Citation Nr: A25035186 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240925-500539 DATE: April 16, 2025 ORDER An effective date prior to March 31, 2015, for the grant of service connection for right lower extremity neuropathy is denied. FINDING OF FACT 1. In a July 2006 Department of Veterans Affairs (VA), Regional Office (RO) rating decision, the agency of original jurisdiction (AOJ) granted service connection for right foot status post fracture second metatarsal head, and assigned an initial noncompensable rating based on the evidence then of record; the RO subsequently notified the Veteran of the determination and her appeal rights in August 2006; the Veteran did not timely appeal the July 2006 rating decision or submit new and material evidence within one year of the August 2006 notice letter. 2. The next communication in the claims file indicating an intent to a file a claim (formal or informal) of service connection for right foot disability is the Veteran's March 31, 2015, VA Form 21-526EZ (legacy claim) seeking service connection for right foot damaged nerve. 3. There is no evidence of any unadjudicated formal or informal claim from the date of the July 2006 rating decision until the March 31, 2015, claim was received. 4. In a September 2023 rating decision, the RO granted service connection for right lower extremity neuropathy (as a residual of the Veteran's right foot fracture surgery) and assigned a separate evaluation of 20 percent, effective date of March 31, 2015, the date of the claim. CONCLUSION OF LAW 1. The July 2006 legacy rating decision is final. 38 U.S.C. § 7105a; 38 C.F.R. §§ 3.156, 20.1100. 2. The criteria for an effective date prior to March 31, 2015, for the grant of service connection for right lower extremity neuropathy have not been met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1999 to February 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2023 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO granted service connection for right lower extremity neuropathy as 20 percent disabling with an effective date of March 31, 2015. In September 2024, the Veteran appealed the September 2023 rating decision to the Board by submitting a VA Form 10182 Decision Review Request: Board Appeal (notice of disagreement or NOD), indicating disagreement with the effective date assigned for the grant of service connection. The Veteran selected the Direct Review docket. See 38 C.F.R. § 20.202. As the Veteran selected the Direct Review docket, the Board is limited to review of the evidence in the record up to and until the September 8, 2023, rating decision. See 38 C.F.R. § 20.202(b). If evidence was associated with the claims file during a period of time when additional evidence was not allowed, the Board has not considered it in its decision on the claim on appeal. 38 C.F.R. § 20.300. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider in this decision, 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 claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Entitlement to an effective date prior to March 31, 2015, for the grant of service connection for right lower extremity neuropathy The Veteran asserts that she is entitled to an effective date of February 15, 2006, for the service-connected right lower extremity neuropathy. The Veteran's attorney, Jeany Mark, in argument stated that the April 2023 VA examiner acknowledged that the onset of the numbness (in the right foot) was in 2001 after the Veteran's right foot surgery in service. For the reasons explained below, entitlement to an effective date prior to March 31, 2015, for the grant of service connection for right lower extremity neuropathy is not warranted. Legal Criteria The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, or a claim reopened after final adjudication "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim, or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). According to the law in effect prior to March 24, 2015 (the effective date of the current regulations), a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. A "claim" was defined broadly to include any 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). Any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a). 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. 38 C.F.R. § 3.155 (a). If received within 1 year from the date it was sent to the claimant, the formal claim will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Beginning on March 24, 2015, all claims must be submitted on specific forms prescribed by the Secretary. In the legacy review system, a rating decision becomes final after one year of notice of that determination unless the Veteran perfects an appeal pursuant to 38 C.F.R. §19.52; or files a notice of disagreement during the one-year appeal period that is subsequently perfected; or until any new and material evidence received during the one-year appeal period is addressed. 38 C.F.R. § 20.1103. If a claim is finally denied and later reopened and granted based on the submission of new and material evidence, the effective date of benefits will be the date the claimant filed the application to reopen or the date that entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2). Regarding an original or supplemental claim, or claim for increase, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). Procedural History In April 2006, the Veteran filed an initial claim of service connection for "R foot - damaged nerves." On the claim form, the Veteran indicated that she fractured her right foot during service and underwent surgery in an attempt to alleviate the pain in her right foot. The Veteran asserted that the surgery resulted in nerve damage manifested by numbness of the right foot and toes. The Veteran was scheduled for VA examinations to assess the nature and severity of her right foot surgery residuals; however, the record shows that the Veteran did not appear for examinations scheduled in May and June 2006. In a July 2006 rating decision, the RO granted service connection for right foot status post fracture second metatarsal head, and assigned an initial noncompensable disability rating, effective from February 15, 2006, the day after separation from service. Notice of the rating decision was sent to the Veteran in August 2006. Regarding the scheduled examinations, on May 8, 2006, the Veteran was sent notice to her correct address for an upcoming VA examination on May 16, 2006. On May 22, 2006, the contract examiner sent notice to VA that the Veteran did not appear for the examination. On May 24, 2006, the Veteran was sent a new notice to her correct address of record for an upcoming VA examination on June 8, 2006. On June 13, 2006, the contract examiner sent notice to VA that the Veteran did not appear for the examination. The Veteran did not appeal the July 2006 rating decision and did not submit any evidence within one year of the notice of the July 2006 rating decision. Additionally, the Veteran did not provide good cause for her missed examinations. The next communication indicating an intent to file a claim for compensation was received in August 2011. The Veteran submitted a statement in support of claim wishing to preserve her effective while she assembled her claims package for submission. No claim or communication indicating intent to apply for a benefit was filed within one year of the August 2011 statement. In a January 2015 report of general information, the Veteran called VA and was recorded as saying she intended to file a claim for migraines. On March 31, 2015, VA received the Veteran's VA 21-526EZ Fully Developed Claim indicating claims for service connection for migraines, back pain, right foot damaged nerves, right ankle injury, and patella femoral syndrome. In an August 2015 rating decision, the RO increased the disability rating for the service-connected right foot status post fracture second metatarsal head from noncompensable to 20 percent disabling effective January 20, 2015, and granted service connection for right foot surgical scar as noncompensable effective January 20, 2015. The Veteran appealed to the Board for higher disability ratings and earlier effective dates for the increased rating and the grant of service connection for the right foot scar. While the Board appeal was pending, the RO, in a September 2020 rating decision, amended the January 20, 2015 effective dates for the grant of service connection for a right foot surgical scar; and, the increased rating to 20 percent for the service-connected right foot status post fracture second metatarsal head to March 31, 2015 - the date of the formal claim of service connection for the Veteran's right foot surgical residuals. In October 2021, the Veteran submitted a VA Form 10182 appealing "ratings: right foot condition." In a March 2023 decision, issued in the legacy review system, the Board denied an effective date prior to March 31, 2015 for the grant of service connection for the right foot surgical scar; and for the assignment of a 20 percent rating for the service-connected status post fracture right foot second metatarsal head. Additionally, the decision granted an increased rating to 10 percent rating for the right foot scar and granted an increased 30 percent rating for the service-connected status post fracture of the right foot second metatarsal head. (That portion of the Board's decision addressing the effective dates was subsequently vacated by Order of the United States Court of Appeals for Veterans Claims (CAVC or Court) on procedural grounds). Notably, however, the Board also acknowledged that the Veteran had consistently reported numbness of the right foot, including at VA examinations in June 2015, March 2019, and September 2020. As such, the Board determined that development was necessary to determine whether the Veteran is entitled to a separate disability rating for neurological impairment of the right foot as a residual of her surgery. Accordingly, the Board remanded the issue of entitlement to a separate rating for numbness associated with a right foot disability for additional development of the record. Thereafter, in the September 2023 rating decision on appeal here, the RO granted service connection for right lower extremity neuropathy, and assigned an initial 20 percent disability rating, effective from March 31, 2015, the effective date of service connection for the overall underlying foot surgery residuals, which include right foot pain, painful scarring, and neuropathy. Notably, the effective date of March 31, 2015 is the date of the Veteran's claim of service connection for damaged nerves in the right foot, following the July 2006 final rating decision. Analysis As noted above, the Veteran did not appeal the July 2006 rating decision and did not provide good cause for missing the VA examinations. Furthermore, the record indicates that notice of the 2006 rating decision was sent to the Veteran's then address of record; and, the file does not show that such notice was returned as undeliverable. Therefore, the July 2006 rating decision is final because it was not appealed within one year of notice of that rating decision and there is no unaddressed new and material evidence received within the appeal period. The record does not reflect that the Veteran provided good cause for not appearing at the examinations scheduled on her behalf. As noted above, when a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a supplemental claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655(b). In this case, findings from the missed scheduled examinations, including any potential neurological impairment found on examination, were necessary to evaluate the current nature and severity of the right foot surgical residuals. Accordingly, an initial noncompensable rating was assigned based on the evidence of record at that time. 38 C.F.R. § 3.655(b). The duty to assist is not always a one-way street. If a Veteran wishes help, she cannot passively wait for it in those circumstances where her attendance at an examination is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see also, Tyrues v. Shinseki, 23 Vet. App. 166, 181 (2009) (recognizing that "an appellant has an obligation to cooperate in the development of evidence pertaining to his [or her] claim"); Kowalski vs. Nicholson, 19 Vet. App. 171, 178 (2005) (recognizing that "a veteran is free to refuse to report for a scheduled VA examination 'but that' the consequences of that refusal may result in the adjudication of the matter based on the evidence of record"). Thus, while the Veteran claimed numbness in her original claim of service connection in April 2006, any medical findings that could have been obtained from the missed examinations as to any neurological impairment, were not obtained because the Veteran did not attend the scheduled examinations. As such, the RO initially characterized the disability as status post fracture second metatarsal head, right foot (also claimed as numbness on top of right foot underneath the toes), and assigned a noncompensable disability rating based on the evidence then of record, which at that time, did not include competent evidence of neurological impairment as a residual of the foot fracture. Thus, any argument that the RO failed to adjudicate the claim of neurological impairment must fail. 38 C.F.R. § 3.655(b). Additionally, the Veteran and her representative's assertion that right foot numbness was shown in 2001 does not vitiate the finality of the July 2006 rating decision because of the rules regarding effective dates, as explained above. In this regard, the assertion of symptoms of numbness shown in 2001 suggest that entitlement to the benefit arose as of that date for effective date purposes. However, even assuming, arguendo, that 2001 is the date entitlement arose, it is prior to the initial claim that was finally denied in 2006; and, prior to the date of the March 2015 claim for increase (which ultimately resulted in the assignment of a separate compensable rating for the associated neuropathy in the right lower extremity). As such, the date of the March 2015 claim is the latter of the date of claim and the date entitlement arose. Finally, as there was no claim, formal or informal, filed between the July 2006 grant of service connection for the right foot status post fracture second metatarsal head and the March 31, 2015, claim for right foot damaged nerves, the Veteran is not entitled to an effective date prior to March 31, 2015, for the grant of service connection for right lower extremity neuropathy. 38 U.S.C. § 5101; 38 C.F.R. §§ 3.151, 3.155 (2014). Accordingly, an effective date prior to March 31, 2015, for the grant of service connection for right lower extremity neuropathy is denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; 3.400(q)(2), (r). L. B. CRYAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robinson, C. B. 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.