued on the next page)   Accordingly, resolving all reasonable doubt in the Veteran’s favor, his complete claim is considered filed as of the date VA received his intent to file. An effective date of June 13, 2017, but no earlier, is granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Krista Johnson, 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.