Citation Nr: 21023717 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 16-08 109 DATE: April 21, 2021 ORDER Entitlement to an earlier effective date of July 15, 2010, but no earlier, for service connection for osteoarthritis of the left hip (also claimed as a left hip condition) is granted. FINDING OF FACT 1. The Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for service connection for left hip condition in a December 2011 rating decision; the Veteran submitted a January 2012 Notice of Disagreement (NOD), and the claim was never rendered final. 2. The AOJ granted the Veteran’s claim for service connection for osteoarthritis of the left hip in a March 2014 rating decision but assigned an effective date of September 30, 2013, the date a formal left hip arthritis diagnosis was rendered, notwithstanding the fact that that a disability for VA compensation purposes can exist where pain causes functional impairment, even if there is no diagnosis connecting the pain. The Veteran initiated appeal of the March 10, 2014 rating decision with a May 2014 NOD seeking an earlier effective date only. CONCLUSION OF LAW The AOJ’s December 2011 decision that denied service connection for a left hip condition was never rendered final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156, 20.1103. 2. The criteria for entitlement to an earlier effective date of July 15, 2010, but no earlier, for service connection for osteoarthritis of the left hip have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from August 1974 to August 1977. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for osteoarthritis of the left hip, and assigned an initial 10 percent rating, effective September 30, 2013. In October 2019, the Board denied entitlement to an effective date earlier than September 30, 2013 for the grant of service connection for osteoarthritis of the left hip. The Veteran appealed to the United States Court of Appeals for Veterans Claims. In October 2020, the United States Court of Appeals for Veterans Claims granted a Joint Motion for Remand and vacated the October 2019 decision of the Board. Entitlement to an earlier effective date of July 15, 2010, but no earlier, for service connection for osteoarthritis of the left hip (also claimed as a left hip condition) is granted. The Veteran is seeking an effective date earlier than September 30, 2013 for the award of the grant of service connection for osteoarthritis of the left hip. Specifically, the Veteran asserts that it warrants an effective date of July 1, 2010, the date the RO received her formal claim of entitlement to service connection for a left hip condition. As an initial matter, the Board notes that, in an October 2019 decision, the parties to the Joint Motion for Remand agreed that the Board failed to discuss whether the Veteran is entitled to an earlier effective date for osteoarthritis of the left hip prior to her formal diagnosis based on pain causing functional impairment. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a)-(b)(1); 38 C.F.R. § 3.400 (b)(2). The Court has explained that, in an original claim for service connection, the date entitlement arose is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). This conclusion is borne out in Lalonde v. West, 12 Vet. App. 377 (1999), where the Court stressed that the effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the date of the claim for service connection. VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. See 38 C.F.R. § 3.155; Fed. Reg. 57,660, 57,695 (Sept. 25. 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155 (a). The provisions of 38 U.S.C. § 5101 (a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Further, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). While the Board must interpret the Veteran’s submissions broadly, the Board is not required to conjure up issues that were not raised by the Veteran. Id. The word “claim” includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a Veteran may be considered to be an informal claim. Such an informal claim must identify the benefits 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. 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In this regard, as of such date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant’s intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155 (b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160 (a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155 (b). By way of background, the Veteran initially filed her claim for service connection for a left hip condition in June 2010. See VA Form 21-526 (rec’d July 1, 2010). This is more than one year after her separation from service. See Form DD-214. A December 2011 rating decision denied the service connection claim, and the Veteran submitted a timely NOD in January 2010. The Veteran continuously prosecuted this claim, and did not withdraw the issue, but no Statement of the Case (SOC) was rendered. On May 30, 2014, the AOJ received a subsequent VA Form 21-526EZ in pursuit of service connection for bilateral hip condition, and a March 2014 rating decision granted the service connection claim, effective September 30, 2013. The May 2014 NOD disagreed with the September 30, 2013 effective date. In light of the procedural history above, the record does not reveal any communication, either formal or informal, prior to July 1, 2010, that constitutes as a claim for service connection for a left hip condition. Therefore, the date of claim is July 1, 2010. The Board acknowledges the Veteran’s argument that her January 2010 correspondence constitutes an intent to file, and thus should be considered the date of claim. However, after review of the correspondence, the Board finds it fails to identify the disability the Veteran is seeking benefits for. “The requirement to identify the benefit sought means that a claimant must describe the nature of the disability for which he is seeking benefits.” Brokowski v. Shinseki, 23 Vet. App. 79, 86 (2009). “A claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability.” Id. (citing Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009)). Here, although the Veteran thoroughly explained the functional impact her disabilities cause, there was no information given that would allow a factfinder to identify the disability sought. As explained above, the Veteran’s claim of entitlement to service connection for a left hip condition was denied in a December 2011 rating decision. The RO provided the rationale that medical evidence of record failed to show that a disability of the left hip had been clinically diagnosed. A December 2009 private emergency department record indicates the Veteran’s complaint of pain from back of hip that radiates down her leg. It was noted that the Veteran reported such severe pain that she was afraid of falling out of her wheelchair. July 2010 VA treatment note reports the Veteran’s inability to exercise because of her hip pain. The Veteran submitted a statement in October 2010 where she reported being unable to walk but a short distance, bend over and pick up from the floor, and stand for extended periods. Upon receiving further VA treatment records, the RO granted service connection for osteoarthritis of the left hip in a March 10, 2014 rating decision, with an effective date of September 30, 2013. The RO based its grant on an x-ray report dated September 30, 2013. The x-ray report noted two views of each hip showing mild degenerative narrowing of both hip joints, with the final impression being mild bilateral osteoarthritis. Indeed, after a thorough review of the claims file, the Board finds that an effective date of July 1, 2010 is appropriate. It is clear the record does not indicate a formal arthritis diagnosis until September 30, 2013; however, the United States Court of Appeals for the Federal Circuit has explained that a disability for VA compensation purposes exists where pain causes functional impairment, even if there is no diagnosis connecting the pain with a current underlying condition. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). VA and private treatment records, along with lay statements, indicate the Veteran’s left hip pain caused functional impairment. The December 2009 private emergency room records reveal such severe pain that the Veteran was afraid of falling out of her wheelchair. Further, the Veteran’s October 2010 statement revealed her inability to walk but a short distance, bend over and pick up from the floor, and stand for extended periods, due to her back and hip pain. Thus, the competent evidence of record reveals hip pain that causes functional impairment. Although some of the Veteran’s treatment records document complaints of hip pain causing functional impairment prior to July 2010, such medical records cannot constitute an initial claim for service connection as no intent to file a claim was noted. See Criswell v. Nicholson, 20 Vet. App. 501 (medical records cannot constitute an initial claim for service connection but rather there must be some intent by the claimant to apply for the benefit). As it is the “unequivocal command” of 38 U.S.C. § 5110 (a) that the effective date of benefits cannot be earlier than the filing of an application therefore, Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999), the Board is granting the earliest effective date for service connection for osteoarthritis of left hip that the law allows. (Continued on the next page)   Accordingly, an effective date of July 1, 2010 is warranted. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.