Citation Nr: A25035214 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240821-466120 DATE: April 16, 2025 ORDER Entitlement to an effective date of July 19, 2017, but no earlier, for the grant of service connection for right hip strain with limited of flexion is granted. Entitlement to an earlier effective date of July 19, 2017, but no earlier, for the grant of service connection for right hip strain with limitation of extension is granted. Entitlement to an earlier effective date of July 19, 2017, but no earlier, for the grant of service connection for right hip strain with limitation of abduction is granted. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for a right hip disability on July 19, 2017, and had a current right hip disability at the time the claim was filed. 2. The Veteran has continuously prosecuted and pursued the claim (under the legacy system and Appeals Modernization Act (AMA)) since July 19, 2017. 3. There is no earlier claim, formal or informal, nor was such a claim reasonably raised, prior to July 19, 2017, and no intent to file was received within the year prior. CONCLUSIONS OF LAW 1. The criteria for an effective date of July 19, 2017, for service connection for right hip strain with limited of flexion have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.400, 3.2500(c). 2. The criteria for an earlier effective date of July 19, 2017, for service connection for right hip strain with limitation of extension have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.400, 3.2500(c). 3. The criteria for an earlier effective date of July 19, 2017, for service connection for right hip strain with limitation of abduction have been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.400, 3.2500(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from July 1985 to May 1988. These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2024 higher-level review rating decision issued by a Department of Veterans Affairs (VA) regional office, the agency of original jurisdiction (AOJ). In July 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review, and requested review of a February 2024 rating decision. In July 2024, the AOJ issued the higher-level decision, which considered the evidence of record at the time of the February 2024 decision. In the August 2024 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the February 2024 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, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. The Board notes that under 38 C.F.R. § 20.202(c)(2) the Veteran has one year from the date the AOJ mailed notice of the decision on appeal, or 60 days from the date that the Board receives the Notice of Disagreement, whichever is later, to change dockets, and the "Board ordinarily may not decide an appeal before this time period is up." See Williams v. McDonough, 37 Vet. App. 305 (2024). There still remains time in which the Veteran could change Board dockets. In this case, the Board is granting the appealed matters in full. Accordingly, the Veteran's due process rights are not adversely affected by not waiting until July 20, 2025, the end of the period in which to request a docket change. 1. Entitlement to an effective date of July 19, 2017, but no earlier, for the grant of service connection for right hip strain with limited of flexion is granted. 2. Entitlement to an earlier effective date of July 19, 2017, but no earlier, for the grant of service connection for right hip strain with limitation of extension is granted. 3. Entitlement to an earlier effective date of July 19, 2017, but no earlier, for the grant of service connection for right hip strain with limitation of abduction is granted. The Veteran contends that he is entitled do an effective date of July 19, 2017, for the grant of service connection for his right hip strain with limitation of flexion, extension, and abduction. See VA Form 10182, Notice of Disagreement, August 2024; see also Appellate Brief, March 2025. As an initial matter, the Board notes that the July 2024 higher-level review rating decision granted an earlier effective date of July 19, 2017, for service connection for the Veteran's right hip strain, limitation of flexion. The Board is bound by this favorable finding. See 38 C.F.R. § 3.104(c). Therefore, the Veteran's claim for an effective date of July 19, 2017, for the grant of service connection for right hip strain, limitation of flexion, is granted. For the reasons set forth below, the Board finds that an effective date of July 19, 2017, for the grant of service connection for right hip strain, limitation of extension and limitation of abduction, is also warranted. Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service, or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b). On February 19, 2019, the Veterans Appeals Improvement and Modernization Act, also known as the AMA, came into effect. The AMA created a new framework for veterans seeking review of VA's decisions on their claims. Although a new framework was established, the existing framework under the "legacy" system was not eliminated. Rather, the AMA and legacy systems operate concurrently. Under the legacy system, appellate review is initiated by a Notice of Disagreement (NOD) and completed by a substantive appeal filed after a Statement of the Case (SOC) has been furnished to an appellant. 38 U.S.C. § 7105(a); 38 C.F.R. § 19.20. A substantive appeal must be filed within 60 days from the date of mailing of an SOC, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. 38 U.S.C. § 7105(b)(2); 38 C.F.R. § 19.52(b)(1). In the absence of a properly perfected appeal, the AOJ may close the appeal and the decision becomes final. 38 U.S.C. § 7105(d)(3); Roy v. Brown, 5 Vet. App. 554, 556 (1993); 38 C.F.R. § 19.32. Under the AMA, an effective date can be preserved if the claim is continuously pursued by filing an appropriate administrative review option to an AMA decision, generally within one year from when the notice of a decision was issued. 38 C.F.R. § 3.2500(c). If an AMA claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. 38 C.F.R. § 3.2500(h). In this case, the Veteran filed a claim seeking service connection for a right hip disability on July 19, 2017. See VA 21-526EZ, July 19, 2017. A November 2017 rating decision denied service connection for the Veteran's claim. See Rating Decision-Narrative, November 2017. The Veteran timely filed a NOD in June 2018 under the legacy system, and he was issued a SOC in August 2019. See SOC, August 2019. The Veteran then filed a timely VA Form 9 in September 2019, and his claim was certified to the Board in May 2020. See VA Form 9, September 2019; see also VA Form 8, May 2020. In August 2023, the Board remanded the claim for additional development, including to obtain outstanding treatment records and to obtain an addendum VA medical opinion. See BVA Decision, August 2023. Following the additional development, the AOJ issued a rating decision in February 2024 that granted service-connection for a right hip strain with limitation of flexion and extension, effective September 16, 2020, and right hip strain with limitation of abduction, effective October 16, 2023. See Rating Decision-Narrative, February 2024. The Veteran timely filed a request for a higher-level review of that decision in July 2024. See VA Form 20-0996, July 2024. The AOJ then issued its July 2024 higher-level decision from which this appeal stems, granting entitlement to an earlier effective date for service connection for right hip strain with limitation of flexion, effective July 19, 2017, and right hip strain with limitation of extension, effective April 13, 2021. The AOJ denied an effective date prior to October 16, 2023, for the grant of service connection for the Veteran's right hip strain, limitation of abduction. See Rating Decision-Narrative, July 2024. The Board notes the Veteran's claim for service connection was initially governed under the legacy system. However, if a post-February 19, 2019, rating decision grants service connection for a disability that was part of a pending appeal under legacy, the AMA applies to the issues of rating and effective date assigned in that decision. In VA's sequential adjudication process, VA must provide an initial decision on each of the downstream elements of a claim once it makes a positive determination on the preceding element. Vargas-Gonzalez v. Principi, 15 Vet. App. 222, 229 (2001). In the context of a downstream issue, the initial decision is the one that first addresses the downstream issue. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). As such, even if an appeal is initiated in the legacy system, when the notice of a rating decision that first addresses a downstream issue - such as the proper effective date or initial rating - is issued after February 19, 2019, those downstream issues must be appealed and adjudicated under the AMA. Thus, the Veteran's case was initiated in the legacy system and entered the AMA pursuant to the AOJ issuing the February 2024 rating decision. Based on the foregoing, the Board finds that the Veteran has continuously prosecuted and continuously pursued his service-connection claim in the legacy, then AMA claim systems, since July 19, 2017, the date VA received the Veteran's claim seeking service connection for a right hip disability. As previously stated, the general rule is that the effective date of an award of service connection will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. There is no regulatory definition of the phrase "date entitlement arose." However, in Wright v. Gober, 10 Vet. App. 343 (1997), the phrase "date entitlement arose" was found to be similar to the phrase "facts found." This case, along with the regulatory context, strongly suggest that the "date entitlement arose" is the date on which the facts in the case demonstrate that the entitling criteria are first met. The entitling criteria for a claim are frequently met on or before the date of claim based on the lay, medical, and other information presented during the entire process of claim development. When applying the general rule, the assignment of an effective date based on date entitlement arose being later than the date of receipt of the claim is only appropriate when the evidence clearly establishes that the entitling criteria were not met as of the date of receipt of the claim. Here, the evidence of record does not clearly establish that the entitling criteria were not met as of the date of the receipt of the July 2017 claim. VA treatment notes in 2016 document the Veteran's reports of ongoing right hip pain and limited range of motion, as well as treatment with pain medication and physical therapy. See CAPRI, April-May 2016. The Veteran underwent a VA hip and thigh conditions examination in October 2017. The VA examiner noted a diagnoses of right hip degenerative arthritis, and a diagnosis date of April 28, 2016. The VA examiner indicated the Veteran's right hip had normal range of motion, but noted that the Veteran had pain during flexion, extension, abduction, and internal rotation. See Hip and Thigh Conditions Disability Benefits Questionnaire, October 2017. The Board notes that the VA examiner did not acknowledge the Veteran's use of pain medication or otherwise discuss its effects on the Veteran's range of motion. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012); see also Ingram v. Collins, No. 23-1798 (March 2025). Consequently, the Board affords no probative value to the reported range of motion results from the October 2017 VA examination. Resolving any reasonable doubt in the Veteran's favor, the Board finds there is sufficient medical evidence of a right hip disability with manifestations of limited flexion, extension, and abduction prior to July 19, 2017. Thus, the Board finds the date entitlement arose predates the date of receipt of the claim. As such, July 19, 2017, is the proper effective date because the date of the claim was later than the date the entitlements arose. Finally, the Veteran does not contend, nor does the evidence show, that the VA received any claim indicating an intent to seek service connection for a right hip disability prior to July 19, 2017. Accordingly, an effective date prior to July 19, 2017, is not warranted, as it is the earliest allowable date under 38 C.F.R. § 3.400. (continued on next page) ? In summary, the Veteran's claims for an effective date of July 19, 2017, but no earlier, for the grants of service connection for right hip strain with limitation of flexion, limitation of extension, and limitation of abduction are granted. B. D. WATSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. S. Rubin, 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.