Citation Nr: 22040153 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 18-43 040 DATE: July 13, 2022 ORDER Entitlement to an effective date of October 4, 2012, for the grant of service connection for a muscle injury status post right ankle gunshot wound is granted. FINDINGS OF FACT 1. On October 5, 2012, the Veteran's claim for "rt achilles tendon" was received. The claim form had the Veteran's correct address. 2. In April 2013, notice was sent that the noncompensable evaluation of "scar gunshot wound, right lower extremity (now claimed as night Achilles tendon)," was continued. This notice, and all development for this claim as an increased rating of the Veteran's scar, was sent to a wrong address. 3. In November 2017, the Veteran reasserted entitlement to service connection for "Rt Achilles Tendongunshot injuryrequest c & p exam." 4. In February 2018, the service connection was granted for "muscle injury, s/p right ankle gunshot wound (claimed as rt achilles tendon gunshot injury)," effective November 30, 2017. 5. The Veteran asserts entitlement to an earlier effective date of service connection because the Veteran did not receive the notification of the prior rating decision or any correspondence regarding the October 2012 claim. CONCLUSION OF LAW The criteria for entitlement to an effective date of October 4, 2012, for the grant of service connection for a muscle injury status post right ankle gunshot wound are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1967 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2018 rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In March 2022, the Veteran testified in a hearing before the Board. A transcript is included in the electronic claims file and has been reviewed. Entitlement to an effective date of October 4, 2012, for the grant of service connection for a muscle injury status post right ankle gunshot wound is granted. In October 2012, VA received the Veteran's claim for "rt achilles tendon." It was indicated on the submission that this was an increased rating claim. The RO developed this claim as an increased rating claim for the Veteran's right lower extremity gunshot wound scar. The RO denied the claim in an unappealed March 2013 rating decision. In November 2017, the Veteran reasserted the claim as an entitlement to service connection for "Rt Achilles Tendongunshot injuryrequest c & p exam." In the February 2018 rating decision on appeal, the RO granted the claim and assigned an effective date of service connection of November 30, 2017. The Veteran asserts that an earlier effective date is warranted. The applicable law and regulations concerning effective dates state in relevant part that, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule exists under 38 C.F.R. § 3.400 (b)(2) which states that the effective date of service connection shall be the day following separation from active service or date entitlement arose if the claim is received within 1 year after separation from service. To appeal a rating decision, a notice of disagreement must be filed within one year from the date of the mailing of notice of the decision of the agency of original jurisdiction. 38 U.S.C. § 7105. Decisions of the RO that are not appealed in the prescribed time are final. 38 C.F.R. § 20.1103. Here, the record indicates that the RO improperly notified the Veteran in April 2013 of the decision to deny the original claim. This notice, and all relevant correspondence regarding the October 2012 claim, was sent to the wrong post office box number. In the hearing before the undersigned Veterans Law Judge, the Veteran testified to not receiving notification of the prior rating decision or any of the correspondence regarding the claim. Further, the Veteran testified that the intention was to file a service connection claim for the damage to the Veteran's right achilles tendon as a gunshot muscle injury and not as an increased rating claim for the associated scar. However, as all relevant correspondence was sent to the wrong address, the Veteran was effectively prevented from making this correction as to the nature of the claim. And as the notification of the decision was also sent to the wrong address, the Veteran was prevented from timely appealing once the decision was made. The Veteran testified to not learning of the address issue until years later after receiving other VA correspondence addressed to the wrong post office box number in the Veteran's actual post office box. The record reflects that the Veteran always sent letters to the VA with the correct address and filed a change of address form in April 2018. The Veteran testified to same severity of symptoms in 2012 as 2017, but with a gradual increase in frequency. The Board found the Veteran's testimony credible and accepts that the Veteran did not receive notification of the March 2013 rating decision or correspondence about the October 2012 claim. See Smith v. Derwinski, 1 Vet. App. 235 (1991) (credibility is determined by the fact finder). The Board finds that the March 2013 decision was therefore not final. As such, the original October 2012 claim was not finally decided when the RO issued the appealed February 2018 rating decision. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The claim is granted. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board James Hekel 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.