Citation Nr: 22016291 Decision Date: 03/21/22 Archive Date: 03/21/22 DOCKET NO. 17-46 035 DATE: March 21, 2022 ORDER Entitlement to an earlier effective date of February 29, 1996, for service connection for a bilateral pes planus disability, is denied. FINDING OF FACT 1. A February 1997 rating decision denied the Veteran's claim to establish service connection for fallen arches of both feet; the Veteran did not appeal that decision nor was any new and material evidence submitted within the appeal period. 2. There is no clear evidence that the Veteran did not receive notice of the February 1997 rating decision or notification letter. 3. No formal or informal claims to establish service connection for fallen arches of both feet or petition to reopen the previously denied claim was received until August 30, 2006. CONCLUSION OF LAW 1. The January 1995 rating decision is final with respect to the Veteran's claims to establish service connection for a right hip disability and a low back disability. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. 2. The criteria for an earlier effective date of February 29, 1996, for service connection for a bilateral pes planus disability, have not been met. 38 U.S.C. §§ 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.326(a), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1979 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office. 1. Earlier Effective Date The Veteran asserts he is entitled to an earlier effective date of February 29, 1996, the date he initially submitted a claim for fallen arches of his bilateral feet. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the issue in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). Upon review of the evidence, the Board finds the Veteran is not entitled to an earlier effective date of February 29, 1996 for the grant of service connection for his bilateral pes planus disability. The Board finds that the Veteran submitted an initial claim for entitlement to service connection for fallen arches of both feet on February 29, 1996. Subsequently, he was scheduled for a VA examination in December 1996. However, the VA examination was cancelled due to "undelivered notification." A January 1997 VA Form 21-3101 Request for Information further indicated the same reason, and the VA regional office noted there were no other address. Accordingly, the VA regional office issued a February 1997 rating decision and notification letter denying his claim for service-connection for fallen arches of both feet. More importantly, in a February 19, 1997 VA notification letter, the Veteran was notified of his right to write and tell the VA regional office why he disagreed with their decision. He was also provided with a VA Form 4107 which explained his right to appeal. Nonetheless, the Veteran did not send the VA regional office any written disagreement with the decision or timely file a notice of disagreement within a year after the February 14, 1997 rating decision or February 19, 1997 Notification Letter. As such, the February 14, 1997 rating decision became final. The Board acknowledge the Veteran's assertion that he is entitled to an earlier effective date of February 29, 1996, the date he first filed a claim for his bilateral pes planus disability. However, the Veteran did not file a timely notice of disagreement or new and material evidence within the appeal period and that decision became final. As discussed above, a final and binding VA regional office decision will be accepted as correct and may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. Although he asserts that he was not notified of the scheduled December 1996 VA examination nor when it was cancelled and could not have responded, his assertion does not amount to an allegation of CUE in this matter. As provided above, broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error" does not amount to the stringent definition of CUE. Even considering the Veteran's assertion that he was not notified of the December 1996 VA examination, the Board finds he was notified of a missed VA examination in a February 1997 rating decision. More importantly, in the February 19, 1997 notification letter, the Veteran was notified of his right to write and tell the VA regional office while he disagreed with their decision. He was also provided with a VA Form 4107 which explained his right to appeal. Nonetheless, he did not exercise his appellate rights by sending the VA regional office any written disagreement with the decision or timely file a notice of disagreement within a year after the February 14, 1997 rating decision or notification letter. Notably, there is no clear evidence that he did not receive the February 1997 rating decision or notification letter. Given the above, the Veteran's attorney is seeking an earlier effective date stemming from a final rating decision. The Board again notes that only a request for revision based on clear and unmistakable error (CUE) can result in the assignment of an effective date earlier than the date of a final decision, as free-standing claims for earlier effective dates vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Neither the Veteran nor his representative has asserted CUE in this case. In this matter, the Board finds that the effective date of August 30, 2006, for a grant of service connection for a bilateral pes planus disability, is proper. As previously stated, a claim reopened after a final disallowance will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Here, the evidence reflects that VA received an informal claim for service connection for fallen arches again on August 30, 2006. As the Veteran's initial claim for fallen arches was denied in February 1997 and became final, his August 30, 2006 claim constitutes a claim to reopen a previously denied claim. According to 38 C.F.R. § 3.400(r), the effective date for a claim reopened is the date the claim was received or the date entitlement arose, whichever is the latter. With exception to his first claim in February 1996, there is no evidence indicating that he attempted to file a formal or informal claim prior to August 30, 2006. Thus, the Board finds that the effective date of August 30, 2006 for a grant of service connection for a bilateral pes planus disability is proper because it is the date his claim to reopen a previously denied claim was received by VA. Based on the foregoing reasons, the Board finds that the evidence persuasively weighs against assigning an earlier effective date than August 30, 2006 for service-connection of a bilateral pes planus disability. As such, the benefit of the doubt rule is not for application and his claim must be denied. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.