Citation Nr: 21032485 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 18-07 106 DATE: May 27, 2021 ORDER Entitlement to an effective date prior to September 26, 2016 for the grant of the claim of service connection for intervertebral disc syndrome is denied. Entitlement to an effective date prior to September 26, 2016 for the grant of the claim of service connection for tinnitus is denied. Entitlement to an effective date prior to September 26, 2016 for the grant of the claim of service connection for left lower extremity radiculopathy is denied. Entitlement to an effective date prior to September 26, 2016 for the grant of the claim of service connection for right lower extremity radiculopathy is denied. Entitlement to an effective date prior to September 26, 2016, for the grant of an increased disability rating of 50 percent for bilateral flat feet, is denied. FINDINGS OF FACT 1. In an April 2008 rating decision, the Department of Veterans Affairs (VA) Regional Office (RO) denied the claims of service connection for lower back condition and tinnitus and granted the claim of service connection for flat feet with an initial noncompensable evaluation, effective September 8, 2007. The Veteran was notified of this decision in April 2008, did not appeal that decision within one year of its issuance, and new and material evidence was not received within one year of that decision. Thus, the April 2008 rating decision became final. 2. On September 26, 2016, the Veteran submitted an Intent to File a Claim for Compensation (VA Form 21-0966). There is no evidence of unadjudicated formal or informal claims of service connection for back disability, bilateral lower extremity radiculopathy, tinnitus, or an increased disability rating claim for flat feet between the final April 2008 rating decision and September 26, 2016, the date of the Intent to File. 3. An increase in the severity of the Veteran's service-connected bilateral flat feet, warranting an increased disability rating of 50 percent, was not factually ascertainable within one year prior to his September 26, 2016 Intent to File. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 26, 2016 for the grant of the claim of service connection for intervertebral disc syndrome are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1(p), 3.155, 3.157 (in effect prior to March 24, 2015), 3.400. 2. The criteria for an effective date earlier than September 26, 2016 for the grant of the claim of service connection for tinnitus are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1(p), 3.155, 3.157 (in effect prior to March 24, 2015), 3.400. 3. The criteria for an effective date earlier than September 26, 2016 for the grant of the claim of service connection for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1(p), 3.155, 3.157 (in effect prior to March 24, 2015), 3.400. 4. The criteria for an effective date earlier than September 26, 2016 for the grant of the claim of service connection for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1(p), 3.155, 3.157 (in effect prior to March 24, 2015), 3.400. 5. The criteria for an effective date earlier than September 26, 2016 for the grant of an increased disability rating of 50 percent for flat feet are not met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1(p), 3.155, 3.157 (in effect prior to March 24, 2015), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2003 to September 2007. His DD Form 214 reflects that he received the Combat Action Ribbon. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, granted the claims of service connection for bilateral flat feet with a noncompensable evaluation, intervertebral disc syndrome with a 20 percent evaluation, tinnitus with a 10 percent evaluation, and bilateral lower extremity radiculopathy, each with a 20 percent evaluation, all effective September 26, 2016, the date of the Veteran's Intent to File (VA Form 21-0966). The Veteran timely appealed only the effective dates assigned for the grants of service connection for intervertebral disc syndrome, tinnitus, and bilateral lower extremity radiculopathy, and the effective date assigned for the award of the increased disability rating of 50 percent for bilateral flat feet. In October 2017, he submitted a Notice of Disagreement with the effective dates assigned for the awards of those claims. Therefore, the issue of the proper effective dates for the grants of those claims is properly before the Board. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding claim for an earlier effective date in an attempt to overcome the finality of an unappealed VA decision). In January 2021, the Veteran testified during a virtual Board hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. Entitlement to earlier effective dates for the grants of service connection for intervertebral disc syndrome, tinnitus, and bilateral lower extremity radiculopathy The Veteran contends that he is entitled to earlier effective dates for the evaluation of 50 percent for flat feet, and the awards of service connection for back disability, tinnitus, and bilateral lower extremity radiculopathy. He contends that he went to the VA with his April 2008 notification letter, but was told he had to reapply for benefits and call the VA the next time he applied. The Veteran also contends that he called the VA and was told that he could not reapply for benefits because the April 2008 decision was final, and he needed to talk to his VSO representative in regard to reapplying for benefits. The Veteran additionally alleges he was treated poorly by an American Legion representative. He testified during his January 2021 Board hearing that he was told by the representative that nothing could be done with his claim and that he would have to deal with the noncompensable disability rating for his service-connected bilateral flat feet. He also testified he called the VA and was told he could reapply for benefits, but his claim would get denied. While the Veteran filed previous claims of service connection for flat feet, lower back condition, and tinnitus in July 2007 while still in service, those claims were denied in an April 2008 rating decision. The Veteran was notified of that decision in April 2008, he did not appeal the April 2008 decision within one year of its issuance, and new and material evidence was not received within a year of that decision. Therefore, the April 2008 decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(a)-(b), 20.1103; Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). On September 26, 2016, the Veteran submitted an Intent to File a Claim for Compensation (VA Form 21-0966). In March 2017, he submitted an Application for Disability Compensation (VA Form 21-526EZ) that included, among other things, claims to reopen the claims for service connection for back disability and tinnitus, as well as a claim for a compensable increased disability rating for bilateral flat feet. In June 2017, the RO granted entitlement to service connection for, among other things, intervertebral disc syndrome, tinnitus, and bilateral lower extremity radiculopathy, and granted an increased disability rating of 50 percent for bilateral flat feet, all effective September 26, 2016, the date of the Veteran's Intent to File. While the Veteran did not submit a formal claim for service connection for right and left lower extremity radiculopathy, the evidence of record indicates that those disabilities are intertwined with his service-connected intervertebral disc syndrome. The Veteran has not argued, and, as discussed further below, the evidence of record does not suggest, that a formal or informal claim to reopen the Veteran's back disability claim was submitted prior to September 26, 2016. Generally, the effective date for a grant of service connection on an original claim is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 38 C.F.R. §§ 3.150, 3.151. The Veteran may also indicate an intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). Upon receipt of the intent to file a claim, VA must provide the claimant with the appropriate claims form. Id. If a complete application for benefits on the form prescribed by the Secretary is received by VA within one year of receipt of the intent to file, VA will consider the formal claim to have been filed as of the date the intent to file a claim was received. Id. An intent to file a claim must be submitted using one of three approved methods and must identify the general benefit and the claimant. Id. The approved methods include a saved electronic application, written intent on prescribed intent to file a claim form, and oral intent communicated to designated VA personnel and recorded in writing. Id. Prior to March 24, 2015, a "claim" was defined broadly to include 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). Any communication indicating intent to apply for a benefit under the laws administered by the VA was considered an informal claim provided it identified, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a). To determine when a claim was received under the relevant regulations prior to their recent amendment, the Board must review all communications that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim. 38 C.F.R. § 3.155(a). Thus, the essential elements of a claim prior to March 24, 2015 are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Moreover, the Federal Circuit recently reversed the Court and held in Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020) that a claim must identify the sickness, disease, or injury for which compensation is sought, with at least at a high level of generality, before VA's duty to assist in the development of the claim is triggered. For the following reasons, assignment of an earlier effective date for the grant of the claims of service connection for intervertebral disc syndrome, tinnitus, and bilateral lower extremity radiculopathy is not warranted. For purposes of assigning an effective date for the claims of service connection for intervertebral disc syndrome and tinnitus, the Board cannot look back prior to the earlier July 2007 claims, but must look to the earliest claims of service connection filed subsequent to the April 2008 previous final denial and prior to September 26, 2016, the date of the Intent to File. In this regard, there is no evidence of any unadjudicated formal application to reopen the claims of service connection on appeal between the final April 2008 rating decision and September 26, 2016, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. There is no evidence of record mentioning the claims on appeal in a way that, sympathetically read, could satisfy the "identify the benefit sought requirement." Sellers, 965 F.3d 1328 (a claim must identify the sickness, disease, or injury for which compensation is sought, with at least at a high level of generality, before VA's duty to assist in the development of the claim is triggered); Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019) ("language that points to records mentioning... a condition in a way that, sympathetically read, is properly understood as seeking benefits for such a condition" can satisfy the "identify the benefit sought" requirement of 38 C.F.R. § 3.155(a)). In fact, there are no records in the claims file, other than demand letters to repay debts to the VA, from the April 2008 notification letter to the September 26, 2016 Intent to File. Finally, the Board notes that 38 C.F.R. § 3.157(b)(1), in effect prior to March 24, 2015, provides that the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, "[o]nce 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." This regulation "makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013) (§ 3.157(b)(1) requires that a report of examination or hospitalization indicate that the Veteran's service-connected disability worsened since the time it was last evaluated because, "[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1)," creating an unnecessary and unwarranted adjudicative burden on VA). In this case, 38 C.F.R. § 3.157(b)(1) does not apply as there was no prior allowance or disallowance of a formal claim based on the disability not being compensable in degree. The Veteran contends that he would have either appealed the April 2008 rating decision or submitted claims to reopen sooner but he was improperly given advice by an American Legion VSO representative and VA. The Board notes that VSO representatives are not employees of VA and any information given by one is therefore not associated with VA. More importantly, even if the Veteran had been misinformed by a VA employee regarding the filing of his claim, whether erroneous or not, advice on the part of VA employees cannot serve as the basis for an earlier effective date. McTighe v. Brown, 7 Vet. App. 29, 30 (1994) (holding that erroneous advice given by a government employee cannot be used to estop the government from denying benefits). For the foregoing reasons, the preponderance of the evidence is against the claims for an effective date earlier than September 26, 2016 for the grant of the claims of service connection for intervertebral disc syndrome, tinnitus, and bilateral lower extremity radiculopathy. The benefit of the doubt doctrine is therefore not for application, and the claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board is sympathetic to the Veteran but is bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. § 20.105 (2020). Those laws and regulations preclude an earlier effective date in these circumstances. Earlier effective date for an increased rating of 50 percent for bilateral flat feet The Veteran requests an effective date prior to September 26, 2016 for the award of an increased disability rating of 50 percent for bilateral flat feet. The Veteran is in receipt of a noncompensable disability rating for bilateral flat feet from September 8, 2007, and a 50 percent disability rating from September 26, 2016. Generally, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Specifically as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The Court has interpreted the laws and regulations pertaining to the effective date for an increase as follows: if the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(1), (2); Harper v. Brown, 10 Vet. App. 125 (1997). See also Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (stating that section 5110(b)(2), now section 5110(b)(3), requires that "an increase in a Veteran's service-connected disability must have occurred during the one year prior to the date of the Veteran's claim...to receive the benefit of an earlier effective date"). As noted previously, the Veteran filed a previous claim of service connection for flat feet in July 2007 while he was still in service, and that claim was denied in an April 2008 rating decision. The Veteran was notified of that decision in April 2008, he did not appeal the April 2008 decision within one year of its issuance, and new and material evidence was not received within a year of that decision. Therefore, the April 2008 decision became final. On September 26, 2016, the Veteran submitted an Intent to File a Claim for Compensation (VA Form 21-0966). In March 2017, he submitted an Application for Disability Compensation (VA Form 21-526EZ) that included, among other things, a claim for a compensable increased disability rating for bilateral flat feet. There is no evidence of any unadjudicated formal or informal increased rating claim for the Veteran's service-connected bilateral flat feet subsequent to the final April 2008 rating decision and prior to September 26, 2016. Therefore, the Board will consider the evidence pertinent to the period beginning on September 26, 2016 (one year prior to receipt of the Veteran's Intent to File) to determine if an increase in the Veteran's bilateral flat feet was factually ascertainable. For the following reasons, an effective date prior to September 26, 2016 for the award of an increased disability rating of 50 percent for bilateral flat feet is not warranted. There is no evidence of record showing that it was factually ascertainable that the Veteran's bilateral flat feet disability had worsened within a year prior to the September 26, 2016 Intent to File. Notably, the first mention in the Veteran's VA treatment records of his bilateral flat feet disability subsequent to the April 2008 rating decision is not until November 2016. There is also no evidence of a report of examination or hospitalization indicating that the Veteran's service-connected bilateral flat feet worsened since the time they were last evaluated warranting an earlier effective date pursuant to 38 C.F.R. § 3.157(b)(1). For the foregoing reasons, the preponderance of the evidence is against an effective date prior to September 26, 2016 for the award of an increased 50 percent disability rating for service-connected bilateral flat feet. The benefit of the doubt doctrine is therefore not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. While the Board is sympathetic to the Veteran's claims, the Board is bound by the law, and this decision is dictated by the relevant statutes and regulations. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. § 20.105 (2020). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.