DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

R.R. WATKINS · 2025 · Case ID: 25000431

MIXED

Summary

The veteran, who served in the U.S. Marine Corps from February 2000 to February 2004, appeals the denial of earlier effective dates for service connection for right knee osteoarthritis and residuals of a right first toe distal phalanx fracture, and the grant of service connection for lumbar spine disc disease. The Board granted service connection for lumbar spine disc disease, finding that while service treatment records were negative for a low back disorder, the veteran's rigorous physical training and MOS duties as a personnel clerk involving heavy lifting were consistent with service. A December 2014 private chiropractor opinion provided a nexus, stating the chronic lumbar spine disc disease was likely related to heavy hiking during service, and the Board found this opinion probative, resolving doubt in the veteran's favor. The Board denied earlier effective dates for the right knee and right great toe claims, finding the July 7, 2009, formal claim did not sufficiently identify the benefit sought for these conditions, and the November 23, 2009, denial became final as no NOD or new and material evidence was filed within one year. However, the Board granted an earlier effective date of July 7, 2009, for urticaria (hives), finding the July 7, 2009, formal claim for orthopedic conditions could be sympathetically interpreted as identifying the urticaria benefit sought, supported by contemporaneous STRs from 2002 and later VA treatment records. The Board remanded the cervical spine claim for a VA examination to determine etiology and secondary service connection, and remanded the increased rating claims for urticaria, right knee, and right great toe due to assertions of increased severity since the last VA examination.

Rationale

Direct service connection granted for lumbar spine disorder.; Rigorous training and MOS duties consistent with service.; Private chiropractor opinion provided nexus.; Doubt resolved in veteran's favor.

Service Branch

MARINE CORPS

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

15-16 873

Full Decision Text

Citation Nr: 25000431
Decision Date: 01/14/25 Archive Date: 01/14/25

DOCKET NO. 15-16 873
DATE: January 14, 2025

ORDER

Service connection for lumbar spine disc disease with facet joint arthrosis, segmental dysfunction, and multilevel spondylosis is granted.

An effective date earlier than January 10, 2012, for the award of service connection for RIGHT knee osteoarthritis with chondromalacia patella is denied.

An effective date earlier than January 10, 2012, for the award of service connection for residuals of a RIGHT first toe distal phalanx fracture is denied.

An effective date of July 7, 2009, but no earlier, for the award of service connection for urticaria (hives), is granted.

REMANDED

Service connection for a cervical spine disorder, to include as secondary to service-connected RIGHT knee osteoarthritis, a RIGHT first toe distal phalanx fracture, and to now service-connected lumbar spine disc disease and spondylosis, is remanded.

An initial rating greater than 10 percent for urticaria (hives) is remanded.

An initial rating greater than 10 percent for RIGHT knee osteoarthritis with chondromalacia patella is remanded.

An initial rating greater than 10 percent for residuals of a RIGHT first toe distal phalanx fracture is remanded.

FINDINGS OF FACT

1. The Veteran has lumbar spine disc disease with facet joint arthrosis, segmental dysfunction, and multilevel spondylosis that developed over time post-service as the result of his rigorous physical trainings and military occupational specialty (MOS) duties as a personnel clerk in the Marine Corps from 2000 to 2004.

2. On July 7, 2009, the Veteran first filed a formal claim for service connection for right knee and right great toe conditions.

3. In a November 2009 rating decision, the AOJ denied service connection for right knee and right great toe conditions. The Veteran was provided notice of this denial, but he did not appeal the rating decision. Also, new and material evidence was not received within one year of issuance of the rating decision.

4. On January 10, 2012, the Veteran submitted an informal claim to reopen service connection for RIGHT knee and RIGHT great toe conditions on a VA Form 21-4138 (Statement in Support of Claim).

5. For the right knee and right great toe earlier effective date issues, the date of claim for service connection for both disabilities (January 10, 2012) is arguably later than the date of entitlement for service connection for both disabilities (February 3, 2004).

6. The Veteran filed a formal claim for service connection for multiple disabilities on a July 7, 2009, VA Form 21-526 (Application for Compensation). This formal claim constitutes the earliest, pending claim of record for service connection for urticaria (hives), when interpreting this filing liberally and sympathetically by considering it in conjunction with contemporaneous medical evidence showing skin symptoms at that time.

7. For the urticaria of the skin earlier effective date issue, the date of claim for service connection for this skin disability (July 7, 2009) is arguably later than the date of entitlement for service connection for this skin disability (February 3, 2004).

CONCLUSIONS OF LAW

1. The criteria have been met for direct service connection for lumbar spine disc disease with facet joint arthrosis, segmental dysfunction, and multilevel spondylosis. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The requirements have not been met for an effective date earlier than January 10, 2012, for the award of service connection for RIGHT knee osteoarthritis with chondromalacia patella. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156(b), 3.157, 3.160, 3.400 (2014 version).

3. The requirements have not been met for an effective date earlier than January 10, 2012, for the award of service connection for residuals of a RIGHT first toe distal
not been met for an effective date earlier than January 10, 2012, for the award of service connection for RIGHT knee osteoarthritis with chondromalacia patella. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156(b), 3.157, 3.160, 3.400 (2014 version).

3. The requirements have not been met for an effective date earlier than January 10, 2012, for the award of service connection for residuals of a RIGHT first toe distal phalanx fracture. 38 U.S.C. §§ 5101(a), 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156(b), 3.157, 3.160, 3.400 (2014 version).

4. The requirements have been met for an earlier effective date of July 7, 2009, but no earlier, for the award of service connection for urticaria (hives). 38 U.S.C. §§ 5101(a), 5107, 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.160(c)-(d), 3.400 (2014 version); Shea v. Wilkie, 926 F.3d 1362 (Fed. Cir. 2019).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service from February 2000 to February 2004 in the U.S. Marine Corps.

The increased rating and earlier effective date issues come to the Board of Veterans' Appeals (Board) on appeal from April 2013 and May 2013 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA).

The service connection issues come to the Board on appeal from a latter January 2016 rating decision issued by the same AOJ.

Both appeals were eventually merged together into the present appeal.

In April 2022, the Veteran presented testimony at a Board virtual tele-hearing before the undersigned Acting Veterans Law Judge (AVLJ). The transcript of this hearing is associated with the claims file.

In December 2022, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board's remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998).

I. VA'S DUTY TO NOTIFY AND ASSIST

VA's duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by a January 2012 notice letter sent to the Veteran and the duty to notify attachment to the Application for Compensation (VA Form 21-526EZ) the Veteran filed in October 2015. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159. This notice letter and duty to notify attachment advised the Veteran of the information and evidence necessary to substantiate the service connection and earlier effective date issues on appeal.

Moreover, subsequent to the ameliorative December 2022 Board remand, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist for the earlier effective date issues being denied by the Board in the present decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

On this point, the Board previously remanded the entire appeal in December 2022 for the AOJ to readjudicate the appeal (through a Supplemental Statement of the Case (SSOC)). To that end, this action was necessary as additional evidence had been added to the appeal subsequent to an earlier February 2019 SSOC, without any waiver of AOJ consideration of this additional evidence. See 38 U.S.C. § 7105(d) (2018); 38 C.F.R. §§ 19.31(b), 19.37(a), 20.1305(c). Therefore, in accordance with the Board's instructions, the claims file reflects that the AOJ correctly considered the additional evidence of record and readjudicated the appeal by way of a February 2023 SSOC. As such, the Board finds there was substantial compliance with its prior December 2022 remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall, 11 Vet. App. at 271. Accordingly, the Board may now proceed with consideration of the appeal.

II. SERVICE CONNECTION (SC) - LOW BACK DISORDER

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service - the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Thus, there is no categorical rule that medical evidence is required when the determinative issue is either the existence of a current disability or a nexus to service. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).

The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The claimant is entitled to the benefit-of-the-doubt when the competing evidence is in "approximate balance" or "nearly equal."
the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006).

In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991). The claimant is entitled to the benefit-of-the-doubt when the competing evidence is in "approximate balance" or "nearly equal." That is, exact equipoise is not required to trigger the favorable benefit-of-the-doubt rule. Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021) (en banc). As a corollary, the Federal Circuit in Lynch also held that when the evidence "persuasively favors one side or the other," it is not in approximate balance, and the benefit-of-the-doubt rule does not apply. Id. at 782.

The Veteran believes his current lumbar spine condition began during active duty due to the rigorous physical trainings and MOS duties as a personnel clerk in the Marine Corps from 2000 to 2004. His rigorous training exercises in the Marine Corps involved running, hiking, marching, standing in place for extended periods of time, sit-ups, press-ups, lifting heavy logs, holding weapons, combat training, fitness training, and enhanced physical training. His MOS duties as a personnel clerk in the Marine Corps often involved the heavy lifting of supplies. In his hearing testimony, he denied any specific, acute injury to the low back during his period of service in the Marine Corps. Post-service, his low back pain has worsened over time. See March 2018 Veteran statement; March 2018 spouse statement; and April 2022 Board virtual hearing testimony.

In the alternative, the Veteran contends that his service-connected RIGHT knee osteoarthritis and service-connected RIGHT first toe distal phalanx fracture caused on imbalance in his gait that led to development of low back pain. See November 2017 VA Form 9; April 2022 Board virtual hearing testimony.

Upon review of the evidence, the Board grants the appeal for direct service connection for lumbar spine disc disease with facet joint arthrosis, segmental dysfunction, and multilevel spondylosis.

The first and perhaps most fundamental requirement for any service-connection claim is proof the Veteran has a current disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In the present case, there is probative evidence that the Veteran meets the threshold criterion for consideration of service connection of a current low back disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). That is, the Veteran has been diagnosed with lumbar spine disc disease with facet joint arthrosis, segmental dysfunction, and multilevel spondylosis. See e.g., January 2014 VA chiropractor report; December 2014 private chiropractor examination with X-rays of the lumbar spine; and January 2022 VA addendum note with X-rays of the lumbar spine. These lumbar spine conditions manifest in chronic low back pain and muscle spasms. Thus, it is undisputed the Veteran has current lumbar spine disc disease with facet joint arthrosis, segmental dysfunction, and multilevel spondylosis.

The remaining question is whether any of the Veteran's current low back disorders first manifested during his period of service in the Marine Corps from 2000 to 2004, within one year of this period of service, or are otherwise related thereto.

Initially, the Veteran's lumbar spine disc disease with facet joint arthrosis and multilevel spondylosis diagnosed in the record in the present case are enumerated "chronic disease[s]" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3
undisputed the Veteran has current lumbar spine disc disease with facet joint arthrosis, segmental dysfunction, and multilevel spondylosis.

Initially, the Veteran's lumbar spine disc disease with facet joint arthrosis and multilevel spondylosis diagnosed in the record in the present case are enumerated "chronic disease[s]" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). See also Greyzck v. West, 12 Vet. App. 288, 291 (1999) (recognizing Stedman's Medical Dictionary 9, 1267 (26th ed. 1995) for the proposition that "degenerative joint disease" and "degenerative arthritis" are forms of arthritis subject to presumptive service connection). Spondylosis is defined as degenerative spinal changes due to osteoarthritis. See Dorland's Illustrated Medical Dictionary 1754-55 (32nd ed. 2012). Therefore, spondylosis is also recognized by VA regulations as a chronic disease. 38 C.F.R. § 3.309(a).

Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service. Walker, 708 F.3d 1335-1337. Service connection for an enumerated "chronic disease" such as low back disc disease and spondylosis listed under 38 C.F.R. § 3.309(a) can also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a).

However, in the present case, the clinical evidence of record is negative for a diagnosis of low back disc disease and spondylosis during active duty in the Marine Corps from 2000 to 2004, within one year of service in 2004 and 2005, and for probative evidence of continuity of symptomatology after separation from service. Rather, the first diagnosis in the record of chronic lumbar spine disc disease and spondylosis is from 2014. The first clinical evidence of complaints for low back pain are documented in an August 2013 Chapter 31 Rehabilitation Needs Inventory (VA Form 28-1902w) and in a September 2013 VA primary care note. This is approximately nine years after separation from active duty service in 2004. Therefore, the presumptive provisions based on "chronic" symptoms in service and "continuous" symptoms since service at 38 C.F.R. § 3.303(b) are of no benefit here. Simply stated, no evidence establishes the existence of low back disc disease and spondylosis during the Veteran's period of active duty in the Marine Corps from 2000 to 2004 or within one year thereafter. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a); Walker, 708 F.3d 1335-37.

However, instead, the Board will consider whether service connection can be awarded for the Veteran's lumbar spine disc disease with facet joint arthrosis and multilevel spondylosis under the provisions of 38 C.F.R. § 3.303(a) and (d). To that end, under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

As to the second requirement of in-service incurrence, service treatment records
However, instead, the Board will consider whether service connection can be awarded for the Veteran's lumbar spine disc disease with facet joint arthrosis and multilevel spondylosis under the provisions of 38 C.F.R. § 3.303(a) and (d). To that end, under 38 C.F.R. § 3.303(d), disorders diagnosed after discharge may also still be service connected if all the evidence, including pertinent service records, establishes the disorder was incurred in service. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).

As to the second requirement of in-service incurrence, service treatment records (STRs) dated during the Veteran's period of active duty service in the Marine Corps from 2000 to 2004 are negative for any complaint, treatment, or diagnosis of a low back disorder.

As to the second requirement of in-service incurrence, however, the Veteran's involvement in rigorous physical trainings and his MOS duties as a personnel clerk (which involved heavy lifting) are consistent with the places, types, and circumstances of his service in the Marine Corps from 2000 to 2004. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). More specifically, the Veteran's rigorous training exercises in the Marine Corps involved running, hiking, marching, standing in place for extended periods of time, sit-ups, press-ups, lifting heavy logs, holding weapons, combat training, fitness training, and enhanced physical training. His MOS duties as a personnel clerk in the Marine Corps often involved the heavy lifting of supplies.

As to the third requirement of a nexus, most importantly, there is probative medical evidence of a nexus or link between the Veteran's current lumbar spine disabilities and his service in the Marine Corps from 2000 to 2004. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Specifically, a December 2014 private chiropractor examination provides this nexus. The December 2014 private chiropractor, after performing a clinical examination and X-rays for the Veteran's lumbar spine, opined that the Veteran's current lumbar spine disc disease is "likely related" to heavy hiking he engaged in while on duty with the Marine Corps from 2000 to 2004. The December 2014 private chiropractor provided a rationale for this favorable opinion - the Veteran's significant lumbar disc involvement is chronic and surprising in severity for his age (at that time he was only in his late 30s). In this regard, the Court has stated that an examination or opinion is adequate when it sufficiently informs the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). It follows that the December 2014 private chiropractor examination and opinion provides probative weight in support of direct service connection for the lumbar spine, as it also correctly discussed the specific facts and circumstances of the instant Veteran's case. Bailey v. O'Rourke, 30 Vet. App. 54, 60 (2018).

With regard to the third requirement of a nexus, in addition, the Board has considered favorable January 2014, May 2014, and December 2014 VA physical medicine rehab consults, in which the Veteran was diagnosed with low back pain and muscle spasms since 2003, which began while performing training exercises with the Marine Corps. The Veteran did not report any specific traumatic injury leading to his low back pain, according to the VA clinicians. This low back pain has worsened over time. In any event, these nexus opinions were based on a recitation of the Veteran's reported history.

The Court has held that VA cannot reject a medical opinion or medical evidence simply because it is based on a history supplied by the veteran and that the critical question is whether that history was accurate. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). Here, as the Veteran's reported history of symptoms of low back pain during active duty service in 2003 is not fully accurate, the above January 2014, May 2014, and December 2014 VA physical medicine rehab consults only provide limited evidence
on a history supplied by the veteran and that the critical question is whether that history was accurate. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005); see, e. g., Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (reliance on a veteran's statement renders a medical report incredible only if the Board rejects the statements of the veteran). Here, as the Veteran's reported history of symptoms of low back pain during active duty service in 2003 is not fully accurate, the above January 2014, May 2014, and December 2014 VA physical medicine rehab consults only provide limited evidence in support of the Veteran's low back claim. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008).

Notably, however, there is no contrary, unfavorable medical opinion of record addressing the Veteran's current low back disability on appeal. Moreover, the AOJ failed to secure any VA examination or VA medical opinion for the low back condition on appeal.

In any event, despite the inherent flaws apparent in both the VA and private medical opinions discussed above, the Board should not remand for additional development when the present record is sufficient to grant service connection, which is the case here. Andrews (David) v. McDonough, 34 Vet. App. 216 (2021). Stated another way, VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant. Mariano v. Principi, 17 Vet. App. 305, 312 (2003). See also 38 C.F.R. § 3.304(c) (the development of evidence in connection with claims for service connection will be accomplished when deemed necessary but it should not be undertaken when evidence present is sufficient for this determination). Hence, the Board declines to remand this matter and will determine entitlement to service connection based on the totality of the evidence on the record.

Also, the Board emphasizes that to establish a nexus, there is no absolute requirement that a Veteran seek immediate post-service medical treatment for his low back pain after his separation from service in 2004. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Furthermore, an absolutely accurate determination of etiology is not a condition precedent to granting service connection; nor is definite etiology or obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

Accordingly, resolving doubt in the Veteran's favor, the evidence supports direct service connection for lumbar spine disc disease with facet joint arthrosis, segmental dysfunction, and multilevel spondylosis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Hence, this claim is granted.

III. EARLIER EFFECTIVE DATE (EED) - RIGHT KNEE AND RIGHT FIRST TOE

For the sake of judicial economy, for the issues of entitlement to an effective date earlier than January 10, 2012, for the awards of service connection for RIGHT knee osteoarthritis with chondromalacia patella and for residuals of a RIGHT first toe distal phalanx fracture, the Board will combine these effective date issues into one concrete analysis. This is because both the fact patterns and the assigned effective date for each individual issue mirror one other. Thus, separating the analysis for each individual service-connected disability in the present case would be unnecessary and redundant.

STRs dated from 2001 to 2004 reveal treatment for chronic right knee pain on multiple occasions. There was no history of trauma to the right knee. The in-service diagnosis was RIGHT knee patellofemoral syndrome.

STRs dated from January 2001 to March 2001 recorded a fracture of the right great toe. This in-service injury occurred when the Veteran dropped a weight on his right foot in January 2001.

On February 2, 2004, the Veteran was separated from his period of active service in the Marine Corps.

On a July 7, 2009, Application for Compensation (VA Form 21-526), the Veteran first submitted a formal claim for service connection for the right knee and right great toe. The Veteran noted he was treated for both conditions during his period of active duty. He also reported treatment for both conditions post-service in July 2009 at the VA Medical Center (VAMC) in Dallas, Texas.

VA X-rays of the RIGHT knee dated on July 15, 2009
This in-service injury occurred when the Veteran dropped a weight on his right foot in January 2001.

On February 2, 2004, the Veteran was separated from his period of active service in the Marine Corps.

VA X-rays of the RIGHT knee dated on July 15, 2009, were negative. On the July 15, 2009, VA X-ray report, the Veteran asserted the existence of a right knee disability beginning in 2002 during active service.

In a November 23, 2009, rating decision, the AOJ denied the Veteran's claim for service connection for a RIGHT knee condition. The AOJ acknowledged that STRs documented treatment for chronic right knee pain. Moreover, post-service VA treatment records documented intermittent right knee pain. However, the AOJ determined that there was no medical evidence showing that the Veteran's current right knee pain is related to the documented in-service right knee pain (i.e., no medical evidence of a nexus to service).

In a November 23, 2009, rating decision, the AOJ denied the Veteran's claim for service connection for a RIGHT great toe condition. The AOJ acknowledged that STRs documented that in November 2001 the Veteran injured his right great toe by dropping a weight on it. However, post-service VA treatment records failed to establish any current right great toe condition.

The Veteran did not appeal the November 23, 2009, rating decision for either the RIGHT knee or the RIGHT great toe, and no pertinent, new and material evidence was received within one year of the November 23, 2009, rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

A March 2010 VA no show note mentioned that the Veteran failed to appear to an appointment.

On January 10, 2012, the Veteran submitted an informal claim to reopen service connection for RIGHT knee and the RIGHT great toe conditions on a VA Form 21-4138 (Statement in Support of Claim). This was dated more than one year after the earlier November 23, 2009, rating decision that had denied service connection for RIGHT knee and the RIGHT great toe conditions. (The January 10, 2012, date of receipt of this informal claim to reopen was ultimately considered by the AOJ to be the effective date of the awards of service connection for RIGHT knee osteoarthritis with chondromalacia patella and for residuals of a RIGHT first toe distal phalanx fracture).

In the May 20, 2013, rating decision on appeal, the AOJ reopened the Veteran's claims for service connection for the right knee and right great toe. In the same May 20, 2013, rating decision, the AOJ granted service connection for RIGHT knee osteoarthritis with chondromalacia patella and for residuals of a RIGHT first toe distal phalanx fracture. For both service connection issues granted, the AOJ assigned an effective date of January 10, 2012, which was the date of receipt of his informal claim to reopen service connection. See 38 U.S.C. § 5110(a), (i); 38 C.F.R. §§ 3.160(e), 3.400(q)(2), (r) (2013). The grant of service connection by the AOJ for both issues was based on the Veteran's STRs, post-service VA treatment records, and the favorable findings regarding a nexus to service by April 2013 VA knee and foot examiners.

In an August 2013 formal NOD (VA Form 21-0958), the Veteran appealed the January 10, 2012, effective date assigned for the awards of service connection for RIGHT knee osteoarthritis with chondromalacia patella and for residuals of a RIGHT first toe distal phalanx fracture. The earlier effective date appeal has reached the Board.

The Veteran contends that the current effective date assigned for the grants of service connection for RIGHT knee osteoarthritis with chondromalacia patella and for residuals of a RIGHT first toe distal phalanx fracture (January 10, 2012), is incorrect. The Veteran believes he is entitled to an earlier effective date for both service connection awards. But neither the Veteran nor his representative has provided any specific factual or legal argument as to why the Veteran should be awarded an effective date on these issues. In short, the Veteran's rationale for asserting an earlier effective date for these service connection awards is unclear. But one potential basis for an earlier effective date is the presence of symptomatology and treatment for his right knee and right foot disabilities during his period of active duty service from 2000 to 2004 and post-service VA treatment for his right knee in July 2009.

In this regard, absent any substantive argument for the effective date issues on appeal, the Veteran and his representative are reminded that it is a claimant's responsibility to support a claim for VA benefits, including submitting or specifically identifying relevant evidence and alleging specific errors of fact or law. See 38 U.S.C. §§ 5107(a), 7105(d).

With regard to an earlier effective date, at the outset, the Board is mindful that effective March 24, 2015, VA updated the regulations concerning the filing of claims, adopting a standardized claims system. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014). The purpose of these amendments was to improve the quality and timeliness of the processing of veterans' claims for benefits by standardizing the claims and appeals processes through the use of specific VA forms. VA deleted former 38 C.F.R. § 3.157, which allowed for reports of examination or hospitalization to be treated as claims under certain circumstances, and completely rewrote 38 C.F.R. § 3.155, removing the provisions which allowed for the filing of informal claims. As a result of this rulemaking, a complete claim on an application form is now required for all types of claims. 38 C.F.R. § 3.155(d). In short, effective March 24, 2015, there is no such thing as an informal claim for benefits. As such, it is only appropriate to refer to a communication dated on or after March 24, 2015, as a "claim" if the communication has been received on an application form prescribed by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155, 3.160 (effective March 24, 2015).

However, the above amendments only apply to claims filed on or after March 24, 2015. In the present case, the Board will be focusing on the formal July 7, 2009, Application for Compensation (VA Form 21-526) and informal January 10, 2012, claim for service connection for RIGHT knee and RIGHT great toe conditions. The Board will also be focusing clinical evidence of record that is dated prior to March 2015. This is prior to the March 24, 2015, changes in the law for the filing of a claim. Thus, the amended regulations, effective beginning March 24, 2015, pertaining to the requirement of formal claims on the proper VA prescribed form, do not apply here when looking at the evidence of record during this earlier time frame. Instead, the Board will examine whether the Veteran filed any formal or informal claim for his various disabilities prior to March 24, 2015. Therefore, the former version of the applicable VA regulations pertaining to claims applies for this time period, allowing for informal claims and allowing for reports of examination or hospitalization to be treated as claims, under certain circumstances. See e.g., 38 C.F.R. §§ 3.1 (p), 3.151, 3.155, 3.157 (2014).

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final
frame. Instead, the Board will examine whether the Veteran filed any formal or informal claim for his various disabilities prior to March 24, 2015. Therefore, the former version of the applicable VA regulations pertaining to claims applies for this time period, allowing for informal claims and allowing for reports of examination or hospitalization to be treated as claims, under certain circumstances. See e.g., 38 C.F.R. §§ 3.1 (p), 3.151, 3.155, 3.157 (2014).

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a).

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 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i) (2014).

The effective date based on the submission of new and material evidence (NME) received after a final disallowance is the date of the receipt of the new, reopened claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.160(e), 3.400(q)(2), 3.400(r). See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim.

Under the legacy appeal provisions of 38 U.S.C. § 7105(a), an appeal to the Board after an initial AOJ decision must be initiated by a NOD and completed by a Substantive Appeal (VA Form 9 or equivalent) after a Statement of the Case (SOC) is furnished to the claimant. In essence, the following sequence is required: there must be a rating decision by the AOJ, the claimant must express timely disagreement with the decision (a NOD), VA must respond by explaining the basis of the decision to the claimant (a SOC), and finally the claimant, after receiving adequate notice of the basis of the decision, must complete the process by stating his or her argument in a timely-filed Substantive Appeal (VA Form 9 or equivalent). See 38 C.F.R. §§ 3.103, 20.200, 20.201, 20.202, 20.302 (2014). Proper completion and filing of a Substantive Appeal are the last actions a claimant needs to take to perfect an appeal. 38 C.F.R. § 20.202. Subsequently, certification of issues on appeal to the Board by the AOJ by way of a VA Form 8 (Certification of Appeal) should occur for administrative purposes. See 38 C.F.R. § 19.35.

With regard to finality, under the previous "legacy" system for claims not subject to the modernized review system, an AOJ decision becomes final unless an NOD is filed, or new and material evidence (NME) is received within one year of the AOJ decision. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.156(b), 20.1103. Stated another way, under the previous legacy system, a "finally adjudicated claim" is a claim that is adjudicated by the VA as either allowed or disallowed when whichever of the following occurs first: (i) the expiration of the one-year period in which to file a NOD, pursuant to the provisions of §19.52(a) or §20.502(a) of this chapter, as applicable; or (ii) disposition on appellate review. 38 C.F.R. § 3.160(d)(1). In other words, a rating action becomes "final" by the expiration of one year after the date of notice of an award or disallowance, or by denial on appellate review, whichever is the earliest. Id. In this regard, the Court has confirmed an AOJ decision becomes final "only after the period for appeal has run." Jennings v. Mansfield, 509 F.3d. 1362, 1368 (Fed. Cir. 2007).

However, for a Legacy appeal, if the Veteran files a NOD, but VA fails to act on the NOD appeal by issuing a SOC, or if VA fails to act on new and material evidence received under § 3.156(b) by readjudicating the claim, the claim remains pending. See 38 C.F.R. § 3.160(c) (2014) (a pending claim is an application, formal or informal, which has not been finally adjudicated); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). The pending claims doctrine provides that a claim remains pending in the adjudication process-even for years-if VA fails to act on it. Ingram v. Nicholson, 21 Vet. App. 232, 240 (2007); Norris v. West, 12 Vet. App. 413, 422 (1999). The Court has confirmed that raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram, 21 Vet. App. at 249-255 (2007). See also Myers v. Principi, 16 Vet. App. 228, 236 (2002) (since VA failed to issue SOC after valid NOD was filed, the original claim was still pending and is relevant to determining the effective date of a service connection award); McGrath v. Gober, 14 Vet. App. 28, 35 (2000) (a claim that has not been finally adjudicated remains pending for purposes of determining the effective date for that disability).

Initially, a final, binding decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(b), 3.105(a). Here, the issue of CUE in a prior AOJ or Board decision for the award of service connection for the right knee and right great toe has not been raised by either the Veteran or his representative. Id. See also Flash v. Brown, 8 Vet. App. 332, 340 (1995). Even a sympathetic reading of the Veteran's submissions does not indicate that he has raised a claim of CUE. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (citing Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)). Therefore, the issue of CUE is not before the Board at this time.

The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. 38 C.F.R. §§ 3
the Veteran's submissions does not indicate that he has raised a claim of CUE. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (citing Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)). Therefore, the issue of CUE is not before the Board at this time.

The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). See also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits).

In determining whether an earlier effective date for service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991).

Upon review of the evidence and the law, the Board concludes the Veteran is not entitled to an effective earlier than January 10, 2012, for the awards of service connection for RIGHT knee osteoarthritis with chondromalacia patella and for residuals of a RIGHT first toe distal phalanx fracture. The appeal is denied for these two effective date issues.

With regard to the date of claim, the Board has determined that the earliest claim for service connection for the RIGHT knee and RIGHT great toe in the claims file is the July 7, 2009, Application for Compensation (VA Form 21-526). This fact is undisputed. That is, this form shows (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. 38 C.F.R. §§ 3.1(p), 3.155(a); Brokowski, 23 Vet. App. at 84. The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the Veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013). "The law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically." DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). The Board has considered the above VA statutes, VA regulations, and VA caselaw in identifying the July 7, 2009, Application for Compensation (VA Form 21-526) as the earliest formal or informal claim for service for the RIGHT knee and RIGHT great toe in the record.

However, in response to this July 7, 2009, claim, in an earlier November 23, 2009, rating decision, the AOJ denied service connection for the RIGHT knee and RIGHT great toe. The Veteran was notified of the November 23, 2009, rating decision and of his appellate rights, but he did not submit a notice of disagreement (NOD) within one year of the notice of this rating decision. And no new and material evidence was received within one year of the notice of this rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In this regard, VA treatment records dated within one year of the November 23, 2009, rating decision
J denied service connection for the RIGHT knee and RIGHT great toe. The Veteran was notified of the November 23, 2009, rating decision and of his appellate rights, but he did not submit a notice of disagreement (NOD) within one year of the notice of this rating decision. And no new and material evidence was received within one year of the notice of this rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). In this regard, VA treatment records dated within one year of the November 23, 2009, rating decision failed to reveal any treatment for the right knee or right great toe. There are also no private treatment records present in the claims file. Therefore, the November 23, 2009, rating decision became final for the issues of service connection for the RIGHT knee and RIGHT great toe. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.156(b), 3.160(d), 20.200, 20.201, 20.202, 20.300, 20.302, 20.1103 (2009).

Accordingly, the Veteran is not entitled to an earlier effective date based on his earlier, original formal claim for service connection for the RIGHT knee and RIGHT great toe filed on July 7, 2009, as the effective can be no earlier than the latter January 10, 2012, claim to reopen. See again 38 U.S.C. § 5110(a), (i); 38 C.F.R. §§ 3.160(e), 3.400(q)(2), (r) (2014). As noted above, the Court held, in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."

Thereafter, the Veteran filed a January 10, 2012, informal claim to reopen service connection for RIGHT knee and RIGHT great toe conditions on a VA Form 21-4138 (Statement in Support of Claim). In a May 20, 2013, rating decision, the AOJ subsequently granted service connection for RIGHT knee osteoarthritis with chondromalacia patella and for residuals of a RIGHT first toe distal phalanx fracture. In doing so, the AOJ assigned an effective date for the awards of service connection of January 10, 2012, which is the date of receipt of the Veteran's informal claim to reopen service connection for RIGHT knee osteoarthritis with chondromalacia patella and for residuals of a RIGHT first toe distal phalanx fracture, subsequent to the final November 23, 2009, rating decision. See again 38 U.S.C. § 5110(a), (i); 38 C.F.R. §§ 3.160(e), 3.400(q)(2), (r) (2018).

Moreover, the claims file contains no other communication from the Veteran or his representative indicating an intent to seek, or a belief in entitlement to, service connection for his right knee or right great toe disabilities at any time between the final November 23, 2009, rating decision and the current January 10, 2012, effective date assigned. See 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). Lalonde v. West, 12 Vet. App. 377, 382 (1999). Once again, the essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski, 23 Vet. App. at 84; see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Further, there is no provision in the law for awarding an earlier effective date based on lay statements or clinical evidence of record demonstrating that symptoms of his right knee and right great toe disabilities existed from the time of separation from active service in 2004. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it
3) a communication in writing. Brokowski, 23 Vet. App. at 84; see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Further, there is no provision in the law for awarding an earlier effective date based on lay statements or clinical evidence of record demonstrating that symptoms of his right knee and right great toe disabilities existed from the time of separation from active service in 2004. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The Board's actions are bound by the applicable law and regulations as written; the Board has no power to grant benefits not authorized by law. 38 U.S.C. § 7104(c).

With regard to the date of claim, the Board has also considered whether 38 C.F.R. § 3.157(b) (version in effect in 2014) is applicable here. In this regard, prior to the current January 10, 2012, effective date assigned, July 15, 2009, VA X-rays of RIGHT knee noted the Veteran's report of right knee pain since 2002 during active service. In this regard, 38 C.F.R. § 3.157(b) provides that that once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, the following will be accepted as an informal claim for increased benefits or an informal claim to reopen: receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions.

However, the Court and Federal Circuit have consistently held that 38 C.F.R. § 3.157(b) only allows private or VA clinical evidence to constitute an informal claim for compensation after an award of service connection has been established. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established); and MacPhee v. Nicholson, 459 F.3d 1323,1326 (Fed. Cir. 2006) (informal claim under § 3.157 "must be for a condition that not only has been the subject of a prior claim, but the condition must also have previously been found to be service connected," or disallowed because the disability was "not compensable in degree."). In fact, most recently, the Court reaffirmed that, under Pacheco v. Gibson, 27 Vet. App. 21 (2014) and its interpretation of 38 C.F.R. § 3.157(b) (which was removed effective March 2015, but applies to claims prior to that date), a treatment record reflecting diagnosis or treatment of a disability (e.g., tinea pedis) does not constitute an informal claim where no formal claim for that disability had previously been allowed AND no formal claim for compensation for that disability had been disallowed for the reason that the disability was not compensable in degree. Rorie v. McDonough, 37 Vet. App. 430 (2024).

In the present case, service connection had not yet been established for the Veteran's right knee or right great toe at the time of this relevant July 15, 2009, VA X-ray report for the RIGHT knee. Thus, in the instant case, the existence of relevant VA medical evidence dated in July 2009 prior to January 10, 2012, cannot be construed as an informal claim for service connection for the right
an informal claim where no formal claim for that disability had previously been allowed AND no formal claim for compensation for that disability had been disallowed for the reason that the disability was not compensable in degree. Rorie v. McDonough, 37 Vet. App. 430 (2024).

Therefore, the earliest, pending date of claim for the award of service connection for the right knee and right great toe is the date of receipt of the informal claim to reopen service connection - or January 10, 2012. See 38 U.S.C. § 5110(a), (i); 38 C.F.R. §§ 3.155(b), 3.160(e), 3.400(q)(2), 3.400(r). On this point, "date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r).

With regard to the date of entitlement for service connection for the Veteran's right knee and right great toe disabilities, the term "date entitlement arose" is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). However, the date entitlement arose is not the date that the AOJ receives the evidence, but the date to which that evidence refers. McGrath, 14 Vet. App. at 35. In this vein, it is possible that a particular piece of evidence demonstrates that the Veteran suffered from the symptoms of a disability or rating level earlier than the date of the actual VA examination, opinion, or diagnosis. DeLisio, 25 Vet. App. at 56.

With regard to the earliest date of entitlement for service connection for the right knee and right great toe, as discussed above, the first clinical evidence of record in support of the in-service onset of right knee and right great toe disabilities consists of STRs dated from 2000 to 2003. These STRs documented treatment for chronic bilateral knee pain and a right great toe fracture with residual pain. Thus, it is clearly shown by this STR medical evidence that the Veteran's right knee and right great toe disabilities have been present during his Marine Corps service since at least the years 2000 or 2001. As such, arguably, the criteria for entitlement to service connection for his right knee and right great toe disabilities were met as early as February 3, 2004, the day after the Veteran's separation from service. See 38 C.F.R. § 3.303(a)-(b).

That notwithstanding, the law is clear. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a), (i); 38 C.F.R. §§ 3.160(e), 3.400(q)(2), (r) (2014). Thus, regardless if entitlement arose for his right knee or right great toe in 2004 or even earlier, the effective date for the awards of service connection for same cannot be earlier
. See 38 C.F.R. § 3.303(a)-(b).

Accordingly, the Board concludes that January 10, 2012, the date of the claim to reopen, is the proper effective date for the grant of service connection for RIGHT knee osteoarthritis with chondromalacia patella and for residuals of a RIGHT first toe distal phalanx fracture. 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. § 3.400. Neither the Veteran nor his representative have specified why it would be otherwise.

IV. EARLIER EFFECTIVE DATE (EED) - URTICARIA (HIVES)

For the sake of judicial economy, the Board will incorporate most of the legal language above for an earlier effective date for service connection for the right knee and right great toe into the present analysis for an earlier effective date for urticaria (hives). Listing the same applicable earlier effective date law verbatim would be redundant and unnecessary. Thus, the current legal analysis for an earlier effective date for urticaria (hives) will be accordingly shortened to avoid unnecessary repetition.

STRs dated in June 2002 recorded treatment for urticaria (hives).

On February 2, 2004, the Veteran was separated from his period of active service in the Marine Corps.

On a July 7, 2009, Application for Compensation (VA Form 21-526), the Veteran first submitted a formal claim for service connection for the right knee and right great toe. The Veteran asserted he was treated for both conditions during his period of active duty. He also reported treatment for both conditions post-service in July 2009 at the VA Medical Center (VAMC) in Dallas, Texas. (But there was no mention of a skin condition or urticaria in the July 7, 2009, Application for Compensation (VA Form 21-526)).

A July 15, 2009, VA prime clinic vesting history & physical, in the past medical history section, noted the existence of a skin disorder - the Veteran's skin is red when he scratches. He reported to the VA clinician he was previously seen during active duty by a Marine Corps dermatologist. He was also prescribed an unknown medication for his skin during active duty from 2000 to 2004. On examination, no skin rashes or skin lesions were present. The assessment / plan was "? skin disorder - pt. to obtain military health records for review."

In a November 23, 2009, rating decision, the AOJ denied the Veteran's claim for service connection for a RIGHT knee condition and for a RIGHT great toe condition. However, there was no explicit or implicit adjudication in the November 23, 2009, rating decision of service connection for any skin condition or urticaria.

On January 10, 2012, the Veteran submitted an informal claim for service connection for a skin condition on a VA Form 21-4138 (Statement in Support of Claim). (The January 10, 2012, date of receipt of this informal claim was ultimately considered by the AOJ to be the effective date of the award of service connection for urticaria).

In a March 2012 VA primary clinic note, the Veteran presented for a skin disease he has had since being in the Marine Corps, developing around 2001. His skin condition manifested in skin patches that itched. On examination, his skin exhibited red, slightly raised patches and streaks where the skin has been scratched or pressure has been applied. The diagnosis was an urticaria-like (hives) skin rash. He was prescribed cetirizine 10 mg daily and referred to the VA dermatology clinic.

At a May 16, 2012, VA dermatology consult, the Veteran reported an intermittent history
AOJ to be the effective date of the award of service connection for urticaria).

At a May 16, 2012, VA dermatology consult, the Veteran reported an intermittent history of hives for 10 years back to his Marine Corps service. This skin condition manifested in red "welts." In the past, he has been prescribed Zyrtec for his skin condition. Upon examination, the clinical impression was urticaria - welts on his skin on the extremities and trunk. The diagnosis rendered was urticaria / dermatographism. The prescriptions for this skin condition included cetirizine, hydroxyzine, and Triamcinolone 0.1% cream.

At an April 2013 VA skin examination, the Veteran was diagnosed with urticaria and pruritis of the skin. The VA examiner opined that the Veteran's urticaria of the skin was related to in-service treatment for same in 2002.

In the May 20, 2013, rating decision on appeal, the AOJ granted service connection for urticaria of the skin. The AOJ assigned an effective date of January 10, 2012, which was the date of receipt of his initial informal claim for service connection. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.1(p), 3.155(a), 3.400(b)(2) (2014). The grant of service connection by the AOJ for the urticaria issue was based on the Veteran's STRs, post-service VA treatment records, and the favorable findings regarding a nexus to service by an April 2013 VA skin examiner.

In an August 2013 formal NOD (VA Form 21-0958), the Veteran appealed the January 10, 2012, effective date assigned for the award of service connection for urticaria of the skin. The earlier effective date appeal has reached the Board.

The Veteran contends that the current effective date assigned for the grant of service connection for urticaria of the skin (January 10, 2012), is incorrect. The Veteran believes he is entitled to an earlier effective date for this service connection award. But neither the Veteran nor his representative has provided any specific factual or legal argument as to why the Veteran should be awarded an effective date on this issue. In short, the Veteran's rationale for asserting an earlier effective date for this service connection award is unclear.

However, the evidence of record raises the issue of whether an earlier July 7, 2009, Application for Compensation (VA Form 21-526) could be sympathetically interpreted as a claim for service connection for urticaria (hives) as well, if this formal claim referenced contemporaneous medical records diagnosing a urticaria disability or describing skin symptoms at that time. See e.g., Sellers v. Wilkie, 965 F.3d 1328, 1337-38 (Fed. Cir. 2020); Shea v. Wilkie, 926 F.3d 1362, 1367-70 (Fed. Cir. 2019). That is, the filing of this formal claim for service connection considered in conjunction with contemporaneous medical evidence could essentially identify the urticaria benefit sought. See also 38 C.F.R. §§ 3.1(p), 3.155(a) (pre-March 24, 2015, version of regulation).

With regard to an earlier effective date, at the outset, the Board is mindful that effective March 24, 2015, VA updated the regulations concerning the filing of claims, adopting a standardized claims system. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014). In short, effective March 24, 2015, there is no such thing as an informal claim for benefits. As such, it is only appropriate to refer to a communication dated on or after March 24, 2015, as a "claim" if the communication has been received on an application form prescribed by the Secretary. See 38 U.S.C. § 5101
regard to an earlier effective date, at the outset, the Board is mindful that effective March 24, 2015, VA updated the regulations concerning the filing of claims, adopting a standardized claims system. See Standard Claims and Appeals Forms, 79 Fed. Reg. 57660 (Sept. 25, 2014). In short, effective March 24, 2015, there is no such thing as an informal claim for benefits. As such, it is only appropriate to refer to a communication dated on or after March 24, 2015, as a "claim" if the communication has been received on an application form prescribed by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.1(p), 3.151(a), 3.155, 3.160 (effective March 24, 2015).

However, the above amendments only apply to claims filed on or after March 24, 2015. In the present case, the Board will be focusing on the formal July 7, 2009, Application for Compensation (VA Form 21-526) and informal January 10, 2012, claim for service connection. The Board will also be focusing clinical evidence of record that is dated prior to March 2015. This is prior to the March 24, 2015, changes in the law for the filing of a claim. Thus, the amended regulations, effective beginning March 24, 2015, pertaining to the requirement of formal claims on the proper VA prescribed form, do not apply here when looking at the evidence of record during this earlier time frame. Instead, the Board will examine whether the Veteran filed any formal or informal claim for his urticaria of the skin disability prior to March 24, 2015. Therefore, the former version of the applicable VA regulations pertaining to claims applies for this time period, allowing for informal claims and allowing for reports of examination or hospitalization to be treated as claims, under certain circumstances. See e.g., 38 C.F.R. §§ 3.1 (p), 3.151, 3.155, 3.157 (2014).

Initially, a final, binding decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of CUE. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(b), 3.105(a). Here, the issue of CUE in a prior AOJ or Board decision for the award of service connection for urticaria (hives) has not been raised by either the Veteran or his representative. Id. See also Flash v. Brown, 8 Vet. App. 332, 340 (1995). Even a sympathetic reading of the Veteran's submissions does not indicate that he has raised a claim of CUE. See Andrews v. Nicholson, 421 F.3d 1278, 1282 (Fed. Cir. 2005) (citing Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004)). Therefore, the issue of CUE is not before the Board at this time.

The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2014). The Federal Circuit has emphasized that VA has a duty to fully and "sympathetically" develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013). "The law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically." DeLisio, 25 Vet. App. at 54.

A specific claim in the form prescribed by the Secretary must be filed in order
VA has a duty to fully and "sympathetically" develop a veteran's claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013). "The law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically." DeLisio, 25 Vet. App. at 54.

A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. §§ 3.151(a) (2014). A claim is a 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 or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). Again, VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). But VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). That is, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999).

Upon review of the evidence and the law, the Board finds that an earlier effective date of July 7, 2009, but no earlier, is granted for the award of service connection for urticaria (hives).

With regard to the earliest date of claim, the Board finds that the Veteran's earlier July 7, 2009 formal claim on a VA Form 21-526 for service connection for the right knee and right great toe could also be liberally and sympathetically interpreted as a claim for service connection for urticaria (hives) of the skin as well, in that this formal claim referenced contemporaneous medical records describing skin symptoms at that time. 38 C.F.R. §§ 3.1(p), 3.155(a). See also Sellers v. Wilkie, 965 F.3d 1328, 1337-38 (Fed. Cir. 2020); Shea v. Wilkie, 926 F.3d 1362, 1367-70 (Fed. Cir. 2019). That is, the filing of this formal claim for service connection on July 7, 2009, considered in conjunction with contemporaneous medical evidence would essentially identify the urticaria of the skin benefit sought. See also 38 C.F.R. §§ 3.1(p), 3.155(a) (pre-March 24, 2015, version of regulation).

In this vein, the Federal Circuit has held that prior to March 24, 2015, if a pro-se claimant's filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability (such as PTSD or other psychiatric disorder), the claimant has raised an informal claim for that disability under 38 C.F.R. § 3.155(a)) (in that he has identified the benefits sought). Shea v. Wilkie, 926 F.3d 1362, 1370 (Fed. Cir. 2019). VA must look "beyond the four corners of [claims] documents when the documents themselves point elsewhere," such as to medical records. Id. at 1369. Shortly thereafter, the Shea case was subsequently constrained by Sellers v. Wilkie, 965 F.3d 1328, 1337-38 (Fed. Cir. 2020), which held that "some measure" of specificity is required between a claim-stating document and the condition identified in the medical records, beyond a generalized request in the claim-stating document for "all possible benefits." That is, the formal or informal claim form must point to or refer to specific medical records that discuss the sickness, disease, or injuries, in order to identify the benefit sought. Id. More recently, in determining whether a document constitutes a claim, to include the requirement that the document "identify the benefits sought," the Court reaffirmed that the identification need not be explicit in the claim-stating documents but can be found indirectly through examination of evidence to which those documents point when sympathetically read. Rorie v. McDonough, 37 Vet. App. 430 (2024).

To that end, on July 7, 2009, the Veteran filed a formal claim for service connection for right knee and right great toe conditions (on an Application for Compensation - VA Form 21-526). This formal service connection claim did not mention any skin disability or urticaria; however, it did reference upcoming VA treatment for his disabilities on July 15, 2009, at the VAMC in Dallas, Texas. In this vein, a July 15, 2009, VA prime clinic vesting history & physical, in the past medical history section, noted the existence of a skin disorder - his skin was red when he scratched. He reported to the VA clinician that he was seen for this skin condition during active duty by a Marine Corps dermatologist. Notably, STRs dated in June 2002 identified this skin condition as urticaria (hives). He was also prescribed an unknown medication for his skin during active duty from 2000 to 2004. On examination by the VA clinician on July 15, 2009, no skin rashes or skin lesions were present. The assessment / plan was "? skin disorder - pt. to obtain military health records for review." But latter VA treatment records confirmed that this skin condition was in fact urticaria (hives). In any event, in other words, the July 7, 2009, formal claim for service connection for multiple orthopedic disabilities also referenced contemporaneous medical records describing urticaria of the skin symptoms at that time.

Resolving all doubt in favor of the Veteran and specific to the facts of this case, when considering the evidentiary context in which the earlier July 7, 2009, formal claim was filed, the Board agrees that the Veteran's July 7, 2009, formal claim for service connection does "identify the benefit sought" for urticaria of the skin, in accordance with 38 C.F.R. § 3.155(a). To "identify the benefit sought" means that the claimant must describe the nature of the disability for which he is seeking benefits. His identification of the benefit sought does not require any technical precision. See Ingram, 21 Vet. App. at 256-57. A claimant may identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski, 23 Vet. App. at 86-87. For psychiatric disabilities for instance, the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). On this issue, a claim for disability compensation is not always limited to the specific disability listed on the application for
Ingram, 21 Vet. App. at 256-57. A claimant may identify the benefit sought by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski, 23 Vet. App. at 86-87. For psychiatric disabilities for instance, the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). On this issue, a claim for disability compensation is not always limited to the specific disability listed on the application for compensation. Clemons, 23 Vet. App. at 9. In Clemons, the Court stated that "as a self-represented layperson at the time his claim was filed, the appellant neither had the legal or medical knowledge to narrow the universe of his claim or his current condition to PTSD." Clemons, 23 Vet. App. at 4. The Court emphasized that it is generally within the province of medical professionals to diagnose or label a mental condition or other medical condition, not the claimant. Id. at 5.

The Federal Circuit has also advised that in determining the scope of a claim, VA must look to all possible diagnoses, conditions, and illnesses that a pro se non-expert claimant could have reasonably expected to have included in their claim as well as the clinical evidence developed in processing that claim. Murphy v. Wilkie, 983 F.3d. 1313, 1319 (Fed. Cir. 2020). VA need only explore conditions which "may be reasonably considered within the scope of the claim." Id. This was termed as the "Clemons lenient-claim-scope rule." Id. at 1318-1320.

"The law does not expect the claimant to have the medical or legal expertise to file a claim requesting benefits for each technical disability in the causal chain of disabilities that composes his condition, and a claim must be read sympathetically." DeLisio, 25 Vet. App. at 54. The Court in DeLisio further explained that "[a] claimant is not required in filing a claim for benefits to identify a precise medical diagnosis or the medical cause of his condition..." Id. at 53. The Court in DeLisio added that "upon the filing of a claim for benefits, the Secretary generally must investigate the reasonably apparent and potential causes of the veteran's condition and theories of service connection that are reasonably raised by the record or raised by a sympathetic reading of the claimant's filing." Id.

Thus, read sympathetically and liberally, July 7, 2009, is the earliest date of record for a claim for service connection for urticaria of the skin, as this document in conjunction with referenced medical evidence does "identify the benefit sought" for urticaria, in accordance with 38 C.F.R. § 3.155(a). At a later time, a VA dermatology clinician at a May 16, 2012, VA dermatology consult determined that the Veteran had a diagnosis of urticaria / dermatographism stretching back 10 years to his service in the Marine Corps. An April 2013 VA skin examiner also concurred with this conclusion regarding a nexus to service.

Moreover, this July 7, 2009, formal claim for service connection for urticaria (hives) would be a formal, pending claim, part of the current claim stream since it was not finally adjudicated in the final November 2009 rating decision with notice letter, which adjudicated right knee and right great toe disabilities. See 38 C.F.R. § 3.160(c); Myers v. Principi, 16 Vet. App. 228, 236 (2002).

However, the evidence does not demonstrate an informal claim for service connection for urticaria or other skin disability was received within one year after the Veteran's separation from his service in the Marine Corps on February 2, 2004, so the effective date obviously cannot be the day following his separation from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. §3.400(b)(2)(i) (2014).

In addition, the claims folder contains no other communication from the Veteran or his representative indicating an intent to seek, or a belief in entitlement to, service connection for urticaria of the skin at any time after his separation from service in February 2004, but before the formal June 7, 2009, claim for service connection. See 38 C.F.R. §§ 3.1(p), 3.155(a) (2014); Lalonde v. West, 12 Vet. App. 377, 382 (1999). Once again, the essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski, 23 Vet. App. at 84; see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Further, there is no provision in the law for awarding an earlier effective date based on lay statements or clinical evidence of record demonstrating that symptoms of his urticaria of the skin existed during the time of service from 2000 to 2004. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The Board's actions are bound by the applicable law and regulations as written; the Board has no power to grant benefits not authorized by law. 38 U.S.C. § 7104(c).

The Board is also aware that "the 'implicit denial' rule provides that, in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision." Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). The key question in the implicit denial inquiry is whether it would be clear to a reasonable person that VA's action that expressly refers to one claim is intended to dispose of others as well, based on several factors. Adams, 568 F.3d at 962-63. However, there was no explicit or implicit reference to any urticaria or skin disability or skin symptoms thereof in the earlier November 2009 rating decision with notice letter, in which the AOJ denied service connection for the right knee and right great toe. It follows that the "implicit denial rule" holdings are inapplicable to the present case. See e.g., Cogburn v. Shinseki, 24 Vet. App. 205, 212-13 (2010) (citing Adams v. Shinseki, 568 F.3d 956, 963-64 (Fed. Cir. 2009)) (the four factors to be considered includes: (1) the specificity of the claims or the relatedness of the claims; (2) the specificity of the adjudication; (3) timing of the claims; and (4) whether the claimant is represented).

In short, the earliest, pending date of claim for service connection for urticaria of the skin in the present case is July 7, 2009.

With regard to the earliest date of entitlement for service connection for urticaria of the skin, as discussed above, the first clinical evidence of record in support of the in-service onset of an urticaria disability consists of a June 2002 STR that recorded treatment for urticaria (hives). Thus, it is clearly shown by this STR medical evidence that the Veteran's urticaria disability has been present from the time of his Marine Corps service since at least the year 2002. As such, arguably, the criteria for entitlement to service connection for his urticaria
the earliest, pending date of claim for service connection for urticaria of the skin in the present case is July 7, 2009.

With regard to the earliest date of entitlement for service connection for urticaria of the skin, as discussed above, the first clinical evidence of record in support of the in-service onset of an urticaria disability consists of a June 2002 STR that recorded treatment for urticaria (hives). Thus, it is clearly shown by this STR medical evidence that the Veteran's urticaria disability has been present from the time of his Marine Corps service since at least the year 2002. As such, arguably, the criteria for entitlement to service connection for his urticaria disability were met as early as February 3, 2004, the day after the Veteran's separation from service. See 38 C.F.R. § 3.303(a)-(b).

That notwithstanding, the law is clear. The effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). It follows that even if entitlement arose for the Veteran's urticaria of the skin condition prior to the July 7, 2009, formal claim for service connection, the effective date for the grant of service connection for his urticaria of the skin condition cannot be earlier than the date the claim was received, which was July 7, 2009. This is the earliest possible effective date for service connection for urticaria (hives), given the particular fact pattern of this Veteran's case. Neither the Veteran nor his representative has requested an effective date earlier than July 7, 2009, for the award of service connection for his urticaria of the skin.

Accordingly, the Board concludes that July 7, 2009, but no earlier, is the proper effective date for the award of service connection for urticaria (hives). 38 U.S.C. §§ 5110, 5107(b); 38 C.F.R. § 3.400. The claim is partially granted.

REASONS FOR REMAND

However, before addressing the merits of the issues of service connection for a cervical spine disorder and multiple increased ratings, the Board finds that additional development of the evidence is required, in order to comply with VA's duty to assist. See generally 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c).

1. Service connection for a cervical spine disorder, to include as secondary to service-connected RIGHT knee osteoarthritis, a RIGHT first toe distal phalanx fracture, and to now service-connected lumbar spine disc disease and spondylosis, is REMANDED.

For the cervical spine claim, the Veteran should be scheduled for a VA examination with an appropriate clinician to determine if his current cervical spine pain is causally or etiologically related to his period of active duty service in the Marine Corps from 2000 to 2004. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this regard, the AOJ has not yet afforded the Veteran a VA examination or opinion for the cervical spine issue on appeal. Yet the duty to assist to provide a VA examination and opinion for a possible cervical spine disorder has been triggered, as there is an "indication" of a relationship between current cervical spine pain and his MOS duties as a personnel clerk and intense physical trainings. See e.g., Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010); Colantonio v. Shinseki, 606 F.3d 1378, 1381-82 (Fed. Cir. 2010). See also 38 C.F.R. § 3.159(c)(4)(i)(C). Moreover, at the present time, there is insufficient medical evidence on file for VA to decide the cervical spine claim. See 38 U.S.C. § 5103A(d)(2).

In addition, the VA examiner should address whether his current cervical spine pain is due to, or caused by, or aggravated by the Veteran's service-connected RIGHT knee osteoarthritis, RIGHT first toe distal phalanx fracture, and his lumbar spine disc disease and spondylosis.
, 606 F.3d 1378, 1381-82 (Fed. Cir. 2010). See also 38 C.F.R. § 3.159(c)(4)(i)(C). Moreover, at the present time, there is insufficient medical evidence on file for VA to decide the cervical spine claim. See 38 U.S.C. § 5103A(d)(2).

In addition, the VA examiner should address whether his current cervical spine pain is due to, or caused by, or aggravated by the Veteran's service-connected RIGHT knee osteoarthritis, RIGHT first toe distal phalanx fracture, and his lumbar spine disc disease and spondylosis. 38 C.F.R. §§ 3.159(c)(4)(i)(C), 3.310(a)-(b); Robinson v. Mansfield, 21 Vet. App. 545 (2008). See also Spicer v. McDonough, 61 F.4th 1360, 1364 (Fed. Cir. 2023) (in the context of secondary service connection, permitting broad, indirect causation or "resulting from" but not proximately due to). This secondary service connection issue was also reasonably raised by the evidence of record.

2. An initial rating greater than 10 percent for urticaria (hives) is REMANDED.

3. An initial rating greater than 10 percent for RIGHT knee osteoarthritis with chondromalacia patella is REMANDED.

4. An initial rating greater than 10 percent for residuals of a RIGHT first toe distal phalanx fracture is REMANDED.

For the service-connected urticaria (hives), RIGHT knee osteoarthritis, and RIGHT first toe distal phalanx fracture disabilities, at the April 2021 Board virtual tele-hearing, the Veteran asserted that each one of these disabilities has increased in severity since the Veteran was last examined by VA in April 2013. This is over 11 years ago. When a claimant asserts that the severity of a disability has increased since the most recent VA rating examination, and the evidence of record is otherwise insufficient to evaluate the appeal, an additional VA examination is appropriate. See 38 C.F.R. § 3.327(a); VAOPGCPREC 11-95 (April 7, 1995). See also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Therefore, the Veteran should be provided an opportunity to report for new VA examinations to ascertain the current severity and manifestations of his service-connected urticaria (hives), RIGHT knee osteoarthritis, and RIGHT first toe distal phalanx fracture disabilities.

In addition, as both service connection and increased rating issues are already being remanded for further development (as explained above), the Board sees the Veteran's VA treatment records on file from the VAMC in Dallas, Texas date to October 2022. Any additional VA treatment records are within VA's constructive possession and are considered potentially relevant to the service connection and increased rating issues remaining on appeal. Therefore, a remand is required to allow VA to obtain all the Veteran's VA treatment records from the VAMC in Dallas, Texas, dated from October 2022 to the present.

Therefore, the above issues are REMANDED for the following action:

1. Obtain the Veteran's VA treatment records from the VAMC in Dallas, Texas dated from October 2022 to the present and associate them with the claims file.

2. After completion of step 1, schedule the Veteran for a VA examination by an appropriate clinician to determine the etiology of the Veteran's current cervical spine pain. The VA examiner must review the claims file. The Veteran must be interviewed. Any and all studies, tests, and evaluations deemed necessary by the VA examiner should be performed, including X-rays of the cervical spine. The VA examiner must address the Veteran's relevant lay assertions, and if necessary, address whether the Veteran's lay assertions are consistent or inconsistent with his medical history and the clinical data. Finally, the VA examiner must provide a clear rationale for the medical opinion.

The VA examiner must respond to the following inquiries:

(a.) Is the Veteran's current cervical spine pain or other cervical spine condition "at least as likely as not" (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) causally or etiologically related to the Veteran's period of service in the Marine Corps from 2000 to 2004? Specifically, did the Veteran's current cervical spine pain develop over time post-service due to
The VA examiner must address the Veteran's relevant lay assertions, and if necessary, address whether the Veteran's lay assertions are consistent or inconsistent with his medical history and the clinical data. Finally, the VA examiner must provide a clear rationale for the medical opinion.

The VA examiner must respond to the following inquiries:

(a.) Is the Veteran's current cervical spine pain or other cervical spine condition "at least as likely as not" (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) causally or etiologically related to the Veteran's period of service in the Marine Corps from 2000 to 2004? Specifically, did the Veteran's current cervical spine pain develop over time post-service due to rigorous training exercises in the Marine Corps and intensive physical duties of his military occupational specialty (MOS) as a personnel clerk?

In answering this particular question, the VA examiner is advised the Veteran is credible in describing his rigorous training exercises for four years in the Marine Corps and his intensive physical duties of his MOS as a personnel clerk. His rigorous training exercises in the Marine Corps involved running, hiking, marching, standing in place for extended periods of time, sit-ups, press-ups, lifting heavy logs, holding weapons, combat training, fitness training, and enhanced physical training. His MOS duties as a personnel clerk in the Marine Corps often involved the heavy lifting of supplies. The VA examiner should explain whether the Veteran's participation for four years from 2000 to 2004 in these credible in-service intensive trainings and physical MOS duties caused cervical spine pain or other cervical spine condition to develop over time post-service, even though he may not have received any documented treatment for his cervical spine during active duty or for several years thereafter.

(b.) For the Veteran's current cervical spine pain or other cervical spine condition, the VA examiner should comment on the likelihood any such disability to the cervical spine developed as the result of post-service intercurrent causes, wholly unrelated to his period of service in the Marine Corps from 2000 to 2004. Potential post-service intercurrent causes documented in the record include the Veteran's several years of post-service employment working on a loading dock factory in shipping / distribution, which involved manual labor - packing and lifting shipping crates. He also worked in a retail store fixing computers. See e.g., December 2013 VA primary care note; December 2014 VA addendum note; and April 2022 Board hearing testimony.

(c.) Is the Veteran's cervical spine pain or other cervical spine condition "at least as likely as not" (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) due to or caused by his service-connected RIGHT knee osteoarthritis, RIGHT first toe distal phalanx fracture, and his lumbar spine disc disease and spondylosis?

(d.) Is the Veteran's current cervical spine pain or other cervical spine condition "at least as likely as not" (i.e., likelihood is at least approximately balanced or nearly equal, if not higher) aggravated by, i.e., worsened by his service-connected RIGHT knee osteoarthritis, RIGHT first toe distal phalanx fracture, and his lumbar spine disc disease and spondylosis?

In answering the above secondary service connection questions, the VA examiner is cautioned to not combine the causation and aggravation facets of secondary service connection, as [under governing caselaw] they are independent concepts requiring separate findings and rationale. That is, a VA medical opinion cannot provide the same rationale to both the causation and aggravation elements and must distinguish between the two theories, as they are separate. For example, a disability can theoretically aggravate another disorder, even if it did not cause it.

For the cervical spine pain, in rendering the above opinions, the VA examiner is advised of the following relevant evidence:

" As a lay person, the Veteran contends that the rigorous physical training of his service and MOS duties as a personnel clerk in the Marine Corps from 2000 to 2004 caused post-service pain to develop in his neck. See March 2018 Veteran statement.

" As a layperson, in the alternative, the Veteran contends that the imbalance in gait caused by his service-connected RIGHT knee osteoarthritis and RIGHT first toe distal phalanx fracture, impacted his service-connected back, which in turn led to the development of neck pain, improper neck alignment, and decreased range of motion in his neck.

" Service treatment records (STRs) dated from 2000 to 2004 are negative for any specific complaint, treatment, or diagnosis of a cervical spine disability.

" Post-service, VA treatment records dated from 2009 to 2011 are likewise negative for any specific complaint, treatment, or diagnosis of a cervical spine disability.

" Post-service,
.

" Service treatment records (STRs) dated from 2000 to 2004 are negative for any specific complaint, treatment, or diagnosis of a cervical spine disability.

" Post-service, VA treatment records dated from 2009 to 2011 are likewise negative for any specific complaint, treatment, or diagnosis of a cervical spine disability.

" Post-service, a December 2012 VA anesthesiology attending pre-operative E&M note first documented that range of motion of the Veteran's neck was "limited." VA X-rays of the cervical spine dated in January 2014 noted a history of chronic neck pain, but the X-rays were negative for any neck abnormality.

" Post-service, VA and private chiropractor therapy for the neck dated in 2014 and 2015 diagnosed "cervical segmental dysfunction." A December 2014 private chiropractor examination advised that significant misalignment of the lower cervical spine created compression of the nerve roots at the base and top of the neck. X-rays of the cervical spine in December 2014 showed mild left convex scoliosis with an apex at C6.

" Post-service, a November 2017 VA mental health note from a mental health nurse practitioner opined that based on the Veteran's reported history, his neck pain is due to a "military injury." However, there was no further elaboration provided as to the details of any such in-service injury.

" Post-service, the impression of January 2022 VA cervical spine X-rays was "straightening of cervical spine from muscle spasm." A January 2022 VA primary clinic note discussed "longstanding" chronic neck pain, for which the Veteran is prescribed oral medications, lidocaine patches, and physical therapy exercises at home.

3. After completion of step 1, schedule the Veteran for a VA skin examination by an appropriate clinician to determine the current severity and manifestations of his service-connected urticaria (hives) disability. The VA examiner must review the claims file. Any and all studies, tests, and evaluations deemed necessary by the VA examiner should be performed. The VA examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's urticaria (hives) under the rating criteria. The VA examination should include a statement as the effect of the Veteran's service-connected urticaria (hives) on the Veteran's occupational functioning and daily activities. The VA examiner must provide a rationale to support any opinion provided.

4. After completion of step 1, schedule the Veteran for a VA knee examination by an appropriate clinician to determine the current severity and manifestations of his service-connected RIGHT knee osteoarthritis with chondromalacia patella. The VA examiner must review the claims file. Any and all studies, tests, and evaluations deemed necessary by the VA examiner should be performed, including X-rays. The VA examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's RIGHT knee osteoarthritis with chondromalacia patella under the rating criteria. The VA examination should include a statement as the effect of the Veteran's service-connected RIGHT knee disability on the Veteran's occupational functioning and daily activities. The VA examiner must provide a rationale to support any opinion provided.

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5. After completion of step 1, schedule the Veteran for a VA foot examination by an appropriate clinician to determine the current severity and manifestations of his service-connected residuals of a RIGHT first toe distal phalanx fracture. The VA examiner must review the claims file. Any and all studies, tests, and evaluations deemed necessary by the VA examiner should be performed, including X-rays. The VA examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's residuals of a RIGHT first toe distal phalanx fracture under the rating criteria. The VA examination should include a statement as the effect of the Veteran's service-connected RIGHT foot disability on the Veteran's occupational functioning and daily activities. The VA examiner must provide a rationale to support any opinion provided.

R.R. WATKINS

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board P.S. Rubin, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential

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