Citation Nr: 1329005	
Decision Date: 09/10/13    Archive Date: 09/17/13

DOCKET NO.  09-27 763	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to an effective date earlier than November 9, 2005, for the grant of an evaluation of 100 percent disability for asthma, including whether there was clear and unmistakable error (CUE) in a November 2001 rating decision that denied entitlement to a disability rating in excess of 30 percent.  


REPRESENTATION

Appellant represented by:	Michael A. Leonard, Attorney


ATTORNEY FOR THE BOARD

Tiffany Berry, Counsel 



INTRODUCTION

The Veteran served on active duty from September 1990 to July 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  

In February 2011, the Board remanded this claim.  All requested actions have been completed and the claim is once again before the Board.  


FINDINGS OF FACT

1.  The Veteran filed a claim of entitlement to a disability rating in excess of 30 percent for asthma on November 18, 2000.  Her claim was denied in a November 2001 rating decision.  She did not appeal so the rating decision became final.

2.  On November 9, 2005, the Veteran submitted a new claim of entitlement to an increased rating in excess of 30 percent for asthma.

3.  In the October 2007 rating decision currently on appeal, the Veteran was granted entitlement to a 100 percent disability rating for asthma, effective November 9, 2005, the date the Veteran's claim was received.  

4.  The November 15, 2001 rating decision contains clear and unmistakable error (CUE). 

5.  The evidence shows the Veteran is entitled to a 100 percent disability rating for asthma as of January 19, 2000.



CONCLUSIONS OF LAW

1.  The November 2001 rating decision that denied entitlement to a disability rating in excess of 30 percent for asthma was clearly and unmistakably erroneous.  38 U.S.C.A. § 7111 (West 2002); 38 C.F.R. §§ 20.1400, 20.1403 (2013).

2.  The criteria for an effective date of January 19, 2000 for the assignment of a 100 percent disability rating for asthma are met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran is seeking an earlier effective date of January 19, 2000 for the assignment of a 100 percent disability rating for her asthma.  For the reasons explained below, the Board finds CUE in the November 2001 rating decision and finds that an earlier effective date of January 19, 2000 is warranted for the assignment of a 100 percent disability rating for the Veteran's service-connected asthma.  As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary.

The Veteran alleges that there was CUE in a November 2001 RO determination that denied entitlement to a disability rating in excess of 30 percent for asthma.  She argues that the November 2001 rating decision should be reversed on the grounds of CUE and that her current 100 percent rating should be retroactively extended to 2000, when she filed the claim that was denied in the November 2001 rating decision.

The Board notes that the November 2001 rating decision is final, absent a finding of CUE.  38 U.S.C.A. § 5109A (West 2002); 38 C.F.R. § 3.105(a) (2013).  If an earlier decision contains clear and unmistakable error, the prior decision will be reversed or amended, and for the purposes of authorizing benefits, the rating or adjudicative decision that constitutes a reversal of the prior decision on the grounds of clear and unmistakable error has the same effect as if the correct decision had been made on the date of the reversed decision.  38 C.F.R. § 3.105(a).  

Here, in a September 2008 statement submitted by the Veteran's representative, it is alleged that the November 2001 rating decision is the product of CUE.  The Veteran's argument is that pulmonary function test (PFT) results in 2000 met the criteria for a 100 percent disability rating for asthma.  The Board agrees.

A determination that a prior determination involved CUE involves the following three-prong test: (1) either the correct facts, as they were known at the time, were not before the adjudicator (there must be more than a 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 clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question.  Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). 

At the time of the November 2001 decision, the only PFT of record during the appeals period is dated from January 19, 2000.  The results of that January 2000 PFT show FEV-1, 34 percent predicted.  

Diagnostic Code 6602 for asthma provides that a 100 percent evaluation is for application when FEV-1 is less than 40-percent predicted, or; FEV-1/FVC is less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of oral or parenteral systemic high dose corticosteroids or immuno-suppressive medications.  In this case, the evidence of record at the time of the November 2001 rating decision clearly and unmistakably showed that the Veteran's service-connected asthma disability warranted a 100 percent disability rating as her FEV-1 was only 34 percent predicted.

This finding of CUE in the November 2001 rating decision results in the establishment of an earlier effective date for the award of a 100 percent disability rating for the Veteran's service-connected asthma.  

The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o).  The general rule with respect to the effective date of an award of increased compensation is that the effective date of award "shall not be earlier than the date of receipt of the application thereof."  38 U.S.C.A. § 5110(a).  This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1). 

An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation.  If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of claim.  If the increase occurred after the date of claim, the effective date is the date of increase.  38 U.S.C.A. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998).

The United States Court of Appeals for the Federal Circuit  (Federal Circuit) has further explained that the provisions of 38 U.S.C.A. § 5110 governing the effective date to be assigned for an increased rating require "that a veteran's claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim."  Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims).  Thus, when it is established that the increase occurred more than one year prior to the date an increased rating claim is received by VA, the effective date shall be the date that the claim was received, and no earlier.  See 38 U.S.C.A. § 5110(b)(2); Gaston, 605 F.3d at 984.

In the instant case, the Veteran filed her claim in November 2000.  In the year prior to this date, the evidence reflects that on January 19, 2000 the Veteran met the criteria for a 100 percent disability rating for her service-connected asthma based on PFT results.

The Board finds the Veteran is entitled to an effective date of January 19, 2000, since the PFT results reflect that it is factually ascertainable that the Veteran's asthma underwent an increase in disability on this date, which is within the one-year period prior to the date of the Veteran's claim.  The evidence does not show, nor does the Veteran contend, than an effective date prior to January 19, 2000 is warranted.


ORDER

There is clear and unmistakable error in the November 2001 rating decision.

An effective date of January 19, 2000 is granted for the assignment of a 100 percent disability rating for asthma.  



____________________________________________
M. N. HYLAND
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs