Citation Nr: 1212972 Decision Date: 04/10/12 Archive Date: 04/19/12 DOCKET NO. 10-44 707 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to an effective date earlier than July 23, 2007, for a total disability rating due to individual unemployability (TDIU). ATTORNEY FOR THE BOARD D. M. Donahue, Associate Counsel INTRODUCTION The Veteran had active military service from September 1992 to March 1998. This matter came to the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision by the Department of Veterans Affairs (VA) Huntington, West Virginia Regional Office (RO) that, in pertinent part, granted TDIU effective July 23, 2007. The Veteran subsequently perfected an appeal as to the effective date assigned. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2011). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an October 2001 decision, the RO denied the Veteran's claim for TDIU. The Veteran appealed this claim in January 2002, but failed to submit a timely substantive appeal following a June 2002 statement of the case. 2. In an October 2004 decision, the RO denied a claim for a TDIU. The Veteran did not appeal this determination. 3. Following the October 2004 RO decision, the next statement from the Veteran on the matter of entitlement to TDIU was a claim received by VA on July 23, 2007. An RO decision dated in October 2007 denied the Veteran's claim. The Veteran appealed the claim. The Veteran subsequently perfected an appeal. 4. In a March 2009 decision, the RO granted TDIU with an effective date of July 23, 2007. The Veteran subsequently perfected an appeal as to the effective date assigned. CONCLUSION OF LAW An effective date earlier than July 23, 2007 for the award of TDIU is not warranted. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(c), 3.159, 3.400, 20.302, 20.1103 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The Court, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements apply to all elements of a claim. A VCAA-compliant notice letter pertaining to this issue was not provided to the Veteran; however, the request for an earlier effective date is a downstream issue, which was initiated by a notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Moreover, the resolution of the Veteran's appeal for an earlier effective date is also dependent on the Court's interpretation of the law and regulations pertaining to claims for VA benefits. Consequently, no further development under the VCAA is warranted. See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see generally Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227, 231- 32 (2000); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law). Earlier Effective Date The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he is entitled to an earlier effective date in 2002 for the award of TDIU. He maintains that he has been unemployable since the date he originally filed his TDIU claim in 2002. The effective date of an evaluation and award of compensation based on an original claim will be the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2011). The effective date for an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if 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 date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(2) (West 2002); 38 C.F.R. § 3.400(o) (2011); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997). The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably and they are 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) (2011); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant or his or her duly authorized representative may be considered an informal claim. Such 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2011). Under some circumstances, the date of outpatient or hospital treatment or date of admission to VA or uniformed services hospital will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(1) (2011). The Court has held that 38 U.S.C.A. § 5110(b)(2) specifically links any effective date earlier than the date of application to: (1) evidence that an increase in disability had occurred; AND (2) to the receipt of an application within one year after that increase in disability. Hazan v. Gober, 10 Vet. App. 511 (1997). The Court noted that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim for increase, provided also that the claim for increase is received within one year after the increase. The Court further stated that the phrase "otherwise, the effective date shall be the date of receipt of the claim" provides the applicable effective date when a factually-ascertainable increase occurred more than one year prior to receipt of the claim for increase. Id.; see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) ( section 5110(b)(2) requires that "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date"). In an October 2001 decision, the RO denied the Veteran's claim for TDIU. The Veteran appealed this claim in January 2002, but failed to submit a timely substantive appeal following a June 2002 statement of the case. In an October 2004 decision, the RO denied a claim for a TDIU. The Veteran did not appeal this determination. The Veteran refiled a claim for TDIU in July 2007. An RO decision dated in October 2007 denied the Veteran's claim. The Veteran appealed the claim. The Veteran subsequently perfected an appeal, and in a March 2009 decision, the RO granted TDIU and assigned an effective date in July 2007. Under the facts presented here, the Board finds the Veteran's effective date for TDIU is appropriately July 23, 2007. In October 2004, the RO most recently denied the Veteran's claim for TDIU. There is no document in the file dated from October 2004 to July 2007 that may be construed as an earlier claim for TDIU. As noted above, effective dates are based on the date a claim is received or the date entitlement arose, whichever is later. The Veteran's arguments center around when he feels entitlement arose. That is, he contends he has been unemployed since his first claim in 2002. However, the RO determined in decisions dated in October 2001 and October 2004 that TDIU was not warranted. Those decisions are final, and his argument that the proper date for the TDIU rating should be the he filed his first claim then fails as a matter of law. The Veteran does not contend and the record does not show a claim for TDIU was filed after October 2002 and prior to July 23, 2007. Accordingly, under 38 C.F.R. § 3.400(o) the date of claim, July 23, 2007, controls in this case, and is the appropriate effective date for the award of TDIU. While the Veteran asserted in an October 2010 written statement that he never received a copy of the 2002 statement of the case, the Board finds that it was issued to the Veteran's address of record, which has remained his current address of record. The United States Court of Appeals for Veterans Claims (Court) has ruled that there is a rebuttable 'presumption of administrative regularity' under which it is presumed that government officials have properly discharged their official duties, including mailing notices. See Clark v. Principi, 15 Vet. App. 61, 63 (2001). In order to rebut this presumption, there must be 'clear evidence' to the contrary that either VA's regular mailing practices were not regular or they were not followed. More precisely, the appellant must establish both that the mailing was returned as undeliverable and that there were other possible and plausible addresses that could have been used to contact him. See Davis v. Principi, 17 Vet. App. 29 (2003); Mindenhall v. Brown, 7 Vet. App. 271 (1994). Here, the statement of the case was mailed to the Veteran in June 2007 at the same address the Veteran is currently receiving mail from VA. The Veteran was also sent the notice of the October 2004 decision to the same address. There is no indication in the record that the notice was undeliverable. The regularity of the mail was presumed. In summary, an October 2004 RO decision most recently denied the claim for a TDIU, and as the denial was not appealed, the decision is final. The next correspondence in the record requesting a TDIU was received on July 23, 2007. As such, there is no basis in this appeal upon which to grant an effective date for TDIU prior to July 23, 2007, the date the claim for TDIU was received. In reaching the conclusion above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to an effective date earlier than July 23, 2007, for a total disability rating due to individual unemployability (TDIU) is denied. ____________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs