Citation Nr: 1329594 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 12-28 994 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date prior to September 7, 2011 for the award of a compensable initial rating for bilateral pes planus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. J. In, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1952 to August 1956. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a December 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The December 2011 rating decision on appeal granted an increased the rating for pes planus of 10 percent, effective September 7, 2011. 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. The Veteran was issued notice on October 29, 2009, to his address of record, of an October 2009 rating decision which assigned a noncompensable initial rating for bilateral pes planus, which included his appellate rights. 2. The Veteran did not file a timely notice of disagreement with the noncompensable initial rating assigned for bilateral pes planus in the October 2009 rating decision. 3. The Veteran did not timely request an extension of time in order to file a timely notice of disagreement with the noncompensable initial rating assigned for bilateral pes planus in the October 2009 rating decision. 4. The RO did not waive timely filing of a notice of disagreement, there has been no demonstration of good cause for failing to timely file a notice of disagreement, and there is no evidence that the Veteran was physically or mentally incapacitated such that equitable tolling of the filing deadline is warranted. CONCLUSIONS OF LAW 1. The October 2009 rating decision which assigned a noncompensable initial rating for bilateral pes planus is final because a timely notice of disagreement was not filed. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.109(b), 20.302 (2012). 2. The criteria for an effective date prior to September 7, 2011 for the award of a compensable (10 percent) rating for bilateral pes planus have not been met. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.400(o)(2) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 5103, VA must notify a claimant of the information and evidence not of record that is necessary to substantiate the claim, and of which information and evidence that VA will seek to provide and which information and evidence the claimant is expected to provide. VA was not required to provide the Veteran with such notice in this case, as it is one that stems from a notice of disagreement with the award of an increased rating, and where entitlement to the benefit claimed cannot be established as a matter of law. See 38 C.F.R. § 3.159(b)(3)(i) and (ii) (2012). This extends to the situation where a claim cannot be substantiated based on the application of the law to undisputed facts. See VAOPGCPREC 5-2004; see also Valiao v. Principi, 17 Vet. App. 229, 232 (2003). As the pertinent facts in this case are undisputed, and the law as mandated by statute, and not the evidence, is dispositive of this appeal, the Board finds that no further action is required pursuant to the duties to notify and to assist. See Mason v. Principi, 15 Vet. App. 129 (2002); see also Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994) (holding that where application of the law to the facts is dispositive, the appeal must be terminated because there is no entitlement under the law to the benefit sought). An October 2009 rating decision granted service connection for bilateral pes planus and assigned a noncompensable initial rating effective September 18, 2002. Notice of the October 2009 rating decision was issued to the Veteran at his address of record, with a copy to his representative, on October 29, 2012. No notice of disagreement as to the initial rating assigned for pes planus, nor additional evidence pertinent to the matter, was received within one year of notification of the determination from the Veteran or his representative. In September 2011, the Veteran filed a claim for an increased rating for his service-connected bilateral pes planus with an earliest possible effective date, arguing that he had never received a copy of the October 2009 rating decision and suggesting that had he received earlier notification of that rating decision, he would have appealed the noncompensable initial rating assigned for his service-connected bilateral pes planus. The record reflects that a copy of the October 2009 rating decision, and his appellate rights, were sent to the Veteran on October 29, 2009 to his address of record, with a copy to his representative, and it was never returned to VA as undeliverable. In a letter from the Veteran, dated and received in December 2009, wherein an issue not herein for appellate consideration was addressed, no reference was made as to any disagreement with the October 2009 rating decision award of a noncompensable initial rating for bilateral pes planus. In an Informal Hearing Presentation dated in January 2010, wherein an issue not herein for appellate consideration was addressed, the Veteran's representative acknowledged awareness that service connection had been established for pes planus. No reference was made as to the initial rating assigned for the service-connected pes planus. In a statement dated and received in May 2010, the Veteran indicated that he was "satisfied with the pes planus [service] connection . . .," and made no reference to disagreement with the noncompensable initial rating assigned therefor. Thereafter, the Veteran made an inquiry regarding the status of his claim for bilateral pes planus in March 2011. In that letter, he again noted awareness that "[s]ervice connection for bilateral pes planus ha[d] been approved..." in a June 2009 Board decision. Subsequently, in a letter received by VA on September 7, 2011, the Veteran indicated that his representative had provided a copy of the October 2009 rating decision in August 2011, and that that had been the first time he was notified of the noncompensable initial rating assigned for pes planus. The December 2011 rating decision on appeal increased the rating for pes planus to 10 percent effective September 7, 2011, the date VA received the Veteran's letter requesting an increased rating for pes planus. In a May 2012 letter, the Veteran stated that the effective date of the increased rating for pes planus granted by the December 2011 rating decision should be September 18, 2002, the date of his original service connection claim, not September 7, 2011, the date of his claim for an increased rating. Essentially, the Veteran contends that there should be equitable tolling of the period to submit a notice of disagreement with the October 2009 rating decision which granted the noncompensable initial rating for his service- connected pes planus for the period from September 18, 2002 through September 6, 2011. Specifically, it is essentially averred that the one year time period to file a timely notice of disagreement as to the assignment of an initial rating for pes planus should not start to run until the Veteran had actual notice of the October 2009 rating decision, because he never received notice of that rating decision issued in October 2009. An appeal consists of a timely filed Notice of Disagreement in writing and, after a Statement of the Case has been furnished, a timely filed Substantive Appeal. 38 C.F.R. § 20.200 (2012). A written communication from a claimant, or his or her representative, expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction (AOJ), and a desire to contest the result, will constitute a Notice of Disagreement. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. 38 C.F.R. § 20.201 (2012). A claimant, or his or her representative, must file a Notice of Disagreement with a determination by the AOJ within one year from the date that that AOJ mails notice of the determination to him or her. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same date as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a) (2012). Generally, except as otherwise provided, the effective date of an award of compensation based on a claim for an increased rating will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2012). Additionally, however, the effective date of an award of compensation based on a claim for an increased rating will be the earliest date it is factually ascertainable that an increase in disability had occurred if a claim is received within the one year period from such date, otherwise the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2) (2012). Pursuant to 38 C.F.R. § 3.109, time limits for filing may be extended in some cases on a showing of good cause. However, the United States Court of Appeals for Veterans Claims (Court) has held that there is no legal entitlement to an extension of time, but that 38 C.F.R. § 3.109(b) commits the decision to the sole discretion of the Secretary. Corry v. Derwinski, 3 Vet. App. 231 (1992). Specifically, 38 C.F.R. § 3.109(b) requires that, where an extension is requested after expiration of a time limit, the required action must be taken concurrent with or prior to the filing of a request for extension of the time limit, and good cause must be shown as to why the required action could not have been taken during the original time period and could not have been taken sooner. Within the VA regulatory system, the Board is the sole arbiter of decisions concerning it jurisdiction, including the timeliness of a notice of disagreement. 38 U.S.C.A. § 7105. As noted above, the Veteran and his representative were provided notice of the October 2009 rating decision grant of a noncompensable initial rating for bilateral pes planus, as well as the Veteran's appellate rights, by written communication issued on October 29, 2009. No expression of disagreement with that determination, or additional relevant evidence, was received within the one year period following issuance of such notice. The record does not reflect, and it is not averred, that the Veteran timely requested an extension of time to submit a Notice of Disagreement, or that he was precluded from timely filing a Notice of Disagreement due to psychiatric and/or physical disability. As such, the October 2009 rating decision is final, and the communication received from the Veteran requesting an increased rating for the service-connected bilateral pes planus must be considered a new claim. 38 U.S.C.A. § 7105. Although the Veteran has asserted that he never received notice of the October 2009 rating decision assignment of a noncompensable initial rating until provided a copy of the decision by his representative in August 2011, as outlined above, written communications from the Veteran and his representative expressed awareness as early as January 2010 and May 2010, within the one year appeal period, that service connection had been established for bilateral pes planus. Further, the Court has specifically held that a statement of an appellant, standing alone, is not sufficient to rebut the presumption of regularity in RO operations, to include issuance of notice of a rating decision. See Jones v. West, 12 Vet. App. 98, 100 (1998); Ashley v. Derwinski, 2 Vet. App. 307 (1992). In view of the foregoing, pursuant to the provisions of 38 C.F.R. § 3.400(o)(2) outlined above, the earliest effective date assignable for the award of the increased 10 percent rating for bilateral pes planus is the earliest date it was factually ascertainable within the one year prior to the date of receipt of the claim on September 7, 2011 that an increase in the bilateral pes planus had occurred. The record does not contain VA or private treatment records which reference the severity of the service-connected bilateral pes planus at any time during the period from September 2010 to September 2011. An April 2011 receipt from Custom Shoe Service reflects purchase of extra depth shoes without indication that the purchase was made by or for the Veteran. Billing documents from a private medical provider dated in February 2011 reflect that the Veteran had been seen for metatarsalgia, and billing documents dated in April 2011 reflect that the Veteran had been seen for a fractured metatarsal, and for metatarsalgia. No clinical findings as to functional impairment, or whether the metatarsal fracture was etiologically related to the service-connected pes planus, were provided. In a November 2011 statement that accompanied submission of these documents, the Veteran asserted that the visits had been made due to increasing foot pain that he suspected was due to metatarsalgia caused by his pes planus. However, the Veteran failed to complete and return a VA Form 21-4142, Authorization and Consent to Release Information, for VA to obtain the clinical records from treating private medical providers, as had been requested in an October 2011 VA letter. The Board notes that, while VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991); see Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence). As such, The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. As the record does not reflect that it is factually ascertainable that an increase in severity of the bilateral pes planus occurred at any time during the one year period prior to receipt of the increased rating claim on September 7, 2011, an earlier effective date is not warranted. As the preponderance of the evidence is against the claim for an earlier effective date for the award of a 10 percent rating for bilateral pes planus, the benefit of the doubt doctrine does not apply. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993); see also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The appeal is denied. ORDER Entitlement to an earlier effective date for the award of a 10 percent rating for bilateral pes planus is denied. ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs