Citation Nr: 1329613 Decision Date: 09/16/13 Archive Date: 09/20/13 DOCKET NO. 94-42 655 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than November 13, 1991, for special monthly compensation (SMC) due to the loss of use of the Veteran's left hand. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from June 1967 to March 1973 and from April 1980 to March 1984. He also had periods of service which have not yet been verified. This case has a very long and extremely complicated procedural history. It was previously before the Board of Veterans' Appeals (Board) in April 2001, December 2003, June 2006, October 2009, and May 2012. Each time, it was remanded for further development to the VA Appeals Management Center (AMC) in Washington, D.C. The development and the actions taken prior to May 2012 have been set forth in the prior Board remands and decisions and will not be repeated here. In May 2012, the Board remanded the case, so that the AMC could send the Veteran and his representative a corrected Supplemental Statement of the Case (SSOC) that properly identified and addressed the issue of entitlement to an effective date earlier than November 13, 1991, for the grant of SMC for the loss of use of the left hand. In the corrected SSOC, the AMC confirmed and continued the denial of that issue. Thereafter, the case was returned to the Board for further appellate action. In May 2000, the Veteran had a hearing before an Acting Member of the Board, who is no longer employed by the Board. In June 2013, the Board asked the Veteran if he wished to have another hearing before a member of the Board, who would participate in the decision on his claim. The Veteran was given 30 days to respond to that inquiry; however, he did not do so. Therefore, the Board will proceed as if the Veteran does not desire an additional hearing. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT On November 13, 1991, VA received the Veteran's original claim entitlement to SMC for the loss of use of the left hand. CONCLUSION OF LAW The criteria have not been met for an effective date earlier than November 13, 1991, for entitlement to SMC due to the loss of use of the Veteran's left hand. 38 U.S.C.A. §§ 5103, 5103A, 5110(a)-(b) (West 2002 and Supp. 2013); 38 C.F.R. §§ 3.159, 3.400(a), (o) (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to an effective date earlier than November 13, 1991 for a grant of SMC due to the loss of use of the left hand. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. After receiving the Veteran's claim of entitlement to an effective date earlier than November 13, 1991 for SMC for loss of use of the left hand, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim. VA informed him of the evidence to be provided by him, as well as that which VA would attempt to obtain. VA also informed him of the criteria for SMC Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained or ensured the presence of the Veteran's service treatment records; records reflecting the Veteran's October 1988 treatment at Jewish Hospital; a document showing that the Veteran had filed a February 1990 lawsuit against VA under the Federal Tort Claims Act; a November 13, 1991 claim of entitlement to service connection for traumatic amputation and reattachment of the left hand and a claim of SMC for loss of use of the hand; and the transcript of a July 1995 hearing at the RO before a VA Decision Review Officer. In May 1990, the Veteran had a hearing at the RO before an Acting Member of the Board. A transcript of that hearing has been associated with the claims file. The hearing transcript shows the presiding Acting Member of the Board conducted the proceeding in accordance with the mandates of 38 C.F.R. § 3.103(c)(2) (2013). The Acting Member of the Board identified the material issue, gave the Veteran's representative an opportunity to question the Veteran, clarified the date when the Veteran sustained traumatic amputation of the left hand, identified the manner in which VA assigned effective dates; asked whether there were any intervening decisions which could have affected the assignment of the effective date for SMC, asked the Veteran when he filed his claim for SMC due to his loss of use of the left hand, permitted the Veteran to read a statement into the record, and, at the end of the hearing, asked the Veteran if he had anything to add. As such, the conduct of the hearing was performed in accordance with the provisions of 38 C.F.R. § 3.103(c)(2) (2013). Therefore, there was no prejudice to the Veteran's claim as a result of the conduct of that hearing. See Bryant, 23 Vet. App. at 498 (citing to 38 U.S.C.A. § 7261(b)(2) (West 2002 and Supp. 2013); Shinseki v. Sanders, 129 S. Ct. 1696, 1704 (2009)). In developing the evidence, VA made extensive efforts to obtain copies of the records associated with the Veteran's October 1990 suit under the Federal Tort Claims Act. VA made multiple requests for records from the VA Regional Counsel in Atlanta, Georgia and Houston, Texas; the Cleveland District Counsel, and the VA RO's in Atlanta; Houston; Montgomery, Alabama; St. Petersburg, Florida; and Cleveland, Ohio. However, those efforts met with negative results; and in March 2011, the AMC made a formal finding that the records associated with the Veteran's law suit against the VA were unavailable. There is no reason to believe that further efforts to obtain such evidence would be any more productive. Further development in this regard would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Accordingly, such development is not warranted. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal with respect to the issue of entitlement to an earlier effective date for SMC. He has not identified any outstanding evidence which could support his claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal During his May 2000 hearing before an acting member of the Board, the Veteran testified that on October 25, 1988, while operating a table saw, he suffered a dizzy spell due to his service-connected labrynthitis. He stated that he fell onto a table saw, sustaining a traumatic amputation of his left hand. He also stated that he submitted treatment records at the time which constituted a de facto claim. Therefore, he maintained that he should be entitled to SMC due to loss of use of the left hand back to October 25, 1988. In the alternative, the Veteran testified on that on October 8, 1990, he filed a $5,000,000.00 lawsuit for loss of use of the left hand under the Federal Tort Claims Act. He contended that his left hand injury had occurred while the Veteran was in a woodworking program under the auspices of the VA Vocational Rehabilitation and Education service. The Veteran suggested that the lawsuit constituted an informal claim which put VA on notice, or should have put VA on notice, that he intended to claim entitlement to SMC for loss of use of the left hand. Therefore, he maintained that the effective date should revert to that date. In any event, the Veteran stated that an effective date earlier than November 13, 2011 is warranted for SMC for the loss of use of his left hand. However, after carefully considering the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against that claim. Accordingly, the appeal will be denied. A claim for SMC is, in effect, a claim of entitlement to an increased rating for a disorder for which service connection has already been established. Generally, the effective date of an award of increased compensation for service-connected disability 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(a); 38 C.F.R. § 3.400(o)(1). There is an exception in that the effective date may the earliest date as of which it is ascertainable that an increase in disability has occurred, provided that the application therefor is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). SMC is payable for each anatomical loss or loss of use of one hand. Loss of use of a hand will be held to exist when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below elbow with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., could be accomplished equally well by an amputation stump with prosthesis. For example, complete ankylosis of two major joints of an extremity will constitute loss of use of the hand. 38 U.S.C.A. § 1114(k) (West 2002 and Supp. 2013); 38 C.F.R. § 3.350(a)(2) (2013). Generally, the effective date of an award of service connection 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(a); 38 C.F.R. § 3.400(b)(2). There is an exception in that the effective date of disability compensation will be the day following the Veteran's separation from active service, if the claim is received within 1 year after the Veteran's separation from service. Otherwise, the effective date will be the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a)- (b)(1); 38 C.F.R. § 3.400(b)(2)(1). A specific claim in the form prescribed by the VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. See 38 U.S.C.A. § 5101(a) (West 2002 and Supp. 2013); 38 C.F.R. § 3.151(a) (2013). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2013). Applicable statutory and regulatory provisions require VA look to all communications from the veteran which may be interpreted as applications or claims -- formal and informal -- for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a) (2013); see Servello v. Derwinski, 3 Vet. App. 196 (1992). A specific claim in the form prescribed by the VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2013). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA from a veteran, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a veteran who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. The mere presence of medical evidence does not establish an intent on the part of the Veteran to seek service connection. Rather, he must assert the claim expressly or impliedly. Brannon v. West, 12 Vet. App. 32, 35 (1998). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the Veteran for execution. If received within 1 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) (2013). In this case, the evidence shows that in July 1988, the RO granted the Veteran's claim of entitlement to service connection for tinnitus and assigned a disability rating of 10 percent, effective December 20, 1984, the day following the Veteran's separation from service. On October 8, 1990, the Veteran filed a $5,000,000.00 lawsuit against the VA under the Federal Tort Claims Act. He sought damages for permanent disability and disfigurement of his left arm and hand. He alleged that VA had negligently place him in a woodworking program in conjunction with the VA Vocational Rehabilitation and Education Service. He stated that VA had received notice that the Veteran's medical condition would reasonably prevent him from safely engaging in such program. On November 13, 1991, the Veteran submitted a formal claim (VA Form 21-526) of entitlement to service connection or nonservice-connected pension for a neurologic disorder, manifested by periodic dizziness, disorientation, hearing loss, ringing in the ears, and/or a loss of consciousness and for a left arm and hand injury resulting in the permanent loss of use, disfigurement, dysfunction, and deformity of the left arm and hand. During a July 1995 hearing before a VA Decision Review Officer, the Veteran raised the issue of entitlement to service connection for labrynthitis. He stated that on October 25, 1988, due to that disorder, he had fallen onto a table saw and sustained a traumatic amputation of the left hand. Although that hand was reattached at Jewish Hospital, he stated that he had suffered the loss of use of that hand. Therefore, he maintained that service connection his left hand disability and SMC for loss of use of the hand were warranted. In July 1995, the RO recharacterized the Veteran's tinnitus as labrynthitis and increased the rating to 30 percent, effective December 21, 1991. The RO also granted service connection for traumatic amputation of the left hand secondary to labrynthitis. The RO denied the Veteran's claim of entitlement to SMC due to the loss of use of the left hand. In April 2002, the RO revised the effective date for the Veteran's grant of SMC to November 13, 1991. Although the Veteran's traumatic amputation of the left hand occurred on October 25, 1988, he did not file a formal or informal claim of entitlement to service connection for that disorder. At that time, service connection had not been granted for labrynthitis which ultimately provided the basis for secondary service connection for traumatic amputation of the left hand. There was simply nothing on file to alert the VA that the Veteran was seeking entitlement to SMC for a left hand disability. The Veteran did file a lawsuit on October 2, 1990 under the Federal Tort Claims Act. He noted that at the time of his left hand injury he had been in a woodworking program under the auspices of the VA Vocational Rehabilitation and Education Service. The lawsuit alleged that VA knew or should have known that the Veteran's physical condition precluded his participation in such a program. The Veteran's contentions notwithstanding, the there was nothing in the Veteran's Vocational Rehabilitation and Education Folder which suggested that woodworking would not be a suitable program for the Veteran. There was no evidence of any disorder manifested by dizziness or a loss of consciousness, including labrynthitis. Counseling sessions in August , September, and November 1990 between the Veteran and the VA Vocational Rehabilitation and Education Counselor were completely negative in that regard. In August 1990, the Counselor recognized that the Veteran had a service-connected back disorder which would contraindicate his continued participation in police work. However, there remained no evidence that the Veteran experienced dizziness or loss of consciousness as a result of service or that it was in any way related to a disability for which service connection had already been established. Rather, the examiner stated that the Veteran's primary problem was anger related to fighting VA for increased benefits. During his September 1990 counseling session the Veteran did not complain of any disorder manifested by dizziness or loss of consciousness. During his November 1990 Vocational Rehabilitation and Education Counseling session, the Veteran seemed to argue that there was an issue associated with his use of 14 months and 24 days of VA Chapter 31 benefits in pursuit of an objective of becoming a bench carpenter. He indicated that he had a chronic disorder manifested by syncopal episodes which was a matter of record and suggested that he had been inappropriately placed in the carpentry program. Therefore, he claimed that his training should be voided and his benefits restored. The VA counselor was aware of the Veteran's Federal Tort Claim and noted that the Veteran had terrible scar on his left arm and that he appeared to have lost the use of that arm. However, the VA counselor stated that there were no records of the Veteran having some kind of seizure or syncopal episodes. In addition, he noted that there were no records of exactly how the Veteran hurt his arm. Moreover, there was no evidence of a formal or informal claim of entitlement to service connection for a left hand disorder or for a disorder, manifested by dizziness or loss of consciousness, including labrynthitis. By itself, a lawsuit under the Federal Tort Claims Act would not have placed VA on notice that the Veteran wished to file a claim of entitlement to service connection for either disorder. Indeed, such claims are distinct from service connection claims and each has their own set of governing law and regulations. As noted above, a claim of SMC is, in effect, an increased rating claim. Under certain circumstances, an increased rating may be assigned one year prior to the claim. However, those circumstances are not present in the Veteran's claim. In this regard, the Board notes that service connection for a left hand disability did not become effective until November 13, 1991. The effective date of an assigned rating may not precede the date that service connection became effective. In sum, there was simply no basis to indicate to VA that prior to November 13, 1991, the Veteran intended to file a claim of entitlement to service connection for a disorder manifested by dizziness or for a left arm disorder or for SMC due to the loss of use of the arm. As noted above, the mere presence of medical evidence does not establish an intent on the part of the Veteran to seek service connection. Rather, he must assert the claim expressly or impliedly. Absent such a claim, the Board finds no legal basis for an effective date prior to November 13, 1991 for a grant of service connection for labrynthitis or for traumatic amputation of the left hand and a derivative claim of entitlement to SMC for loss of use of the hand. In such cases, the law is dispositive of the issue. Accordingly, the appeal is denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER Entitlement to an effective date earlier than November 13, 1991 is denied for SMC due to loss of use of the left hand. ____________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs