Citation Nr: 21030635 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-33 563 DATE: May 19, 2021 ORDER An effective date earlier than July 29, 2016 for the award of service connection for bilateral pes planus is denied. FINDING OF FACT The Veteran did not file a claim for entitlement to service connection for a bilateral pes planus earlier than July 29, 2016. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than July 29, 2016 for the grant of service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from September 1971 to September 1975 and from June 1979 to June 1981. The Veteran testified before the Board of Veterans' Appeals (Board) in a virtual hearing in December 2020. A hearing transcript is of record. Entitlement to an effective date earlier than July 29, 2016 for the award of service connection for bilateral pes planus The Veteran contends that the effective date of service connection for bilateral pes planus should be earlier than July 29, 2016. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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(a), (b). The effective date for the grant of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. Id. Effective on and after March 24, 2015, VA updated the regulations concerning the filing of claims. 79 Fed. Reg. 57,660 (Sept. 24, 2014) (codified in 38 C.F.R. Parts 3, 19, and 20 (2015)). In part, the Department replaced the informal/formal claims process with a standardized and more formal process. 38 C.F.R. § 3.155 (2016). As a result of the rulemaking, a complete claim on an application form is required for all types of claims. 38 C.F.R. § 3.155(d). Prior to March 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next of friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree or a claim for pension denied for the reason the disability was not permanently and totally disabling, receipt of one of the following may be accepted as an informal claim for increased benefits or an informal claim to reopen: The date of outpatient or hospital examination or date of admission to a VA hospital or uniformed services hospital. The date of receipt of evidence from a private physician when evidence furnished by or on behalf of the claimant is within the competence of the physician. 38 C.F.R. § 3.157(b) (2014). In this case, the Veteran submitted a formal claim for service connection for a right and left foot disability on July 29, 2016, and he has been awarded service connection for bilateral pes planus effective from that date See VA 21-526EZ. The record does not show that the Veteran submitted a formal or informal claim for service connection relating to his feet prior to July 29, 2016. There is also no evidence of a communication or action from the Veteran prior to July 29, 2016, indicating an intent to file a claim for service connection for bilateral pes planus. See 38 C.F.R. § 3.155(a). The Veteran nevertheless contends that a still earlier effective date is warranted. Specifically, the Veteran, through his representative, argues that a diagnosis of flat feet, which was included in the report of a private independent medical examination received by the VA in June 2012, constituted an informal claim by the Veteran for VA purposes and should, therefore, be the basis for the effective date of his award of service connection for bilateral pes planus. See June 2012 Private Medical Opinion; See December 2020 Hearing Transcript. In order to adequately address the Veteran's contentions, an analysis of the record is required to determine whether the Veteran's diagnosis of flat feet in the June 2012 private independent medical examination report reasonably raised an informal claim for service connection for bilateral pes planus, taking into account any communications made by the Veteran. Such assessment requires a review of applicable VA case law, including Shea and Sellers. Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir. 2019); Sellers v. Wilkie, 30 Vet. App. 157 (2018). In Shea, the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that a claim for VA benefits must identify the benefit sought, but when sympathetically reading a claim by a pro se claimant, the identification of the benefit need not be explicit in the claim-stating documents, but can be found indirectly through examination of evidence to which those documents point. Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019). In Sellers, the Veteran argued that even though his March 1996 claim for "disabilities occurring during service" did not specifically identify a psychiatric disorder, it should have encompassed such as his service medical records showed treatment for mental disorders. The U.S. Court of Appeals for Veterans Claims (CAVC) held that the Veteran's general statement of intent to seek benefits may have been sufficient to constitute a claim for service connection for a major depressive disorder because VA possessed service medical records showing a reasonably identifiable in-service psychiatric diagnosis prior to deciding the claim. Sellers, 30 Vet. App. at 161. However, the Federal Circuit recently reversed the CAVC decision, holding that a veteran's claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality (e.g., a leg injury, memory loss, or eye problems). See Sellers v. Wilkie, 965 F.3d 1328 (2020). The Federal Circuit cited Shea, wherein the Veteran's claim was held to encompass posttraumatic stress disorder (PTSD), because the claim pointed to specific medical records in which the Veteran's psychiatric condition was noted. 926 F.3d 1362 (Fed. Cir. 2019). The Federal Circuit concluded that the Veteran was not entitled to an earlier effective date based on his March 1996 claim as it did not identify major depressive disorder, even at a high level of generality. Here, as previously mentioned, the Veteran submitted in June 2012 the report from a private independent medical examination. This examination was performed in conjunction with separate claims that were pending before VA at that time. During a review of the Veteran's knees and feet, the private examiner diagnosed bilateral pes planus and noted the Veteran's report that he experienced tingling in the bottom of his feet, especially his left foot during basic training. See June 2012 Private Medical Opinion. As noted above, the Veteran contends that this notation in the private independent medical examination report should constitute an informal claim for service connection. The Board notes, however, that the mere existence of medical evidence of a disorder does not establish an intent to seek service connection. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Rather, a formal or informal claim must be filed in order for any type of benefit to accrue or be paid, and a claim for service connection must indicate an intent to apply for that benefit. See 38 U.S.C. § 5101 (a); 38 C.F.R. §§ 3.151 (a), 3.155(a); Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Here, the Veteran clearly did not submit a formal or informal claim for service connection for bilateral pes planus (right foot injury and left foot injury) until July 29, 2016. In fact, a review of the record shows that following the submission of the June 2012 private independent medical examination report and the issuance of a March 2013 rating decision that considered that report, the Veteran submitted an April 2013 notice of disagreement (NOD) in which he disagreed with the initial ratings assigned in that rating decision for his awards of service connection for radiculopathy of the right and left lower extremities as well as the increased rating awarded for his lumbar spine degenerative disc disease. The NOD also expressed disagreement to the extent the Veteran believed the rating decision had "effectively denied [his] informal claims" for additional benefits, which he identified as cervical strain, right and left lower radicular group brachial plexus impingement, and lumbar spondylolisthesis. The Veteran stated that according to 38 C.F.R. § 3.157, VA was "supposed to treat each of the items diagnosed in Dr. E's report as a claim for VA benefits. When the VA failed to evaluate items in his report it violated existing law". See April 2013 VA Form 21-4138. While the Veteran has since advanced the argument that the June 2012 private medical examination report should constitute an informal claim for bilateral pes planus, because a diagnosis of such was included in that report, it is notable that he failed to identify that diagnosis in his April 2013 NOD while identifying other diagnoses that he believed had been overlooked and for which he requested benefits. This omission is construed as evidence in support of the finding that the Veteran did not in fact intend to seek service connection for his bilateral feet at the time of the submission of the private medical examination report in 2012. Moreover, it is noted that the Veteran testified at a hearing before the Board in January 2014, but there was no discussion of his bilateral pes planus, nor did he advance any argument that his feet were injured during his military service which may have been construed as an informal claim for the disability. See January 2014 Hearing Transcript. Additionally, the Veteran submitted an Application for Increased Compensation Based on Unemployability in February 2016 which identified back trouble, neck trouble and radiculopathy of the left and right legs as disabilities which prevented him from working, but there was again no mention of issues with his bilateral feet. See VA Form 21-8940. Lastly, the Board acknowledges that in September 2013, the Veteran submitted a VA Form 9, substantive appeal, in which he made a general statement that included disagreement with "errors in failing to adjudicate issues or claims reasonably raised by the record, even though not specifically mentioned by the appellant". See September 2013 VA Form 9. However, this statement fails to comply with the definition of an informal claim because claim disagreement with any claims reasonably raised by the record but not identified by the Veteran is contrary to Sellers, as previously discussed. See Sellers v. Wilkie, 965 F.3d 1328 (2020). As noted above, a veteran's claim is required to identify the sickness, disease, or injuries for which compensation is sought, at least at a high level of generality. See Sellers v. Wilkie, 965 F.3d 1328 (2020). The Veteran's June 2012 private independent medical examination report does not, nor does any communication received after the receipt of that report, indicate any intent to seek service connection for bilateral pes planus until the formal claim for such was received by VA in July 2016. Thus, there is no evidence to support an informal claim for service connection for bilateral pes planus being reasonably raised by the record prior to July 29, 2016. See 38 C.F.R. § 3.155(a); see Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon, 12 Vet. App. at 35 (ruling that 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). In this regard, the Board finds it also notable to observe that although sympathetic readings of claim-stating documents may be warranted when the claimant is pro se, in this case, the Veteran has been represented by the same private attorney since 2010. No individual may assist claimants in the preparation, presentation, and prosecution of claims for VA benefits as an attorney unless he has first been accredited by VA for such purpose. In seeking accreditation, the attorney must establish that he is competent to advise and assist claimants in the preparation, presentation, and prosecution of their claims before VA. See 38 C.F.R. § 14.629. Therefore, the Board finds it reasonable to presume that had the Veteran intended to file a claim for bilateral pes planus when he submitted the private independent medical examination report in June 2012, his representative would have advised him and/or assisted in bringing such a claim before VA. In conclusion, and for the reasons explained above, the Veteran's diagnosis of bilateral pes planus in the June 2012 private independent medical examination report did not reasonably raise an informal claim for service connection for bilateral pes planus, considering all the surrounding circumstances. The Board is therefore precluded from assigning an effective date prior to July 29, 2016, for the award of service connection for bilateral pes planus, as July 29, 2016 represents the date VA received the Veteran's claim for that disability. The benefit sought on appeal must therefore be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Churchwell, 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.