Citation Nr: A25035366 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 240126-411510 DATE: April 16, 2025 ORDER Entitlement to an effective date prior to January 18, 2023 for service connection for radiculopathy, left upper extremity, is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for intervertebral disc syndrome (IVDS) of the cervical spine is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for radiculopathy, right upper extremity, is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for left ankle tendinopathy is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for left knee patellofemoral pain syndrome is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for right hip trochanteric pain syndrome with limitation of adduction of the thigh is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for right ankle tendinopathy is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for left hip trochanteric pain syndrome is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for right hip trochanteric pain syndrome with limitation of flexion of the thigh is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for left hip trochanteric pain syndrome with limitation of internal rotation is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for right knee patellofemoral pain syndrome with other knee impairment is denied. Entitlement to an effective date prior to January 18, 2023 for service connection for right hip trochanteric pain syndrome is denied. Entitlement to an effective date for the grant of eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. chapter 35 based on permanent and total disability prior to January 18, 2023 is denied. FINDINGS OF FACT 1. The Veteran did not file a formal or informal claim for service connection for radiculopathy, left upper extremity IVDS of the cervical spine prior to January 18, 2023. 2. The Veteran did not file a formal or informal claim for service connection for radiculopathy, right upper extremity, prior to January 18, 2023. 3. The Veteran did not file a formal or informal claim for service connection for left ankle tendinopathy prior to January 18, 2023. 4. The Veteran did not file a formal or informal claim for service connection for patellofemoral pain syndrome, left knee, prior to January 18, 2023. 5. The Veteran did not file a formal or informal claim for service connection for right hip trochanteric pain syndrome with limitation of adduction of the thigh prior to January 18, 2023. 6. The Veteran did not file a formal or informal claim for service connection for right ankle tendinopathy prior to January 18, 2023. 7. The Veteran did not file a formal or informal claim for service connection for trochanteric pain syndrome, left hip, prior to January 18, 2023. 8. The Veteran did not file a formal or informal claim for service connection for right hip trochanteric pain syndrome with limitation of flexion of the thigh prior to January 18, 2023. 9. The Veteran did not file a formal or informal claim for service connection for left hip trochanteric pain syndrome limitation of internal rotation prior to January 18, 2023. 10. The Veteran did not file a formal or informal claim for service connection for right knee patellofemoral pain syndrome prior to January 18, 2023. 11. The Veteran did not file a formal or informal claim for service connection for right hip trochanteric pain syndrome prior to January 18, 2023. 12. The Veteran did not meet basic eligibility for DEA until January 18, 2023. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for left upper extremity radiculopathy have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 2. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for cervical spine IVDS have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 3. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 4. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for left ankle tendinopathy have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 5. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for left knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 6. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for right hip trochanteric pain syndrome with limitation of adduction of the thigh have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 7. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for right ankle tendinopathy have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 8. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for left hip trochanteric pain syndrome have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 9. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for right hip trochanteric pain syndrome with limitation of flexion have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 10. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for left hip trochanteric pain syndrome with limitation of internal rotation have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 11. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for right knee patellofemoral pain syndrome have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 12. The criteria for an effective date prior to January 18, 2023, for the grant of service connection for right hip trochanteric pain syndrome have not been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.151(a); 38 C.F.R. §§ 3.1(p), 3.114, 3.400, 3.816. 13. The criteria for entitlement to an effective date prior to January 18, 2023 for the grant of basic eligibility to DEA based on permanent and total disability status have not been met. 38 U.S.C. §§ 1155, 3501, 3510, 5110; 38 C.F.R. §§ 3.807, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 2008 to May 2013. This matter is on appeal from a January 2024 higher-level review rating decision. In January 2024, the Veteran submitted a VA Form 10182, notice of disagreement, requesting direct review by a Veterans Law Judge. The Board will consider evidence of record at the time of the May 2023, September 2023, and October 2023 rating decisions. 38 C.F.R. § 20.301. The Board notes the Veteran's claim is for an effective date prior to January 18, 2023 for service-connected bilateral lower extremity radiculopathy, cervical spine IVDS, bilateral ankle tendinopathy, bilateral knee patellofemoral pain syndrome, right hip trochanterica pain syndrome with limitation of adduction, left hip trochanteric pain syndrome, right hip limitation of flexion, and left hip limitation of internal rotation; and for DEA. The Veteran has not raised or appealed the assigned disability ratings. As such, only earlier effective dates will be discussed. For an original claim received within one year of separation from service, the effective date shall be the day following separation from active service or the date entitlement arose. 38 C.F.R. § 3.400(b)(2)(i). Otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, dependency and indemnity compensation, or pension shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a). "If VA receives a complete claim within 1 year of the filing of an intent to file a claim that meets the requirements of paragraph (b) of this section, it will be considered filed as of the date of receipt of the intent to file a claim.... In the event multiple complete claims for a benefit are filed within 1 year of an intent to file a claim for that benefit, only the first claim filed will be associated with the intent to file a claim." 38 C.F.R. § 3.155(d)(1)(ii). An initial claim seeking service connection for the claims on appeal was received in January 2023. The May 2023, September 2023, and October 2023 rating decisions granted service connection for the claims on appeal, effective January 18, 2023, the date the claim for service connection was received. The effective date of January 18, 2023, is proper. Although the evidence of record shows that the Veteran had the service-connected disabilities prior to January 18, 2023, this does not change the fact that he did not actually file a claim for service connection for any of the service-connected conditions on appeal until January 18, 2023. See Lalonde v. West, 12 Vet. App. 377 (1999); MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006). The evidence does not contain any communication from the Veteran prior to January 18, 2023 that may be construed as an intent to seek or apply for service connection for any of the service-connection conditions on appeal, nor has the Veteran argued that he filed a claim for service connection for any condition on appeal prior to that time. Given the foregoing, the earliest possible effective date for the grant of service connection for the conditions on appeal under 38 C.F.R. § 3.400 is January 18, 2023. Moreover, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability. See Brannon v. West, 12 Vet. App. 32, 35 (1998). The claim of service connection was received more than one year following the Veteran's separation from service. See 38 C.F.R. § 3.400(b)(2). The Board notes a January 2022 intent to file a claim was received. The Board finds the intent to file was not intended for the current claims on appeal. An intent to file a claim can be submitted to preserve a date of claim, but the claim must be submitted within one year of the intent to file. Here, the claim for service connection for the conditions on appeal, to include DEA claim, was received in January 2023. The record establishes that the intent to file was intended for the Veteran's claim for reconsideration of service connection for back disability. The evidence supports this finding, as a supplemental claim was received in October 2022. Additionally, the Veteran's representative sent correspondence stating that the intent to file was, in fact, for the claim regarding service connection for back condition. See November 2022 Email Correspondence. As such, the Board finds the January 2022 intent to file a claim was not intended for any of the claims currently before the Board. The fact that the Veteran's conditions on appeal existed prior to January 18, 2023, and are etiologically linked to his military service is not in dispute in this case. Even accepting these facts, the effective date for assignment is determined by application of the laws and regulations as discussed above. The Board understands the Veteran's belief that an earlier effective date may be warranted to reflect the earlier onset of his conditions; however, January 18, 2023 is the earliest effective date permitted in this case under the applicable laws and regulations governing the assignment of effective dates. The Veteran has not identified any legal authority for assigning an earlier effective date in this case. To the extent that the Veteran's request for an earlier effective date essentially relies upon an appeal for an award on an equitable basis (i.e., a sense of fairness and just due), the Board must emphasize that it may only grant entitlement to VA benefits authorized by law, and does not have authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994) As there is no legally valid basis presented in this case for the assignment of any effective date prior to January 18, 2023, the Board finds that the Veteran's claims for earlier effective dates for the service-connected conditions must be denied. As for the Veteran's claim of an earlier effective date for DEA benefits, the Board similarly finds that an earlier effective date is not warranted in this case. The Veteran was granted DEA benefits based on the grant of the service-connected conditions outlined above, which brought the combined rating to 100 percent. For DEA benefits, basic eligibility for such benefits arises if a Veteran is discharged from service under conditions other than dishonorable and has a permanent and total service-connected disability. 38 U.S.C. § 3501; 38 C.F.R. § 3.807. The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based on an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(7). As noted above, an effective date prior to January 18, 2023 cannot be assigned for the grant of entitlement to service-connected conditions, which grants the Veteran a 100 percent combined disability rating; therefore, the Veteran is not in receipt of a total rating prior to that date. As such, entitlement to an effective date prior to January 18, 2023 for the grant of DEA benefits is also not warranted. The claim for an effective date prior to September 18, 2023 for DEA benefits must be denied. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence is persuasively against the claims, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Glaeser 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.