Citation Nr: 1015698 Decision Date: 04/29/10 Archive Date: 05/06/10 DOCKET NO. 07-09 890A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUE Entitlement to an effective date prior to July 31, 2001, for the assignment of a 20 percent evaluation for right ankle disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.R. Bryant, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from a July 2002 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in December 2008 and Remanded for additional development and readjudication. The the issue of an effective date earlier than July 31, 2001 for the assignment of a compensable evaluation for right ankle disability has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Service connection for a right ankle disability was established by decision dated September 1970. A noncompensable evaluation assigned, effective May 22, 1970. 2. The Veteran initiated a claim for an increased evaluation for right ankle disability by submitting a written informal claim in September 1995. 3. In a November 1995 rating decision the RO continued the noncompensable evaluation. The Veteran did not appeal and this decision is final. 4. The Veteran initiated his most claim for an increased evaluation for right ankle disability by submitting a written informal claim on July 31, 2001. There is no evidence of an earlier pending formal or informal claim. 5. In April 2002, the Veteran underwent VA joints examination. Clinical findings reflect right ankle disability sufficient to entitle the Veteran to a 10 percent rating. 6 In July 2002, the RO assigned a 10 percent evaluation for the right ankle disability, effective July 31, 2001. 7. Clinical findings on VA examinations conducted in January 2003, September 2005, March 2006, and April 2006 MRI results indicated marked ankle impairment consistent with requirements for a 20 percent evaluation. 8. In May 2006, the RO assigned a 20 percent for the right ankle disability, effective July 31, 2001. 9. It is not factually ascertainable that the Veteran's right ankle disability increased in severity in the year prior to July 31, 2001. CONCLUSION OF LAW An effective date prior to July 31, 2001, for the award of a 20 percent evaluation for right ankle disability is not warranted. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Pertinent Statutes and Regulations for Effective Dates Generally, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (Sep. 23, 1998). A "claim" is defined broadly 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). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The applicable statutory and regulatory provisions require that VA look to all communications from the Veteran which may be interpreted as applications or claims -formal and informal- for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C.A. § 511(b)(2) (West 2002); 38 C.F.R. §§ 3.1(p), 3.155(a) (2009); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Factual Background and Analysis The Veteran contends, in essence, that he is entitled to an effective date earlier than July 31, 2001 for the 20 percent disability rating for his service-connected right ankle disability under 38 C.F.R. § 4.71, Diagnostic Code (DC) 5271. Under DC 5271, a 10 percent evaluation is assigned for moderate limitation of motion of the ankle, and a 20 percent evaluation is assigned for marked limitation of motion of the ankle. Normal ankle dorsiflexion is to 20 degrees and normal plantar flexion is to 45 degrees. 38 C.F.R. § 4.71, Plate II. A September 1970 rating decision granted service connection for a right ankle disability and assigned a noncompensable evaluation, effective May 1970. In a November 1995 rating decision the RO continued the noncompensable evaluation. The Veteran did not appeal that decision and it became final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 20.302, 20.1103 (2009). On July 31, 2001, the RO received a request from the Veteran for an increased rating for the right ankle disability. Clinical findings consistent with mild limitation of motion of the right ankle were shown on VA examination in April 2002. In July 2002, the RO assigned a 10 percent evaluation, effective July 31, 2001, the date of receipt of the claim. The Veteran disagreed with the evaluation assigned. Subsequent VA examinations in January 2003, September 2005, March 2006, as well as April 2006 MRI (magnetic imaging resonance) findings show an increase in disability. Specifically, during examination in March 2006, the VA examiner concluded the Veteran had marked difficulty with right ankle. In May 2006, the RO assigned a 20 percent for the right ankle disability, effective July 31, 2001. The Veteran disagreed with the effective date assigned. The threshold question before the Board is whether the Veteran filed a claim for an increased rating after November 1995, the date of the final rating decision and before the current effective date of the award in question, July 31, 2001. Review of the claims folder shows no submissions from the Veteran dated between November 1995 and July 31, 2001. Rather the only claim for increase following the November 1995 RO denial was the one date-stamped as received at the RO on July 31, 2001. The claims file does not include any communication of record dated prior to that date which may reasonably be construed as an informal claim for this benefit. 38 C.F.R. § 3.155(a). Having determined that July 31, 2001, is the date of receipt of claim for purposes of assigning an effective date, the Board is obliged to review all the evidence of record from the preceding year to determine whether it is factually ascertainable that an increase in the Veteran's right ankle disability had occurred. In other words, the Board is required to determine whether any supporting evidence was submitted by the Veteran showing an ascertainable increase in disability occurred during the period from July 31, 2000, to July 31, 2001. Turning to the relevant timeframe, the Board notes there are no medical records dated between July 2000 and July 2001. Thus, there are no clinical findings demonstrating an increased severity of right ankle symptoms, especially of such degree to implicate a 20 percent disability level. See Hazan, 10 Vet. App. at 519. Given the complete lack of clinical findings, the severity of the right ankle disability required for a 20 percent evaluation is not present prior to July 31, 2001. See 38 C.F.R. § 4.71a DC 5271. Here, the first evidence supporting the assignment of a 20 rating is dated after the Veteran's July 2001 request for an increase. The most pertinent evidence concerning the severity of the right ankle disability is the March 2006 VA examination report in which the examiner concluded the Veteran's right ankle findings were consistent with marked disability. It may therefore be argued that it was not until March 2006 that it was factually ascertainable that an increase in the right ankle disability occurred to warrant a 20 percent rating and that the proper effective date should actually be the date of the March 2006 examination. However, in granting the 20 percent increase from July 2001, the RO essentially gave the Veteran the benefit of the doubt, as the increase was effectuated from the date of the claim rather than the finite time of demonstrated increased right ankle pathology, which was subsequent thereto. Accordingly, entitlement to an effective date earlier than July 31, 2001, for the assignment of a 20 percent rating for right ankle disability is not warranted. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by it. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 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); 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008). This notice must be provided prior to an initial decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). VA's duty to notify the claimant of the information and any medical or lay evidence that is necessary to substantiate the claim was satisfied by letters sent to the Veteran in July 2007. Notwithstanding the belated notice regarding effective dates, the Board determines that the Veteran was not prejudiced in this regard as his claim was readjudicated in the March 2008 Statement of the Case. In any event, if any deficiency is present, the Court has held that a Veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with VCAA notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). No additional development could alter the evidentiary or procedural posture of this case. In the absence of potential additional evidence, no notice is necessary. See DelaCruz v. Principi, 15 Vet. App. 143, 149 (2001) [VCAA notice not required where there is no reasonable possibility that additional development will aid the claimant]. The Board therefore finds that VA's duties to notify and assist contained in the VCAA are not applicable to this claim. ORDER Entitlement to an effective date prior to July 31, 2001, for the assignment of a 20 percent evaluation for a right ankle disability is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs