Citation Nr: 1003175 Decision Date: 01/21/10 Archive Date: 02/01/10 DOCKET NO. 07-08 755 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, claimed as secondary to service-connected disability. 2. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for Paget's disease. 3. Entitlement to an effective date earlier than December 15, 2008 for the grant of a 50 percent evaluation for bilateral hearing loss disability. 4. Entitlement to a total rating based on unemployability due to service-connected disability (TDIU). REPRESENTATION Appellant represented by: Calvin Hansen, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The Veteran had active service from September 1942 to October 1943. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In its May 2009 decision, the Board denied an increased rating for epidermophytosis of the feet. In statements dated in March and July 2009, the Veteran indicated that he pursued an increased evaluation for this disability. As such, this issue is referred to the RO for appropriate action. The issues of entitlement to service connection for an acquired psychiatric disorder and a TDIU are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a March 1982 rating decision, the RO denied service connection for Paget's disease; the Veteran did not appeal. 2. The evidence received since the March 1982 rating decision is cumulative or redundant of evidence previously of record, and does not relate to an unestablished fact necessary to substantiate the claim of entitlement to service connection for Paget's disease. 3. In July 2006 the RO granted service connection for bilateral hearing loss disability and awarded a 10 percent evaluation; in a July 2007 statement of the case, the RO increased the evaluation of bilateral hearing loss disability to 40 percent; the Veteran did not perfect an appeal. 4. On December 12, 2008 the RO received the Veteran's claim for an increased rating for bilateral hearing loss disability. 5. Prior to December 12, 2008, there was no unadjudicated claim, informal claim or intent to file a claim of entitlement to an increased rating for bilateral hearing loss disability. CONCLUSIONS OF LAW 1. The March 1982 rating decision is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1104 (2009). 2. New and material evidence has not been received to reopen the claim of entitlement to service connection for Paget's disease. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2009). 3. The July 2007 decision that granted a 40 percent evaluation for bilateral hearing loss disability is final. 38 U.S.C.A. § 7104(b) (West 2002); 38 C.F.R. §§ 3.160(d), 20.1100, 20.1104 (2009). 4. The criteria for an effective date earlier than December 12, 2008 for the grant of a 50 percent evaluation for bilateral hearing loss disability have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 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. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Also, during the pendency of this appeal, the Court issued a decision which held that, in the context of a claim to reopen, VCAA notice must include an explanation of 1) the evidence and information necessary to establish entitlement to the underlying claim for the benefit sought; and 2) what constitutes new and material evidence to reopen the claim as determined by the evidence of record at the time of the previous final denial. See Kent v. Nicholson, 20 Vet. App. 1 (2006). The Court further explained that a notice letter must describe what evidence would be necessary to substantiate the element or elements required to establish the underlying claim that were found insufficient in the previous denial. See id. The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error. The Supreme Court in essence held that - except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim - the burden of proving harmful error must rest with the party raising the issue, the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, No. 07-1209 (S. Ct. April 21, 2009). In July 2009 the Veteran was advised of the basis for the March 1982 denial of service connection for Paget's disease. This letter explained the meaning of new and material evidence and told the Veteran how VA would assist him in obtaining relevant evidence. The letter also described the manner in which VA determines disability ratings and effective dates. The content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. In addition, with regard to the earlier effective date claim, the record reflects that this is a "downstream" issue in that it arose from the grant of an increased evaluation. In such instances, the original claim (here, the claim for a higher rating) has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once the claim filed by the Veteran has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. See Dingess, 19 Vet. App. at 490-491; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Nevertheless, the Board notes that, prior to the rating decision granting an increased evaluation, the RO issued a notice letter in January 2009 that fully satisfied the duty to notify provisions with respect to both the disability rating and effective date elements of his claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. After the grant of an increased evaluation, the Veteran was issued a Statement of the Case on the issue of his disagreement with the effective date, as require following the submission of a notice of disagreement. In addition, the Veteran has not alleged that there is any outstanding evidence that would support his contention that he should be awarded an earlier effective date, and the Board is not aware of any outstanding evidence. Therefore, the Board finds that the VA has complied with the notice and assistance requirements of the VCAA and its implementing regulations. Regarding VA's duty to assist, with respect to the previously denied claim, until a claim is reopened, VA does not have a duty to provide a medical examination or obtain a medical opinion. See 38 C.F.R. § 3.159(c)(1). Neither the Veteran nor his representative has identified any additional evidence or information which could be obtained to substantiate the claims. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis New and Material Evidence Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board decision may not thereafter be reopened and allowed. 38 U.S.C.A. §§ 7104(b), 7105(c) (West 2002). The exception to this rule is 38 U.S.C.A. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). As noted, the RO denied service connection for Paget's disease in March 1982. The Veteran was informed that available records did not show that he received treatment for the condition during service or that it was recorded at the time of his discharge. The evidence at the time of the March 1982 determination included the Veteran's service treatment records, which are negative for any diagnosis, complaint, or abnormal finding indicating Paget's disease. Post service records associated with the claims file in March 1982 included a private treatment record from A.W., M.D., dated in May 1978 and indicating Paget changes of the lumbosacral spine and hips. A master sheet produced by Dr. W. indicates Paget's disease of the pelvis and right femur. An April 1980 VA treatment record noting the Veteran's report that he was disabled with Paget's disease. A May 1980 letter from R.D.K., M.D. indicates that the Veteran had a history of Paget's disease of the pelvis and right femur, with low back pain secondary to arthritic changes and the Paget's disease. Evidence added to the record since March 1982 includes VA treatment records reflecting findings of Paget's disease. In an April 2006 statement, the Veteran indicated that Paget's disease had been diagnosed in 1979. He noted that he had taken disability pension from his employer for Paget's disease in May 1979. He alleged that his Army training was severe enough on his body that it might have broken down his immune system, allowing him to become contaminated with Paget's disease. Having carefully reviewed the evidence, the Board has concluded that new and material evidence has not been submitted to reopen the Veteran's claim of entitlement to service connection for Paget's disease. In this regard, evidence showing a current diagnosis of Paget's disease were of record at the time of the previous denial, and is therefore cumulative. Further, the Veteran's allegations that his Paget's disease is related to his service is cumulative in that those assertions were previously considered by the RO. The Veteran has not otherwise submitted any evidence showing that Paget's disease was incurred during service. As such the defect existing at the time of the March 1982 denial has not been cured. In summary, none of the evidence added to the file since the March 1982 decision is new and material for the purpose of reopening the claim of entitlement to service connection for Paget's disease. Accordingly, the claim is not reopened. Effective Date In July 2006 the RO granted service connection for bilateral hearing loss disability and evaluated it as 10 percent disabling. The Veteran submitted a notice of disagreement with respect to the evaluation in March 2007. A statement of the case was issued in July 2007; this document increased the evaluation to 40 percent, effective June 27, 2007. The Veteran did not perfect an appeal with respect to this issue. On December 12, 2008, the Veteran submitted a claim requesting an increased rating for his bilateral hearing loss disability. A VA examination was conducted, and in a February 2009 rating decision, the RO granted a 50 percent evaluation, effective December 12, 2008. VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In addition, the Court of Appeals for Veterans Claims (Court) has indicated that it is axiomatic that the fact that must be found in order for entitlement to an increase in disability compensation to arise, in other words, that the service- connected disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521. Also, with regard to the terms "application" or "claim", the Board notes that once a formal claim for compensation has been allowed, receipt of a VA hospitalization report, a record of VA treatment or hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1); 38 C.F.R. § 3.155(a). 38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.157 provides that once a formal claim for compensation has been allowed, the date of outpatient or hospital examination will be accepted as a claim when such reports relate to examination or treatment for which service connection has previously been established or when a claim specifying the benefit sought is received within one year. If a decision by the RO goes unappealed, such is final. A final and binding RO decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities or except on the basis of clear and unmistakable error (CUE), as provided in 38 C.F.R. § 3.105 of this part. The Veteran has not alleged CUE in any previous decision. Upon review of the record, the Board finds that an effective date earlier than December 12, 2008 is not warranted for the grant of a 50 percent evaluation for bilateral hearing loss disability. As noted, the July 2006 rating decision, and the subsequent July 2007 Statement of the Case that awarded a higher rating of 40 percent became final in the absence of a perfected appeal. In reaching this decision, the Board has considered the recent case of Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the Court found that 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. The Court in Percy also went on to determine that any issue concerning the timely filing of the substantive appeal in that particular case was waived by VA, due to the fact that VA seemed to have treated the Veteran's appeal as if it were timely perfected for more than 5 years before being raised by the Board in the first instance, including almost 2 years after a Board hearing was held on the claim. Unlike Percy, however, this is not a situation in which the Veteran submitted an untimely appeal with respect to the July 2006 rating decision. In fact, the Veteran never filed any document suggesting his intent to perfect an from the July 2006 decision, nor was he ever led by VA to believe that an appeal from that decision had been perfected. In fact, when he filed his claim for a higher rating in December 2008, he gave no indication that he believed a previous appeal to have been pending, and, in fact, expressed his desire to "reopen" his claim as his disability had become "worse." As such, while the Board acknowledges that the Court in Percy allowed VA to waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and in finding that VA is not required to close an appeal for failure to file a timely substantive appeal, determined that the Veteran's appeal should not be dismissed due to the fact that it had been treated as on appeal for 5 years, the Board finds that the facts in this case are distinguished from the facts of Percy, in that this issue was never treated as on appeal to the Board from the July 2006 decision. For this reason, and as no explanation as been provided as to why that document was not submitted within one year of the initial decision in July 2006 or within 60 days of the SOC, the Board finds that the matter was not appealed at that time. As noted, the Veteran did not submit another claim for increase until December 2008, which corresponds to the effective date of the award of a 50 percent rating, and the VA treatment records associated with the record do not contain any record of treatment or hospitalization for bilateral hearing loss disability in the year prior to the Veteran's December 2008 claim. Thus, it is not factually ascertainable that an increased in disability occurred under the applicable rating criteria during the one year period prior to the date of receipt of that claim. Therefore, under the law, the earliest effective date and the appropriate effective date in this case is December 12, 2008, the date of receipt of the Veteran's claim for an increased rating. ORDER New and material evidence not having been submitted, the petition to reopen the claim of entitlement to service connection for Paget's disease is denied. Entitlement to an effective date earlier than December 12, 2008 for the grant of a 50 percent evaluation for bilateral hearing loss disability is denied. REMAND The Veteran claims that he suffers from depression secondary to what he has referred to as eczema. The Board notes that the Veteran is in receipt of service connection for epidermophytosis of the feet as well as residuals of cellulitis of the left knee. He has stated that he has had skin problems since service. VA treatment records reflect that the Veteran has been diagnosed with reactive depression. A May 2009 report from J.B., Ph.D. indicates a diagnosis of major depressive disorder. Dr. B. opined that the Veteran's depression was the result of his service-connected physical condition. She did not specify the condition, though she did note the skin condition as well as bilateral hearing loss and tinnitus. In light of medical evidence suggesting that the Veteran's acquired psychiatric disability is related to his service- connected disabilities, the Board finds that a VA examination is warranted. See Duenas v. Principi, 18 Vet. App. 512 (2004); McClendon v. Nicholson, 20 Vet. App. 79 (2006). Finally, the Board notes that further development and adjudication of the Veteran's claim may provide evidence in support of his claim for TDIU. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. In light of the above discussion, the Board has determined that additional development is necessary. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). Expedited handling is requested.) 1. Schedule the Veteran for an appropriate VA examination to determine the etiology of his acquired psychiatric disorder. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. Following examination of the Veteran and review of the claims file, the examiner should identify all currently present psychiatric diagnoses. Further, the examiner should provide an opinion as to whether it is more likely than not (i.e., probability greater than 50 percent), at least as likely as not (i.e., probability of 50 percent), or less likely than not (i.e., probability less than 50 percent) that any currently present acquired psychiatric disorder is was caused or aggravated by a service-connected disability or combination of service connected disabilities. A discussion of the complete rationale for all opinions expressed should be included in the examination report. 2. The Veteran is hereby notified that it is his responsibility to report for any examination, and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655. 3. Then readjudicate the Veteran's claim, to include consideration of the provisions of 38 C.F.R. § 3.310(a) and the holding in Allen v. Brown, 7 Vet. App. 439 (1995). If the benefits sought on appeal remain denied, the Veteran and his accredited representative shou 4. ld be issued a supplemental statement of the case (SSOC) which addresses all relevant actions taken on the claims for benefits. The Veteran should be given the opportunity to respond The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs