Citation Nr: 1321407	
Decision Date: 07/03/13    Archive Date: 07/12/13

DOCKET NO.  10-40 809A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to an effective date earlier than March 28, 1994 for the assignment of a 50 percent rating for bilateral pes planus.

2.  Entitlement to an effective date earlier than June 12, 2004 for the assignment of a total disability rating based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Virginia Girard-Brady, Attorney


ATTORNEY FOR THE BOARD

M. Carsten, Counsel



INTRODUCTION

The Veteran served on active duty from August 1966 to March 1967.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2006 and December 2006 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

In May 2010, the Board in pertinent part remanded the issues of entitlement to earlier effective dates for the assignment of a 50 percent evaluation for bilateral pes planus and a TDIU rating so that a statement of the case (SOC) could be furnished.  A SOC was furnished in August 2010 and the Veteran subsequently perfected an appeal of the listed issues.  

In September 2011, the RO continued the 50 percent evaluation for bilateral pes planus; continued a 20 percent evaluation for a lumbar spine disability; continued a 10 percent evaluation for a left ankle condition; continued a 10 percent evaluation for a right ankle condition; and denied entitlement to service connection for chronic depressive disorder/personality disorder, left hip condition, and right hip condition.  

In November 2011, the Veteran submitted a statement expressing disagreement.  Thereafter, the RO sent him a letter requesting that he clarify the notice of disagreement and specifically state which issues he disagreed with.  See 38 C.F.R. § 19.26 (2012).  The Veteran responded and the RO apparently accepted a notice of disagreement as to the rating for lumbar spine disability, and service connection for chronic depressive disorder/personality disorder, right hip, and left hip.  In May 2012, the attorney indicated that the Veteran withdrew these claims.  See 38 C.F.R. § 20.204 (2012).  In June 2012, the RO notified the Veteran of the withdrawal and advised that no further action would be taken on the notice of disagreement.

In a July 2012 VA Form 9, the Veteran indicated that he wanted a Central Office hearing.  The attorney subsequently stated that he did not want a hearing and the Board does not find any pending hearing requests at this time.  See 38 C.F.R. § 20.702(e) (2012).

In April 2013, the Board notified the Veteran that there appeared to be a discrepancy regarding representation.  That is, in April 2010, he indicated that he wished to represent himself.  However, he subsequently submitted a fee agreement and the attorney remained actively involved in his claim.  The attorney was notified that a valid VA Form 21-22a, Appointment of Individual as Claimant's Representative, was not of record.  The required documentation was subsequently received and as such, Virginia Girard-Brady is recognized as the Veteran's attorney.  

The Virtual VA eFolder has been reviewed.  

The issue of entitlement to an effective date earlier than June 12, 2004 for the assignment of TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office.


FINDINGS OF FACT

1.  An evaluation greater than 30 percent for bilateral pes planus was implicitly denied in April and May 1988.  

2.  The Veteran's next claim for increase in bilateral pes planus was received on March 28, 1994.
 
3.  An October 11, 1993 private podiatry record shows bilateral foot symptomatology more nearly approximating pronounced bilateral pes planus; thus, a factually ascertainable increase in disability is shown during the 1-year period preceding the March 1994 claim.  






CONCLUSION OF LAW

The criteria for an effective date of October 11, 1993, for the award of a 50 percent evaluation for bilateral pes planus are met.  38 U.S.C.A. §§ 1155, 5110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400(o)(2), 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5276 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000 (VCAA)

The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met.  The appeal regarding an earlier effective date is a "downstream" issue in that it arose following the grant of an increased evaluation to 50 percent for bilateral pes planus.  Notwithstanding, VA notified the Veteran in March 2004 and August 2007 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain.  By letter dated in March 2006, the Veteran was provided notice of how disability ratings and effective dates are determined.  The claim for an earlier effective date for the increased evaluation for bilateral pes planus was most recently readjudicated in the June 2012 supplemental statement of the case (SSOC).  

VA has also satisfied its duty to assist with regard to the issue decided herein.  The claims folder contains available VA medical center records, private medical records, and Social Security Administration (SSA) records.  In July 2011, the RO determined that outpatient treatment records for the Brentwood/West LA VA Medical Center were unavailable.  The Veteran was notified of this by separate letter and was given an opportunity to submit any additional records.  

The Board acknowledges that it is remanding the earlier effective date issue for TDIU to obtain additional records.  The records that the Board is seeking, however, pertain to the Veteran's ability to obtain and/or maintain gainful employment and are not considered necessary to a determination regarding whether an earlier effective date is warranted for a schedular evaluation.  

Additional VA examinations are not needed as current findings would not serve to establish entitlement to an earlier effective date for increase.  

On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  See 38 C.F.R. § 3.159.

Procedural History

At the outset, the Board observes that this case has a lengthy and rather complicated procedural history with multiple rating decisions and Board decisions.  In order to better understand the issue, the Board will set forth relevant actions.

In July 1968, the RO denied entitlement to service connection for bilateral pes planus.  

In September 1977, the Veteran indicated that he wanted to reopen his claim.  A confirmed rating decision was issued in November 1977.  

In May 1979, the Board approved an administrative allowance of service connection for bilateral pes planus, by aggravation.  In July 1979, the RO implemented this decision and awarded a 30 percent evaluation for bilateral pes planus from September 2, 1977.  

In September 1985, the Veteran submitted a claim for increase.  The RO subsequently sent the Veteran a letter requesting medical evidence and advised that no further action would be taken until the evidence was received.  

In August 1986, the Veteran submitted a claim for nonservice-connected pension.  In May 1987, the claim was administratively denied for failure to report for a VA examination.  The Veteran subsequently reported for a VA examination and a confirmed rating decision was issued in September 1987.  In November 1987, the Veteran submitted a notice of disagreement regarding the denial of pension.  

In November 1987, the Veteran also filed a claim of entitlement to TDIU.  In April 1988, the RO denied TDIU.  In May 1988, the RO furnished a SOC on the pension issue.  A timely substantive appeal was not received.

On March 28, 1994, the RO received a claim for increase.  In August 1995, the RO denied entitlement to an increased evaluation for flat feet.  The Veteran disagreed with this decision and subsequently perfected an appeal.  The Board remanded the claim for increase in June 1999 and December 2003. 

In November 2006, the Board granted an increased evaluation for bilateral pes planus to 50 percent.  In December 2006, the RO implemented this decision and assigned the 50 percent evaluation from March 28, 1994, the date of reopened claim.  The Veteran disagreed with this decision and essentially asserted that the benefits were warranted from a much earlier date.  

In May 2010, the Board granted an effective date for service connection for bilateral pes planus to March 18, 1967.  In June 2010, the RO assigned a 30 percent evaluation for bilateral pes planus from March 18, 1967 and the 50 percent evaluation remained from March 28, 1994.  The Veteran has since perfected an appeal regarding the effective date assigned for the 50 percent evaluation.  

Laws and Regulations

The general rule with respect to the effective date for an award of increased compensation is that the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  

An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the 1-year period preceding the date of receipt of a claim for increased compensation.  In that situation, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within 1 year from such date.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  In all other cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1). 

In determining when a claim for increase was received, 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(a).  Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim.  38 C.F.R. § 3.155(a).  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(c). 

VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for increased benefits and is requested to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196 (1992). 

Under 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits.  The date of the VA outpatient or hospital examination will be accepted as the date of claim.  Id.  When the evidence is from a private physician, the date of receipt of such evidence will be accepted when the evidence furnished by or on behalf of the claimant is within the competence of the physician and shows the reasonable possibility of entitlement to benefits.  Id. at (b)(2).

The mere existence of medical records, however, generally cannot be construed as an informal claim.  Rather, there must be some intent by the claimant to apply for a benefit.  See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006).  

A claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated.  See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009); 38 C.F.R. § 3.160(c) (2012).  A claim will also remain pending if VA has failed to notify the claimant of the denial of the claim.  Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc).  The presumption of regularity applies to the RO's mailing of a VA decision to a veteran.  Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994).  

It is well established, however, that in certain circumstances, pursuant to the implicit denial doctrine, "a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if [VA] did not expressly address that claim in its decision."  Adams, 568 F.3d at 961.  The implicit denial doctrine was first pronounced in Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006).  In that case, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that: Where the veteran files more than one claim with the [regional office] at the same time, and the [regional office]'s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run.  Id. at 1261.  Shortly after the decision in Deshotel was issued, the Court interpreted the application of the implicit denial doctrine.  

In Ingram v. Nicholson, the United States Court of Appeals for Veterans Claims (Court) held that "a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in a [regional office] decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability."  21 Vet. App. 232, 243 (2007).  

In Cogburn v. Shinseki, 24 Vet. App. 205 (2012), the Court clarified the matter by stating, from Jones v. Shinseki, 619 F.3d 1368, 1372 (Fed. Cir. 2010), four factors that must be considered when determining whether a claim was implicitly denied: (1) "The relatedness of the claims"; (2) "whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied"; (3) "the timing of the claims"; and (4) whether "the claimant is represented."

Regarding when a factually ascertainable increase in disability occurred, the Board notes that disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4.  Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder.  38 U.S.C.A. § 1155.  Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder.  38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. 

VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability.  The Court has held that a higher rating can be based on "greater limitation of motion due to pain on use."  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant."  See 38 C.F.R. 
§ 4.40. 

Pursuant to the rating schedule, bilateral flat foot (pes planus) is evaluated as follows: severe with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities (30 percent); and pronounced with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes and appliances (50 percent).  38 C.F.R. § 4.71a, Diagnostic Code 5276.

When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

Analysis

As discussed, the Veteran's bilateral pes planus is evaluated as 30 percent disabling from March 18, 1967; and as 50 percent disabling from March 28, 1994.  

In June 2007, the attorney argued that a 50 percent evaluation was warranted for bilateral pes planus from March 28, 1993.  In October 2010, the attorney argued that a claim for increase was received on March 28, 1994, and that medical evidence shows that the Veteran's bilateral pes planus disability had become more disabling in the year prior to his claim.  Specifically, she references an October 1993 private medical report and asserts that a factually ascertainable increase in disability was shown at that time.  

In determining whether the Veteran is entitled to an earlier effective date for the increase, the Board must consider whether the Veteran filed a claim for increase prior to March 28, 1994.  

As discussed above, he filed a claim for increase in September 1985, but failed to respond to VA's request for evidence within one year.  This claim is considered abandoned.  See 38 C.F.R. § 3.158 (2012).

In his August 1986 pension claim, the Veteran indicated that his nonservice-connected disabilities prevented employment.  He did not assert an increase in his service-connected flat feet.  

In November 1987, the Veteran submitted a claim for TDIU.  At that time he reported that he was prevented from securing or following any substantially gainful occupation due to flat feet and arthritis.  This arguably includes a claim for increase for flat feet.  The April 1988 rating decision listed the issues as reconsideration of service connection for a neuropsychiatric condition, individual unemployability, and nonservice-connected pension.  However, the decision also stated that no change was warranted in the evaluation of service-connected flat feet.  

The Board is unable to find a cover letter notifying the Veteran of the April 1988 decision.  Regardless, the May 1988 SOC discussed prior adjudicatory actions and stated that on April 18, 1987 (this appears to have been a typographical error and should read April 18, 1988), "[t]he Rating Board determined that the evidence did not warrant an increase in the service-connected flat feet condition and entitlement to a 100% evaluation based on individual unemployability for service-connected disability was not established."  The SOC was sent to the Veteran at his last known address and he has not argued that he did not receive this correspondence.  

On review, the Board finds that any pending claim for an increased evaluation was, at the very least, implicitly denied in April and May 1988.  See Cogburn; Ingram; Jones at 1373 (The key inquiry is 'whether sufficient notice has been provided so that a veteran would know, or reasonably can be expected to understand, that he will not be awarded benefits for the disability asserted in his pending claim').  The Veteran did not express further disagreement.  

There are no communications or other evidence following the May 1988 notice and prior to March 28, 1994, that could be construed as an informal claim for increase.  

Having determined that the date of claim is March 28, 1994, the Board must consider when a factually ascertainable increase in disability was shown.  

VA records dated in January 1989 show that the Veteran had partial relief of his pain with bilateral arch support.  Assessment was bilateral flexible pes planus.  An April 1989 note includes an assessment of rigid pes planus.  Note dated in November 1989 indicates decreased subtalar motion and pain along the peroneal nerve.  His feet were casted, but these were removed a couple of weeks later.  

An October 11, 1993 private podiatry note indicates that the Veteran had orthotics which had not worked and which he could not tolerate.  On physical examination, he had a rigid pes planus bilaterally.  He had hallux abducto valgus with bunion deformity bilaterally and had hammertoes 2-5 bilaterally.  He had pain on range of motion of both ankles and a grinding type feel.  He walked with antalgia bilaterally and had a flop in gait, an abductory twist in gait and a very abducted gait.  There was a slight decrease in muscle strength for flexion and extension of both ankles.  It was recommended that he go back to VA and get a new pair of orthotics.  Short of ankle fusions, recommended orthotics would be the last treatment as well as physical therapy and exercise that would include swimming rather than weight-bearing activities.  

On review, and resolving reasonable doubt in the Veteran's favor, the findings shown on examination in October 1993 more nearly approximate pronounced bilateral pes planus.  That is, there were extensive findings on physical examination, which affected the Veteran's ability to walk and were not improved by orthotics.  In making this determination, the Board has considered the reported functional impairment to include pain on motion.  

Having found evidence of a factually ascertainable increase in disability within the one-year preceding the March 28, 1994 claim, an earlier effective date is warranted.  Specifically, the 50 percent evaluation is granted from October 11, 1993.  The Board finds no basis for assigning the 50 percent evaluation prior to that date.


ORDER

An effective date of October 11, 1993, and no earlier, for a 50 percent evaluation for bilateral pes planus is granted, subject to the laws and regulations governing the award of monetary benefits.  


REMAND

In July 2006, the RO granted entitlement to TDIU effective June 12, 2004.  The Veteran disagreed with the effective date and subsequently perfected this appeal.  

Information of record indicates that the Veteran was employed by the U.S. Postal Service from December 2003 to June 2004.  In his July 2007 notice of disagreement, the Veteran essentially argued that he was not substantially employed.  He submitted multiple statements in support of his claim and appears to argue that he has been unable to work since he was discharged from service.  

On review, the claims folder contains various records from the Postal Service that were submitted by the Veteran.  It does not appear that complete employment records were requested or obtained.  

Evidence of record also suggests that the Veteran received VA vocational rehabilitation benefits.  These records, however, are not associated with the claims folder.  

The Veteran is apparently in receipt of SSA disability benefits.  In an August 2011 statement, he reported that he participated in a "Back to Work" program through the Alabama State Department of Rehabilitation and started a self-defense school.  In a February 2013 letter to the President, the Veteran reported that he started teaching self-defense through SSA's "Back to Work" program.  

SSA records were received in 2006 and appear to contain information from approximately 1986 to 1988, relating to the initial grant of benefits.  Information pertaining to participation in any back to work or other vocational rehabilitation programs through SSA or the State is not included.  

The referenced records are relevant to the question of whether the Veteran was capable of obtaining and maintaining substantially gainful employment prior to June 12, 2004.  Thus, they should be requested.  See 38 C.F.R. § 3.159(c); see also Veterans Benefits Administration (VBA) Training Letter 10-07 (Sept. 14, 2010).  

Accordingly, the case is REMANDED for the following action:

1.  The AMC/RO should request all records (personnel and/or medical) pertaining to the Veteran's employment with the U.S. Postal Service for the period from December 2003 to June 2004.  If necessary, the claimant must authorize the release of existing records.  All records received should be associated with the claims folder or Virtual VA eFolder.

2.  The AMC/RO should obtain the Veteran's VA vocational rehabilitation folder or copies thereof.  All records received should be associated with the claims folder or Virtual VA eFolder.

3.  The AMC/RO should request any records from the Social Security Administration and the Alabama Department of Rehabilitation pertaining to the Veteran's participation in any "Back to Work" programs.  If necessary, the claimant must authorize the release of existing records.  All records received should be associated with the claims folder or Virtual VA eFolder.  

4.  With regard to any Federal records requested herein, the AMC/RO should comply with the procedures set forth at 38 C.F.R. § 3.159(c)(2).  With regard to records not in the custody of a Federal department or agency, the AMC/RO should comply with the procedures set forth at 38 C.F.R. § 3.159(c)(1).  

5.  Upon completion of the above development, and any additional development deemed appropriate, the AMC/RO should readjudicate the issue of entitlement to an effective date earlier than June 12, 2004 for the assignment of TDIU.  If the benefit sought on appeal remains denied, the appellant and his representative should be provided with a supplemental statement of the case.  An appropriate period of time should be allowed for response.

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. 2012).



______________________________________________
H. N. SCHWARTZ
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs