Citation Nr: 0810148 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 06-26 515 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date earlier than June 4, 2004 for the grant of increased evaluations for residuals of frostbite of the hands, feet, and ears. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD K. Seales, Associate Counsel INTRODUCTION The veteran served on active duty from April 1948 to October 1953, January 1954 to January 1957, and August 1957 to March 1970. He was a prisoner of the North Korean government from December 1950 to August 1953. This appeal arises from a June 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that increased the evaluation for the residuals of his frostbite of the left hand, right hand, left foot, and right foot by assigning separate 30 percent evaluations, effective June 4, 2004. In February 2008, the Board granted the veteran's motion to advance the case on the Board's docket. FINDINGS OF FACT 1. In October 1973, the Board denied entitlement a compensable evaluation for residuals of frostbite of the hands, feet, and ears. 2. In March 1982 and January 1992 rating decisions, the RO denied entitlement to a compensable evaluation for residuals of frostbite of the hands, feet, and ears. 3. In April 1993, the RO assigned a 10 percent disability rating for residuals of frostbite of the hands, feet, and ears; effective from September 25, 1992. 4. In September 1994, the RO denied entitlement to a disability rating in excess of 10 percent for residuals of frostbite of the hands, feet, and ears; although the veteran perfected an appeal of this determination, in a signed October 1994 statement, he withdrew the appeal. 5. The veteran has not asserted that the October 1970, October 1973, March 1982, January 1992, April 1993, or September 1994 decisions were clearly and unmistakably erroneous. 6. The veteran did not again seek a higher rating for his service-connected residuals of frostbite of the feet, hands, and ears until June 4, 2004. 7. In a December 2004 rating decision, the RO assigned separate 30 percent evaluations for residuals of frostbite of the left foot, right foot, left hand, and right hand; effective from June 4, 2004. 8. There is no medical evidence showing that the veteran's service-connected residuals of frostbite warranted a disability rating in excess of 10 percent at any time during the year prior to June 4, 2004. CONCLUSION OF LAW An effective date earlier than June 4, 2004, for the grant of increased evaluations for residuals of frostbite of the hands, feet, and ears is not warranted. 38 U.S.C.A. §§ 5107, 5110(a) (West 2002 ); 38 C.F.R. § 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Because the application of the law to the undisputed facts is dispositive of this appeal, no discussion of VA's duties to notify and assist is necessary. See Mason v. Principi, 16 Vet. App. 129 (2002). Moreover, the United States Court of Appeals of the Federal Circuit has held that once the underlying claim is granted, further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (VA's notice obligations do not apply to claims that could not be substantiated through notice and assistance). 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 medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records, and the appellant cancelled the VA central office hearing scheduled for April 2008. A VA examination is not necessary for an earlier effective date claim. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Earlier effective date In a rating decision dated December 2004, the RO assigned separate 30 percent evaluations for residuals of frostbite of the left hand, right hand, left foot, and right foot; effective from June 4, 2004. The veteran's service-connected residuals of frostbite of the left ear and right ear remained noncompensably rated. The veteran contends that the effective date of the separate 30 percent evaluations should be retroactive to 1970, the year he separated from active duty. The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). In the present case, service connection for frostbite of the hands and ear was initially established in January 1957. A May 1970 rating decision reestablished VA compensation benefits for residuals of frostbite of the hands, feet, and ears. Of record are October 1970, March 1982, and January 1992 rating decisions which denied entitlement to a compensable evaluation for residuals of frostbite of the hands, feet, and ears. The veteran did not file a notice of disagreement or otherwise perfect an appeal of these decisions. In October 1973, the Board denied entitlement to a compensable evaluation for residuals of frostbite of the hands, feet, and ears. The veteran did not file a motion for reconsideration or otherwise perfect an appeal this decision. In April 1993, the RO increased the veteran's service connected residuals of frostbite to 10 percent disabling, effective from September 25, 1992. In September 1994, the RO denied entitlement to a disability rating in excess of 10 percent for residuals of frostbite of the hands, feet, and ears. The veteran did not file a notice of disagreement or otherwise perfect an appeal of these decisions. The veteran does not assert that any of the aforementioned determinations are clearly and unmistakably erroneous. The veteran submitted a claim for an increased evaluation on June 4, 2004. This claim led to a December 2004 rating decision which assigning separate 30 percent evaluations for residuals of frostbite of the left foot, right foot, left hand, and right hand; effective from June 4, 2004. The rating decision noted that June 4, 2004, was the date of receipt of the claim. Applying the pertinent VA regulations to the facts of this claim, it is clear that an earlier effective date is not warranted. A careful review of the record indicates the October 1970, October 1973, March 1982, January 1992, April 1993, and September 1994 rating decisions were final; as the veteran failed to file a notice of disagreement or otherwise perfect an appeal. Further, the evidence fails to show the veteran filed either a formal or informal claim for an increased evaluation until June 4, 2004. 38 C.F.R. § 3.400(o)(1). There is no medical evidence of record which indicates an increase in disability occurred within the one- year period prior to the June 2004 claim. 38 C.F.R. 3.400 (o)(1)(2). Thus, in assigning June 4, 2004, as the effective date for the increased evaluation, VA has already assigned the earliest possible effective date for the separate 30 percent ratings for the veteran's residuals of frostbite of the bilateral hands, feet, and ears. The Court has held that "[w]here the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law." See Shields v. Brown, 8 Vet. App. 346, 351-352 (1995) [citing Sabonis v. Brown, 6 Vet. App. 426 (1994)]. Since the law is dispositive, an effective date prior to June 4, 2004, for the grant of increased evaluations for residuals of frostbite of the hands, feet, and ears is not available. Sabonis, supra. ORDER Entitlement to an effective date earlier than June 4, 2004, for the grant of increased evaluations for residuals of frostbite of the hands, feet, and ears is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs