Citation Nr: 1237327 Decision Date: 10/31/12 Archive Date: 11/09/12 DOCKET NO. 10-18 831 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to higher ratings for Hepatitis B, initially rated as 0-percent disabling (so noncompensable) from December 21, 1997 to October 5, 2008, and as 10-percent disabling since October 6, 2008. 2. Entitlement to an effective date earlier than December 21, 1997, for the grant of service connection for the Hepatitis B. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Wilson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to May 1972, including tours in Vietnam. This appeal to the Board of Veterans' Appeals (Board/BVA) is from May 2007 and April and December 2010 rating decisions of Department of Veterans Affairs (VA) Regional Offices (RO). The March 2007 RO decision implemented a March 2007 Board decision granting service connection for Hepatitis B. The RO assigned an initial 0 percent (noncompensable) disability rating retroactively effective from December 21, 1997, on the premise that was when the Veteran had filed his most recent petition to reopen this claim. In his May 2007 notice of disagreement (NOD) in response to that decision, he indicated that he disagreed with both that initial 0 percent rating and the effective date for the grant of service connection for this disability. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he had to separately appeal these "downstream" issues). In January 2010, the Board remanded these increased-rating and earlier-effective-date claims to the RO via the Appeals Management Center (AMC) in Washington, DC, to provide him a statement of the case (SOC) concerning these claims pursuant to the holding of the U. S. Court of Appeals for Veterans Claims (Court/CAVC) in Manlincon v. West, 12 Vet. App. 238 (1999). In the April 2010 rating decision since issued, on remand, the RO increased the rating for his Hepatitis B from 0 to 10 percent as of October 6, 2008, so not back to the same effective date as his initial rating. He since has continued to appeal for an even higher rating, so this claim now concerns whether he was entitled to an initial rating higher than 0 percent prior to October 6, 2008, and whether he has been entitled to a rating higher than 10 percent since. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (indicating it is presumed he is seeking the highest possible rating for this disability absent express indication to the contrary). The RO, however, denied his claim for a TDIU in April and December 2010. But in support of his claims for higher ratings for his Hepatitis B and for an earlier effective date for the grant of service connection for this disability, he testified at a hearing in January 2012 at the Board's offices in Washington, DC, before the undersigned Veterans Law Judge (Central Office (CO) hearing). And during the hearing, he and his representative testified additionally regarding how the Veteran had taken an early retirement in 2008 because of his Hepatitis B. He reportedly also since has been determined permanently and totally disabled by the Social Security Administration (SSA). The representative also cited a VA compensation examiner's determination, after evaluating the Veteran, that he is precluded from returning to the workforce and engaging in sedentary or physically demanding employment. Hence, they have reasserted entitlement to a TDIU, so have again raised this issue. The Court has held that a request for a TDIU, whether, as here, expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities and is part and parcel of a claim for increased compensation. In Mayhue v. Shinseki, 24 Vet. App. 273 (2011), the Court determined the Board had failed to apply 38 C.F.R. § 3.156(b) when it had treated the Veteran's request for a TDIU as different from his claim for a higher initial rating for his posttraumatic stress disorder (PTSD). Citing its holding in Rice v. Shinseki, 22 Vet. App. 447, 453 (2009), the Court reasoned that a request for a TDIU is not a separate claim for benefits, rather an attempt to obtain an appropriate rating for a disability. Thus, the Board should have considered evidence of unemployability as far back as the date of the underlying initial claim. See also Roberson v. Principi, 251 F.3d 1378, 1384 (2001) (wherein the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) similarly held that once a claimant: (1)submits evidence of a medical disability, (2) makes a claim for the highest possible rating, and (3) submits evidence of unemployability, an informal TDIU claim is raised under 38 C.F.R. § 3.155(a)). The Board has jurisdiction to consider entitlement to a TDIU in an appealed claim for an increased rating when the issue is raised by assertion or reasonably indicated by the evidence, regardless of whether the RO expressly addressed the issue. See VAOPGCPREC 6-96 (Aug. 16, 1996); see also Caffrey v. Brown, 6 Vet. App. 377, 382 (1994); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). However, notably, the question of TDIU entitlement may be considered a component of an appealed increased rating claim only if the TDIU claim is based solely upon the disability or disabilities that are the subject of the increased rating claim. VAOPGCPREC 6-96. And this is indeed the situation here. After the RO denied this TDIU claim in April 2010, the Veteran submitted a statement in May 2010, so the following month, reasserting that he could not obtain and retain substantially gainful employment. But he indicated he was unemployable on account of his service-connected tinnitus, not Hepatitis B, and the rating for his tinnitus is not at issue in this appeal. Indeed, he already has the highest possible schedular rating for tinnitus, 10 percent. 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260 (2011). See also Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). Thus, the Board cannot consider his TDIU claim as a component or derivative of his appealed claim for higher ratings for his Hepatitis B. Nevertheless, the Board finds that his May 2010 statement is tantamount to an NOD with the RO's April 2010 decision denying this claim. 38 C.F.R. § 20.201 (2011). See also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of 38 C.F.R. § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task). So the holdings in Gallegos make clear that an NOD under 38 C.F.R. § 20.201 need not contain any "magic" words or phrases. Thus, since the Veteran has not been provided an SOC concerning this TDIU claim, or given opportunity in response to complete the steps necessary to perfect his appeal of this claim to the Board by also filing a timely substantive appeal (VA Form 9 or equivalent statement), the appropriate disposition in this circumstance is to remand, rather than merely refer, this TDIU claim. See Manlincon, 12 Vet. App. at 239-41. The Board also sees that, in a June 2008 statement, the Veteran contended that he has other disabilities as a result of his service-connected Hepatitis B, so secondary to this service-connected disability, meaning caused or aggravated by it. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The RO's April 2010 decision denied his claims for service connection for hypertension and depression secondary to his service-connected Hepatitis B. And he did not appeal the denial of these claims, so they are not currently at issue before the Board. 38 C.F.R. § 20.200. But his June 2008 statement additionally made reference to Hepatitis C, a gall bladder disorder, acid reflux, and a gastrointestinal disorder as also secondary to his Hepatitis B. And unlike his claims for hypertension and depression, these other claims have not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not presently have jurisdiction to consider them, either, and thus they are referred to the RO for appropriate development and consideration. See Godfrey v. Brown, 7 Vet. App. 398 (1995) (the Board generally does not have jurisdiction over an issue not yet adjudicated by the RO). As for the claims that are currently at issue before the Board, since those for higher ratings for the Hepatitis B and derivative TDIU require still further development before being decided on appeal, the Board is remanding them to the RO via the AMC. However, the Board is going ahead and deciding, indeed granting, the remaining claim for an earlier effective date. FINDINGS OF FACT 1. The Veteran first indicated that he was claiming entitlement to service connection for Hepatitis in a statement received at the RO on January 4, 1977. 2. Rather than adjudicating that initial claim, however, the RO issued a deferred rating decision in January 1977 indicating he should be informed that his service treatment records (STRs) had been reviewed, and that, while they showed he had been treated for chronic diarrhea during his service, in February 1968, there was no diagnosis of or treatment for hepatitis during his service. 3. The RO then issued letters in January 1977, November 1978, May 1979 and June 1979 informing him that he resultantly should submit additional evidence causally relating his hepatitis to his military service, but those letters did no finally adjudicate his claim and he did not abandon that initial claim. 4. The RO did not finally adjudicate his claim of entitlement to service connection for Hepatitis B until February 1999, at the insistence of a new claim that he had filed in July 1997. CONCLUSION OF LAW The criteria are met for an earlier effective date of January 4, 1977, for the grant of service connection for the Hepatitis B. 38 U.S.C.A. §§ 5101(a), 5110(a), 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.151(a), 3.155(a), 3.400, 20.200, 20.302(b) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist There are duties to notify and assist a Veteran in substantiating a claim for VA benefits upon receipt of a complete or substantially complete application. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2011). To this end, he must be notified of the information and medical or lay evidence not of record: (1) that is necessary to substantiate his claim; (2) that VA will obtain and assist him in obtaining; and (3) that he is expected to provide. See 38 C.F.R. § 3.159(b)(1); see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Charles v. Principi, 16 Vet. App. 370, 373-74 (2002). These VCAA notice requirements apply to all five elements of a service-connection claim: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Further, this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted. Id., at 486. Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then going back and readjudicating the claim - such as in an SOC or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). A letter satisfying these notice requirements of § 3.159(b)(1), as concerning the initial, underlying, claim of entitlement to service connection for Hepatitis B, was sent to the Veteran in July 2003, prior to initially adjudicating this claim, so in the preferred sequence. See Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). That letter informed him of the evidence required to substantiate this claim for service connection and of his and VA's respective responsibilities in obtaining this supporting evidence. That initial letter did not also advise him of the "downstream" disability rating and effective date elements of this claim pursuant to Dingess since this precedent decision had not yet even been issued. But additional notice was provided in more recent letters dated in May and September 2008 regarding this appeal for an earlier effective date. See Huston v. Principi, 17 Vet. App. 195 (2003) (indicating VCAA notice in an earlier-effective-date claim should advise the Veteran of the need to have evidence of an earlier-filed claim that did not become final and binding on him based on the evidence then of record). Although the July 2003 and May and September 2008 letters were not provided prior to initially adjudicating his claim, service connection was granted subsequent to the July 2003 letter, and this "downstream" claim for an earlier effective date for this grant since has been adjudicated in the April 2010 SOC. Moreover, when, as here, the appeal arose from the Veteran's disagreement with the effective date assigned following the granting of service connection for the disability, additional VCAA notice concerning a "downstream" issue such as the effective date assigned for this grant is not required because the initial intended purpose of the notice has been served. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel has confirmed that no additional VCAA notice is required in this circumstance for such a downstream issue, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The Board is bound by the General Counsel 's opinion, as the Chief Legal Officer of the Department. 38 U.S.C.A. § 7104(c) (2011). Instead of issuing an additional VCAA notice letter in this situation concerning the downstream earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue an SOC if the disagreement is not resolved. And since the RO issued an SOC in April 2010, addressing the downstream effective-date claim, which included citations to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an earlier effective date, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Consequently, the Board finds that all necessary development of the downstream earlier-effective-date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran, especially since the Board is granting this claim for an earlier effective date back to when he filed his initial claim, so back to the point in time that he is requesting. Aside from this, as will be explained, resolution of this appeal ultimately turns on when he filed that initial claim, so an examination and opinion, including a "retrospective" opinion, are not needed to fairly decide this claim. See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C). See also Chotta v. Peake, 22 Vet. App. 80, 86 (2008). This again is especially true since the Board is granting this claim, inasmuch as there is sufficient evidence already of record to permit doing this. Accordingly, the Board finds that no further notice or assistance is needed to meet the requirements of the VCAA. II. Analysis The Veteran contends that the effective date of his award of service connection for Hepatitis B should coincide with his initial claim for service connection for this disability filed in the late 1970s. He disputes any notion there was a prior final and binding decision on his original claim, but if there was, he was not notified of his appellate rights, so not given opportunity to contest any earlier decision on this claim. Generally, and except as otherwise provided, the effective date of an evaluation and award of 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 later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2011). Importantly, 38 C.F.R. § 3.400(b)(2) provides that if a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose, whichever is later. The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2011). 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) (2011). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). The benefit sought must be identified, but need not be specific. See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Additionally, under 38 C.F.R. § 3.155(a), the Veteran or a representative of the Veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2011). Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a) (2011). 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." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show some exception to the finality (res judicata) of the prior decision denying the claim, such as by collaterally attacking it and showing it involved CUE. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Else, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Indeed, the Board has to summarily dismiss any such appeal outright, for lack of jurisdiction, rather than simply denying the claim on its underlying merits. Id. at 300; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006). The Court has explained that the term "new claim," as it appears in 38 C.F.R. § 3.400(q)(1)(ii), means a claim to reopen a previously and finally denied claim. See Sears, supra; see also Livesay v. Principi, 15 Vet. App. 165, 172 (2001) (holding that the plain meaning of § 5110 to be that "the phrase 'application therefore' means the application which resulted in the award of disability compensation that it to be assigned an effective dated under section 5110."); Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran "first sought to reopen his claim"); Leonard v. Nicholson, 405 F.3d 1333, 1336-37 (Fed. Cir., 2005) (indicating that "no matter how [the Veteran] tries to define 'effective date,' the simple fact is that, absent a showing of CUE, he 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"). The proper effective date for new and material evidence other than STRs received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(i) (West 2002); 38 C.F.R. §§ 3.400(q)(2), 3.400(r) (2011). If, however, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim without first requiring the submission of new and material evidence to reopen the claim. 38 C.F.R. § 3.156(c) (2011). In other words, the initial or prior decision is not final and binding. See Vigil v. Peake, 22 Vet. App. 63 (2008) (indicating unit records provided to the RO by the United States Armed Services Center for Research of Unit Records (USASCRUR), now the Joint Services Records Research Center (JSRRC), constituted official service department records of the type contemplated by 38 C.F.R. § 3.156(c), thus requiring de novo review or reconsideration of the claim, rather than as a petition to reopen the claim). Also, when evidence, other than STRs, is received in the appeal period following a subsequent disallowance, resulting in a later grant of service connection, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1) (2011). Turning now to the facts of this particular case, in January 1977 the Veteran submitted a statement indicating he had been alerted about the possible presence of the hepatitis virus in blood that he had intended to donate to the American National Red Cross. He indicated that he therefore wanted be tested at a VA hospital, because if he had hepatitis, he believed that he would have contracted it through his service in Vietnam. Hence, if confirmed he had hepatitis, he was alleging it was a service-connected disability. A January 1977 deferred rating decision indicated that, while there was evidence of chronic diarrhea in his STRs, there was no evidence of a diagnosis of or treatment for hepatitis during his service. He concurrently submitted an additional statement in January 1977 indicating that his doctor had informed him that the chronic diarrhea that he had during his service could have been nothing but hepatitis. A subsequent letter from an RO Adjudication Officer, also dated in January 1977, informed the Veteran that the available records did not show he had been treated for hepatitis during service, and that in order to establish his entitlement to service connection for hepatitis, he would need to submit evidence showing the condition was incurred in service. The letter further indicated that any medical opinions received to support his contention that the chronic diarrhea that he had experienced in service was, in actuality, a manifestation or symptom of hepatitis, would be carefully considered. The letter finally indicated that no further action would be taken on his claim unless he provided evidence showing he suffered from hepatitis that was incurred in or aggravated by his military service. Later, in a November 1978 letter, he indicated that VA acknowledged that he had been treated for a stomach virus, and that his wife also had been treated for a stomach virus that was later discovered to be a severe case of hepatitis. He indicated she had received her treatment at Noble Army Hospital at Fort McClellan. He added that he believed he had experienced the same symptoms as her and that he should be service connected for hepatitis. In response to his letter, an RO Adjudication Officer reiterated in a November 1978 letter that the STRs did not show the Veteran had been treated for hepatitis during service and that, in order to establish his entitlement to service connection, he needed to submit evidence showing his condition was incurred during his service. The letter then indicated that further action would be taken on his claim when such evidence was received. Subsequently, in February 1979, the Veteran submitted another letter indicating that he still believed that he had hepatitis that was contracted during his military service, and that he also wanted to be considered for service connection for typhoid. He further indicated that he was basing his beliefs on results of laboratory tests performed in November 1972, so very shortly after the conclusion of his service. He included copies of these laboratory reports, which indicated positive typhoid tests and showed elevated levels of bilirubin and SGOT enzymes. A subsequent February 1979 deferred rating decision noted that he was to be informed that, before his claim could be reopened, he would need to submit evidence showing he had the claimed disability - such as hospital reports or statements indicating he had been treated for his claimed disability within one year following or during such treatment - and that lab reports did not provide sufficient evidence of this. After that deferred rating decision, VA received treatment records from Anniston Memorial Hospital revealing he had been treated for abdominal pain with an unknown etiology in November 1972. He reported during his treatment that he had been experience gradual onset of the pain that had been present for approximately two months, and that he had lost about 30 pounds. He further indicated that he had suffered through a similar episode of abdominal pain during his military service. A subsequent May 1979 letter from an RO Adjudication Officer informed the Veteran that, before his claim could be reopened, he needed to provide evidence of a diagnosis and prognosis of his claimed disability, and that the evidence needed to be dated within one year following his discharge from service. The letter also indicated that, once this evidence was received, further action would be taken on his claim. He then submitted another letter in response in June 1979 disputing the prior RO letter and contending that the evidence that he already had sent was dated just 6 months after he was discharged from service. This was owing to the fact that the evidence he had submitted was dated in November 1972, and he had been discharged from the military in May 1972. He also reiterated that the tests showed that he had typhoid and a liver condition and that he was admitted for abdominal pains. He further indicated that the doctor that had diagnosed his condition was no longer practicing, and that he wanted his claim to be reopened on the evidence of record. He then indicated that, if VA would not reopen his claim, he would like to be afforded a hearing on his claim, and that he would like to be represented by a lawyer. A final letter from an RO Adjudication Officer dated in June 1979 indicated the Veteran's claim had been carefully reviewed in response to his letter and that the medical evidence did not contain a diagnosis of a chronic disability. The letter then indicated that, in order for his claim to be reconsidered, he would need to furnish medical evidence showing findings and diagnosis, and that his disability had been chronic and continuous since his discharge from service. The letter further indicated that a personal hearing would serve no useful purpose at that time since he had not shown that he had a diagnosed disability. The letter did indicate, however, that if he still wanted a hearing, one could be arranged. The letter indicated lastly that he could be represented by a VA service officer or could employ a private attorney to represent him, which would be subject to a maximum fee limitation of ten dollars. After that, no further evidence was submitted with respect to his hepatitis claim until many years later, in July 1997, when he filed a petition to reopen this claim. The claim was subsequently granted in the Board's March 2007 decision. The RO assigned an effective date for this grant just back to 1997, when he filed his petition to reopen this claim. Resolution of this appeal for an earlier effective date hinges on whether any of the RO Adjudication Officer letters constituted a final and binding decision on the claim for service connection and, if so, whether the Veteran initiated an appeal in response to any of those letters that was not subsequently acted upon or reopened his claim at any point prior to July 1997. The initial point worth noting is that his January 1977 letter constituted a claim for VA benefits under 38 C.F.R. § 3.1(p), since it indeed represented a "communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." A claimant may satisfy the requirement of filing a claim for a particular disability by referring to a body part or system that is disabled or by describing symptoms of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009); see also Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (to the effect that, when determining the scope of a claim, the Board must consider the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or that the Secretary obtains in support of the claim). The proper course of action for the RO upon receipt of that claim was to properly conduct any appropriate development and then adjudicate the claim. While the Board sees that the January 1977 letter from the RO Adjudication Officer indicated that no further action would be taken on the Veteran's claim unless he provided evidence that he had incurred hepatitis during his military service, and that could be interpreted as an implicit denial of his claim, albeit with a contingency that if he submitted the additional requested evidence the claim could ensue, the Court has held that a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent "claim" for the same disability. Ingram v. Nicholson, 21 Vet. App. 232 (2007). Here, though, the Board finds that the January 1977 RO letter was not a final and binding decision on his claim, particularly since he had not been explicitly informed of such denial and apprised of his appellate rights. Generally, a decision does not become final and binding until written notification of the decision is issued to the claimant. See 38 U.S.C.A. § 5104(a); 38 C.F.R. §§ 3.103, 3.104(a), 3.160(d), 19.25. See also Best v. Brown, 10 Vet. App. 322, 325 (1997) (for a VA decision to become final and binding on a claimant, he or she must first receive written notification of the decision); see, as well, Tablazon v. Brown, 8 Vet. App. 359, 361 (1995), citing Hauck v. Brown, 6 Vet. App. 518 (1994) (where an appellant never received notification of a decision denying his or her claim, then the usual one-year limit for timely appealing the decision does not begin to accrue ("run"); instead it is tolled ("stopped"). The written notification also must explain the reasons and bases for the decision and apprise the claimant of his or her procedural and appellate rights, in the event he or she disagrees with the decision and elects to appeal. Moreover, under certain circumstances, a statutory filing period may be equitably tolled due to conduct of VA. See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998). Equitable tolling, as an example, is available where the claimant has actively pursued his/her judicial remedies but has filed a defective pleading during the statutory period, or where a claimant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass. Jaquay v. Principi, 304 F.3d 1276, 1282-83 (Fed. Cir. 2002). The Federal Circuit Court specifically held in Bailey that equitable tolling in the paternalistic Veterans' benefits context does not require misconduct, such as trickery; however, Bailey does require the appellant to have been "misled by the conduct of his adversary into allowing the filing deadline to pass." Bailey, 160 F.3d at 1365; see also (William) Smith v. West, 13 Vet. App. 525 (2000). There must be a cause and effect, i.e., the complainant relied to his/her detriment on something that VA did or should have but did not do. See Cintron v. West, 13 Vet. App. 251, 257 (1999), citing Bailey, 160 F.3d at 1364. Here, for the reasons and bases discussed, that initial decision remained pending. There simply is no reason to believe the Veteran could deduce that his claim had been fully adjudicated and denied since the letter indicated that further action could be taken on his claim if supporting evidence was provided. Moreover, with respect to required notice provisions, the applicable regulation in effect at the time of the RO's January 1977 letter provided: The claimant will be notified of any decision affecting the payment of benefits or granting relief. Notice will include the reason for the decision and the date it will be effectuated as well as the right to a hearing subject to paragraph (c) of this section. The notification will also advise the claimant of his right to initiate an appeal by filing [an NOD] which will entitle him to [an SOC] for his assistance in perfecting his appeal. Further, the notice will advise him of the periods in which an appeal must be initiated and perfected. 38 C.F.R. § 3.103(e) (1976). Thus, the fact that he had not been provided required notice regarding the resolution of his claim or notice of his appellate rights would further negate a finding that the January 1977 RO letter was a final and binding decision on his claim. In his November 1978 letter, he attempted to provide further evidence regarding his claim, in fact, the specific type of evidence the RO had indicated he needed to submit. He specifically indicated that his wife had been diagnosed with hepatitis after experiencing similar symptoms to those that he had experienced. The ensuing November 1978 letter from the RO Adjudication Officer again left his claim unresolved since it indicated that "further action will be taken on your claim when we receive evidence showing that you have hepatitis which was incurred in or aggravated by your military service." Thus, that letter did not finally resolve his claim, instead, left open the possibility of further consideration of it. And in any event, he responded to that letter rather immediately by indicating in a February 1979 letter that he had received laboratory tests revealing abnormal results and identifying further treatment records pertaining to his claimed hepatitis. He submitted copies of the laboratory test results with his letter. The RO did not, however, subsequently adjudicate his claim. Rather, an RO Adjudication Officer simply sent another letter, dated in May 1979, indicating he still needed to submit evidence of the diagnosis and prognosis of his claimed disability and that it needed to be dated within one year of his separation from service. The letter concluded by indicating that further action would be taken on his claim once more information was received. Although the Board concludes that the May 1979 letter also did not constitute a final resolution of his claim, he nonetheless expressed his belief in a subsequent June 1979 letter that the evidence he already had submitted should have satisfied the RO's request. He further indicated that he could not obtain additional evidence from the doctor that had made his hepatitis diagnosis because he was no longer practicing. In effect, then, especially given the wording of that June 1979 letter, he expressed his disagreement with the RO's May 1979 letter. He additionally expressed his desire to be provided a hearing on his claim and to be represented by an attorney. Based on this evidence, even if the Board was to find that the prior May 1979 RO letter constituted a final and binding decision on his hepatitis claim, his later June 1979 letter would in effect be construed as a timely NOD. See Myers v. Principi, 16 Vet. App. 228 (2002) (noting that Manual 8-5, as amended by VA in 1956 provided that "[w]henever a claimant expresses dissatisfaction following rating or other adjudicative action, it should be determined whether there has been procedural, regulatory, or factual error in adjudication or other circumstances warranting further development or corrective action. Unless it is determined that there is entitlement to substantially all benefits sought, the Veteran should be furnished VA Form 1-9 ..., together with the necessary instructions relative to its completion, without effort to dissuade him from the presentation of a formal appeal." Thus, construing his June 1979 letter as an NOD of that prior RO decision, then 38 U.S.C. § 7105(d) would have required VA to issue an SOC in response to that NOD. 38 U.S.C.A. § 7105 provides that an SOC is required to include a summary of the evidence in the case pertinent to the issue in question, a citation to pertinent laws and regulations and a discussion of how the agency's decision was effected by the laws and regulations, and a decision on each issue, including a summary of the reason for each decision. The RO Adjudication Officer's final June 1979 letter, while indicating the Veteran's claim had been carefully reviewed in response to his letter and that the medical evidence did not contain a diagnosis of a chronic disability, again did not provide any conclusive indication his claim had been finally decided. While the letter also indicated that, in order for his claim to be reconsidered, he would need to furnish medical evidence showing findings and diagnosis regarding the disability and evidence that his disability had been chronic and continuous since his discharge from service, this statement did not clearly indicate that his claim had been denied. Furthermore, if the letter was construed to be a response to his prior June 1979 NOD, it did not satisfy the SOC requirements set forth in 38 U.S.C.A. § 7105. Finally, the letter contained language that would tend to dissuade him from seeking his requested hearing, effectively dissuading him from pursuing an appeal, thus rendering the letter in opposition to the Court's indication in Myers that a Veteran not be dissuaded from presenting a formal appeal. Thus, where required actions were not taken in the January 1977, November 1978, May 1979 and June 1979 letters with respect to notifying the Veteran of procedural and appellate rights as required by relevant statutes and regulations, and where those letters could not, even in combination, reasonably lead him to deduce that his claim had been finally denied, the Board is precluded from finding that any one of those letters constitutes a final and binding decision on his service connection claim for hepatitis. Accordingly, his claim remained open since it was first filed until it was finally adjudicated by the much more recent RO decision in February 1999, which was later overturned by the Board's March 2007 decision. Hence, resolving all reasonable doubt in the Veteran's favor, the RO has had constructive notice of his hepatitis claim since January 4, 1977, when he first claimed entitlement to VA benefits for hepatitis. Accordingly, the Board finds that an earlier effective date of January 4, 1977 (though no earlier) is warranted for the grant of service connection for his Hepatitis B, as that was the date of receipt of his original claim for service connection for this disease. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (2011). An even earlier effective date, meaning prior to January 4, 1977, may not be assigned for this disability, however, as the claim was filed more than one year after his separation from service and there was no earlier formal or informal claim for service connection for this disability. Id. ORDER An earlier effective date of January 4, 1977, is granted for service connection for Hepatitis B, subject to the statutes and regulations governing the payment of VA retroactive compensation. REMAND The Veteran's remaining claims on appeal, those of entitlement to higher ratings for his Hepatitis B and for a TDIU, require further development before they can be properly adjudicated. As for his increased-rating claim, the Board sees that he was last examined concerning his Hepatitis B in March 2010. Consequently, more than 2 years have passed since the severity of this disability was considered. And he and his representative asserted during the January 2012 hearing before the Board that he was suffering from nearly constant debilitating symptoms, including especially abdominal pain (which he described as an 8 in intensity on a scale of 1 to 10), nausea causing him to vomit, and fatigue or malaise. So, in effect, they contended this disease has worsened significantly since that March 2010 VA examination, when the examiner described only occasional vomiting and muscle cramping, albeit frequent malaise and morning body aches. When a claimant alleges that his service-connected disability has worsened since last examined, a new examination is required to reassess the severity of the disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). See also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (wherein the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (indicating that, where the record does not adequately reveal the current state of the claimant's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence adequately addressing the level of impairment of the disability since the previous examination). See, as well, VAOPGCPREC 11-95 (April 7, 1995); and Green v. Derwinski, 1 Vet. App. 121 (1991). Moreover, the March 2010 VA examiner did not provide sufficient findings to address all applicable rating criteria. Notably, he did not indicate whether the Veteran had symptoms of anorexia, weight loss (and if so, to what degree), or other indication of malnutrition. Neither did he provide an approximate total duration of incapacitating episodes of the chronic liver disease symptoms during the preceding 12-month period. See 38 C.F.R. § 4.2 (2011) (if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes). It therefore is necessary to reexamine the Veteran to reassess the severity of his Hepatitis B. As for his derivative TDIU claim, his May 2010 statement indicating he is unemployable because of service-connected disability has been construed as a timely NOD with the RO's April 2010 rating decision denying this claim. See Gallegos, 283 F.3d 1309. However, as he has not been provided an SOC concerning this other claim, or given opportunity in response to complete the steps necessary to perfect his appeal of this other claim to the Board by also filing a timely substantive appeal (VA Form 9 or equivalent statement), the appropriate disposition in this circumstance is to remand, rather than merely refer, this claim. See Manlincon, 12 Vet. App. 238. Accordingly, these claims are REMANDED for the following additional development and consideration: 1. Schedule another VA compensation examination to reassess the severity of the Veteran's service-connected Hepatitis B. The claims file, including a complete copy of this remand, must be made available to and reviewed by the examiner for the pertinent history of this disability. All indicated tests and studies (including of liver function) should be accomplished, and all results made available to the requesting examiner prior to the completion of his or her report, and all clinical findings reported in detail. The examiner should clearly identify all current signs and symptoms of the Veteran's Hepatitis B, identifying any liver damage or dysfunction that is a residual of this disease. Considering all such signs and symptoms, the examiner should provide an assessment of the current severity of the Hepatitis B and its residuals. The examiner should specifically determine the frequency and severity (i.e., total duration of time during the past 12-month period) that the Veteran has experienced incapacitating episodes of chronic liver disease symptoms, such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. Also, if he has experienced these symptoms on a near constant basis, the examiner should so state. The examiner should additionally document the Veteran's weight loss and indicate whether there is hepatomegaly. Finally, to the extent possible, the examiner should document the Veteran's history of liver damage since January 1977, the new effective date of his award of service connection for Hepatitis B. It is essential the examiner discuss the underlying medical rationale for all opinions expressed and conclusions reached, if necessary citing to specific evidence in the file. 2. Send the Veteran an SOC concerning his derivative claim of entitlement to a TDIU. Advise him that he still needs to submit a timely substantive appeal (VA Form 9 or equivalent statement) in response to this SOC to complete the steps necessary to perfect his appeal on this other claim to the Board. Only if he perfects his appeal of this other claim should it be returned to the Board for further appellate consideration. *In addressing this other claim, it may be necessary to obtain additional medical comment concerning whether his service-connected disabilities, including especially his Hepatitis B and tinnitus, but also the others as well, render him incapable of obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison, when also considering his level of education, prior work experience and training, etc., but not his age or impairment attributable to disabilities that are not service connected. Also, when considering this derivative TDIU claim, consider it under both 38 C.F.R. § 4.16(a) and (b). So even if the Veteran does not have sufficient ratings to qualify for a TDIU under subpart (a) of this regulation, consider referring this claim for consideration alternatively under subpart (b), that is, if there is suggestion he is indeed unemployable on account of service-connected disability or disabilities. 3. Ensure the VA examiner's opinions are responsive to the questions posed. If they are not, then take corrective action. 38 C.F.R. § 4.2 (2011). See also Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Board imposes upon the Secretary of VA a concomitant duty to ensure compliance with the terms of the remand, and that the Board itself commits error as a matter of law in failing to ensure this compliance). 4. Then readjudicate the Veteran's claim for higher ratings for his service-connected Hepatitis B, both prior to and since October 6, 2008, in light of the additional evidence. For all evidence dated before July 2, 2001, this review must include consideration of prior Diagnostic Code 7345 for hepatitis. If higher ratings are not granted to his satisfaction, provide him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim. The Veteran has the right to submit additional evidence and argument concerning these claims the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ Keith W. Allen Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs