Citation Nr: 0814749 Decision Date: 05/05/08 Archive Date: 05/12/08 DOCKET NO. 05-40 781 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an effective date earlier than July 30, 2002, for a 100 percent rating for service-connected hypothyroidism. REPRESENTATION Veteran represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The veteran had active military service from September 1955 to September 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2004 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Portland, Oregon, which increased the disability rating for the veteran's service-connected hypothyroidism from 10 percent to 100 percent disabling, effective from July 30, 2002. The RO issued a notice of the decision in January 2004, and the veteran timely filed a Notice of Disagreement (NOD) in April 2004, disagreeing with the effective date for the 100 percent rating. Thereafter, in October 2005, the RO issued a Statement of the Case (SOC), and the veteran subsequently filed a timely substantive appeal in December 2005. In a June 2006 rating action, the RO reduced the disability rating for the veteran's service-connected hypothyroidism from 100 percent to 30 percent disabling, effective from September 1, 2006. The RO issued a notice of the decision in June 2006, and the veteran timely filed an NOD in July 2006, disagreeing with the reduction. Thereafter, in April 2008, the RO issued an SOC. However, there is no indication in the record that the veteran has filed a substantive appeal (VA Form 9) with respect to the claim of whether the reduction from 100 to 30 percent effective September 1, 2006, for the service-connected hypothyroidism was proper. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.207 (2007); Roy v. Brown, 5 Vet. App. 554 (1993). (Emphasis added.) Accordingly, the aforementioned reduction issue is not in appellate status. FINDINGS OF FACT 1. The veteran's original claim for service connection for hypothyroidism was received on April 29, 1997. 2. In a January 2001 rating action, the RO granted service connection for hypothyroidism and assigned a 10 percent disability rating, effective from April 29, 1997. The veteran disagreed with the evaluation and subsequently filed a timely appeal. 3. By an April 2002 decision, the Board denied the veteran's claim of entitlement to an initial evaluation in excess of 10 percent for hypothyroidism. 4. In an Order, dated in February 2003, the Court of Appeals for Veterans Claims (Court) granted a joint motion for remand, vacated the Board's April 2002 decision, and remanded the claim to the Board for further review. 5. On July 30, 2002, the veteran submitted VA Form 21-4138 (Statement in Support of Claim) and filed claims of entitlement to service connection "fibulation", a heart murmur, edema, breathing problems, and an abnormal heart rate, all as secondary to the service-connected hypothyroidism. (As explained below, the RO construed this statement as a claim for an increased rating for hypothyroidism.) 6. By a decision, dated on July 7, 2003, the Board denied the veteran's claim of entitlement to an initial evaluation in excess of 10 percent for hypothyroidism. The veteran did not appeal the July 2003 Board decision. 7. In a January 2004 rating action, the RO increased the disability rating for the veteran's service-connected hypothyroidism from 10 percent to 100 percent disabling, effective from July 30, 2002. CONCLUSION OF LAW An effective date earlier than July 30, 2002, for a 100 percent rating for service-connected hypothyroidism, is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.155, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) This case involves a denial of the veteran's claim as a matter of law and as such, VCAA notice is not required. There is no prejudice to the veteran by this action because the outcome of the claim turns on a legal, rather than a factual, determination. The Board notes that remand for notice purposes would only delay adjudication and have no effect on the issue being decided. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). II. Factual Background The veteran's initial claim of service connection for hypothyroidism was received by the RO on April 29, 1997. In a January 2001 rating action, the RO granted service connection for hypothyroidism and assigned a 10 percent disability rating, effective from April 29, 1997. The veteran disagreed with the evaluation and subsequently filed a timely appeal. By an April 2002 decision, the Board denied the veteran's claim of entitlement to an initial evaluation in excess of 10 percent for hypothyroidism. The veteran appealed the Board's decision to the Court. While this case was pending before the Court, the Office of General Counsel for VA and the veteran, by and through her attorney, filed a joint motion for remand, dated in February 2003. In an Order, dated in February 2003, the Court granted the joint motion, vacated the Board's April 2002 decision, and remanded the claim to the