Citation Nr: 21010855 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 19-37 935 DATE: February 25, 2021 ORDER Entitlement to an effective date prior to March 7, 2018 for the service-connected right total hip arthroplasty is denied. REFFERED The issue of whether there was clear and unmistakable error (CUE) in a September 2013 rating decision that did not grant service connection for the right total hip arthroplasty has been raised by the record in testimony at an February 2021 hearing before the Board, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b). FINDING OF FACT 1. The Veteran’s November 2011 claim for service connection for a hip disorder was denied by a rating decision in September 2013, and the Veteran did not timely perfect his appeal; therefore, the September 27, 2013 rating decision became final. 2. The Veteran did not reopen the claim until March 7, 2018. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to March 7, 2018 for the service-connected right total hip arthroplasty have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.160; 38 C.F.R. §§ 3.102, 3.159,3.400, 20.1104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1962 to June 1965. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to an effective date prior to March 7, 2018 for the service-connected right total hip arthroplasty The Veteran seeks entitlement to an effective date earlier than March 7, 2018, for the grant of service connection for a right total hip arthroplasty. He asserts that the effective date should be based on his 2007 right total hip arthoplasty, or in the alternative in November 2011, when he filed a claim. The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. 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(a), (b); 38 C.F.R. § 3.400(b). For a claim reopened after final disallowance, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(q) Regulations that were in effect prior to March 24, 2015, required that an informal claim "must identify the benefit sought." See 38 C.F.R. §§ 3.155, 3.160. The regulations also provided that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). The regulations in effect since March 24, 2015, do not allow for informal claims that are not submitted on an application form prescribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160. The Board will apply the regulations in effect prior to March 24, 2015, for all communications received prior to March 24, 2015. Turning to the evidence of record, the Veteran submitted an original claim for entitlement to service connection for a right total hip arthroplasty in November 2011. See VA Form 21-526, Veteran's Application for Compensation and/or Pension, received in November 2011. The RO deferred that claim in the May 2013 rating decision. In the September 2013 rating decision the RO denied the claim because the evidence did not show that the Veteran’s right hip replacement (claimed secondary to back injury) was related to his service-connected condition of lumbar myofascial strain, nor is there any evidence of this disability during military service. The Veteran submitted a timely notice of disagreement received in August 2014 and a Statement of the Case was issued in June 2015, which confirmed and continued the denial for the right hip replacement. The Veteran did not submit a timely substantive appeal to perfect to the Board an appeal of the September 2013 rating decision. As such, the Veteran did not complete a timely appeal to the Board of the September 2013 rating decision, and it is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.22, 19.52, 20.1103. Following issuance of the June 2015 statement of the case, the earliest dated communication from the Veteran that constitutes a claim is an intent to file, that was received on March 7, 2018, and the Veteran submitted a formal claim on April 23, 2018, for his right hip disability. As noted above, for claims received greater than one year after separation from active service, the effective date for the grant of service connection will be the date the claim was received or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. For a claim reopened after final disallowance, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(q). Accordingly, in this case the earliest effective date available for the grant of service connection for the right total hip arthroplasty is March 7, 2018, the date the Veteran filed an intent to file. To the extent that the Veteran and his representative assert that the Veteran is entitled to an effective date based on his earlier claim for service connection, the Board reiterates that that original claim was denied in the final September 2013 rating decision. The Veteran did not submit a timely substantive appeal to perfect to the Board an appeal of the September 2013 rating decision. The September 2013 rating decision is therefore final as to the original claim for service connection, and the earlier claim may not serve as a basis for an earlier effective date. In Sears v. Principi, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). As the Federal Circuit explained, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Id. at 248. In summary, the September 2013 rating decision denying the Veteran entitlement to service connection for right total hip arthroplasty is final. The Veteran’s intent to file, that was received on March 7, 2018, was the first communication from the Veteran to reopen the finally denied claim for entitlement to service connection for right total hip arthoplasty. There is no communication from the Veteran between the issuance of the final September 2013 decision that may be construed as a formal or informal petition to reopen the previously denied claim. In reaching this conclusion, the Board has noted that the Veteran submitted an intent to file a claim form in August 2017. However, when he filed the actual claim form in December 2017, he only claimed service connection for insomnia and tinnitus. A hip disorder was not mentioned. Therefore, March 7, 2018 the date VA received the Veteran’s intent to file is the appropriate effective date. 38 C.F.R. § 3.400(r). Accordingly, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than March 7, 2018, for the grant of entitlement to service connection for right total hip arthroplasty, and the appeal must be denied. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Quist, 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.