Citation Nr: A25034945 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240513-441252 DATE: April 16, 2025 ORDER Entitlement to an effective date of October 1, 2015 for service connection for bilateral pes planus with bilateral plantar fasciitis is granted. Entitlement to an effective date of October 1, 2015 for service connection for left foot hallux valgus is granted. Entitlement to an effective date of October 1, 2015 for service connection for right foot hallux valgus is granted. FINDING OF FACT 1. The Veteran has continuously pursued his claims since October 1, 2015. 2. The Agency of Original Jurisdiction implicitly accepted the Veteran's October 2019 VA Form 9 as timely. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 1, 2015 for service connection for bilateral pes planus with bilateral plantar fasciitis have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date of October 1, 2015 for service connection for left foot hallux valgus have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date of October 1, 2015 for service connection for right foot hallux valgus have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1978 to January 1984. The Veteran also had a period of active duty from January 1984 to April 1988, which is considered dishonorable for benefits purposes. On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). Pub. L. No. 115-55, 131 Stat. 1105 (2017) went into effect. This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review on or after February 19, 2019. As this case is an appeal of a May 2023 rating decision, this decision has been written consistent with the new AMA framework. In May 2024, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) electing direct review by a Veterans Law Judge. Therefore, the Board may only consider the evidence of record at the time of the March 2023 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 1. Entitlement to an effective date of October 1, 2015 for service connection for bilateral pes planus with bilateral plantar fasciitis 2. Entitlement to an effective date of October 1, 2015 for service connection for left foot hallux valgus 3. Entitlement to an effective date of October 1, 2015 for service connection for right foot hallux valgus After review, the Board finds that the evidence weighs in favor of the Veteran and that the requested effective date should be granted. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of pension, compensation, or dependency and indemnity compensation based on an original claim or a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date the claim arose, whichever is later. 38 C.F.R. § 3.400. For claims for an increase in a service-connected disability, if an increase in disability 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 increase 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); 38 C.F.R. § 3.400(o)(1), (2); VAOPGCPREC 12-98. In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). The claimed disorders all have the same effective date currently: December 30, 2019. The Veteran and their representative argue that the Veteran has continuously appealed all claims and therefore the proper effective date is October 1, 2015. The Veteran argues thusly: After opting into the AMA system via a June 2018 RAMP Opt-In Form, the AOJ denied the Veteran's claims in an October 2018 Rating Decision. In October 2019, within the time limit, the Veteran submitted a VA Form 9 appealing this decision. In November 2019, the AOJ notified the Veteran that the VA Form 9 was untimely but cited an irrelevant Statement of Case. The Veteran then filed a VA Form 20-0995 appealing his foot disorders on December 30, 2019. While the representative argues that the issue here hinges on what a completed form is under relevant regulations, the Board finds that that is not the relevant rule. A timely substantive appeal is required. However, the Board may waive this non-jurisdictional requirement if VA implicitly treated the claim as if it had been timely appealed following the Form 9 submission in October 2019. See, generally, Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Here, the Veteran relied on the RO's request for a correction as the AOJ had implicitly accepted that the Form 9 submission was timely but required correction. VA's request for curing the form and accepting the subsequent supplemental claim amounts to VA implicitly treating the claim as if it were timely appealed, despite responding to a separate set of claims. Given this, the Veteran continuously appealed his claims. (Continued on the next page) ? The evidence weighs in the Veteran's favor. The Veteran continuously appealed his claims since October 1, 2015. When the Veteran submitted the October 2019 Form 9, the AOJ implicitly accepted the form as timely, despite the use of an incorrect form. The Veteran relied on this representation when resubmitting his claim. As such, the Veteran's service connection claims should be provided an effective date of October 1, 2015. Melanie J. Mann Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonah Nelson 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.