Board for further review. On July 30, 2002, the veteran submitted VA Form 21-4138 (Statement in Support of Claim) and filed claims of entitlement to service connection for "fibulation", a heart murmur, edema, breathing problems, and an abnormal heart rate, all as secondary to the service-connected hypothyroidism". By a decision, dated on July 7, 2003, the Board denied the veteran's claim of entitlement to an initial evaluation in excess of 10 percent for hypothyroidism. The veteran did not appeal the July 2003 Board decision. In a January 2004 rating action, the RO increased the disability rating for the veteran's service-connected hypothyroidism from 10 percent to 100 percent disabling, effective from July 30, 2002, the date on which the RO considered the veteran had filed a claim for increase for his hypothyroidism. III. Analysis The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of 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); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where 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. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2), 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). There are instances, however, when factors must be considered other than the date an increase is ascertainable. One such instance is when the Board denies an increased rating claim and the veteran fails to appeal. In other words, once a claim for greater compensation is disallowed, and that decision has become final on account of the veteran's failure to appeal, the effective date for an increase awarded after the final action will be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.105, 3.156, 3.400. The words application and claim are defined by regulation as 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). Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim. 38 C.F.R. § 3.155(a). A decision by the Board is final regarding an issue; unless, such a decision is appealed to the Court, ordered for reconsideration by the Chairman of the Board, or is revised on the grounds of clear and unmistakable error. 38 U.S.C.A. §§ 7102(a), 7103, 7104, 7111, 7252(a), 7266 (West 2002); 38 C.F.R. § 20.1100. In this case, the veteran contends that she is entitled to an earlier effective date for the assignment of a 100 percent rating for service-connected hypothyroidism. She maintains that an effective date retroactive to April 29, 1997, the date of receipt of her original claim for service connection for hypothyroidism, is warranted. As previously stated, in a decision issued on July 7, 2003, the Board denied the veteran's claim of entitlement to an initial evaluation in excess of 10 percent for hypothyroidism. The veteran did not appeal this decision to the Court, nor has the veteran filed a motion for reconsideration under 38 U.S.C.A. § 7103 or revision for clear and unmistakable error under 38 U.S.C.A. § 7111. Therefore, the July 2003 Board decision is final and binding on this matter. Accordingly, it follows that the veteran's argument that an effective date should be set when she filed her original claim in April 1997, is without merit because the July 2003 Board decision was a final adjudication with respect to the issue of entitlement to an initial evaluation in excess of 10 percent for hypothyroidism. The Board recognizes that the RO has assigned an effective date of July 30, 2002, a date prior to the final July 2003 Board decision, for the assignment of a 100 percent rating for the veteran's service-connected hypothyroidism. The July 30, 2002 effective date was based upon the RO's construing the veteran's filing claims of entitlement to service connection "fibulation", a heart murmur, edema, breathing problems, and an abnormal heart rate, all as secondary to the service- connected hypothyroidism on that date as a claim for an increased rating for hypothyroidism . The RO noted that the veteran's claimed fibulation, abnormal heart rate and edema could not be evaluated separately and therefore were used to support a 100 percent rating for hypothyroidism. The RO assigned the effective date of July 30, 2002 despite the July 2003 Board decision denying a rating in excess of 10 percent. The only question here, however, is whether an even earlier date can be granted. For the reasons noted above, an effective date prior to July 30, 2002, for a 100 percent rating for service-connected hypothyroidism, must be denied as a matter of law. 38 C.F.R. § 3.400. As the claim is denied as a matter of law, the doctrine of reasonable doubt is not applicable. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (when the law and not the evidence is dispositive, a claim for entitlement to VA benefits should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law). ORDER An effective date prior to July 30, 2002, for a 100 percent rating for the veteran's hypothyroidism is not warranted. ____________________________________________ R. F. WILLIAMS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs