Citation Nr: 21041886 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 17-01 934 DATE: July 10, 2021 ORDER Entitlement to an effective date earlier than September 23, 2013, for the grant of service connection for left ankle disability is denied. REMANDED Entitlement to an initial rating greater than 10 percent for residuals of a left ankle fracture is remanded. Entitlement to service connection for a left knee disability, to include as secondary to residuals of a left ankle fracture is remanded. FINDINGS OF FACT 1. The Veteran's claim for service connection for residuals of left ankle fracture was denied in a March 2002 rating decision; the Veteran filed a timely Notice of Disagreement and a Statement of the Case was issued in August 2002. The Veteran was informed of his appellate rights but did not timely file a substantive appeal and documentation constituting new and material evidence was not actually or constructively received within 60 days of the Statement of the Case. 2. On September 23, 2013, VA received the Veteran's request to reopen his previously denied claim for entitlement to a left ankle disability, which was subsequently granted. From August 2002, no other such claim, expressed or implied, was received prior to this date. CONCLUSIONS OF LAW 1. The March 2002 rating decision which denied service connection for residuals of a left ankle fracture is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2020). 2. The criteria for entitlement to an effective date earlier than September 23, 2013, for the award of service connection for a left ankle disability have not been met. 38 U.S.C. §§ 5107, 5110(a) (2012); 38 C.F.R. §§ 3.102, 3.400(q), (r) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to January 1980. These matters are before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Board remanded the Veteran's appeal to the RO for further evidentiary development. The claim for entitlement to an earlier effective date for the grant of service connection for left ankle disability was remanded as intertwined with the issue of whether there was clear and unmistakable error (CUE) in the March 2002 rating decision which denied service connection for the left ankle. In September 2020, the RO issued a decision as to whether there was clear and unmistakable error in the March 2002 rating decision. Thus, the RO substantially complied with the remand directives as they applied to the claim for an earlier effective date. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an effective date earlier than September 23, 2013, for the grant of service connection for left ankle disability In his October 2015 Notice of Disagreement, the Veteran contended that the effective date for service connection for the left ankle disability should be earlier than September 23, 2013, because he filed a claim for service connection on January 30, 2001 and because, he contended, the denial of the January 2001 claim was a clear and unmistakable error. Generally, the effective date will be the date of VA receipt of the claim for service connection, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 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); 3.155. Importantly, the effective date of an award based on a claim reopened after final adjudication shall not be earlier than the date of receipt of the claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). Prior to March 24, 2015, 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) (2014). The essential elements for any claim, whether formal or informal, were: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). From March 24, 2015, a claim must be filed on a designated VA form. See 38 C.F.R. § 3.1(p) (2020); 79 Fed. Reg. 57,696 (Sept. 25, 2014). A rating decision is final and binding as to the conclusions based on the evidence on file at the time VA issues written notification. 38 C.F.R. § 3.104(a). A final and binding RO decision will be accepted as correct in the absence of clear and unmistakable error (CUE). Where the evidence establishes such an error, the prior decision will be reversed or amended and it will have the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. 38 C.F.R. § 3.105(a). Prior to the October 2014 rating decision on appeal, the RO denied service connection for residuals of left ankle fracture in a March 2002 rating decision. The Veteran was notified of that decision in correspondence issued that same month. He filed a Notice of Disagreement in June 2002 and the RO issued a Statement of the Case in August 2002. The Veteran did not file a VA Form 9 Substantive Appeal of the decision, nor was new evidence submitted within sixty days of the issuance of the Statement of the Case. Thus, the March 2002 rating decision became final. The Veteran then filed a claim to reopen the previously denied claim for service connection for a left ankle disability, which was received by VA on September 23, 2013. From the issuance of the Statement of the Case in August 2002, no other such claim, expressed or implied, was received prior to this date. A rating decision issued in October 2014 granted entitlement to left ankle fracture with an effective date of September 23, 2013, the date that the Veteran's claim to reopen the previously denied claim was received. The issue of whether there was CUE in the March 2002 decision is not before the Board. That issue was referred to the RO in January 2019, directing the RO to issue a decision of first instance, which it did in a September 2020 rating decision which found that the March 2002 rating decision was not a CUE. The January 2019 rating decision was not timely appealed. What is most important in the present issue is the date VA received the Veteran's claim to reopen the previously finally decided claim for entitlement to service connection for a left ankle disability. As the denial from March 2002 was not appealed within sixty days of the August 2002 issuance of the Statement of the Case, it became final. Again, the effective date of an award based on a claim reopened after final adjudication shall not be earlier than the date of receipt of the claim. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2), (r). Therefore, because the Veteran's claim to reopen the final March 2002 rating decision was received on September 23, 2013, the assignment of an effective date for the Veteran's award of entitlement to service connection earlier than September 23, 2013, is precluded. There is no document dated between August 6, 2002, and September 23, 2013, identifying a sickness, disease, or injury relating to the symptoms of the Veteran's left ankle disability for which compensation was sought, even at a high level of generality. Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2019). Because his current claim to reopen was not received until September 23, 2013, this is the earliest possible effective date he can receive for the grant of service connection. See Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (indicating a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability, but conversely, that a claim which has become final and binding in the absence of an appeal does not remain pending and subject to an earlier effective date). As such, the Veteran cannot receive disability payments for a timeframe earlier than the application date of his claim to reopen. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005). Thus, the appeal as to an earlier effective date must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive, the claim should be denied, or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). In conclusion, the grant of service connection for a left ankle disability is effective September 23, 2013, the date that VA received the Veteran's claim to reopen his previously denied claim. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to an initial rating greater than 10 percent for residuals of a left ankle fracture and entitlement to service connection for a left knee disability, to include as secondary to residuals of a left ankle fracture, are remanded. In January 2019, the Board remanded these matters for further development, to include VA examinations for the conditions at issue on appeal. Regrettably, the RO has not substantially complied with the Board's remand directives and further development is necessary. See 38 U.S.C. § 5103A; Stegall v. West, 11 Vet. App. 268, 271 (1998). VA's efforts to assist the Veteran may have been complicated by his incarceration but the record does not provide any details beyond stating that the Veteran did not appear for a September 2019 examination. See Exam Request, October 8, 2019. VA's duty to assist applies equally to incarcerated and non-incarcerated Veterans. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (VA must "tailor its assistance to meet the peculiar circumstances of confinement"); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995). The record does not demonstrate that VA tailored its assistance to the circumstances of the Veteran's confinement; thus, remand is necessary. In addition, May 2021 evidence indicates that the Veteran was to be released in June 2021. See VA 21-4193 Notice to Veterans Administration of Veteran or Beneficiary Incarcerated in Penal Institution, May 3, 2021. The Veteran also provided a forwarding address for his mail. See VA 27-0820e Report of Incarceration, May 10, 2021. Thus, remand is required in order for the RO to comply with the Board's remand directive of January 2019. The matters are REMANDED for the following actions: 3. Obtain the Veteran's treatment records from the Virginia Department of Corrections for the period from January 2017 to the present. 4. After completing the above development requested in, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any left knee disability. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease; and address whether it is at least as likely as not (a) proximately due to service-connected disability, or (b) aggravated beyond its natural progression by service-connected disability. A complete rationale for the medical opinion is required. 5. After completing the first remand directive, schedule the Veteran for an examination of the current severity of his residuals of a healed left ankle fracture. All necessary diagnostic testing should be performed. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to left ankle disability alone and discuss the effect of the Veteran's left ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. If the Veteran is in fact incarcerated, comply with the appropriate guidance as to examinations for incarcerated veterans. If the RO is unable to afford the Veteran an examination due to incarceration, document in detail all of the steps taken in attempting to do so. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.