Citation Nr: 22012091 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 200429-80654 DATE: March 2, 2022 ORDER Entitlement to an earlier effective date for the award of service connection for right hip degenerative arthritis with limitation of extension is denied. Entitlement to an earlier effective date for the award of service connection for right hip degenerative arthritis with limitation of flexion is denied. Entitlement to an earlier effective date for the award of service connection for right hip degenerative arthritis with limitation of abduction/adduction is denied. FINDINGS OF FACT 1. In a November 10977 rating decision, the Veteran was denied service connection for a right leg condition; he did not appeal, and the decision became final. 2. In an August 2003 rating decision, the Veteran's claim to reopen his previously denied claim of entitlement to service connection for a right leg condition was denied; he did not appeal, and the decision became final. 3. On March 22, 2012, VA received the Veteran's second claim to reopen his previously denied claim of entitlement to service connection for a right leg condition; prior to this date there was no unadjudicated formal or informal claim of service connection for this condition. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 22, 2012 for the award of service connection for right hip degenerative arthritis with limitation of extension have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to March 22, 2012 for the award of service connection for right hip degenerative arthritis with limitation of flexion have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to March 22, 2012 for the award of service connection for right hip degenerative arthritis with limitation of abduction/adduction have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from June 1975 to June 1977. The rating decision on appeal was issued in April 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In February 2020, the Veteran submitted a VA Form 20-0995, Decision Review Request: Supplemental Claim, and requested readjudication of the effective dates assigned to his awards of service connection for right hip conditions most recently addressed in an April 2019 rating decision. In April 2020, the agency of original jurisdiction (AOJ) issued the supplemental claim decision on appeal, which implicitly found that new and relevant evidence had been received and denied the claims based on the evidence of record at the time of that decision. In an April 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to an earlier effective date for the award of service connection for right hip degenerative arthritis with limitation of extension is denied. 2. Entitlement to an earlier effective date for the award of service connection for right hip degenerative arthritis with limitation of flexion is denied. 3. Entitlement to an earlier effective date for the award of service connection for right hip degenerative arthritis with limitation of abduction/adduction is denied. The Veteran contends he is entitled to an effective date earlier than March 22, 2012 for the awards of service connection for right hip conditions. Specifically, the Veteran asserts that an effective date of July or November 1977 is warranted. 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, it is the 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). The veteran may also indicate an intent to file a claim for compensation. 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. 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. 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 U.S. Court of Appeals for Veterans Claims (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. Here, the Veteran's original claim of entitlement to service connection for a right leg condition was denied by a November 1977 rating decision. The Regional Office (RO) determined there was no evidence that the Veteran's preexisting fracture of the right tibia and fibula was aggravated in service. The Veteran did not appeal the decision and consequently, the decision became final based on the evidence of record at that time. In June 2003, the Veteran filed a claim to reopen his previously denied claim of entitlement to service connection for a right knee/right leg condition. The claim was denied in an August 2003 rating decision which noted that new and material evidence had not been received to reopen the claim. The Veteran did not appeal the decision and the decision became final. In March 2012, the Veteran again submitted a claim to reopen his previously denied claim of entitlement to service connection for a right knee/right leg condition. An August 2013 rating decision denied the claim, finding that new and material evidence had not been received to reopen the claim. The Veteran submitted a timely notice of disagreement (NOD) in April 2014 and ultimately appealed to the Board. In a July 2018 decision, the Board reopened the Veteran's claim and granted service connection for a right leg disability, including leg inequality and pain and weakness of the right hip and right knee. Noting service treatment records and an April 2018 positive nexus opinion from the Veteran's private physician, the Board resolved reasonable doubt in the Veteran's favor and determined that his right leg, including the knee and hip, was aggravated by service. An April 2019 rating decision implemented the Board's decision, granting service connection for right hip degenerative arthritis with limitation of extension, right hip degenerative arthritis with limitation of flexion, and right hip degenerative arthritis with limitation of abduction/adduction, all with effective dates of March 22, 2012, the date VA received the Veteran's claim to reopen his previously denied claim. In May 2019, VA received VA Form 10182 Decision Review Request: Board Appeal (VA Form 10182) indicating that the Veteran disagreed with the effective date assigned to his right hip conditions and that he believed the effective date should be July 1977. However, the Veteran did not choose a Board Review Option and the VA Form 10182 was not accepted. In February 2020, the Veteran submitted a Decision Review Request: Supplemental Claim indicating his disagreement with his right knee conditions. The Veteran failed to indicate what he appealing; however, he subsequently submitted a statement in March 2020 clarifying that he was appealing the March 22, 2012 effective dates for the awards of service connection and believed they should date back to November 1977. In an April 2020 rating decision, the RO denied effective dates earlier than March 22, 2012, explaining that the Veteran's claim to reopen his previously denied claim was received more than one year after his original denial. The Veteran subsequently filed a VA Form 10182 in April 2020, seeking Direct Review of his claims. Upon review of the record, the Board finds that the November 1977 rating decision denying service connection for a right leg condition and the August 2003 rating decision denying to reopen the claim both became final when the Veteran chose not to appeal the decisions. A formal or informal claim to reopen the Veteran's previously denied claim of service connection for a right leg condition was not received prior to the March 22, 2012 claim to reopen. There is no prior communication from the Veteran that could be considered an informal claim for benefits. The pertinent legal authority governing effective dates for reopened claims is clear and specific, and the Board is bound by such authority. While manifestations of the Veteran's right leg condition may have arisen earlier, the later date of the received claim to reopen controls the effective date assigned. The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant's claim to reopen or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(q), (r). Accordingly, the Board finds that the Veteran's claims of entitlement to an effective date earlier than March 22, 2012 for the awards of service connection for right hip degenerative arthritis with limitation of extension, right hip degenerative arthritis with limitation of flexion, and right hip degenerative arthritis with limitation of abduction/adduction must be denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.