Citation Nr: 1117852	
Decision Date: 05/10/11    Archive Date: 05/17/11

DOCKET NO.  08-31 328	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

1.  Entitlement to an effective date earlier than February 16, 2006, for the assignment of a 10 percent rating for the Veteran's service-connected scars from residuals of a shell fragment wound to the left thigh.  

2.  Whether there is clear and unmistakable error (CUE) in the November 1970 rating decision that originally granted service connection and assigned a noncompensable rating for the scars from residuals of a shell fragment wound to the left thigh.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

Shauna M. Watkins, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1968 to August 1970.

The Veteran's claim comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the Department of Veterans Affairs' (VA) Regional Office (RO) in Cleveland, Ohio.

The issue of whether there was CUE in the November 1970 rating decision that granted service connection for the Veteran's scars from residuals of a shell fragment wound to the left thigh and assigned a noncompensable (0 percent) rating, effective August 14, 1970, was raised by the Veteran during his hearing before the Board.  This matter is referred to the RO for appropriate action.   


FINDINGS OF FACT

1.  Service connection for the Veteran's scars from residuals of a shell fragment wound to the left thigh was granted in a November 1970 rating decision.  An initial noncompensable (0 percent) disability rating was assigned, effective August 14, 1970.

2.  The Veteran did not file a Notice of Disagreement (NOD) with the November 1970 rating decision. 

3.  A subsequent September 2006 rating decision created a staged rating of 10 percent for the Veteran's service-connected scars from residuals of a shell fragment wound to the left thigh, effective February 16, 2006, the date of the Veteran's increased rating claim.

4.  In a November 26, 1973, statement, the Veteran submitted an informal claim for increased benefits for his left thigh disability. 


CONCLUSION OF LAW

The criteria for an earlier effective date of November 26, 1973, for the award of a 10 percent rating for the Veteran's service-connected scars from residuals of a shell fragment wound to the left thigh have been met.  38 U.S.C.A. §§ 5103A, 5107(b), 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Service connection for the Veteran's scars from residuals of a shell fragment wound to the left thigh was granted in a November 1970 rating decision.  An initial noncompensable (0 percent) disability rating was assigned, effective August 14, 1970.  The Veteran did not file a NOD with the November 1970 rating decision.

On February 16, 2006, the Veteran filed a formal claim for an increased rating for his service-connected scars from residuals of a shell fragment wound to the left thigh.  A subsequent September 2006 rating decision created a staged rating of 10 percent for the Veteran's service-connected scars from residuals of a shell fragment wound to the left thigh, effective February 16, 2006, the date of the Veteran's increased rating claim.  The Veteran disputed the effective date assigned for the 10 percent rating in his September 2007 NOD.  A Statement of the Case (SOC) was issued in August 2008 and the appeal was perfected in October 2008.

The general rule with respect to the effective date for an award of increased compensation is that the effective date shall not be earlier than the date of receipt of application therefore.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1).  An exception to this rule applies where evidence demonstrates a factually ascertainable increase in the disability during the one-year period preceding the date of receipt of a claim for increased compensation.  In that situation, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date."  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997).  In all other cases, the effective date will be the "date of receipt of claim or date entitlement arose, whichever is later."  38 C.F.R. 
§ 3.400(o)(1); VAOPGCPREC 12-98 (Sept. 23, 1998), 63 Fed. Reg. 56, 703 (Oct. 22, 1998).  Therefore, three possible dates may be assigned depending on the facts of the case:

(1) if an increase in the disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) if an increase in the disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or,

(3) if an increase in the disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. 
§ 3.400(o)(2)).

Harper, 10 Vet. App. at 126.

In determining an appropriate effective date for an increased evaluation, VA must make two essential determinations.  It must determine (1) when a formal or informal claim for an increased rating was received, and (2) when a factually ascertainable increase in the disability occurred so as to warrant entitlement to an increased evaluation.  38 C.F.R. §§ 3.155, 3.400(o)(2).

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.A. § 5101(a); 38 C.F.R. § 3.151 (2010).  In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include 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) (2010); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  Any communication or action, indicating an intent to apply for VA benefits from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  An informal claim must identify the benefit sought.  38 C.F.R. 
§ 3.155(a).

Once a formal claim for pension or compensation has been allowed or a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree, receipt of a report of examination or hospitalization by VA or the uniformed services, receipt of evidence from a private physician and/or receipt of evidence from state or other institutions will be accepted as an informal claim for benefits.  38 C.F.R. § 3.157(b) (2010).

In a statement dated in November 26, 1973, the Veteran stated, "I wish to file a supplemental claim related to a previously incurred leg and buttocks wounds which are now under a service connected disability."  Under 38 C.F.R. § 3.155(a), this statement is correctly construed as an informal claim for benefits.  Thus, the Veteran is entitled to an earlier effective date of November 26, 1973, for the assignment of a 10 percent evaluation for his service-connected scars from residuals of a shell fragment wound to the left thigh.

The claims file does not include any communication of record dated prior to November 26, 1973, that may reasonably be construed as an informal claim for this benefit.  38 C.F.R. §§ 3.155(a), 3.157.  After the final and unappealed November 1970 rating decision that granted service connection, the next piece of evidence in the claims file is the November 26, 1973, informal claim for benefits.  The claims file does not contain any evidence dated prior to this date.  38 C.F.R. §§ 3.155(a), 3.157.  In summary, the evidence dated prior to November 26, 1973, does not raise a formal or informal increased rating claim for the Veteran's service-connected scars from residuals of a shell fragment wound to the left thigh.  38 C.F.R. §§ 3.155, 3.400(o)(2).

Thus, the Board finds that the Veteran is entitled to an earlier effective date of November 26, 1973, but no earlier, for the assignment of a 10 percent evaluation for his service-connected scars from residuals of a shell fragment wound to the left thigh.  The benefit-of-the-doubt rule has been considered in making this decision.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Notice and Assistance

Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and, (3) that the claimant is expected to provide.  This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that the content requirements of a duty to assist notice letter have been fully satisfied.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  A letter from the RO dated in February 2006 provided the Veteran with an explanation of the type of evidence necessary to substantiate his claim, as well as an explanation of what evidence was to be provided by him and what evidence the VA would attempt to obtain on his behalf.  A March 2006 letter also provided the Veteran with information concerning the evaluation and effective date that could be assigned should his claim be granted, pursuant to Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Both of these letters were provided prior to the initial RO adjudication of the Veteran's claim.  VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed.

VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting the Veteran in the procurement of service treatment records (STRs) and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

Here, the Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue has been obtained.  His STRs and post-service treatment records have been obtained.  He was afforded the opportunity for a personal hearing.  The Board does not have notice of any additional relevant evidence that is available but has not been obtained.  He has been afforded VA examinations.  For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the Veteran's claim.  Therefore, no further assistance to the Veteran with the development of evidence is required.


ORDER

Subject to the laws and regulations governing payment of monetary benefits, an earlier effective date of November 26, 1973, for the award of a 10 percent disability rating for the Veteran's service-connected scars from residuals of a shell fragment wound to the left thigh is granted.



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs