Citation Nr: 1121462	
Decision Date: 06/02/11    Archive Date: 06/09/11	

DOCKET NO.  02-20 759	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas


THE ISSUES

1.  Entitlement to an increased disability rating for hearing loss disability, rated as 30 percent disabling from January 3, 1989, to January 29, 2007, after which it has been rated as 50 percent disabling.

2.  Entitlement to a disability rating in excess of 60 percent for peripheral vascular disease of the right lower extremity.

3.  Entitlement to an effective date earlier than February 8, 2001, for a disability evaluation of 60 percent for peripheral vascular disease of the right lower extremity.

4.  Entitlement to a disability rating in excess of 60 percent for peripheral vascular disease of the left lower extremity.

5.  Entitlement to an effective date earlier than February 8, 2001, for a disability rating of 60 percent for peripheral vascular disease of the left lower extremity.

REPRESENTATION

Appellant represented by:  Disabled American Veterans


ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel


INTRODUCTION

The Veteran had periods of active service on various occasions between September 1942 and March 1957.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions of the VARO in Waco, Texas.  

Please note the case has been advanced on the Board's docket pursuant to the provisions of 38 U.S.C.A. § 7107 (a) (2) (West 2002) and 38 C.F.R. § 20.900 (c) (2010).  

The Board notes that in addition to the disabilities at issue, service connection is in effect for atherosclerotic vascular disease with bilateral carotid stenosis and coronary heart disease with angina pectoris, rated as 60 percent disabling; and degenerative joint disease of the lumbar spine and sacroiliac joints, rated as 40 percent disabling.  With consideration of the bilateral factor, a combined disability rating of 100 percent has been in effect since February 8, 2001.  Additionally, the Veteran has been granted a certificate of eligibility for specially adapted housing.

The case was previously before the Board in March 2009 and again in June 2010.  On both occasions it was remanded for further development.  As will be set forth in a REMAND at the end of the decision below, the question of the Veteran's entitlement to increased disabilities for his bilateral hearing loss disability, peripheral vascular disease of the right lower extremity, and peripheral vascular disease of the left lower extremity, are REMANDED to the Appeals Management Center in Washington, D.C.  VA will notify the Veteran should further action be required.  

FINDINGS OF FACT

1.  It was not factually ascertainable for the one-year period prior to February 2001 that an increase (in excess of 60 percent) for the Veteran's peripheral vascular disease of the left lower extremity had occurred.  

2.  It was not factually ascertainable for the one-year period prior to February 2001 that an increase (in excess of 60 percent) in the Veteran's peripheral vascular disease of the right lower extremity had occurred.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than February 8, 2001, for the assignment of a rating in excess of 60 percent for peripheral vascular disease of the right lower extremity are not met.  38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (o) (2) (2010).

2.  The criteria for an effective date earlier than February 8, 2001, for the assignment of a rating in excess of 60 percent for peripheral vascular disease of the left lower extremity are not met.  38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (o) (2) (2010).  



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2992 & Supp. 2010)) redefines VA's duties to assist and notify a Veteran in the development of a claim for disability benefits.  VA regulations for the implementation of the VCAA are codified as amended at 38 C.F.R. §§ 3.102, 3.156 (a), 3.159, 3.326 (a) (2010).  

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; and (3) that the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112 (2004); 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b).

A review of the record reveals that the United States Court of Appeals for Veterans Claims (Court) has held that actual knowledge of the evidence needed to substantiate the claim is established by statements or actions by the claimant or the claimant's representative that demonstrates an awareness of what is necessary to substantiate a claim.  Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007).  The Veteran has made numerous statements of record regarding his claims and the Board finds that he has demonstrated actual knowledge of the information and evidence needed to establish an earlier effective date.  

The VCAA also requires VA to make reasonable efforts to help a claimant to obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Assistance often means providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim.  With respect to an earlier effective date claim, the Board finds that there is no duty to provide an examination because the pertinent matter to be decided involves the Veteran's level of disability prior to 2001;thus a current examination would not be relevant to that claim. The Board finds that no additional development is necessary to obtain any additional records.  VA has obtained the Veteran's service treatment records and all VA and post service private and VA treatment records.  

Pertinent Law and Regulations

The applicable law provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for an increase, or compensation, dependency and indemnity compensation, or pension, 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) (West 2002).  

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, and the application is received within one year from such date.  38 U.S.C.A. § 5110; 38 C.F.R. § 3.400 (0) (2).  

A specific claim in the form prescribed with the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  38 U.S.C.A. § 5101 (a); 38 C.F.R. § 3.151(a).  The term "claim" or "application" means 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) (2010).  

Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may be considered an informal claim.  Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim.  When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim.  38 C.F.R. § 3.155.

Under the provisions of 38 C.F.R. § 3.157 (b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of the claim.  For all other reports, including reports from private physicians, layman and State and other institutions, the date of receipt of the reports is accepted as the date of receipt of an informal claim.  38 C.F.R. § 3.157 (b).  The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission.  38 C.F.R. § 3.157 (b) 

In the instant case, the Veteran essentially maintains that an effective date for a rating in excess of 60 percent for the peripheral vascular disease involving each of the lower extremities should be based on private medical records showing treatment and evaluation beginning in May 1998.  However, as noted above, such records were received subsequent to February 2001, and therefore cannot provide a basis for a rating earlier than February 2001, the date of receipt of the claim for an increased rating.  As indicated, the date of receipt of a private medical record is the date of receipt of an informal claim.  See 38 C.F.R. § 3.157 (b) (2).

A review of the record shows that in October 2002, the RO determined that the May 1998 private medical record that was received by VA June 2001, supported the finding that a 40 percent for the Veteran's peripheral vascular disease of the right lower extremity is warranted, and the RO assigned an effective date of February 8, 2001, the date of receipt of the claim for increase.  VA determined it was not factually ascertainable for the one-year period prior to February 8, 2001, that an increase in the Veteran's peripheral vascular disease of the lower extremities had occurred.  The medical records dated during that time frame and received in that time frame are focused primarily on the Veteran's hearing loss disability, with no reference made to the vascular disease involving either lower extremity.  There is no reference to vascular disease involving either lower extremity and the Board is not required to conjure up issues that were not raised by the Veteran.  See Solomon v. Brown, 6 Vet. App. 396, (1994).

The Board also notes that by rating decision dated in June 1999, VA assigned a 20 percent disability rating for the Veteran's peripheral disease of the lower extremities, effective January 12, 1998.  The Veteran did not appeal that determination and the decision therefore became final.  38 U.S.C.A. § 7105 (c).  Accordingly, the statutory concept of finality does not allow consideration of a rating in excess of 20 percent prior to the date of the June 1999 rating decision.  

In view of the foregoing, the Board finds that entitlement to an effective date prior to February 8, 2001, for a rating in excess of 60 percent for peripheral vascular disease of the right lower extremity and the left lower extremity is not warranted.

The Board notes that the Veteran has expressed specific concern about reported dysfunction of VA records at the Waco RO.  However, the Board also notes that the Veteran has identified no documents from his own claims folders, a file containing over 8 folders of records with regard to his various disabilities.

ORDER

An effective date earlier than February 8, 2001, for a disability rating of 60 percent for peripheral vascular disease of the right lower extremity is denied.

An effective date earlier than February 8, 2001, for a disability rating of 60 percent or more for peripheral vascular disease of the left lower extremity is denied.

REMAND

A review of the record reveals that the Veteran has not been accorded examinations with regard to his hearing loss disability or his vascular disease of the lower extremities since 2007, a time several years ago.  Accordingly, the Board believes more current information would be helpful in the case and this portion of the case is REMANDED for the following:  

1.  The Veteran should be accorded an examination by a physician knowledgeable in audiology for the purpose of determining the current nature and extent of impairment attributable to his bilateral hearing loss disability.  The testing should be performed in accordance with VA regulations, that is, controlled speech discrimination testing using the Maryland CNC Testing method.  The examiner should then express an opinion as to the degree of impairment attributable to the Veteran's hearing loss and its impact on his ability to function.

2.  The Veteran should be accorded an examination by a physician knowledgeable in vascular disorders for the purposes of determining the current nature and extent of impairment attributable to peripheral vascular disease involving each lower extremity.  Any necessary testing should be accomplished and the examiner should express an opinion as to the degree of impairment attributable to the vascular disease involving each lower extremity.  

3.  Thereafter, VA should review and adjudicate the claims.  If the benefits sought on appeal are not granted to the Veteran's satisfaction, he should be provided with a Supplemental Statement of the Case.  An appropriate period of time should be allowed for response.

Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order.  By this REMAND, the Board intimates no opinion as to any final outcome warranted.  No action is required of the Veteran unless otherwise notified by VA.  However, he is placed on notice that pursuant to the provisions of 38 C.F.R. § 3.655, failure to cooperate by not attending any requested VA examination may result in an adverse determination.  

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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112).


	                     ______________________________________________
	V. L. JORDAN
	Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs