Citation Nr: 0814532	
Decision Date: 05/02/08    Archive Date: 05/12/08

DOCKET NO.  05-17 725	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, 
Alabama


THE ISSUE

Entitlement to an effective date earlier than July 8, 2004, 
for the grant of a 30 percent evaluation for service-
connected hallux valgus, right foot, with traumatic 
arthritis.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Tenner, Counsel




INTRODUCTION

The veteran served on active duty from June 1972 to September 
1977.  

This case comes before the Board of Veterans' Appeals (Board) 
on appeal from an August 2004 decision rendered by the 
Montgomery, Alabama Regional Office (RO) of the Department of 
Veterans Affairs (VA).  In that decision, the RO granted a 30 
percent evaluation for service-connected hallux valgus of the 
right foot, with traumatic arthritis, and assigned a July 8, 
2004, effective date for the disability evaluation.  The 
appellant disagreed with the effective date assigned.  

The appellant, her representative, and the RO have 
characterized the issue on appeal as involving whether the 
effective date assigned was the result of clear and 
unmistakable error.  The Board takes this opportunity to 
clarify that the words "clear and unmistakable error" or 
"CUE" have a very specific definition in the VA claims 
adjudication process, and reference a type of claim where a 
claimant is seeking revision of a previous final and binding 
decision of either the RO or the Board.  See 38 C.F.R. 
§ 3.105 (2007).  In addition, claims based upon CUE require 
the application of a rather rigorous legal standard in 
determining whether there was error in the previous decision.  
In this matter, the determination being appealed is non-
final; that is, it is not a previous final and binding 
decision, and thus, it is not appropriate to consider the 
decision on the basis of CUE.  As such, the Board has 
recharacterized the issue on appeal to delete the reference 
to CUE.  

Finally, the Board notes that the appellant appealed a March 
2003 rating decision that denied a rating in excess of 10 
percent for service-connected hallux valgus disability.  In 
an April 2008 statement, however, the appellant submitted a 
statement indicating that she only wished to pursue the issue 
concerning the effective date.  Hence, the Board finds that 
the appellant has withdrawn the issue concerning the appeal 
of the March 2003 rating decision that denied a rating in 
excess of 10 percent for hallux valgus disability.  


FINDINGS OF FACT

1.  In September 2002, the veteran filed a claim seeking 
entitlement to an increased disability rating for her 
service-connected right great toe disability.  

2.  There is no competent medical evidence or persuasive lay 
evidence of record dated earlier than July 8, 2004, which 
demonstrates that the veteran's service connected hallux 
valgus, right foot, with traumatic arthritis was manifested 
by more than moderate residuals of a foot injury or by more 
than mild loss of right foot motion.

CONCLUSION OF LAW

The criteria for an effective date earlier than July 8, 2004, 
for the assignment of a 30 percent disability rating for 
hallux valgus, right foot, with traumatic arthritis
 have not been met.  38 U.S.C.A. §§ 5101, 5103, 5107, 5110 
(West 2002 & Supp. 2007); 38 C.F.R. § 3.400 (2007).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  The Veterans Claims Assistance Act of 2000 (VCAA) 
describes VA's 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, 3.326(a) (2007).  

A.  The duty to notify

Under the VCAA, 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 
request that the claimant provide any evidence in her 
possession that pertains to the claim.  38 U.S.C.A. § 5103(a) 
(West 2002); 38 C.F.R.  § 3.159(b) (2007).

A January 2004 VCAA letter informed the veteran of the 
information and evidence necessary to substantiate claim for 
an increased rating for her service connected hallux valgus 
disability.  

The veteran has not been furnished a letter specifically 
describing the information and evidence required to grant an 
earlier effective date in regard to this disability,  
however, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), 
the United States Court of Appeals for Veterans Claims 
(Veterans Court) held that once service connection is granted 
the claim is substantiated, and further notice as to the 
rating or effective date elements is not required.  
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  
Therefore, as service connection has been established for 
right great toe disability, and the veteran is seeking 
earlier effective dates for the increased evaluations of this 
disability, further notice regarding the disability rating 
and effective date is not required.  Id.  Nevertheless, the 
Board notes that the January 2004 VCAA letter satisfied the 
second and third elements of the duty to notify by informing 
the veteran that VA would try to obtain service records, 
medical records, or records held by other Federal agencies, 
but that she was nevertheless responsible for providing 
enough information about the records and any necessary 
releases to enable VA to request them from the person or 
agency that had them.  

Finally, with respect to the fourth element, the VCAA letter 
asked the veteran to send "any additional information or 
evidence" in support of the claim.  This letter, thus, 
satisfied the fourth element of the duty to notify.  To the 
extent that notices provided were defective, the Board 
nevertheless concludes that any deficiency in the notice did 
not compromise the essential fairness of the appeals process.  
See Sanders v. Nicholson, 487 F. 3d. 881 (Fed. Cir. 2007).  
In this matter, as noted below, all identified relevant 
medical evidence has been obtained in connection with the 
claim.  

B.  The duty to assist

The VCAA also requires VA to make reasonable efforts to help 
a claimant obtain evidence necessary to substantiate her 
claim.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 
3.159(c), (d) (2007).  This "duty to assist" contemplates 
that VA will help a claimant obtain records relevant to her 
claim, whether or not the records are in Federal custody, and 
that VA will provide a medical examination and/or opinion 
when necessary to make a decision on the claim.  38 C.F.R. § 
3.159(c)(4).

In the present case, the duty to assist has been fulfilled.  
In a January 2003 letter, the veteran stated that all 
treatment for her service-connected right foot condition was 
provided by the VA medical center.  The veteran's service 
medical records and VA outpatient treatment records have been 
associated with the claims file.  In addition, she was 
afforded VA examinations to evaluate her foot in February 
2003 and July 2004.  

For the reasons set forth above, the Board finds that VA has 
complied with the VCAA's notification and assistance 
requirements.  The appeal is thus ready to be considered on 
the merits. 

II.  Analysis

The general rule is that the effective date of such an award 
shall not be earlier than the date of receipt of application 
therefor.  See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 
3.400(o)(1) (2007).  An exception to that rule applies where 
evidence demonstrates a factually ascertainable increase in 
disability during the one-year period preceding the date of 
receipt of a claim for increased compensation.  In that 
situation, the law provides that the effective date of the 
award "shall be the earliest date as of which it is 
ascertainable that an increase in disability had occurred, if 
application is received within one year from such date."  38 
U.S.C.A. § 5110(b)(2) (West 2002).  See 38 C.F.R. § 
3.400(o)(2) (2006); Harper v. Brown, 10 Vet. App. 125 (1997).  
In all other cases, the effective date will be the "date of 
receipt of claim or date entitlement arose, whichever is 
later."  See 38 C.F.R. § 3.400(o)(1) (2007); VAOPGCPREC 12- 
98, 63 Fed. Reg. 56,703 (Oct. 22, 1998).  Therefore, three 
possible dates may be assigned depending on the facts of a 
case:

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

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

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

Harper, 10 Vet. App. at 126.

In making this determination the Board must consider all of 
the evidence, including that received prior to previous final 
decisions.  Hazan v. Gober, 10 Vet. App. 511 (1997).  

The veteran first sought service connection for a hallux 
valgus condition affecting the right foot in January 1981.  
The claim was initially denied due to the veteran's failure 
to report for a VA examination.  However, after reporting to 
scheduled VA examination, in a July 1983 decision, service 
connection for hallux valgus of the right foot, with 
traumatic arthritis, was granted.  A 10 percent rating was 
assigned.  The veteran was notified of that decision and did 
not appeal any aspect of it.  As such, the rating decision 
became final.  See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103.  

In January 2002, she claimed entitlement to an increased 
rating.  She underwent a VA examination in June 2002.  No 
other evidence was received.  Based upon the results of the 
examination, the RO issued a decision in July 2002 denying 
the claim for a rating in excess of 10 percent for the 
service-connected hallux valgus disability.  

In September 2002, she filed a statement alleging that her 
service-connected disability was "getting worse" and felt 
she "should be considered for an increase in disability."  
The letter was interpreted by the RO as a new claim for an 
increased rating.  In March 2003, the RO denied the claim.  
She disagreed with this decision, and in an August 2004 
decision, was subsequently granted an increased evaluation of 
30 percent, effective July 8, 2004, the date of a VA 
examination evaluating the right foot.  Thereafter, the 
appellant did not dispute the disability evaluation assigned.  
She disagreed only with the effective date assigned.  

Here, there is no evidence of a claim for benefits prior to 
either January or September 2002.  Typically, the Board would 
determine whether the appellant's January or September 2002 
statements constituted her claim for benefits.  In this 
matter, however, the question of whether the January 2002 or 
September 2002 statements constituted a claim for an 
increased rating is immaterial, as the Board finds that the 
increase in disability was not shown until July 2004, the 
date of the VA examination.  

The service-connected hallux valgus disability is rated under 
Diagnostic Code 5010-5284.  Hyphenated diagnostic codes are 
used when a rating under one diagnostic code requires use of 
an additional diagnostic code to identify the specific basis 
for the evaluation assigned.  The additional code is shown 
after a hyphen.  38 C.F.R. § 4.27 (2007).  According to 
Diagnostic Code 5284, evidence of moderate residuals of a 
foot injury warrants the assignment of a 10 percent 
disability rating.  38 C.F.R. § 4.71a, Diagnostic Code 5284 
(2007).  The next higher evaluation of 20 percent requires 
evidence of moderately severe residuals of a foot injury.  
The highest rating allowable pursuant to this Diagnostic 
Code, 30 percent, requires evidence of severe residuals of a 
foot injury.  The Board notes that words such as "severe" 
and "moderately severe" are not defined in the Rating 
Schedule.  

Diagnostic Code 5010 pertains to degenerative arthritis.  
Degenerative arthritis established by X-ray findings will be 
rated on the basis of limitation of motion under the 
appropriate codes for the specific joint or joints involved.  

Here, a VA examination conducted in June 2002 showed only 
"mild" impairment of the right great toe.  There was also a 
pes planus deformity; however, that condition is not subject 
to service connection.  

The veteran submitted additional VA outpatient treatment 
records in September 2002.  They show treatment for a right 
ankle and right knee condition.  These conditions are also 
not subject to service connection.  The records received do 
not show complaints or treatment of the service-connected 
hallux valgus condition to the right foot with traumatic 
arthritis.  

A VA treatment record in January 2003 did show treatment to 
the right mid-foot, but again, did not show treatment of the 
service-connected disability.  A VA examination in February 
2003 noted only mild loss of range of right foot motion.  The 
extent that the loss of motion was attributable to the hallux 
valgus condition or traumatic arthritis is unclear.  

It is not until July 8, 2004, the date of the VA examination 
when either competent lay or competent medical evidence was 
first presented showing that the service-connected disability 
increased in severity, such as to warrant a 30 percent 
disability evaluation under Diagnostic Code 5284.  As such, 
pursuant to 38 C.F.R. § 3.400(o)(1), the date entitlement 
arose is the proper effective date assigned for the 30 
percent rating for service-connected hallux valgus, right 
foot, with traumatic arthritis.  Since the preponderance of 
the evidence is against the claim for an earlier effective 
date, the benefit of the doubt doctrine is not for 
application with regard to this claim.  38 U.S.C.A. 
§ 5107(b).  
 


ORDER

An effective date earlier than July 8, 2004, for the grant of 
a 30 percent disability rating for hallux valgus, right foot, 
with traumatic arthritis, is denied.  



____________________________________________
STEVEN L. KELLER 
Veterans Law Judge, Board of Veterans' Appeals




 Department of Veterans Affairs