Citation Nr: 21013549 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 16-05 027 DATE: March 9, 2021 ORDER Entitlement to an effective date prior to March 28, 2011 for award of service connection for left shoulder disability is denied. Entitlement to an effective date prior to March 28, 2011 for award of increase rating of 10 percent for residual fracture of right middle cuneiform, with hammer toe and hallux valgus, left foot disability is denied. FINDINGS OF FACT 1. In an April 2005 rating decision, the Regional Office (RO) denied the service connection claim for a left shoulder condition; the Veteran initiated an appeal to the denial of her claim, but failed to submit a substantive appeal following the issuance of a May 2007 statement of the case (SOC). 2. On March 28, 2011, VA received the Veteran’s petition to reopen the claim for service connection for a left shoulder condition, and the RO granted service connection and assigned an effective date from March 28, 2011. 3. On March 28, 2011, VA received the Veteran’s claim for an increased rating for her service-connected foot disability, and it was not factually ascertainable that an increase in disability took place within one year of that date. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to March 28, 2011 for award of service connection for left shoulder disability have not been met. 38 U.S.C. §§ 5110 (a), 7105(d)(3); 38 C.F.R. §§ 3.104, 3.400. 2. The criteria of entitlement to an effective date prior to March 28, 2011 for award of an increased rating of 10 percent for residual fracture of right middle cuneiform, with hammer toe and hallux valgus, left foot disability have not been met. 38 U.S.C. §§ 5110 (a), 7105(d)(3); 38 C.F.R. §§ 3.104, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1983 to May 1983. In August 2019, the Veteran was afforded a Board videoconference hearing before the undersigned Veterans Law Judge. Unfortunately, the hearing transcript was considered incomplete. The Veteran was provided the opportunity to request another Board hearing, which she affirmed. However, in February 2020, she subsequently withdrew her request for another hearing. Thus, her Board hearing request is deemed satisfied. See 38 C.F.R. § 20.704. Effective Dates Under 38 U.S.C. § 5110 (b)(1) and 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service, if a claim is received within one year after separation from service. Otherwise the effective date is the date of receipt of claim or date entitlement arose, whichever is later. The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a), (b)(2); 38 C.F.R. § 3.400 (o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply, as provided below. Prior to the amendment, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). While VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by the claimant. In other words, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). 1. Entitlement to an effective date prior to March 28, 2011 for award of service connection for left shoulder disability The Veteran seeks entitlement to an effective date prior to March 28, 2011 for award of service connection for a left shoulder disability. The current effective date is assigned is the date of receipt of a VA 21-526b, Veteran Supplemental Claim, which was construed as an application to reopen the claim for service connection for a left shoulder disorder. The Veteran contends that she should be assigned an effective date from the date of her original claim for service connection filed in November 2004. See June 2013 notice of disagreement, and April 2019 Board hearing transcript. By way of procedural history, the Veteran filed an original claim for service connection for a left shoulder disorder in November 2004, which was denied in an April 2005 rating decision because the medical evidence failed to demonstrate a relationship to service. The Veteran initiated an appeal by filing a timely notice of disagreement; however, she did not submit a substantive appeal following the issuance of a May 2007 statement of the case (SOC) and no new and material evidence within 60 days of the SOC. The April 2005 rating decision denial therefore became final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (d), 3.156 (b), 3.160 (d), 20.200, 20.302, 20.1103. The effect of this finality is to preclude an award of an effective date prior to that denial. Thereafter, in March 2011, the Veteran submitted VA 21-526b, Veteran Supplemental Claim, which was considered a request to reopen the service connection claim for a left shoulder disorder. Service connection was awarded in a May 2013 rating decision, and the Veteran was assigned an effective date of March 28, 2011, the date of receipt of the VA 21-526b form. The Veteran timely appealed the effective date. The Veteran argues that an earlier effective date should be assigned because her earlier finally denied service connection claim for a left shoulder condition was received by VA in 2004. However, the April 2005 rating decision on that claim is final, and the effective date cannot be earlier than the subsequent claim to reopen after the finally denied claim. 38 C.F.R. §§ 3.400 (q)(2), 3.400 (r). The U.S. Court of Appeals for Veterans Claims (Court) held in Sears v. Principi, 16 Vet. App. 244, 248 (2002), that “[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.” See also Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran first sought to reopen his claim). Because the VA received the Veteran’s request to reopen her previously denied claim on March 28, 2011, that is the correct effective date for the grant of service connection. 38 C.F.R. § 3.400. The remaining question is whether the Veteran submitted any communication or action, indicating an intention to apply for service connection for a left shoulder disorder from the time period between the May 2007 SOC and the claim to reopen on March 28, 2011. Importantly, during the applicable period the evidence of record does not reflect, and the Veteran has not asserted, the submission of any statement indicative of intent to file a claim until the March 2011 form VA 21-526b. There is no evidence between the May 2007 SOC and the March 2011 claim to reopen that can be construed as a formal or informal claim in order to award the Veteran an effective date earlier than March 28, 2011, for the grant of service connection for left shoulder disability. 38 C.F.R. § 3.15 (a) (as in effect prior to March 24, 2015); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Accordingly, an effective date prior to March 28, 2011, for the grant of service connection for left shoulder disability is not warranted. Given the finality of the April 2005 rating decision and the lack of any other exception to finality, the law is clear that the effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.40 (q) (r). As there is no unadjudicated formal or informal service connection claim before the March 28, 2011, date of receipt of the Veteran’s claim to reopen, VA is precluded under the applicable statutes and regulations from granting an effective date earlier than that date. Accordingly, March 28, 2011, is the proper effective date for the grant of service connection for a left shoulder disability. As a preponderance of the evidence is against entitlement to an effective date prior to March 28, 2011 for award of service connection for left shoulder disability, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. §5107 (b); 38 C.F.R. § 3.102. The claim is denied. Finally, the Board notes that neither the Veteran nor his attorney have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to an effective date prior to March 28, 2011 for award of increase rating of 10 percent for fracture right middle cuneiform with hallux valgus and hammertoes, left foot disability The Veteran seeks an effective date prior to March 28, 2011 for award of increased rating of 10 percent for service-connected fracture right middle cuneiform with hallux valgus and hammertoes, left foot disability. She contends that she should be assigned an effective date from the original date of her claim. See June 2013 notice of disagreement. In the alternative, the Veteran contends that she filed an informal claim in November 2004 that was not developed, and an effective date should be awarded from then. See August 2019 Board hearing transcript. The Veteran’s original claim for service connection for foot injury was filed in July 1983, within a year of her separation from service. In a September 1982 statement, she stated that she wanted to add a claim for service connection for “left ankle (foot) condition”. In a December 1983 rating decision, the RO noted the Veteran’s original claim for right and left foot injuries but found that a review of the evidence only demonstrated an in-service right ankle injury. The RO awarded the Veteran service connection for a fracture right middle cuneiform, and assigned a noncompensable rating, effective from May 26, 1983 (date following her separation from service). Also, in that rating decision, the RO specifically denied a claim for service connection for left ankle condition, identified as status post fracture of middle cuneiform with significant synovitis, left. In a March 1986 rating decision, the RO continued a noncompensable rating for fracture right middle cuneiform disability and denied a temporary total disability rating for convalescence following a January 1984 VA surgery for arthroplasties of the bilateral left third and fifth toes and right third and fourth toes because the feet were not considered part of the Veteran’s service-connected fracture right middle cuneiform disability. On March 28, 2011, VA received the Veteran’s VA 21-526b, Veteran Supplemental Claim, which included a claim for increased rating for her service-connected disability. In a May 2013 rating decision, the RO recharacterized the Veteran’s service-connected disability as fracture right middle cuneiform with hallux valgus and hammertoes, left foot, and assigned a 10 percent rating, effective from March 28, 2011. The Board finds that an earlier effective date for the award of an increased rating of 10 percent the Veteran’s service-connected disability is not warranted. Initially, the Board notes that the date of claim for increased disability rating is March 28, 2011, the date the Veteran’s claim was received by the VA. The record does not show the Veteran had a pending claim for increase rating following the March 1986 rating decision and prior to March 2011. As noted above, in a March 1986 rating decision, the RO continued the assignment of a noncompensable for the Veteran’s service-connected right middle cuneiform disability and denied a temporary total rating. The Veteran was notified of the RO’s decision in a May 1986 notification letter. On July 14, 1986, the Veteran’s representative submitted additional VA medical records “for consideration of Veteran’s claim to increase service-connected disability,” which comes within a year of the March 1986 rating decision. However, in an August 1986 correspondence, the Veteran’s representative stated “[p]lease withdraw letter of July 14, 1986. Veteran counseled on denial. No further action at this time.” The August 1986 correspondence can be clearly read as a withdrawal of the Veteran’s pending increased rating claim. No notice of disagreement or further new and material evidence was received within a year of the notification of the RO’s March 1986 denial of her increased rating claim. As the Veteran’s representative, on the Veteran’s behalf, effectively, withdrew her pending claim for increased rating in August 1986, the March 1986 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. There was no earlier communication after between August 1986 and March 2011 which can be construed as a formal or informal claim for increased rating. The Board has considered the Veteran’s assertion that she filed a claim for increased rating in November 2004. Pertinently, in her November 2004 correspondence, the Veteran stated, she was “presently rated as 0% for a bilateral foot condition,” but stated nothing further with respect to her service-connected disability. The Board does not find that in her November 2004 correspondence, the Veteran indicated an intent to file claim for increased rating. Rather, the November 2004 correspondence only contains her clear intent to file claim for service connection for left shoulder disorder, and the medical records submitted, and the development conducted by the RO was in relation to that service connection claim. The November 2004 correspondence cannot be construed as an informal claim for increased rating for her service-connected disability. The Board also notes that the record contains VA treatment records between August 1986 and March 2011. In this regard, as in effect earlier in the pendency of the appeal, applicable regulations provided that “[a] report of examination or hospitalization” may constitute an “informal claim for benefits if the report relates to a disability which may establish entitlement.” 38 C.F.R. § 3.157 (a) (2014). Specifically, it was provided that once a formal claim for compensation has been allowed, an informal claim for an increased disability rating “will be initiated by a report of examination or hospitalization for previously established service- connected disabilities.” Norris v. West, 12 Vet. App. 413, 417 (1999); see 38 C.F.R. § 3.157 (b); see also Massie v. Shinseki, 25 Vet. App. 123, 132 (2011). Nothing in the VA treatment records suggest that sought to file a claim for increased rating for her fracture right middle cuneiform disability. While VA treatment records noted a history of fracture right middle cuneiform, the mere reference of her disability does not constitute her intention to file a claim for increased rating. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon, 12 Vet. App. at 32. Moreover, there is also no other report, examination, or hospitalization dated prior to March 2011 that can serve as an informal claim for increase for fracture right middle cuneiform disability. See Norris, supra. The Board acknowledges that the record contains earlier VA podiatry treatment records with complaints of increase symptomatology pertaining to the Veteran’s hallux valgus and hammertoes. See July 1998, December 1998, June 1999, October 1999, and January 2000 VA treatment records. However, prior to March 28, 2011, the Veteran’s service-connected disability did not include hallux valgus and hammertoes were not incorporated into the Veteran’s service-connected disability until the May 2013 rating decision. As such, the VA podiatry treatment records cannot serve as an informal claim for increase for the Veteran’s fracture right middle cuneiform disability prior to March 2011. See Norris, supra. Thus, there is no basis upon which to assign an effective date prior to March 28, 2011, in accordance with the provisions of 38 C.F.R. § 3.157 (b), pertaining to informal claims, in effect prior to March 24, 2015. In light of the above, the Veteran is only entitled to an effective date prior to March 28, 2011, for the assignment of a 10 percent rating if it is factually “ascertainable that an increase in disability had occurred” within the one-year period prior to March 28, 2011. In this regard, the documents in the evidence of record dated between March 28, 2010 and March 28, 2011 do not show an increase in her service-connected disability. Notably, none of the VA medical records during his period pertain to complaints of or treatment for fracture right middle cuneiform with hallux valgus and hammertoes, left foot; rather, they only reflect treatment for other medical conditions. (Continued on the next page)   Given the absence of evidence relevant to the severity of the Veteran’s fracture right middle cuneiform with hallux valgus and hammertoes, left foot in the one-year period prior to receipt of her claim for increased compensation, it cannot be said that it is factually “ascertainable that an increase in disability had occurred” within the one-year period prior to March 28, 2011, such that effective date earlier than the date of her claim may be assigned. 38 U.S.C. § 5110 (b)(2). Therefore, the assignment of an effective date earlier than March 28, 2011, for the assignment of a 10 percent rating for fracture right middle cuneiform with hallux valgus and hammertoes, left foot disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Murray 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.