Citation Nr: 1320097 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 12-16 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUES 1. Entitlement to an earlier effective date for grant of service connection for status-post cold injury with residuals of neuropathy and degenerative joint disease in the left lower extremity. 2. Entitlement to an earlier effective date for grant of service connection for status-post cold injury with residuals of neuropathy and degenerative joint disease in the right lower extremity. 3. Entitlement to an earlier effective date for grant of service connection for encephalitis. 4. Entitlement to an effective date prior to September 30, 2009 for an award of a 100 percent disability rating for encephalitis. REPRESENTATION Appellant represented by: Washington Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1950 to September 1953 and from January 1955 to March 1956. These matters come before the Board of Veterans' Appeals (BVA) from a June 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. In that rating decision, the RO increased the assigned evaluation for service-connected encephalitis from noncompensable to 100 percent disabling, effective from September 30, 2009, and the RO denied the claims for earlier effective dates for the award of service connection for residual of cold injuries to the left and right lower extremities. The Veteran appealed. Initially, the Board observes that in a July 2011 notice of disagreement, the Veteran's representative stated that the Veteran desired an earlier effective for the award of service connection for encephalitis. It appears that the RO construed the Veteran's statement as both a claim for an earlier effective date for the award of a 100 percent disability rating as well as an earlier effective date for the award of service connection. See the June 2012 statement of the case (SOC). The Veteran subsequently perfected his appeal with a timely VA Form-9. Since the RO addressed both issues in its discussion, the Board finds that both issues regarding the Veteran's service-connected encephalitis are on appeal, and both will be addressed below. In support for his claims, the Veteran testified during a videoconference hearing from the RO in April 2013 before the undersigned Acting Veterans Law Judge (AVLJ) of the Board. The Veteran was provided an opportunity to set forth his contentions at the hearing. The record reflects that at this hearing the undersigned set forth the issues to be discussed at the hearing, focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required to help substantiate the claims. These actions satisfied the duties a Veterans Law Judge has to explain fully the issue and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010) (holding that the requirements of 38 C.F.R. § 3.103(c)(2) apply to a hearing before the Board). A copy of the hearing transcript has been associated with the claims folder. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. In an August 2008 rating decision, the RO granted service connection for residuals of cold injury in the right lower extremities and assigned effective dates of June 26, 2008. The Veteran did not appeal that decision, and it became final. 2. The Veteran raised the matter of his entitlement to earlier effective dates for service connection for residuals of cold injury in the right lower extremity in January 2011. 3. In an August 2008 rating decision, the RO granted service connection for residuals of cold injury in the left lower extremity and assigned an effective date of June 26, 2008. The Veteran did not appeal that decision, and it became final. 4. The Veteran raised the matter of his entitlement to earlier effective dates for service connection for residuals of cold injury in the left lower extremity in January 2011. 5. In a December 1965 rating decision, the RO granted service connection for encephalitis and assigned an effective date of August 18, 1965. The Veteran did not appeal that decision, and it became final. 6. The Veteran raised the matter of his entitlement to an earlier effective date for service connection for encephalitis in July 2011. 7. VA received the Veteran's claim for entitlement to a total disability rating due to individual unemployability (TDIU), which included an inferred claim for increased rating for encephalitis, on September 30, 2009. 8. It is not factually ascertainable from the medical evidence of record that within the year prior to September 30, 2009, the Veteran's service-connected encephalitis warranted a rating of 100 percent. CONCLUSIONS OF LAW 1. The August 2008 rating decision that granted service connection for residuals of cold injury in the right lower extremity, and assigned an effective of June 26, 2008, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 2. The Veteran's freestanding claim of entitlement to an effective date earlier than June 26, 2008, for the grant of service connection for residuals of cold injury in the right lower extremity, is dismissed. 38 C.F.R. §§ 20.101 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. The August 2008 rating decision that granted service connection for residuals of cold injury in the left lower extremity, and assigned an effective of June 26, 2008, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 4. The Veteran's freestanding claim of entitlement to an effective date earlier than June 26, 2008, for the grant of service connection for residuals of cold injury in the left lower extremity, is dismissed. 38 C.F.R. §§ 20.101 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 5. The December 1965 rating decision that granted service connection for encephalitis, and assigned an effective of August 18, 1965, is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2012). 6. The Veteran's freestanding claim of entitlement to an effective date prior to August 18, 1965, for the grant of service connection for encephalitis, is dismissed. 38 C.F.R. §§ 20.101 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 7. The criteria for an effective date earlier than September 30, 2009 for the assigned 100 percent rating for encephalitis have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8000 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. VA's Duty to Notify and Assist 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 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 agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA was not applicable where the outcome is controlled by the law, and the facts are not in dispute. Livesay v. Principi, 15 Vet App 165, 178 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000). As set forth in more detail below, the pertinent facts in this case are not in dispute, and the outcomes are controlled by the law. Thus, the VCAA is not applicable in this case. 2. Earlier Effective Date for the Awards of Service Connection The Veteran seeks effective dates for grants of service connection and compensation earlier than August 18, 1965 for encephalitis and earlier than June 26, 2006 for residual of cold injuries to the right and left lower extremities. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date of an evaluation and award of compensation based on an original claim (as is the case here) or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. A claimant can appeal the effective date assigned for the grant of service connection. A claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision; after receipt of a statement of the case (SOC) from the RO, the Veteran has sixty days from the date of the letter notifying him of the SOC or within the remainder, if any, of the one-year period from the date of the letter notifying him of action on appeal. 38 C.F.R. § 20.302. If the appeal is not perfected within the allowed time period, then the rating decision becomes final. 38 C.F.R. § 20.1103 Rating actions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). In Rudd v. Nicholson, 20 Vet. App. 296 (2006), the Court held that where a rating decision which established an effective date becomes final, an earlier effective date can only be established by a request for a revision of that decision based on clear and unmistakable error (CUE). Id., 20 Vet. App. at 299. In essence, the Court in Rudd held that there is no "freestanding" earlier effective date claim which could be raised at any time. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C. § 3010 (1985); 38 C.F.R. § 3.151(a) (1985). In this case, VA first received the Veteran's claim for service connection for encephalitis and bilateral foot disorder on August 18, 1965. By the way of a December 1965 rating decision, the RO granted service connection for encephalitis and assigned a noncompensable percent disability rating, effective from August 18, 1965. The Veteran did not appeal the assigned effective date or rating. Also, in the December 1965 rating decision, the RO denied the claim for service connection for bilateral foot disorder, identified as hammertoes. The Veteran perfected an appeal as to the denied of his claim for service connection for his right foot disorder (the Veteran did not appeal the denial of his left foot disorder claim). Thereafter, in a March 1966 decision, the Board denied entitlement to service connection for right foot disorder. That Board decision became final and binding on him based on the evidence then of record. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.1100, 20.1104. In October 1971, the Veteran submitted another claim for entitlement to service connection for right foot disorder, but in November 1971, the RO notified the Veteran that no action would be taken on his claim, because he failed to present any new and material evidence in support of his previously denied claim. The Veteran did not appeal. On June 26, 2008, VA received the Veteran's formal claim for entitlement to service connection for residuals of cold injuries to the right and left feet, as well as his petition to reopen his previously denied claim for service connection for hammertoes. In an August 2008 rating decision, the RO awarded service connection for residuals of cold injuries to the right and left lower extremities and assigned a 20 percent evaluation each, effective from June 26, 2008. The RO declined to reopen the previously denied claim for entitlement to service connection for hammertoes, because no new and material evidence had been received. The Veteran did not appeal the assigned effective date or rating, or the denial of his request to reopen his previously denied claim. The Veteran only initiated an appeal to the denial of his claim for service connection for tinnitus and the initial assignment of a 30 percent evaluation for posttraumatic stress disorder (PTSD). See the Veteran's September 2008 notice of disagreement. On July 6, 2009, VA received the Veteran's claims for increased ratings for his right and left lower extremities. He did not indicate any disagreement with the August 2008 rating decision regard assigned effective dates for his right and left lower extremity disabilities. In a September 2009 rating decision, the RO essentially reconsidered the medical evidence reviewed in the August 2008 rating decision, a July 2008 VA examination report, and found that the medical evidence supported increased in the assigned ratings from 20 to 30 percent disabling, effective from June 28, 2008, the original date of the Veteran's formal claim. The Veteran did not appeal that rating decision. As part of the Veteran's claim for entitlement to TDIU, received on September 30, 2009, the RO considered the currently assigned evaluations for the Veteran's residuals of cold injuries of the right and left lower extremities disabilities in an April 2010 rating. The RO deferred consideration of the Veteran's service-connected encephalitis at that time. The Veteran did not appeal that rating decision. In a January 2011, VA received the Veteran's statement requesting an earlier effective dates for the award of service connection residuals of cold injuries of the right and left lower extremities. In a June 2011 rating decision, the RO denied the earlier effective date claims and increased the assigned rating from noncompensable to 100 percent disabling for the Veteran's encephalitis disability. This appeal ensued. Based on the precedential Court decision in Rudd, the Board finds that the Veteran's claims for earlier effective date for the awards of service connection for encephalitis and residuals of cold injuries in the right and left lower extremities must be dismissed. Both the December 1965 rating decision which granted the Veteran's claim for service connection for encephalitis with an assigned the effective date of August 18, 1965 and the August 2008 rating decision which granted the Veteran's claims for service connection for residuals of cold injuries in the right and left lower extremities with an assigned the effective date of June 26, 2008, are final decisions. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The Veteran did not appeal the assignment of the effective dates for the award of service connection from either the 1965 or 2008 rating decision. If the Veteran believed that the RO's 1965 and/or 2008 assignment of the effective dates for service connection for encephalitis or residuals of cold injuries in the right and left lower extremities, respectively, were incorrect, his proper recourse was to perfect an appeal to the Board then, within a year of the decisions. Since the Veteran did not timely appeal either decision regarding his assigned effective dates, those decisions became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. That being the case, the Veteran is left with only one option in his attempt to obtain earlier effective dates: a claim alleging that the RO's December 1965 and August 2008 decisions, which assigned the respective effective date, contained clear and unmistakable error (CUE). See 38 C.F.R. § 3.105(a). For clear and unmistakable evidence to be present in a prior determination: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made; and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992), To date, the Veteran has not alleged CUE in the December 1965 or August 2008 rating decisions. See 38 C.F.R. § 3.105(a); see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). Based on the precedential Court decision in Rudd, the Board finds that the Veteran's claim for earlier effective dates for the awards of service-connection for encephalitis and residuals of cold injuries to the right and left lower extremities must be dismissed. The Board acknowledges the Veteran's contention that he had pending claims for entitlement to service connection for encephalitis and residual of cold injuries in 1953 when he first initiated action with VA. In this regard, the Board notes that the claims folder contains an identification card, VA Form 3-3145, Notice of Assignment of C-Number, that reflects the case number that was assigned to the Veteran and the date of claim of as November 16, 1953. The Veteran's Representative does acknowledge that a VA case number can be assigned for a number of reasons, such as VA treatment, educational benefits, home loan guarantee, as well as disability benefits. It is not indicated on the identification card what kind of claim initiated the assignment of the C-Number for the Veteran. Other available documents of record dated on November 16, 1953 strongly suggest that the Veteran was attempting to file dependency claims for his wife and daughter. The record also contains a VA Form 686c, Declaration of Martial Status, with a receipt date stamp of November 16, 1953, as well as certified copies of the Veteran's marriage certificate and his daughter's birth certificate. The next documents of record are dated in 1965. The record contains a March 2013 formal finding memorandum that any additional documents associated with a 1953 claim are unavailable. The Veteran was notified of the unavailability of any such additional documents in the March 2013 SSOC. The Veteran's representative argues that the issuance of the VA identification card in November 1953 shows that the Veteran initiated a claim for VA benefits, and since the Veteran argues that his symptomatology dates back to service, the November 1953 claim was likely for disability benefits for encephalitis and bilateral leg condition. Even assuming, in arguendo, that the Veteran did file a claim for service connection for encephalitis and residual of cold injuries to his lower extremities in 1953, it still does not overcome the fact that the Veteran's claims for earlier effective dates for awards of service connection must be dismissed in light of Rudd. The Veteran did not appeal the December 1965 or August 2008 rating decision, which assigned the effective dates of service connection, and those decisions are final. The Board also acknowledges the Veteran's contention that some his service treatment records from his hospitalization in Tokyo in 1951 and his hospitalization in Fort Reilly, Kansas in 1953 are missing. The Board notes that while claims folder may not contain all those records pertaining to his hospitalizations, the record does contain a large number of his treatment records associated with his 1951 hospitalization for encephalitis as well as several document relating to his 1953 hospitalization for acute tonsillitis. Moreover, to the extent that service connection has already been award and there is no support for the assignment of earlier effective dates back to service, a remand to search for any additional service treatment records would serve no purpose. In summary, the Veteran failed to appeal the December 1965 and August 2008 rating decisions assigning the current effective dates. As such, those decisions are final and they are not subject to revision in the absence of CUE in that decision. 38 U.S.C.A. §§ 7105, 5109A; see Rudd v. Nicholson, 20 Vet. App. at 296. The Court made it abundantly clear in Rudd that under these circumstances dismissal is required due to the lack of a proper claim. See Rudd, 20 Vet. App. at 300. Based on the procedural history of this case, the Board has no alternative but to dismiss the appeal as to these issues without prejudice to the Veteran's filing a CUE claim. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Earlier Effective Date for Award of Increased Rating The Veteran seeks an effective date earlier than the currently assigned September 30, 2009, for the award of a 100 percent evaluation for his service-connected encephalitis. The effective date of an increase in disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability has occurred if a claim is received within one year of such date. Otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). The Court has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App. at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). The Board notes that a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if the 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 the receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. As noted above, by a December 1965 rating decision, service connection was granted for encephalitis and a noncompensable rating was assigned effective August 18, 1965, the date the claim was received. The Veteran did not file an appeal, and that rating decision became final. See 38 C.F.R. § 20.1103. VA received the Veteran's informal claim for entitlement to TDIU, which the RO construed to include an increased rating for his service-connected encephalitis on September 30, 2009. In response, the RO did not provide an application to the Veteran to file on the matter; however, the RO addressed the informal claim in the June 2011 rating decision, in which the RO granted an increased from noncompensable to 100 percent, effective from the date of the informal claim, September 30, 2009. The RO construed the Veteran's July 2011 statement to include an appeal of the assigned effective date of the 100 percent award for his service-connected encephalitis. After the informal claim of September 30, 2009, there are no formal claims from which to look back one year for a prior informal claim. There are also no previous communications indicating the Veteran' intent to apply for benefits based on a claim for an increased rating for encephalitis between the date of the December 1965 rating decision and the September 30, 2009 informal claim. Therefore, September 30, 2009 is considered the date of receipt of the claim. See 38 C.F.R. § 3.155(a). September 30, 2009 will be found as the effective date of the increased rating award unless the evidence of record shows a factual ascertainable increase was warranted in the year prior to the date of receipt of that claim. See 38 C.F.R. § 3.400(o). In this case, the Board must review the record to determine whether an ascertainable increase in disability warranting a grant of a 100 percent disability rating occurred within one year prior to September 30, 2009 in order to assign an earlier effective than September 30, 2009. Here, the record contains no medical evidence pertaining to the Veteran's service-connected encephalitis disability during the year prior to the date of his claim in August 30, 2009. Rather, the report of a January 2010 VA report shows that the Veteran denied receiving any current treatment for his encephalitis disability. In that examination report, the VA examiner observed that the Veteran had abnormalities on examination of cranial nerve VII on the left as evidence by moderate paralysis with corresponding muscles showing active movement against gravity and abnormal findings of sensation in the left lower lip. The Veteran complained of loss of sense of smell and altered sense of taste, but he denied seeking any treatment for his symptomatology. The VA examiner characterized the Veteran's status post encephalitis as an active condition. This is the first available evidence of record that supported the assignment of the 100 percent rating under Diagnostic Code 8000 for active encephalitis disease. See 38 C.F.R. § 4.124a. VA is bound by that authority, and the governing legal authority for establishing effective dates relies on very specific rules. See 38 C.F.R. §§ 3.157(b), 3.400(o)(2). An effective date for an increased rating is the date the increased rating claim was received unless the evidence of record shows a factual ascertainable increase was warranted in the year prior to the date of receipt of that claim. 38 C.F.R. §§ 3.155, 3.400(o)(2). VA received the Veteran's claim for an increased rating for his encephalitis disability on September 30, 2009, and there is no medical evidence with the year prior to that date of that claim that shows an increase in the Veteran's disability. As such, September 30, 2009 is earliest effective date warranted for the increased award to 100 percent for service-connected encephalitis. The record does not contain evidence showing that it is factually ascertainable that an increase in disability, warranting a 100 percent rating, had occurred during the period prior to September 30, 2009. 38 C.F.R. § 3.400(o)(1) and (2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). Since there is no evidence to support an increase prior to September 30, 2009, the effective date will be the date of VA receipt of the claim for increase rating, September 30, 2009. See 38 C.F.R. § 3.400(o). Therefore, an effective date earlier than September 30, 2009 for the grant of a 100 percent disability rating for encephalitis disability is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to an effective date earlier than September 30, 2009, for the assignment of a 100 percent rating for encephalitis, is denied. See 38 U.S.C.A. § 5107. ORDER The claim of entitlement to an earlier effective date for service connection for residuals of cold injury in the right lower extremity is dismissed. The claim of entitlement to an earlier effective date for service connection for residuals of cold injury in the left lower extremity is dismissed. The claim of entitlement to an earlier effective date for service connection for encephalitis is dismissed. Entitlement to an effective date prior to September 30, 2009 for the award of a 100 percent evaluation for service connected encephalitis is denied ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs