Citation Nr: 1323218 Decision Date: 07/19/13 Archive Date: 07/24/13 DOCKET NO. 04-32 418 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in North Little Rock, Arkansas THE ISSUE Entitlement to an effective date prior to May 24, 2002, for the assignment of a 20 percent disability evaluation for residuals, fracture of the right talus, with degenerative joint disease. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from February 1976 to February 1979. This matter initially came before the Board of Veterans' Appeals (hereinafter Board) on appeal from a July 2003 rating decision of the Department of Veterans Affairs Regional Office (RO) in North Little Rock, Arkansas, which increased the evaluation for the service-connected right talus fracture residuals from 0 percent to 20 percent, effective May 24, 2002. The Veteran perfected an appeal of the effective date of that award. In September 2007, the Board remanded the claim for further development. Subsequently, in a November 2008 decision, the Board denied the Veteran's claim for an earlier effective date for the assignment of a 20 percent rating for the right ankle disorder. The Veteran appealed this matter to the United States Court of Appeals for Veterans Claims (Court). In a memorandum decision, dated in June 2010, the Court vacated the Board's November 2008 decision and remanded the issue back to the Board for readjudication. In July 2011, the Board remanded the Veteran's claim to the RO for additional development. Following the requested development a supplemental statement of the case (SSOC) was issued in August 2011. In October 2011, the Board again denied the Veteran's claim for an earlier effective date for the assignment of a 20 percent evaluation for residuals of right talus fracture, with degenerative joint disease. The Veteran appealed the Board's decision to the Court. A Joint Motion for Remand was submitted in July 2012; and, in July 2012, the Court issued an order granting the motion and the matter was remanded to the Board for readjudication consistent with the motion. In March 2013, the Board once again remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional evidentiary development and consideration. The AMC completed the requested development and issued another SSOC in June 2013. Review of the record reflects substantial compliance with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. By a rating action in March 1979, the RO granted service connection for fracture, right talus, with mild degenerative changes and assigned a 0 percent rating, effective February 4, 1979. 2. By a May 1980 decision, the Board denied the Veteran's claim for a compensable evaluation for residuals of a fracture of the right talus, with mild degenerative changes. 3. The veteran has not raised a valid claim of entitlement to revision of the May 1980, Board decision based on clear and unmistakable error (CUE). 4. By a rating action in January 1986, the RO confirmed and continued the 0 percent rating assigned for the residuals of a fracture of the right talus. The Veteran was notified of the decision and of his appellate rights, but he did not appeal that decision. 5. By a rating action in November 1988, the RO confirmed and continued the 0 percent rating assigned for the residuals of a fracture of the right talus. The Veteran was notified of the decision and of his appellate rights, but he did not appeal that decision. 6. In a statement in support of claim (VA Form 21-4138), received at the RO on May 24, 2002, the Veteran requested an increased rating for the service-connected right ankle disorder. 7. In a July 2003 decision review officer (DRO) decision, the RO increased the rating for residuals of a right talus fracture with degenerative joint disease from 0 percent to 20 percent, effective May 24, 2002, the date of receipt of the correspondence from the Veteran asking for an increased rating. It is not factually ascertainable that an increase in disability had occurred within one year prior to May 24, 2002. CONCLUSION OF LAW The criteria for an award of an effective date prior to May 24, 2002, for the assignment of a 20 percent disability rating for right talus fracture residuals have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107, 5110 (b) (2) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.157, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. 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 claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) and 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duties to the Veteran in VCAA letters issued in August 2002, September 2002, January 2003, and April 2003 with regard to the underlying increased rating claim. As detailed, the Veteran perfected an appeal as to the effective date assigned. In addition, the October 2007 letter provided the Veteran with the general criteria for assigning effective dates. Consequently, the Board finds that the VCAA notice requirements have been met. The Board finds that the duty to assist has been also been fulfilled. The outcome of this issue on appeal turns on a determination as to the date that a claim was filed. There is no need for a medical examination and or opinion for this issue. There is no suggestion that additional evidence, relevant to this matter, exists and can be procured. In fact, pursuant to the March 2013 Board remand, a search was made for possible outstanding records from the Texarkana COBC, stored at the Shreveport VAMC. In June 2013, a formal finding was made that these records were unavailable. No further development action is required. II. Factual background. The Veteran's initial claim for service connection for a right ankle disorder (VA Form 21-526e) was received in February 1979. In conjunction with his claim, the Veteran was afforded a VA examination in March 1979, which revealed a slight crepitus heard in the right ankle on dorsiflexion and plantar flexion. There was no ankle edema or joint deformity elicited. Motor power was identical in both lower extremities. The diagnosis was fracture, right talus, with mild degenerative changes. By a rating action of March 1979, the RO granted service connection for fracture, right talus, with mild degenerative changes; a 0 percent disability rating was assigned, effective February 4, 1979. The veteran perfected a timely appeal to that decision. In May 1980, the Board issued a decision which denied the Veteran's claim for a compensable evaluation for fracture, right talus, with mild degenerative changes. In a statement in support of claim (VA Form 21-4138), received in October 1985, the Veteran requested an increased rating for his right ankle disorder. In conjunction with the claim, the Veteran was afforded a VA examination in December 1985. Examination of the right ankle was normal, except for pain on extremes of motion. He had normal range of motion on dorsiflexion and plantar flexion with no crepitation. There was no redness or increased fluid about the right ankle. The diagnosis was right foot history of old healed fracture of the right talus, symptomatic, chronic. By a rating action in January 1986, the RO denied the Veteran's claim of entitlement to a compensable evaluation for fracture, right talus, with mild degenerative changes. Later that month, the Veteran and his representative were notified of the decision and of his appellate and procedural rights, but did not appeal. By letter dated in October 1988, the Veteran again requested an increased rating for his service-connected right ankle disorder. Submitted in support of his claim was a private treatment report from Dr. Richard M. Hilborn, dated in October 1988, indicating that a recent x-ray study of the Veteran's right ankle suggest that he suffered a fracture about 10 years ago which has resulted in some degenerative changes in the talocalcaneal joint. Dr. Hilborn stated that there were no objective clinical findings; however, he stated that it would not be surprising if the Veteran had some pain after long periods of standing or walking. By a rating action in November 1988, the RO denied the Veteran's claim of entitlement to a compensable evaluation for fracture, right talus, with mild degenerative changes. Later that month, the Veteran and his representative were notified of the decision and of his appellate and procedural rights, but did not appeal. In a statement in support of claim (VA Form 21-4138), received May 24, 2002, the Veteran indicated that he was seeking a compensable rating for his right ankle disorder. He stated that he was still having recurrent problems with his right foot disorder. Submitted in support of the claim were lay statements from individuals who attested to the problems that the Veteran had with his right ankle and foot as a result of his service-connected disorder. The Veteran was afforded a VA examination in September 2002. At that time, he reported pain four to five days per week and on most days, the pain is 7 out of 10 in severity; he complained of pain, weakness, stiffness, lack of endurance, and instability to his right foot. He denied any swelling or heat. He stated that he does have periods of flare-ups, approximately three to four times per month. The severity of these flare-ups is a 10/10 on a pain scale with the duration of two to three days. Precipitating factors for flare-ups include standing for long periods as well as carrying any weight for any distance. Alleviating factors include crutches and rest. He specifically denies taking any type of medications including over-the-counter medications. He denied braces, canes or corrective shoes. He has not had any form of treatment for his foot since discharge from the military. He specifically denied having seen a health care provider, having physical therapy or having any sort of surgery. He denied any inflammatory symptoms of arthritis in any other joint; he specifically denied swelling or heat in this right foot as well. There was no prosthesis. On examination, the feet were without edema, redness, heat or deformity. There was no pain indication on inversion or eversion of the feet bilaterally. First MTP joint flexion was 40 degrees bilaterally, extension 54 degrees right and 62 degrees left. There was valgus variation to both feet. Capillary refill was less than 2 seconds bilaterally. Pulses, DT and PT pulses were 2+ bilaterally. 2+ deep tendon reflexes to the Achilles. Normal sensation to vibration and temperature bilaterally. The pertinent diagnosis was osteoarthritis, right foot. Received in January 2003 were VA progress notes dated from September 2002 to January 2003. A January 2003 clinic note indicated that the Veteran called with complaints of right foot pain; he stated that he pain comes when he walks a short period of time or is carrying things. He also reported having used crutches on and off. A follow up treatment note dated in February 2003 indicated that a PT note reported the examination of the right foot revealed inversion to 25 degrees and eversion to 5 degrees; the left foot have inversion to 38 degrees and eversion to 15 degrees. It was also noted that an x-ray study of the right ankle, performed in January 2003 revealed degenerative joint disease in the right ankle which is as likely as not related to the service-connected right talus fracture. Received in July 2003 were VA progress notes dated from January 2003 to June 2003. These records show that the Veteran received ongoing clinical attention for right foot pain. A Decision Review Officer's decision, dated in July 2003 increased the rating for fracture, right talus, from 0 percent to 20 percent, effective May 24, 2002. VA received a timely notice of disagreement from the Veteran in May 2004 expressing his disagreement with the assigned effective date. The effective date was confirmed in an August 2004 statement of the case. Received in December 2010 was a copy of a VA outpatient treatment record dated November 1994. According to this record, the Veteran was complaining of pain in his right foot. It was noted that the Veteran had pain in his right foot for the past 12 years and that he wanted to be reevaluated so he could get a rating adjustment. Of record is a formal finding of unavailability, dated in June 2013, wherein the RO determined that VA treatment records dated prior to June 2001 from Texarkana CBOC, stored at the Shreveport VA medical center (VAMC) were unavailable for review. III. Legal Analysis. The Veteran essentially contends that he is entitled to an effective date earlier than May 24, 2002 for the assignment of a 20 percent disability rating for his service-connected right ankle disorder. Unless specifically provided in 38 U.S.C.A. § 5100 et seq., the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of 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 application therefor. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012). VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation 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); 38 C.F.R. § 3.400(o) (1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110(b) (2); 38 C.F.R. § 3.400(o) (2). In such cases, the Board must determine under the evidence of record the earliest date that the increased rating was ascertainable. Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98, 63 Fed. Reg. 56705 (1998). In addition, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a Veteran or the Veteran's 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. 38 C.F.R. § 3.155(a) Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will be accepted as an informal claim for increase. 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). 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 a claim. 38 C.F.R. § 3.157(b) (1). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," within the one-year prior to the claim, the increase in disability was ascertainable. 38 U.S.C.A. § 5110(b) (2); 38 C.F.R. §§ 3.400(o) (2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). An appeal to the Board consists of a timely NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. §§ 20.200. An NOD must (1) express disagreement with a specific determination of the RO; (2) be filed in writing; (3) be filed with the RO; (4) be filed within one year after the date of mailing of notice of the RO decision; and (5) be filed by the claimant or the claimant's authorized representative. While special wording is not required, an NOD must be in terms that can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. §§ 20.201, 38 C.F.R. § 20.300; see Gallegos v. Gober, 283 F.3d 1309 (Fed. Cir. 2002). A substantive appeal consists of a properly completed VA Form 9 (Appeal to the Board of Veterans' Appeals ) or correspondence containing the necessary information. 38 C.F.R. § 20.202. A substantive appeal must be filed within 60 days from the issuance of the SOC or within the remainder of the one-year period from the date of mailing notification of the determination being appealed, whichever period ends later. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.302(b). A substantive appeal should set forth specific allegations of error of fact or law related to specific items in the SOC and clearly identify the benefit sought on appeal. 38 U.S.C.A. § 7105(d) (3); 38 C.F.R. § 20.202. If a decision by the RO goes unappealed, it is final. A final and binding RO decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of clear and unmistakable error (CUE), as provided in 38 C.F.R. § 3.105. 38 C.F.R. § 3.104(a). If a claimant wishes to reasonably raise CUE, "there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error . . . that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). For the reasons discussed below, the Board finds that the Veteran is not entitled to an effective date earlier than May 24, 2002, for the assignment of the 20 percent rating. Significantly, as noted above, by a rating action dated March 28, 1979, the RO granted service connection for fracture, right talus, with mild degenerative changes and assigned a 0 percent rating, effective February 4, 1979. Subsequently, in a decision issued in May 1980, the Board denied the Veteran's claim for a compensable evaluation for residuals of a fracture of the right talus, with mild degenerative changes. The May 1980 Board decision is final. See 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). Subsequently, rating decisions in January 1986 and November 1988 denied the Veteran's claim for a compensable rating for his service-connected right ankle disorder. The RO properly notified the veteran of those decisions by letters dated in January 1986 and November 1988, respectively. However, the Veteran did not appeal those decisions within one year of the notice thereof, and the decisions became final. See 38 U.S.C.A. § 7105(c); See Hazan, supra. The Board notes that the Veteran has not raised a claim of CUE in the May 1980 Board decision, the January 1986, or the November 1988 RO decisions, and we emphasize that, in any case, "CUE is a very specific and rare kind of 'error.' It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error . . . ." Fugo v. Brown, supra. See Rudd v. Nicholson, 20 Vet. App. 296(2006) (holding 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). With regard to the claim for an effective date prior to May 24, 2002, 38 U.S.C. § 5110 specifically provides that for an award of increased compensation, the effective date is the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b) (2). This section requires review of all the evidence of record to determine the earliest possible effective date. See Hazan v. Gober, 10 Vet. App. 511 (1997); 38 C.F.R. § 3.400(o)(1), (2) (2012) (effective date of award of increased rating is earliest date as of which it is factually ascertainable that increase in disability had occurred if claim is received within one year from such date, otherwise, date of receipt of claim). After the November 1988 rating decision, no communication was received from the Veteran or any authorized individual that may be construed as a claim for an increased rating for the right talus fracture until May 24, 2002. On that date, VA received a statement from the Veteran in which he stated: "I'm still having recurring problems with my right foot... would you please consider raising my compensation from non-compensatory to compensatory." The Veteran submitted several lay statements attesting to the increased severity of his right foot and ankle disorder. He submitted a formal application for compensation (VA Form 21-526) in June 2002. When read liberally, the Board construes this statement as an informal claim for increased rating for right knee disability. As such, May 24, 2002 is the date that the Veteran's informal claim for increased rating for right ankle disability was received. See 38 C.F.R. § 3.155(a). The Board will now consider whether an effective date earlier than May 24, 2002, is warranted. As noted previously, the effective date of any increase may precede the date of the receipt of the claim, if it was factually ascertainable that an increase in disability had occurred during the preceding year, provided that the application was received within one year after such date. Therefore, the Board must review the evidence of record to determine whether it is factually ascertainable that an increase in disability had occurred within the one-year period prior to May 24, 2002. See 38 C.F.R. § 3.400(o) (2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). As the Veteran's claim for an increased rating for fracture of the right talus was received on May 24, 2002, an effective date as early as May 24, 2001 could be granted if it were factually ascertainable that an increase in disability had occurred within that year. The Veteran has submitted a copy of a VA outpatient treatment record dated November 1994, which reflects that the Veteran was seen for complaints of right foot pain. It was noted that the Veteran had pain in his right foot for the past 12 years and that he wanted to be reevaluated so he could get a rating adjustment. As this is a VA medical record, it is deemed to have been in the constructive possession of VA at the time it was created. Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board acknowledges that VA clinical records dated as early as November 1994 reflect complaints of right ankle pain and as such constitute an informal claim under 38 C.F.R. § 3.157 in this case. However, while this enables an earlier claim date, it does not ultimately result in an earlier effective date here, because entitlement to a 20 percent rating is not shown until the September 2002 VA examination. Although the Veteran contended that he had had pain in his right foot for the past 12 years, during the November 1994 clinical visit, the treatment report does not demonstrate that he had functional impairment to the extent necessary to warrant a compensable rating under the criteria used to evaluate disabilities of the ankle. See 38 C.F.R. § 4.71a, Diagnostic Codes 5270 to 5274. For example, he was shown to have ankylosis of the ankle (5270), ankylosis of the subastragalar or tarsal joint (5272), malunion of osteoarthritis calcis or astragalus (5273), or astragalectomy (5274). His current 20 percent evaluation was assigned pursuant to Diagnostic Code 5271 for marked limitation of motion, but there were no specific range of motion findings for the right ankle from November 1988 through September 2002 by which it could be factually ascertained that a compensable rating was warranted under Diagnostic Code 5271. In view of the foregoing, the Board finds that there is no indication in the record of increased symptomatology until the time the Veteran presented for his September 9, 2002 VA joints examination. In light of the above, an effective date prior to May 24, 2002 for the assignment of a 20 percent rating for residuals of right talus fracture, with degenerative joint disease is not warranted. To the extent that the September 2002 VA examination is the first date on which it was factually ascertainable that the service-connected right ankle disorder had increased in severity and met the criteria for a 20 percent evaluation, the date of claim or May 24, 2002 is the earliest date that can be assigned under the law. Accordingly, on this record, the claim for an earlier effective date must be denied. 38 C.F.R. § 3.400. ORDER Entitlement to an effective date earlier than May 24, 2002, for the assignment of a 20 percent rating for residuals, fracture of the right talus, with degenerative joint disease, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs