Citation Nr: 21013821 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 18-16 658 DATE: March 10, 2021 ORDER Entitlement to an earlier effective date of February 5, 2017, though no earlier, is granted for the award of service connection and a 30 percent rating for residuals, status post fracture, right fibula with rupture of plantaris muscle tendon with atrophy of the right calf muscle and fasciculations in medial calf region, subject to the statutes and regulations governing payment of retroactive compensation. FINDINGS OF FACT 1. The Veteran did not file a claim for service connection for this disability within one year of his separation from service, did not file a timely notice of disagreement (NOD) with a July 2007 rating decision granting service connection for residuals status post fracture of the right fibula, and did not file a claim for an increased rating or for service connection for any additional leg disability until 2017. 2. A February 2017 VA clinical record reflects that he had a worsening of his right leg disability on February 5, 2017, and he filed a claim for benefits within one year from that date. CONCLUSION OF LAW The criteria are met for an earlier effective date of February 5, 2017, though no earlier, for the grant of service connection and a 30 percent rating for residuals, status post fracture, right fibula with rupture of plantaris muscle tendon with atrophy of the right calf muscle and fasciculations in medial calf region. 38 U.S.C. §§ 5103(a), 5103A, 5107(b), 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from September 1977 to October 1981. The Veteran testified in support of this claim during a recent December 2020 “virtual” hearing before the undersigned Veterans Law Judge of the Board. A transcript of the proceeding is of record. Entitlement to an earlier effective date for residuals/status post fracture of right fibula with rupture of plantaris muscle tendon with atrophy of the right calf muscle and fasciculations in medial calf region This appeal stems from a July 2017 rating decision that granted service connection and an initial 30 percent rating effective March 3, 2017 for “residuals, status post fracture, right fibula with rupture of plantaris muscle tendon, with atrophy of the right calf muscle and fasciculations in medial calf region”. Previously, the Veteran had been granted service connection for “residuals of status post fracture right fibula”, rated instead as 0-percent disabling (i.e., noncompensable) effectively from July 13, 2006 to March 3, 2017. During his recent hearing before this Board, the Veteran contended that he is entitled to an earlier effective date back to in October 1981, when he separated from service.   According to 38 U.S.C. § 5110 and 38 C.F.R. § 3.400, an effective date may be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of the claim or date entitlement arose, whichever is later, is the effective date. Even, however, if there is a subsequent claim for the disability (meaning more than one year after separation from service) that is considered, denied, and not appealed, then the earliest possible effective date then becomes when the Veteran later refiles the claim (i.e., petition to reopen it). See Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). In this Veteran’s situation, he is not entitled to an effective date in October 1981 because the evidence does not show that he filed a claim for service connection in October 1981 or even within one year of his separation from service (i.e., by October 1982). Indeed, even he concedes that he did not file a claim with VA when he separated from service or at any time during the immediately ensuing year, although he says there were mitigation circumstances (justifiable explanation) for not doing that. He maintained during his recent hearing that he was not properly briefed on filing VA compensation claims when separating from service. He also contends that, within just a few weeks after separation, he was informed about disability ratings, told that, if he filed a claim, the rating would be retroactive, but that he chose not to file a claim because he did not at that time want to be classified or considered as “disabled”. He further testified that, thereafter, he was unable to find his service record book (SRB), and that it was not until 2006 that he finally chose to file a claim with VA. All of that notwithstanding, and as was explained to him during the hearing, the “retroactive” effective date back to the day after separation from service would only apply if the Veteran filed a claim within one year of his separation from service, as noted in 38 C.F.R. § 3.400. Assignment of this earlier date does not extend to claims filed after that one-year “grace period” following separation from service.   The Veteran also has argued that he believes that an “agent” when he separated from service filed or made a notation of an intent to file a claim for VA disability in his SRB. However, there is no evidence that the Veteran, or someone on his behalf, ever filed a notice with VA about intending to file a claim. A notation in the Veteran’s SRB is not akin to an informal claim to VA because it does not reflect that VA was ever put on notice that he wanted to file a claim and, as already noted, he, himself, contrarily has admitted to not wanting to be considered “disabled” back at that earlier point in time so was not incentivized or motivated to file a claim at that earlier point in time. The Board truly sympathizes with the Veteran regarding his delay in filing a claim for VA disability benefits due to him not wanting to be classified as “disabled” or because he did not fully understand the benefits potentially available to him and the law governing whether he would versus would not be determined entitled. While it is regrettable that greater assistance perhaps was not offered to him at the time of his initial encounter with someone concerning this possibility (either at the time of his separation from service or shortly thereafter and only possibly affiliated with VA), VA is under no greater obligation to notify individual Veterans as to their eligibility for benefits from the agency than providing official notice to the public in the Federal Register. See Federal Register Act, 44 U.S.C. § 1507 (1935) (providing that publication of a document in the Federal Register is sufficient to give notice of the contents of the document to a person subject to or affected by it). Once a statute or regulation is published in the Federal Register, all those subject to or affected by it are charged with the knowledge of that statute or regulation, regardless of whether he or she personally has actual knowledge of that statute or regulation. See Morris v. Derwinski, 1 Vet. App. 260, 265 (1991) (ignorance of the law was not a valid basis for a claimant to assert that he/she should be awarded a benefit because the claimant was unaware of the applicable law(s)); McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (erroneous advice given by a government employee cannot be used to estop the government from denying benefits).   By statute, a specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by the Secretary. 38 U.S.C. § 5101(a). No such claim was submitted prior to 2006. The Veteran also has requested an earlier effective date back to in October 1981 because he contends that his service records/SRB was missing. Pursuant to 38 C.F.R. § 3.156(c), at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding the requirement that new and material evidence must first be received. 38 C.F.R. § 3.156(c). However, importantly, VA had not issued a decision on the Veteran’s claim prior to 2007 because he had not filed a claim until 2006. If he had filed a claim in 1981, if his records had been missing, if VA had denied his claim, and then, if VA had associated relevant records with the claims file and granted the claim, an earlier effective date would be allowable to the date of the initial claim. However, that is not the situation here. In July 2006, the Veteran filed a claim for service connection for a broken leg/ankle. In a July 2007 rating decision, the local Regional Office (RO) granted service connection for residuals of a fractured right fibula and assigned an effective date of July 13, 2006 (the date on which VA had received his claim). He did not in response file a NOD or timely appeal concerning the initial noncompensable (0 percent) rating or effective date assigned for his disability. That is significant because tere is no basis for a free-standing earlier effective date claim from matters addressed in a prior, final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). When such a freestanding claim for an earlier effective date is raised, the Court has held that such an appeal should be dismissed. The Board cannot revisit the effective date that is assigned in a final, unappealed rating decision, unless the Veteran has filed a motion for revision based on clear and unmistakable error (CUE) or there is an applicable exception to the rule of finality (res judicata).   The Veteran has not properly contended or pled with the required specificity that there is CUE in that prior July 2007 rating decision. Instead, he simply has maintained that the examination obtained for that rating decision was insufficient because it did not address his muscle and tendon damage or consider his SRB; however, VA’s breach of a duty to assist cannot form the basis for a claim of CUE. Baldwin v. West, 13 Vet. App 1 (1999), Caffrey v. Brown, 6 Vet. App. 377 (1994). The Board has reviewed the file to determine if new and material evidence was received by VA within one year of that July 2007 rating decision granting service connection but finds that there is not any such evidence to vitiate the finality of that earlier decision. If there are medical records in VA’s constructive, even if not actual, possession within one year of that July 2007 rating decision that constitute new and material evidence, then they, in turn, could allow for assignment of an earlier effective date based on the earlier claim filed in 2006 under 3.156(b), which was in effect at that time. See Bell v. Derwinski, 2 Vet. App. 611 (1992), see also Turner v. Shulkin, 29 Vet. App. 207 (2018); Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020) (medical records generated by VA within one year of a decision are constructively “received” for purposes of § 3.156(b)). But there were no such records in the file or even constructively in the file within one year of that earlier July 2007 rating decision that would be considered new and material to the claim and, in turn, allow for his currently expanded disability and rating to be retroactively effective from that earlier date. Moreover, 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. 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations apply to claims filed on or after March 24, 2015, such as in this situation, and do not allow for compensation claims to be based on hospital treatment records but require the actual filing of the correct form designated by the Secretary of VA. In March 2017, the Veteran filed a claim for compensation for a “new” right leg condition. A June 2017 VA examination report reflects that he had disabilities of disruption of the plantaris tendon, intramuscular edema, subchondral cyst, and subchondral marrow edema. That June 2017 examiner determined it was as likely as not the Veteran’s torn plantaris tendon had occurred as consequence of his injuries in service. It was that medical opinion establishing this correlation (“nexus”) that allowed for the granting of service connection for the Veteran’s additional disabilities referable to his right leg in the 2017 rating decision. The effective date of March 3, 2017 was assigned because it was the date upon which VA had received his claim for this additional right leg disability. There is no evidence after the July 2007 rating decision and prior to the March 2017 claim indicating he filed filed an intervening claim for benefits for his right leg disabilities – whether as a new claim for service connection or even, instead, a claim for an increased rating for already determined to be service-connected disability, and he has not made any such allegation that he filed a claim during those intervening years. The Board also has considered that, in a claim for an increased rating, which is essentially this claim at issue, the higher rating may date from when it is factually ascertainable that an increase in disability occurred – if within one year prior to receipt of the claim. See Harper, 10 Vet. App. at 126, citing 38 C.F.R. § 3.400(o)(2). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year “grace period” for filing a claim following an increase in severity of a service-connected disability). Thus, the Board has considered the evidence of record from one year prior to the date on which the Veteran filed his claim in March 2017 to determine whether it reflects a worsening during that immediately preceding period. A February 6, 2017 VA emergency department note shows the Veteran reported experiencing “right calf pain since yesterday when he was hiking and heard a pop. He then had pain with walking and moving foot. He has a [history] of right calf pain since fracture to distal tibia and ‘ankle’ years ago.” This record tends to support that the worsening in his disability had occurred as of February 5, 2017, which was within one year of his March 2017 claim. Thus, the Board is granting a slightly earlier effective date of February 5, 2017 for the 30 percent rating for his disability, but no effective date earlier than that is warranted.   For these reasons and bases, an earlier effective date of February 5, 2017, though no earlier, is awarded for the grant of service connection and 30 percent rating for the Veteran’s additional right leg disabilities. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.