Citation Nr: 0006819 Decision Date: 03/14/00 Archive Date: 03/17/00 DOCKET NO. 97-27 975 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date earlier than January 28, 1997, for the grant of service-connected compensation for residuals of a right ankle injury. REPRESENTATION Appellant represented by: Texas Veterans Commission INTRODUCTION The veteran had active service from January 1968 to July 1970. This appeal arises from a July 1997, decision of the Waco, Texas, Department of Veterans Affair (VA) regional office (RO), which granted service connection for a right ankle disability, effective January 28, 1997. In August 1998, the veteran submitted a notice of disagreement with a May 1998 rating decision that denied entitlement to service connection for bilateral hearing loss and a herniated disc at L5-S1m status post laminectomy with posterior body fusion. The RO issued a statement of the case as to these issues in November 1999. Neither the veteran nor his representative has responded to the statement of the case. Since the veteran has not submitted a substantive appeal as to these issues, and the RO has not certified the issues as being before the Board, the Board will not consider them. 38 U.S.C.A. § 7105 (West 1991), 38 C.F.R. § 20.200 (1999) (an appeal consists of a timely filed notice of disagreement, and after a statement of the case has been issued, a timely filed substantive appeal); VAOPGCPREC 9-99 (1999) (the Board may have a duty to permit a veteran to submit argument and evidence where it discovers that there is no substantive appeal in an issue certified for appeal). FINDINGS OF FACT 1. The veteran's claim for service connected compensation for residuals of a right ankle injury was received on January 28, 1997. 2. Entitlement to service connection for residuals of a right ankle injury arose prior to January 28, 1997. CONCLUSION OF LAW An effective date earlier than January 28, 1997, for the grant of service-connected compensation for residuals of a right ankle injury is not warranted. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1999); 38 C.F.R. § 3.400 (1999) REASONS AND BASES FOR FINDINGS AND CONCLUSION The record shows that in August 1973, the veteran submitted an application for a program of education or training. The veteran indicated that he never applied for VA disability compensation or pension. In a deferred rating action in September 1973 the RO noted that the veteran had a history of ankle instability in service, and determined that an examination was necessary to determine whether the veteran was 10 percent disabled. On VA examination in November 1973, the veteran reported that he had twisted his right ankle while running in 1969. He reported that since service, he had experienced some swelling and pain when walking over rough terrain. On examination there was tenderness over the lateral malleolus, but no limitation of motion or weakness. An X-ray examination revealed no abnormalities. The diagnosis was sprain of the right ankle joint with recurrent episodes. In a rating decision dated in December 1973, the RO determined that the veteran had a 10 percent service connected disability of the right ankle for vocational rehabilitation purposes. On January 28, 1997, the veteran's formal application for compensation was received at the RO. Under the provisions of 38 U.S.C.A. § 5110: Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. (b)(1) The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release. The provisions of 38 C.F.R. § 3.400: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later The veteran has made several contentions as to why he should be awarded an effective date earlier than January 28, 1997. First, he has asserted that the December 1973 rating decision essentially constitutes a grant of service connection. However, the rating decision makes clear that it was only made for purposes of Vocational Rehabilitation. The December 1973 decision apparently was made in response to the veteran's August 1973, application for educational benefits. In that application, the veteran made clear that he was aware that he had never applied for disability compensation. A review of the record shows that the veteran did not make a claim for compensation until January 28, 1997, when his formal claim for benefits was received. There is nothing in the record to suggest that the veteran intended to make a formal or informal claim for benefits prior to that date. See 38 C.F.R. § 3.155 (1999). Under the provisions of 38 C.F.R. § 3.157, an examination report can, in some circumstances, serve as an informal claim for benefits. However, the November 1973, VA examination could not serve as an informal claim in this case, because the provisions of § 3.157 only apply when a claim for compensation has previously been allowed or denied. Brannon v. West, 12 Vet. App. 32 (1998). Neither of those circumstances had occurred at the time of the November 1973 examination. The veteran has also asserted that he would have pursued a claim if he had been advised to do so by VA personnel. However, the veteran has not pointed to any law or regulation requiring VA to advise the veteran to file a claim. He has asserted that VA had a duty to assist him by developing his claim earlier or by informing him of the steps necessary to make a claim. However, VA's duty to assist does not arise until after the veteran has submitted a well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991); Morton v. West, 12 Vet. App. 477 (1999). In the instant case the veteran is asserting that VA had a duty to assist him prior to submitting such a claim. This assertion is clearly contrary to the applicable statute. The veteran is essentially making an equitable argument. That is, he is asserting that VA should establish an earlier effective date because of its failure to clearly advise him of the steps necessary to pursue his claim. "Equitable relief is extended sparingly, such as in a case in which a claimant has actively pursued judicial remedies but has filed defective pleadings, or were a claimant has been induced or tricked by his adversary's misconduct." Pfau v. West, 12 Vet. App. 515, 517 (1999) quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). The Board is otherwise without jurisdiction to grant equitable relief. A claim for such relief must be raised directly to the Secretary of VA. Suttman v. Brown, 5 Vet. App. 127, 138 (1993) (the Court noted that the authority to award equitable relief under section 38 U.S.C.A. § 503(a) is committed "'to the sole discretion of the Secretary' and that the Board is without jurisdiction to review the Secretary's exercise of that discretion); see Darrow v. Derwinski, 2 Vet. App. 303, 306 (1992). The veteran is not disputing any of the material facts in this case. To avoid confusion, in a case such as this one, where the law and not the evidence is dispositive, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. Cf. Fed. R. Civ. P. 12(b)(6) ("failure to state a claim upon which relief can be granted"). Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Giancaterino v. Brown, 7 Vet. App. 555, 561 (1995) (construing Sabonis, supra). ORDER An effective date earlier than January 28, 1997, for the grant of service-connected compensation for residuals of a right ankle injury is denied. Mark D. Hindin Member, Board of Veterans' Appeals