Citation Nr: 21028481 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 19-05 927 DATE: May 11, 2021 ORDER Entitlement to an effective date of July 21, 2003, but no earlier, for the award of service connection of sciatic nerve damage resulting in phantom pain, right lower extremity, is granted. FINDING OF FACT VA received an informal claim of entitlement to service connection for right lower extremity sciatic nerve damage on July 21, 2003. CONCLUSION OF LAW The criteria for an effective date of July 21, 2003, but no earlier, for the award of service connection for right lower extremity sciatic nerve damage have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.400 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1966 to February 1969. He appeals a September 2018 rating decision by the Agency of Original Jurisdiction (AOJ). In the December 2018 statement of the case (SOC), the AOJ adjudicated the Veteran's claim for an earlier effective date for service connection for right lower extremity sciatic nerve damage and claim for a rating in excess of 20 percent for right lower extremity sciatic nerve damage. The issue of an increased rating for right lower extremity sciatic nerve damage is not before the Board as the Veteran specifically appealed only his claim for an earlier effective date in his February 2019 VA Form 9. Furthermore, in an August 2020 Informal Hearing Presentation, the Veteran's representative listed the appealed issue as entitlement to an earlier effective date for service connection for right lower extremity sciatic nerve damage. Thus, the only issue currently before the Board is entitlement to an earlier effective date for service connection for right lower extremity sciatic nerve damage. Earlier Effective Date Sciatic Nerve The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on a claim for service connection and a claim reopened after final adjudication "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. During the pendency of the appeal, the definition of what constitutes a valid claim has changed. For the purposes of this case, a claim is 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) (2010). The date of receipt shall be the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). A June 1969 rating decision denied entitlement to service connection for right lower extremity sciatic nerve damage. The Veteran did not appeal or submit new and material evidence within a year of the decision. Therefore, the June 1969 rating decision became final. In July 2009, the Board noted that the Veteran's former representative in a December 2004 statement raised the issue of entitlement to service connection for sciatic nerve damage, to include as secondary to the Veteran's service-connected amputation of the right leg, and the Board referred the issue to the AOJ. See July 2009 Board Decision at 4. However, following the July 2009 Board referral of the issue, the AOJ did not adjudicate the issue until the Veteran's former representative filed a petition to reopen his claim for service connection for right lower extremity sciatic nerve damage in January 2013. See January 2013 Third Party Correspondence. Following the receipt of the January 2013 petition to reopen the previously denied claim and the claim appropriately moving through the appellate process, in October 2018, the Board ultimately awarded a separate 20 percent rating for impairment of the sciatic nerve due to above-the-knee right leg amputation. See October 2018 Board Decision. In September 2018, the AOJ implemented the Board's award of the separate 20 percent rating and assigned an effective date of December 8, 2004 based on VA receiving the Veteran's petition to reopen his claim on that date. See September 2018 Rating Decision. The Veteran submitted a timely VA Form 21-0958, Notice of Disagreement (NOD), requesting an effective date of April 1, 1968 for the award of the separate 20 percent rating for his right lower extremity sciatic nerve damage. See November 2018 NOD. In December 2018, the AOJ awarded an earlier effective date of August 9, 2004 for the award of service connection for the Veteran's right lower extremity sciatic nerve damage. See December 2018 Rating Decision. The AOJ selected August 9, 2004 as the effective date based on VA receiving a claim on that date that "specifically associated leg pain to a nerve condition." Id. In December 2018, the AOJ also denied an effective date prior to August 9, 2004 for the award of service connection for right lower extremity sciatic nerve damage. See December 2018 SOC. In response to the December 2018 SOC, the Veteran submitted a timely VA Form 9, appealing the effective date of the award of service connection for right lower extremity sciatic nerve damage to the Board. See February 2019 VA Form 9. Thus, the issue of an effective date prior to August 9, 2004 is currently before the Board. A review of the record illustrates that the Veteran's first contact with VA reflecting an intent to apply for benefits for right lower extremity sciatic nerve damage following the June 1969 rating decision was on July 21, 2003. See July 2003 Third Party Correspondence at 1-2. On July 21, 2003, the Veteran's former representative stated that, "[w]e also wish to claim service connection for what appears to be some sort of pain originating from his amputation. He get[s] very sharp pains in that area that go upward from it and cause electric like pain upward." Id. Following the July 2003 written correspondence, the AOJ issued a March 2004 rating decision that in part continued the Veteran's 80 percent rating for his service-connected right leg amputation with phantom leg pain. However, the AOJ did not address the Veteran's alleged right lower extremity sciatic nerve damage. In reading the July 21, 2003 correspondence most favorably to the Veteran, the Board concludes that the language used describing the Veteran's pain in the July 2003 correspondence is essentially duplicative of the language used to describe the pain in the August 9, 2004 Statement in Support of Claim. In its December 2018 rating decision, the AOJ determined that the August 2004 written statement was the Veteran's petition to reopen the prior denied claim for right lower extremity sciatic nerve damage. In giving the Veteran the benefit of the doubt, the Board concludes that based on the similarity of the two written statements, July 21, 2003 is the date of the Veteran's first contact with VA reflecting an intent to apply for benefits for right lower extremity sciatic nerve damage. Furthermore, as the July 21, 2003 written statement expressed an intent to apply for service connection for right lower extremity sciatic nerve damage, identified the benefit sought, and was in writing, it constitutes a claim. See Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Prior to the receipt of the Third Party Correspondence on July 21, 2003, there was no correspondence reflecting an intent to apply for benefits for right lower extremity sciatic nerve damage. There is no indication VA received a statement, either orally or via written communication, that indicated an intent to file a claim, after the June 1969 rating decision became final until the July 21, 2003 written statement. Therefore, July 21, 2003 is the earliest date that a communication was received expressing an intent to apply for benefits for right lower extremity sciatic nerve damage. The Board notes that the exact date on which entitlement arose need not be ascertained in order to conclude that the July 21, 2003 date selected herein is the earliest possible effective date with regards to the claim of service connection for right lower extremity sciatic nerve damage. Even if entitlement arose prior to July 21, 2003, as the Veteran alleges, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). In addition, the Board notes that the Veteran has been service connected for amputation of the right lower extremity since March 1, 1969; however, in adjudicating the effective date for the Veteran's right lower extremity sciatic nerve damage, the Board is not bound by the effective date for the Veteran's amputation of the right lower extremity. See Roper v. Nicholson, 20 Vet. App. 173, 181 (2006); see also Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). (Continued on the next page) Therefore, the Board finds the criteria for an earlier effective date of July 21, 2003, but no earlier, for the award of service connection for right lower extremity sciatic nerve damage is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Breitbach, 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.