Citation Nr: 0811882 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-07 640A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Timeliness of a substantive appeal following the November 1997 rating decision, which continued the 10 percent evaluation for bilateral flat feet with hallux valgus and denied service connection for right knee and hip disorders as being due to the service-connected bilateral flat feet with hallux valgus. 2. Entitlement to an evaluation greater than 30 percent for bilateral flat feet with hallux valgus. 3. Entitlement to an effective date earlier than July 20, 1999, for the grant of a 30 percent evaluation for bilateral flat feet with hallux valgus. 4. Entitlement to an initial rating greater than 10 percent for right ankle strain. 5. Entitlement to an initial rating greater than 10 percent for left ankle strain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD T. Mainelli, Counsel INTRODUCTION The veteran served on active duty from December 1975 to June 1978 and from January 1979 to January 1983. This case comes before the Board of Veterans' Appeals on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In February 2006 and October 2007, the veteran withdrew his request for a hearing before the Board. The Board notes that the veteran appears to have raised a claim of entitlement to a total disability rating based upon individual unemployability. This issue is referred to the RO for appropriate action, if needed (the veteran should provide additional clarification to the RO). In any event, the issue is not before the Board at this time. The claims of entitlement to higher initial ratings for right and left ankle strains are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The veteran did not file within the appeal period a substantive appeal discussing errors of fact or law with regard to a November 1997 rating decision which continued the 10 percent evaluation for bilateral flat feet with hallux valgus and denied service connection for right knee and hip disorders, and the RO did not waive timely filing of a substantive appeal. 2. The veteran's bilateral flat feet with hallux valgus is not shown to be pronounced in degree with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation. 3. Following the November 1997 rating decision, the veteran next filed a claim for an increased rating for bilateral flat feet with hallux valgus on July 20, 1999. 4. An increase in disability resulting for service connected bilateral flat feet with hallux valgus is not factually ascertainable as occurring within one year from the date of the increased rating claim filed on July 20, 1999. CONCLUSIONS OF LAW 1. The RO's November 1997 rating decision, which continued the 10 percent evaluation for bilateral flat feet with hallux valgus and denied service connection for right knee and hip disorders as being due to the service-connected bilateral flat feet with hallux valgus, is final due to failure to file a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.109, 20.302(b), 20.303 (2007). 2. The criteria for a disability rating greater than 30 percent for bilateral flat feet with hallux valgus not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 4.1-4.14, 4.4, 4.45, 4.71a, Diagnostic Code 5276 (2007). 3. The criteria for an effective date earlier than July 20, 1999 for the award of a 30 percent rating for bilateral flat feet with hallux valgus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.105, 3.155, 3.157, 3.400(o)(2) (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Timeliness of appeal The Board's authority to review an adverse RO decision is initiated upon a claimant's submission of a notice of disagreement (NOD) and completed by a substantive appeal after a statement of the case (SOC) has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. 38 C.F.R. § 20.202. It is well- established judicial doctrine that any statutory tribunal must ensure that it has jurisdiction over each issue before adjudicating the merits and that, once apparent, a potential jurisdictional defect may be raised by the court, tribunal or any party, sua sponte, at any stage in the proceedings. Barnett v. Brown, 83 F.3d 1380 1383 (1996). Within the VA regulatory system, the Board is the sole arbiter of decisions concerning the adequacy of a substantive appeal. 38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.101(d). Moreover, the Board's jurisdiction is expressly limited by 38 U.S.C.A. § 7108, which provides that "[a]n application for review on appeal shall not be entertained unless it is in conformity with this chapter." This provision places clear limits on the Board's jurisdiction, including its authority to make findings of fact and conclusions of law, on matters not in conformance with the express requirements of Chapter 71. A substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction (AOJ) mails the SOC to the claimant or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever comes later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). For purposes of determining whether a substantive appeal has been timely filed, the date of mailing of the SOC will be presumed to be the same as the date of the SOC and the date of mailing of the letter of notification of the determination (the rating decision, in this case) will be presumed to be the same as the date of that letter. Id. An extension of the 60-day period for filing a substantive appeal may be granted for good cause. 38 C.F.R. § 20.303. However, the request for an extension must be in writing and must be made prior to expiration of the time limit for filing the substantive appeal. Id. Pursuant to 38 C.F.R. § 3.109, time limits for filing may be extended in some cases on a showing of "good cause." However, the Court decided in Corry v. Derwinski, 3 Vet. App. 231 (1992), that there is no legal entitlement to an extension of time, but that 38 C.F.R. § 3.109(b) commits the decision to the sole discretion of the Secretary. Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner than it was. A claimant that fails to file a substantive appeal in a timely manner, and fails to timely request an extension of time, is statutorily barred from appealing the RO decision. Roy v. Brown, 5 Vet. App. 554, 556 (1993). See also YT v. Brown, 9 Vet. App. 195 (1996). In a November 1997 rating decision, the RO continued a 10 percent evaluation for bilateral flat feet with hallux valgus and denied service connection for right knee and hip disorders. On March 27, 1998, the veteran submitted a NOD with both issues, specifically referencing the November 1997 rating decision. The next document of file consists of an SOC on the above- mentioned issues. The SOC shows a date of March 25, 1998 while the cover letter shows a hand-written date of March 26, 1998. Notably, both of these dates pre-date the veteran's NOD noted above. The next document of file consists of a VA Form 21-4138 filing submitted by the veteran on July 20, 1999 which stated as follows: As you know, I did not receive my Statement of the Case until a year had passed since I filed by Notice of Disagreement. I filed a NOD in March 1998 and received my SOC in March of 1999. In lieu of a VA-9 at this time, I would like to have my claim re-evaluated. I am enclosing updated records from the Podietrist [sic] and several other records that I have highlighted. On the Statement of the Case that you sent, there was no mention of me being examined by VA doctors for the Clinic. I would like to be scheduled for examination, due mainly to the fact that the records and examinations cited are out dated at this stage of my claim. Thank you for your assistance on this issue. On September 1, 1999, the RO initiated the development of an increased rating claim by scheduling of the veteran for VA examination of his feet. On September 23, 1999, the RO sent the veteran a letter which stated as follows: Please be advised that you did not file a timely substantive appeal regarding your appeal of the denial of the evaluation of your bilateral flat feet, nor for your claim for [service connection] for aggravation of right knee and hip arthritis, secondary to your [service-connected] flat feet (You had 60 days from the date of the [statement of the case] mailed on 03-26-99). We are accepting your VA Form 21-4138 and medical reports received on 07-20-99, as a reopened claim for an increase in your bilateral flat feet, and [] we are scheduling you for a VA examination. Your appeal regarding new and material evidence to reopen your claim for S/C for your right hip condition is active. The veteran subsequent filed a VA Form 21-4138 in October 1999 which stated as follows: Thank you for your letter dated 9/23/99 in which you denied my claim for not responding in a timely manner. I would like to draw your attention to the VA 21-4138 dated 7/15/99 in which I told you that my SOC was late in getting to me. This is not my fault. I responded as soon as I knew that I had an SOC on my last NOD. I am asking for reconsideration on my claim. I am enclosing a page from my SMR's that show that I was having hip problems while I was in the service. I feel that it was misdiagnosed as a muscle problem and not a bone problem. If you cannot find my claim in my favor, please consider this a Notice of Disagreement. Thank you for your assistance on this issue. In November 1999, the RO issued an SOC on the issue of the timeliness of the substantive appeal on the claim of service connection for aggravation of right knee and hip arthritis. On that same day, the RO also issued a Supplemental SOC (SSOC) for the issue of entitlement to an evaluation in excess of 10 percent for bilateral flat feet with hallux valgus. In an SOC dated November 2005, the RO determined that the veteran had not submitted a timely substantive appeal with respect to its November 1997 rating decision, which continued the 10 percent evaluation for bilateral flat feet with hallux valgus and denied service connection for a right knee and hip disorders. In this case, there is no dispute that the veteran filed a timely NOD with respect to the RO's November 1997 rating decision denying a rating greater than 10 percent evaluation for bilateral flat feet with hallux valgus and denying service connection for right knee and hip disorders. The veteran concedes that his SOC was received, at minimum, in March 1999. As a matter of law, the veteran was required to submit a timely substantive appeal on these issues within 60- days of receipt of the SOC. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). In this case, there is simply no written document received by the RO within 60-days of when the SOC was received by the veteran that disputes any issue of law or fact with respect to the November 1997 decision or requests an extension of time to submit a substantive appeal. Furthermore, no good cause has been shown for failing to file a timely substantive appeal. Clearly, the appeal period for filing a substantive appeal on these issues expired in this case. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). The only remaining issue for consideration is whether the RO waived the time requirements for filing a substantive appeal. See Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557 (2003) (a claimant's failure to file a timely Substantive appeal from an RO decision does not automatically foreclose an appeal, render a claim final, or deprive the Board of jurisdiction unless there was also an indication that the RO closed the appeal pursuant to 38 C.F.R. § 19.32). The Board initially notes that the untimely document submitted by the veteran in July 1999 does not meet the substantive requirements of a "substantive appeal" for either issue. Specifically, the veteran indicated his intent that such document be accepted as a claim for an increased rating for his bilateral foot disability, and he did not mention the issue regarding his right knee and hip disorders. Regardless, the RO's September 23, 1999 letter clearly reflects its determination that the appeals were closed as to all issues, and that the timely filing of a substantive appeal had not been waived. Regardless of the subsequent actions of the RO (which were procedurally confusing) the fact stands that the RO initially closed out the appeals to these issues so that the waiver considerations identified in Gonzalez-Morales do not apply. Simply stated, even if the Board assumes the veteran received the SOC on the date he himself indicates that he received the SOC (March of 1999), he did not file a timely substantive appeal. In sum, the Board finds that the veteran did not file within the appeal period a substantive appeal discussing errors of fact or law with regard to a November 1997 rating decision which continued the 10 percent evaluation for bilateral flat feet with hallux valgus and denied service connection for a right knee and hip disorders, and the RO did not waive timely filing of a substantive appeal. The appeal, therefore, is denied. Increased rating Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Compensation for service-connected injury is limited to those claims which show present disability. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. See generally 38 U.S.C.A. § 5110(b)(2). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The veteran's bilateral flat feet with hallux valgus is currently evaluated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5276, for acquired flatfoot. This rating contemplates "severe" acquired flatfoot bilaterally manifested by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use and characteristic callosities. A 50 percent rating is warranted for pronounced acquired flatfoot bilaterally with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. The Board notes that competent medical evidence fails to show that the veteran's bilateral flat feet with hallux valgus is pronounced in degree with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation. For example, the March 2006 VA compensation examination described slight bilateral pes planus, slight tenderness of the plantar surfaces on palpation and good Achilles alignment. No spasm of the tendo achilles was noted. The previous VA compensation examination, with addendum in June 2005, found slight tenderness of the plantar surfaces and bilateral slight valgus that could not be manipulated. There were no signs of deformity, such as inward rotation of the heel, medial tilting of the talus, marked pronation, forepart foot dorsiflexion or foot eversion. Similarly, VA compensation examination in December 2001 showed good weight and non-weightbearing alignment of the Achilles tendon with tenderness noted on the lateral and plantar aspects of the feet. Again, no spasm of the Achilles tendon was noted. VA compensation in September 1999 also showed good alignment of the Achilles tendon with tenderness in the plantar aspects of both feet. The VA compensation and pension examinations as described above provide highly probative evidence against the claim. The private and VA treatment records document that the veteran's feet demonstrate pain with deep palpation of the sinus tarsi areas which have been treated with lidocaine injections. The feet also demonstrate some varus heel and valgus deformity requiring correction with orthotic shoes. A June 1996 private medical statement, reviewed in the prior November 1997 RO decision, reported that the veteran's right pes planus could cause his weight line to shift laterally causing valgus angulation of his right knee on walking. However, none of these records describe the veteran's bilateral foot disability as manifesting marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation. The private and VA treatment records also provide highly probative evidence against the claim. The Board is also aware that the veteran has submitted photographs of his feet and ankles. As a general matter, the Board is not competent to reach any medical conclusions based upon the photographs themselves. See generally Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Nevertheless, the Board does not find any proof from these pictures that calls into question the conclusions reached by the medical examiners in this case. This evidence has limited probative value in this case. The Board also finds that the veteran's bilateral foot disability does not warrant an evaluation greater than 30 percent based on functional loss due to pain, weakness, fatigability, or incoordination. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202, 204-08 (1995). VA compensation and pension examination in December 2001 indicated that the veteran's feet showed signs of painful motion and functional limitation due to pain, limiting his standing and walking 5 minutes due to pain and interfering with his ability to drive, and demonstrated signs of painful motion. There was, however, no evidence of edema, instability or weakness. The most recent VA examination in March 2006 also found functional limitations in standing and walking secondary to pain. The veteran's bilateral pes planus disability undoubtedly causes functional impairment involving prolonged standing and walking due to pain. It is important for the veteran to also understand that the objective medical evidence does not clearly support the current evaluation, let alone an increased evaluation. It is also important for the veteran to understand that these problems are the basis for his current evaluation, which contemplates severe bilateral pes planus with pain on manipulation and use accentuated. The veteran argues entitlement to a 50 percent rating on the basis that his disability is not improved with the use of orthotic shoes. While this may be true, the criteria for the next higher rating require that the pronounced symptoms, which the veteran does not have, are not improved by orthopedic shoes or appliances. Even in light of this evidence, the overall medical evidence demonstrates that there is simply no basis to assign a higher rating still based on functional loss due to pain, weakness, fatigability, or incoordination of the feet based on the objective medical evidence. Id. VA compensation and pension examination findings, rather than supporting the veteran's claim, provide highly negative evidence against this claim. Based on the above, the veteran's service connected bilateral pes planus disability does not meet, or more nearly approximate, the criteria for an evaluation in excess of 30 percent under applicable evaluation criteria for any time during the appeal period. The Board is aware of the veteran's complaints as to the effects of his service- connected disability on his employment. A VA rehabilitation counselor found that the veteran's service connected disabilities significantly contribute to his impairment of employability, but also that non-service connected factors contributed to his barriers to employment. His 30 percent rating contemplates interference with employability and loss of working time commensurate with his level of compensation. See 38 C.F.R. § 4.1. Furthermore, he has been separately awarded compensation for referred pain to the right and left ankles. The Board finds that there is no evidence of any unusual or exceptional circumstances, such as marked interference with employment or frequent periods of hospitalization related to the service-connected disability at issue, that would take the veteran's case outside the norm so as to warrant an extraschedular rating. Therefore, referral by the RO to the Chief Benefits Director of VA's Compensation and Pension Service, under 38 C.F.R. § 3.321, is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (1996). As the preponderance of the evidence is against the veteran's claim, the doctrine of reasonable doubt is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Hence, the appeal must be denied. Earlier effective date The RO has awarded the veteran a 30 percent rating for bilateral flat feet with hallux valgus effective July 20, 1999. As reflected above, this date corresponds with the veteran's filing of a VA Form 21-4138 which constituted a claim for an increased rating. Generally, 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. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. When an application for disability compensation is received within one year of the date of the veteran's discharge or release from service, the effective date of such award shall be the day following the veteran's release. 38 U.S.C.A. § 5110(b)(1). An increase in disability compensation may be granted from the earliest date on which it is factually ascertainable that an increase in disability occurred if the claim for an increase is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When the increase in disability occurred prior to one year from the date of filing, an effective date of award cannot be awarded prior to the date of the application. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997); 38 C.F.R. § 3.400(o)(2); VAOPGCPREC 12-98 (Sept. 23, 1998). The term "application," while not defined in the statute, is broadly construed by regulation 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). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim such as a report of examination or hospitalization by the VA. 38 C.F.R. §§ 3.157(b)(1)-(b)(3). Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identify the benefit being sought. 38 C.F.R. § 3.155(a). See Brannon v. West, 12 Vet. App. 32, 34 (1998). In determining the effective date of award, the Board is required to look to all communications in the file which may be construed as a formal or an informal claim and, then, to all other evidence in the record to determine the "earliest date of which," within the year prior to the claim, the increase in disability was ascertainable. Quarles v. Derwinski, 3. Vet. App. 129, 134 (1992). Appellate review of a rating decision is initiated by a notice of disagreement and completed substantive appeal after a statement of the case has been furnished. 38 U.S.C.A. § 7105(a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a). In Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006), the United States Court of Appeals for Veterans Claims held that when a rating decision is final, only a request for a revision premised on CUE could result in the assignment of earlier effective date. A freestanding claim for an earlier effective date, once the appeal becomes final, attempts to vitiate the rule of finality. As held above, the Board finds that a November 1997 RO rating decision which denied a claim for a rating greater than 10 percent for bilateral flat feet with hallux valgus is final. This decision cannot be revisited absent a CUE claim, which has not been raised. On July 20, 1999, the veteran filed a VA Form 21-4138 requesting an increased rating for his bilateral foot disability. Between the November 1997 rating decision and the July 20, 1999 application for an increased rating, the Board finds no written document of record from the veteran which may be construed as an application for an increased rating. The Board has also carefully reviewed the veteran's VA clinical records between the time period from November 1997 and July 20, 1999, but none of this evidence suggests an increased severity of symptoms to the next higher level so as to constitute an informal application for an increased rating. See 38 C.F.R. § 3.157. The law does allow the assignment of an effective date of award for the one year period prior to the July 20, 1999 filing provided, however, that the increase in disability occurred within that one year period. Harper, 10 Vet. App. at 126-27; VAOPGCPREC 12-98. The Board finds that it is not factually ascertainable that an increased severity of bilateral foot disability occurred within one year of the July 20, 1999 application for increased compensation benefits. The veteran currently alleges that the current severity of his bilateral foot disability has been present since the final November 1997 rating decision. He is certainly competent to describe these characteristics of bilateral foot disability. 38 C.F.R. § 3.159(a). According to his allegations, the overall severity of his foot disability did not increase in severity within one year from the July 1999 filing for increased benefits but, rather, had been present prior to the one year period of filing the claim. His allegations, however, if true, would negate the possibility of an earlier rating under 38 C.F.R. § 3.400(o)(2) as a matter of law. The Board's review of the evidence contemporaneous in time to the July 1999 filing for an increased rating includes a September 1999 VA examination report that described the veteran has having a normal gait with no callosities, breakdown or unusual shoe-wear pattern. He had tenderness in the plantar aspect of both feet, but good alignment of the Achilles tendon with no weakness, instability or edema. The examiner indicated that the veteran had no limitation of functional standing or walking. However, the examiner advised the veteran to avoid prolonged standing or walking. This evidence, when viewed in light of the entire evidentiary record, is highly probative evidence against a finding of severe bilateral pes planus was manifested in the one year period prior to filing the claim. On this record, the Board must find that an increase in disability resulting for service connected bilateral flat feet with hallux valgus is not factually ascertainable as occurring within one year from the date of increased rating claim filed on July 20, 1999. The claim for an earlier effective date of award for the 30 percent rating, therefore, cannot be awarded under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). See Harper v. Brown, 10 Vet. App. at 126-27; VAOPGCPREC 12-98. The appeal, therefore, is denied. The Duty to Notify and Duty to Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). 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). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) also require VA to notify a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. For an increased-compensation claim, section § 5103(a) requires, at a minimum, that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Further, if the DC under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant DCs, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation-e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. With respect to the issue of timeliness of appeal, the Board points out that the notice and duty to assist provisions of the VCAA do not apply to this claim as the law as mandated by statute is dispositive of the claim. See Dela Cruz v. Principi, 15 Vet. App. 143 (2001). The VCAA essentially clarifies VA's duty to notify claimants of any information that is necessary to substantiate a claim for benefits and codifies VA's duty to assist. Thus, because the facts of this case are not in dispute and this case involves pure statutory interpretation in light of the documents of record, the VCAA is inapplicable and need not be further discussed. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005). The claims for an increased rating for bilateral foot disability and earlier effective date for the award of increased compensation pre-dated the passage of the VCAA. In this case, the veteran has submitted extensive argument in this case citing the applicable criteria for an increased rating under Diagnostic Code 5276 and highlighting the medical evidence which he believes supports his claims for an increased rating and earlier effective date of award. He has directly submitted private medical evidence as well as photographs of his feet and ankles. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board finds that VA has not complied with the VCAA requirements. However, the veteran's statements of record, to VA examiners as well as argument presented on appeal, specifically speak to the effects that his service connected foot disability has had upon his work and activities of daily living. He has extensively cited the applicable evidence and criteria pertaining to his claims. He has demonstrated an awareness of the relative developmental duties in this case, and even submitted photographs as additional evidence in his possession as pertinent to his claims. Overall, the Board finds that the veteran has demonstrated actual knowledge of the evidentiary requirements for increased rating and earlier effective date of award claims on appeal. On the facts of this case, the Board finds that the notice errors have not affected the essential fairness of the adjudications and have not resulted in any prejudicial harm to the veteran. VA has a duty to assist the veteran in the development of the claims. 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 veteran. See Bernard, supra. The RO has obtained VA and private treatment records. The RO has also provided several VA examinations to determine the current nature and severity of his bilateral foot disability. This evidence has been supplemented by treatment records added to the claims folder, to include evidence submitted by the veteran directly to the Board. Significantly, neither the veteran 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 claims that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist him in the development of the claims. 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). ORDER The November 1997 decision, which continued the 10 percent evaluation for bilateral flat feet with hallux valgus and denied service connection for a right knee and hip disorders as being due to the service-connected bilateral flat feet with hallux valgus, was not timely appealed and the appeal as to this issue is dismissed. The claim for a rating greater than 30 percent for bilateral flat feet with hallux valgus is denied. The claim for an effective date earlier than July 20, 1999 for the grant of a 30 percent rating for bilateral flat feet with hallux valgus is denied. REMAND In a rating decision dated September 2006, the RO granted claims of service connection for right and left ankle strains, and separately assigned initial 10 percent ratings effective March 27, 2006. In March 2007, the RO received a VA Form 9 wherein the veteran expressed disagreement with the 10 percent evaluations assigned for each ankle. The claims file does not reflect that a SOC has been promulgated as to these claims. Where a veteran has submitted a timely notice of disagreement with an adverse decision and the RO did not subsequently issue a SOC addressing the issue, the Board should remand the issue to the RO for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Accordingly, these matters must be remanded to the RO. Accordingly, the case is REMANDED for the following action: The RO should furnish the veteran an SOC on the issues of entitlement to an initial rating greater than 10 percent for right ankle strain, and entitlement to an initial rating greater than 10 percent for left ankle strain. RO should allow the veteran the appropriate period of time in which to perfect the appeal of this issue and proceed accordingly. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. . See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs