Case A26038699

M. SORISIO · 2026 · Case ID: A26038699

MIXED

Summary

The Veteran, an Air Force Veteran who served from December 1984 to March 1985, appealed the denial of an earlier effective date for service connection for a right shoulder scar and the denial of an increased rating for his right shoulder disability. The Board denied the claim for an earlier effective date for the right shoulder scar, finding that entitlement arose on December 29, 2017, the date of the Veteran's surgery, which was after the initial claim date. The Board noted that the Veteran had not filed a separate claim for the scar prior to the surgery. The Board also remanded claims for an increased rating for the right shoulder disability, a compensable rating for the right shoulder scar, and entitlement to TDIU. The remand was necessary due to a pre-decisional duty to assist error, as the VA failed to obtain Social Security Administration (SSA) records related to the Veteran's disability benefits claim, which could be relevant to the TDIU and increased rating claims. The AOJ will reconsider these remanded issues after obtaining and reviewing the SSA records.

Rationale

Entitlement arose after initial claim date; No separate claim filed for scar prior to surgery; December 29, 2017 is the correct effective date

Service Branch

AIR FORCE

Special Benefit

TDIU

Docket No.

251210-613115

Full Decision Text

Citation Nr: A26038699
Decision Date: 04/24/26 Archive Date: 04/24/26

DOCKET NO. 251210-613115
DATE: April 24, 2026

ORDER

An effective date prior to December 29, 2017 for the award of service connection for right shoulder scar is denied.

REMANDED

Entitlement to an initial rating in excess of 20 percent for right shoulder rotator cuff tendonitis with rotator cuff tear status post arthroscopy (hereinafter right shoulder disability) is remanded.

Entitlement to an initial compensable rating for right shoulder scar is remanded.

Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.

FINDING OF FACT

The Veteran underwent a right shoulder surgery on December 29, 2017, which provides a factually ascertainable date on which entitlement arose for service connection for a right shoulder scar.

CONCLUSION OF LAW

Entitlement to an effective date prior to December 29, 2017 for the award of service connection for a right shoulder scar is denied. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty with the United States Air Force from December 1984 to March 1985.

These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2024 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

In the December 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the December 2024 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

For the effective date claim, if the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims seeking increased ratings for the right shoulder disability, right shoulder scar, and TDIU, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Effective Date - Right Shoulder Scar

The Veteran and his attorney generally contend the Veteran is entitled to an earlier effective date for the award of service connection for his right shoulder scar disability. Neither the Veteran nor his attorney has made specific assertions as to why the Veteran is entitled to an effective date prior to December 29, 2017, the date of the Veteran's right shoulder surgery. See December 2025 VA Form 10182.

Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation or for a reopened claim for benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Regulations defining a "claim" were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. In this case, the regulations effective prior to and from March 24, 2015 regarding defining a claim are applicable.

Prior to March 24, 2015, a specific claim in the form prescribed by the Secretary was necessary
claim for benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Prior to March 24, 2015, a specific claim in the form prescribed by the Secretary was necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. For VA compensation purposes, a "claim" was defined as 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). An informal claim was any communication or action indicating an intent to apply for one or more benefits, and identifying the benefit sought from a claimant, his or her authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris. 38 C.F.R. § 3.155(a). Upon receipt of an informal claim, if a formal claim had not been filed, an application form would be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(b).

Thus, the essential elements for any claim prior to March 24, 2015, 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 v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

The United States Court of Appeals for the Federal Circuit (Federal Circuit), in Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999), pointed out that for purposes of establishing the requirements and procedures for seeking veterans' benefits, a claim, whether "formal" or "informal" must be "in writing" in order to be considered a "claim" or "application" for benefits, and that the provisions of 38 C.F.R. § 3.1(p) define "claim," informal as well as formal, as a "communication in writing."

From March 24, 2015, a specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. For VA compensation purposes, a "claim" is defined as "a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary." 38 C.F.R. § 3.1(p).

A claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not of full age or capacity may indicate a claimant's desire to file a claim for benefits by submitting an intent to file a claim to VA. An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. §§ 3.155(b), 3.160.

An application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. See Wright v. Gober, 10 Vet. App.
must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary appropriate to the benefit sought within 1 year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. §§ 3.155(b), 3.160.

An application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. See Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). "The 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." Sears v. Principi, 16 Vet. App. 244, 248 (2002). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999).

Once a decision is final, only a request for a revision premised on clear and unmistakable error (CUE) can result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of clear and unmistakable error, [the veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("[W]hen a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."); Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005).

Secondary service connection is granted for a "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). The "plain meaning of th[is] regulation is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations." Roper v. Nicholson, 20 Vet. App. 173, 181 (2006).

Building on Roper, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a requirement that a secondary condition 'be considered a part of [an] original condition' does not, in our view, establish that the original condition and the secondary condition must receive identical effective dates." Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). "Indeed, a per se rule requiring identical effective dates for primary and secondary conditions would be illogical, given that secondary conditions may not arise until years after the onset of the original condition." Id. The Federal Circuit concluded that "the effective date for secondary conditions is governed by [38 C.F.R. §] 3.400, which establishes the effective date as the 'date of receipt of claim, or [the] date entitlement arose, whichever is later.'" Id. The Federal Circuit explained: "[T]his result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards. Section 5110(a) provides generally that '[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.' The statute contains no
effective date for secondary conditions is governed by [38 C.F.R. §] 3.400, which establishes the effective date as the 'date of receipt of claim, or [the] date entitlement arose, whichever is later.'" Id. The Federal Circuit explained: "[T]his result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards. Section 5110(a) provides generally that '[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.' The statute contains no exception to this rule for a claim." Id. at 1370; see Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017).

A review of the record illustrates that the Veteran has not separately filed a claim at any period for entitlement to service connection for a right shoulder scar. Thus, the date of claim is based on the date he filed for benefits for a right shoulder disability.

In a December 2024 rating decision, the AOJ awarded service connection for residual scar, right shoulder arthroscopy as secondary to right shoulder rotator cuff tendonitis with rotator cuff tear status post arthroscopy, effective December 29, 2017, the date of the Veteran's right shoulder surgery. For the reasons that follow, an effective date prior to December 29, 2017 is not warranted for the Veteran's right shoulder scar.

In a March 2019 rating decision implementing the Board's March 2019 award of service connection for a right shoulder disability, the AOJ assigned an effective date of June 9, 2009 for the award of service connection for a right shoulder disability, which is the date VA initially received the Veteran's VA Form 21-526, Veteran's Application for Compensation and/or Pension.

As noted above, unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation or for a reopened claim for benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Here, as the Veteran's right shoulder scar stems from his December 29, 2017 right shoulder surgery, the date entitlement arose is after receipt of the June 9, 2009 VA Form 21-526. Notably, a May 2015 VA shoulder and arm conditions VA examination report and an August 2015 private shoulder and arm conditions disability benefits questionnaire reflect the Veteran did not have a scar related to his right shoulder disability at the time of the examinations. Thus, the date entitlement arose is the controlling date for effective date purposes under VA regulations as it is the later of two dates in this case. Hence, December 29, 2017, the date selected by the AOJ, is the correct effective date as provided by 38 C.F.R. § 3.400(b)(2).

The Board acknowledges that a review of the December 2024 rating decision illustrates the AOJ stated service connection for a right shoulder scar was being awarded as secondary to the Veteran's service-connected right shoulder disability. However, as is noted above, in adjudicating the effective date for the Veteran's right shoulder scar, the Board is not bound by the effective date assigned for the Veteran's right shoulder disability.

In summary, the Board finds that the legally correct date of the grant of service connection for right shoulder scar is December 29, 2017, the date of the Veteran's right shoulder surgery, and hence, the date entitlement arose for the Veteran's right shoulder scar disability. Therefore, as the evidence weighs persuasively against the claim, the claim seeking an earlier effective date for the award of service connection must be denied.

REASONS FOR REMAND

1. Entitlement to an initial rating in excess of 20 percent for a right shoulder disability is remanded.

2. Entitlement to an initial compensable rating for right shoulder scar is remanded.

3. Entitlement to TDIU is remanded.

2. Entitlement to an initial compensable rating for right shoulder scar is remanded.

3. Entitlement to TDIU is remanded.

A remand is needed to correct a pre-decisional duty to assist error as the evidence of record at the time of the December 2024 decision on appeal reflects the Veteran was awarded disability benefits from the Social Security Administration (SSA) in a September 2016 SSA decision. See April 2017 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability; September 2016 ALJ Bench Decision, received April 2017. However, development was not completed prior to the AOJ decision on appeal to obtain the medical records upon which the SSA determination was based. Accordingly, it was a pre-decisional duty to assist error that VA did not obtain the SSA records prior to the issuance of the December 2024 decision on appeal for the matters on appeal, and remand is necessary to correct this error.

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The matters are REMANDED for the following action:

Take any needed action to ensure that complete copies of all records pertaining to the Veteran's SSA disability benefits claim, including all medical evidence considered in making the decision, and a copy of the decision granting SSA disability benefits, are associated with the claims file and review the SSA records in conjunction with readjudicating the claims being remanded.

M. SORISIO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board N. Breitbach, Counsel

The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.

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