Citation Nr: 1334600	
Decision Date: 10/30/13    Archive Date: 11/06/13

DOCKET NO.  12-17 832A	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico

THE ISSUES

1.  Entitlement to a rating higher than 10 percent for tonsillitis/pharyngitis.

2.  Entitlement to an effective date earlier than November 16, 2010, for this 10 percent rating for this disability.

3.  Entitlement to service connection for tinnitus.

REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Larson, Associate Counsel


INTRODUCTION

The Veteran served on active duty from January 1957 to February 1959.

This appeal to the Board of Veteran's Appeals (Board/BVA) is from a March 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that increased the rating for the Veteran's tonsillitis/pharyngitis from 0 percent, i.e., noncompensable, to 10 percent retroactively effective from November 16, 2010, the date of receipt of his claim for a higher rating for this service-connected disability.  In his May 2011 Notice of Disagreement (NOD) (his original March 2011 NOD was lost), he indicated that he disagreed with both the higher 10 percent rating, since he believed he is entitled to an even greater rating, and the effective date for this rating.  See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (indicating he had to separately appeal these "downstream" issues).  A Statement of the Case (SOC) was issued in June 2012 confirming and continuing the 10 percent rating for his tonsillitis/pharyngitis and denying an earlier effective date for this rating.  His Substantive Appeal to the Board (VA Form 9) is dated in March 2013, so more than one year from the date he received notification of the decision assigning this higher rating as of this effective date and more than 60 days following issuance of that SOC.  That Substantive Appeal to the Board therefore seemingly was not timely filed.  See 38 C.F.R. §§ 20.300, 20.301, 20.302, 20.303, 20.304, 20.305, and 20.306 (2013).

An appeal to the Board consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed Substantive Appeal (VA Form 9 or equivalent).  38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. § 20.200 (2013).  In a precedent case, Percy v. Shinseki, 23 Vet. App. 37 (2009), the appeal similarly involved the question of whether the requirement that a claimant file a timely Substantive Appeal under 38 U.S.C.A. § 7105(d)(3) is a jurisdictional predicate to the Board's adjudication of a matter, particularly in light of the Supreme Court's decision in Bowles v. Russell, 551 U.S. 2005 (2007), which had held that jurisdictional time periods for taking an appeal may not be extended for equitable reasons (i.e., equitably tolled).

Under certain circumstances, a statutory filing period may be equitably tolled due to conduct of VA.  See Bailey v. West, 160 F.3d 1360, 1365 (Fed. Cir. 1998).  Equitable tolling, as an example, is available where the claimant has actively pursued his judicial remedies but has filed a defective pleading during the statutory filing period, or where a claimant has been induced or tricked by his adversary's misconduct into allowing the filing deadline to pass.  Jaquay v. Principi, 304 F.3d 1276, 1282-83 (Fed. Cir. 2002).  The Federal Circuit Court specifically held in Bailey that equitable tolling in the paternalistic Veterans' benefits context does not require misconduct - such as trickery; however, Bailey does require the Appellant to have been "misled by the conduct of his adversary into allowing the filing deadline to pass."  Bailey, 160 F.3d at 1365; see also (William)Smith v. West, 13 Vet. App. 525 (2000).  There must be a cause and effect, i.e., the complainant relied to his detriment on something that VA did or should have but did not do.  See Cintron v. West, 13 Vet. App. 251, 257 (1999), citing Bailey, 160 F.3d at 1364.

In distinguishing Bowles, the Court held in Percy that section 7105(d)(3) does not operate as a jurisdictional bar precluding the Board's consideration of an appeal where the substantive appeal is untimely.  The Court specifically noted that, while section 7105(d)(3) provides that the agency of original jurisdiction "may" close a case if a Substantive Appeal is not timely filed, such action is discretionary, not mandatory.  Given the permissive nature of section 7105(d)(3), including express authority to grant indeterminate extensions of time, the Court held that VA may waive its objection to an untimely Substantive Appeal, and that the Board may properly adjudicate a matter where there has been such waiver because the 60-day filing period is not jurisdictional in nature.  While the Board's regulations refer to the timely filing of a Substantive Appeal as constituting a jurisdictional question, the Court stated that it need not provide any deference to this interpretation given that the statute is clear on its face.


The Court goes on to note in Percy that, if VA treats an appeal as if it was timely filed, then a claimant is entitled to expect that VA means what it says.  So as these claims were included and addressed in the SOC and even more recently considered during the Veteran's August 2013 videoconference hearing before the Board, the Board finds they are indeed on appeal and therefore will adjudicate them pursuant to these precedent holdings in Percy.

Also consider that there is a June 2013 Report of General Information (VA Form 27-0820) in the file certifying that a VA Form 9, so Substantive Appeal, was earlier submitted in July 2012, hence, within the required 60 days of issuance of the June 2012 SOC, so well within the timeframe the Veteran had for timely perfecting his appeal of the decision at issue.  And apparently partly because of this, the RO went ahead and certified his claims to the Board.

Other records in the file show he was originally granted service connection for tonsillitis/pharyngitis in a September 1959 rating decision.  The disability initially was evaluated as 0-percent disabling, so noncompensable, retroactively effective from June 8, 1959.  He did not in response appeal that decision, either as concerning that initial rating or effective date for this disability.  See Fenderson v. West, 12 Vet. App. 119 (1999) (discussing situations when a Veteran timely appeals an initial rating following the granting of service connection for the disability).  Consequently, absent an appeal of that prior decision, it is a final and binding determination based on the evidence then of record.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.

He was denied an increased rating for this disability in rating decisions issued in January 2001, May 2005, and July 2009.  And he also did not timely appeal any of those additional decisions, either.  (Although he sent in a VA Form 9 regarding the May 2005 denial of a higher rating for his disability, it was untimely and thus not processed.)  So as an unfortunate consequence, those additional decisions denying a higher rating also are final and binding determinations based on the evidence of record when they were respectively made.  Id.


To vitiate the finality (res judicata) of those several prior decisions, the Veteran must collaterally attack them - such as by alleging they involved clear and unmistakable error (CUE).  38 C.F.R. § 3.105(a).  Previous determinations that are final and binding will be accepted as correct in the absence of collateral attack by showing the decision involved CUE.  Id.  There must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied.  Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc).  Further, 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 a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question, so not instead based on evidence and argument since made or received.  Id.  Moreover, simply claiming CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of "failure to follow the regulations" or "failure to give due process", or any other general, non-specific claim of "error" meet the restrictive definition of CUE.  Fugo v. Brown, 6 Vet. App. 40, 44 (1993).

CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts.  It is not mere misinterpretation of facts.  Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991).  To reiterate, it is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error.  Fugo, 6 Vet. App. at 43.

Where evidence establishes CUE, the prior decision will be reversed or amended.  For the purpose of authorizing benefits, the rating decision that constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision.  38 C.F.R. §§ 3.104(a), 3.400(k).

CUE must be pled with specificity, however.  See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff'd sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002).  When a free-standing claim of the type contemplated in Rudd v. Nicholson, 20 Vet. App. 296 (2006) is raised, that is, in the absence of a collateral attack and explanation as to why a prior final and binding decision should be revised or reversed on the basis of CUE, the Court has held that such an appeal should be dismissed - although the dismissal should be without prejudice to refiling.  See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006).

The Court has propounded a three-pronged test to determine whether CUE is present in a prior final and binding determination:

(1) [E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at that 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 CUE must be based on the record and law that existed at the time of the prior adjudication in question.

Damrel, 6 Vet. App. at 245, quoting Russell, 3 Vet. App. at 313-14; see also Wilson v. West, 11 Vet. App. 383, 386 (1998).

The revision of a prior final and binding rating decision based on CUE generally will involve the assignment of an earlier effective date for those benefits involved because the governing regulation requires that benefits be paid "as if the corrected decision had been made on the date of the reversed decision."  38 C.F.R. § 3.105(a).

The effective date for an increase in rating for a disability is generally the date of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  With respect to disability compensation, the earliest effective date that may be assigned is the date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date, otherwise the effective date is the date of claim.  38 C.F.R. § 3.400(o)(2).  The U. S. Court of Appeals for Veteran's Claims (Veterans Court/CAVC) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows:  if the increase 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 the claim.  If the increase occurred after the date of the claim, the effective date is the date of increase.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2).  See also Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998).  The Federal Circuit Court has reaffirmed that "the plain language of [section] 5110(b)(2) ... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."  Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a 
service-connected disability).

Here, as already alluded to, in August 2013, in support of his claims, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge of the Board.  During the hearing, the Veteran's representative requested an additional 30 days to allow the Veteran time to obtain and submit supporting evidence for consideration.  However, the Veteran did not submit any additional evidence within this time allotted, or even since, so the Board is proceeding with its consideration of his claims.  See Haney v. Nicholson, 20 Vet. App. 301 (2006) (indicating that, when a Veterans Law Judge during a hearing exercises discretion to leave the record open for the appellant to submit evidence pursuant to 38 C.F.R. § 20.709, the presiding VLJ must set a deadline as to how long the record will remain open, and if such deadline is not set at the hearing, fair process requires the Board to subsequently set a deadline by which the record will close and notify the appellant of that deadline before the claim can be adjudicated).

An additional claim of entitlement to service connection for tinnitus, as well as a petition to reopen a claim for service connection for pneumonia, have been raised by the record, but have not been initially adjudicated by the RO as the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over these additional claims.  The Court (CAVC) has clarified the meaning of the terms frequently used to determine the scope of a claim properly on appeal before the Board.  See Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011).  A "claim" seeks entitlement to a benefit, a "theory" is a means of establishing entitlement to the benefit sought, and a "matter" is the entire subject under consideration.  Id.  All theories pertaining to the same benefit for the same disability are part of the same claim.  Id.; but see Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (distinguishing requests for revision of a decision on the grounds of CUE under 38 U.S.C.A. § 5109(a) (West 2002)).  As the meaning of the term encompasses the entire subject under consideration by the adjudicatory body, the scope of the matter may be different at different stages of adjudication.  Hillyard, 24 Vet. App. at 355.

Accordingly, the Board has jurisdiction to adjudicate the merits of different theories, or questions, on a single matter because the Veteran's appeal properly brings all means of establishing entitlement to the benefit sought before the Board.  Godfrey v. Brown, 7 Vet. App. 398, 409 (1995); see also Hillyard, 24 Vet. App. at 355.  However, a Notice of Disagreement (NOD) and Substantive Appeal (VA Form 9 or equivalent statement) filed by the Veteran cannot confer jurisdiction on the Board to review claims that are wholly separate and distinct from the claim presented to and adjudicated by the RO.  Jarrell, 20 Vet. App. at 332; Godfrey, 7 Vet. App. at 409.


As an example, with regard to claims for benefits for psychiatric disorders, 38 C.F.R. § 4.125(b) cautions that a change in the diagnosis of a mental disorder may represent a progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition.  Accordingly, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court found that the scope of a claim for posttraumatic stress disorder (PTSD) benefits included other diagnosed mental disorders - as a Veteran does not file a claim to receive benefits for a particular diagnosis, but for the affliction suffered.  Consequently, a single claim for disability compensation can encompass more than one condition.  Id.; see also Young, 25 Vet. App. at 202 (holding that the scope of a PTSD claim encompassed a claim for benefits for a generalized anxiety disorder (GAD) where the evidence developed during the processing of the claim indicated the symptoms alleged were caused by the GAD and not PTSD).

The Court explained that treating separate diagnoses as separate claims where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits disadvantage the Veteran by unnecessarily multiplying the procedural requirements involved in filing, developing, and adjudicating a claim, as well as risking an erroneous assignment of a later effective date.  Clemons, 23 Vet. App. at 8; but see Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (treating separate diagnoses as separate claims in the context of a petition to reopen a previously denied claim).  Critically, there would be a significant risk that "the nature of the appellant's current condition may never be properly adjudicated by the Secretary," as piecemeal adjudication of separate diagnoses that may relate to same disability may not properly account for the possibility that "multiple diagnoses may represent subjective differences of opinions of examiners, rather than multiple conditions."  Id., at 8-9 (also explaining that this holding does apply where the original diagnosis was the subject of a final rating decision that pre-dated the new diagnosis); see also Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996) (holding that a claim for service connection for PTSD was separate from an appeal of a rating reduction for depressive neuroses where PTSD was not diagnosed prior to the date the rating issue was brought within the Court's jurisdiction by the filing of the NOD).

Once the Board has jurisdiction over a claim, it has the authority to address all issues related to that claim, even those not previously decided by the RO.  Young, 25 Vet. App. at 203; Jarrell, 20 Vet. App. at 332; Bernard v. Brown, 4 Vet. App. 384, 392 (1993) (citing 38 U.S.C.A. § 7104(a)).  But to exercise the authority to address an issue not previously addressed by an RO in the first instance, the Board must either secure a waiver from the claimant or otherwise determine that no prejudice to the claimant would result from proceeding to adjudicate the issue.  Jarrell, 20 Vet. App. at 332; Bernard, 4 Vet. App. at 394.  Otherwise, remand (or referral) for the RO to decide the question in the first instance is appropriate.  Id.

In March 2013, the Veteran stated in a meeting at the San Juan RO that he wanted his claim for service connection for tinnitus reconsidered, which was transcribed on a Report of Contact (VA Form 119).  This claim was denied in a June 2012 rating decision, thus, his statement must be construed as a timely NOD with that decision.  38 C.F.R. § 20.201.  See also Gallegos  v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming the claimant desired appellate review, meeting the requirement of § 20.201 was not an onerous task).  The Veterans Court (CAVC) has held that "no procedural requirement in the adjudication of Veterans benefits is less burdensome than the NOD ... finding that a statement constitutes an NOD merely requires finding terms that can be reasonably construed as a desire for appellate review."  See Ortiz v. Shinseki, 23 Vet. App. 353, 358 (2010) (rev'd on other grounds by sub nom. Rivera v. Shinseki, 654 F.3d 1377 (Fed. Cir. 2011)).  When a Veteran has filed what amounts to a timely NOD in response to the denial of a claim, but has not been provided an SOC or given opportunity, in response to the SOC, to also file a Substantive Appeal (VA Form 9 or equivalent) to complete the steps necessary to perfect his appeal of the claim to the Board, the appropriate disposition is to remand, rather than merely refer, the claim for this necessary SOC and opportunity to respond to it with the VA Form 9 or equivalent.  See Manlincon v. West, 12 Vet. App. 119 (1998).  For this reason, the Board is remanding this tinnitus claim.

Additionally, in a July 2013 statement in lieu of a VA Form 646 regarding the claims at issue in this appeal, the Veteran's representative indicated the Veteran also is continuing to claim entitlement to service connection for pneumonia.  This claim was last denied in a July 2009 rating decision, which was not appealed and therefore is a final and binding determination.  38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103.  Thus, since not a timely NOD in response to that most recent decision denying this claim, this statement instead is construed as a petition to reopen this claim - requiring new and material evidence since that prior decision.  38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.  Accordingly, the Board is referring this claim to the RO, as the AOJ, for initial consideration.

As for the claims that are currently before the Board, the claim for a rating higher than 10 percent for the tonsillitis/pharyngitis requires further development before being decided on appeal.  So the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC.  Whereas the Board is going ahead and deciding the claim for an earlier effective date for this rating for this disability.

Please also 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).


FINDINGS OF FACT

1.  The Veteran was originally granted entitlement to service connection for tonsillitis/pharyngitis in a September 1959 rating decision.  A 0 percent, so noncompensable, disability rating initially was assigned retroactively effective from June 8, 1959.  He did not in response appeal that decision, either as concerning that initial rating or effective date for this disability.

2.  He was denied an increased rating for this disability in rating decisions issued in January 2001, May 2005, and July 2009, and he also did not timely appeal any of those additional decisions, either, and has not collaterally attacked them by showing they were fatally flawed or egregious.

3.  He most recently filed a claim of entitlement to a higher rating for this disability on November 16, 2010.

4.  It is not factually ascertainable during the year immediately preceding the filing of this most recent claim that this disability had increased in severity to the higher 10 percent or greater level of impairment.


CONCLUSION OF LAW

The criteria are not met for an effective date earlier than November 16, 2010, for the higher 10 percent rating for the tonsillitis/pharyngitis.  38 U.S.C.A. §§ 5101, 5110 (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.400 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Procedural Duties

The Veterans Claims Assistance Act (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing information and evidence necessary to substantiate a claim upon receipt of a complete or substantially complete application.

These VCAA notice requirements apply to all elements of a claim, including, when the claim is for service connection, the "downstream" disability rating and effective date elements.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 438 F.3d 1311 (2007).  This particular claim, however, did not arise in this context, rather, as a claim for a higher rating for an already established service-connected disability and, once a higher rating was granted, for an earlier effective date for this higher rating.  So this, too, is what amounts to a "downstream" issue arising out of the initial increased-rating claim.

Ideally, VCAA notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary VCAA notice and then readjudicating the claim - including in an SOC or supplemental SOC (SSOC) - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of his claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

The Veteran was provided a letter in November 2010 that satisfied all notice requirements of § 3.159 and defined by Dingess and Pelegrini as concerning his "downstream" claim.  Specifically, it covered what the evidence must show for an increased evaluation, how VA determines a disability rating, and how VA determines the effective date.  In Vasquez-Flores v. Peake, 22 Vet. App. 37 (2008), the Veterans Court (CAVC) clarified VA's notice obligations in increased-rating claims.  But the Federal Circuit Court later vacated the lower Court's holding, indicating "generic" VCAA notice is all that is required, so VA does not have to notify a Veteran of alternative diagnostic codes (DCs) or potential "daily life" evidence.  See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

Moreover, in a situation as here where the claim arose in the context of the Veteran trying to establish his entitlement to a higher rating for his service-connected disability, and VA provided him the required notice concerning this underlying issue, and a higher rating since has been granted, the claim as it arose in its initial context has been substantiated, i.e., proven, so the intended purpose of the notice served.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  VA's General Counsel has clarified that no additional VCAA notice is required for a "downstream" issue, so, here, including as concerning the effective date of this higher rating, and that a Court decision suggesting otherwise is not binding precedent.  VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004).  Rather than issuing an additional VCAA notice letter in this situation concerning the "downstream" earlier-effective-date claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to instead issue an SOC if the disagreement is not resolved.  And since the RO issued an SOC in June 2012, addressing the downstream claim for an earlier effective date, which included citations to the applicable statutes and regulations and a discussion of the reasons and bases for not assigning an earlier effective date, no further notice is required.  See Goodwin v. Peake, 22 Vet. App. 128 (2008).  See also Huston v. Principi, 17 Vet. App. 195 (2003) (discussing the type of notice required when the claim, instead, arose originally as an earlier-effective-date claim, indicating this would require apprising the Veteran that evidence of an earlier-filed claim, which was not denied and that did not become a final and binding determination, is needed to show entitlement to an earlier effective date).  Consequently, the Board finds that all necessary development of the downstream earlier-effective-date claim has been accomplished, and therefore appellate review of this claim may proceed without prejudicing the Veteran.

Regarding the duty to assist him with this claim, resolution of this claim turns primarily on when he filed his most recent claim for a higher rating for this disability.  So an examination and opinion are not needed to fairly decide this claim for an earlier effective date.  See 38 U.S.C.A. § 5103A(d)(2)(A)-(C); 38 C.F.R. § 3.159(c)(4)(A)-(C).  See also Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past).  He had not cited an additional evidence (outstanding records, etc.) relevant to the claim still needing to be obtained.  38 C.F.R. § 3.159(c).  Keep in mind that he was given opportunity, an additional 30 days, following his recent August 2013 videoconference hearing before the Board to obtain and submit supporting evidence, which he did not do.  He also did not request more time (an extension).

Further concerning his hearing, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that the hearing officer's or presiding Veterans Law Judge's (VLJ's) duties under 38 C.F.R. § 3.103(c)(2) are twofold.  First, the presiding VLJ must explain fully the issues that are relevant and material to substantiating the claim by explicitly identifying them for the claimant.  Id., at 496.  Second, the presiding VLJ must suggest that a claimant submit evidence on an issue material to substantiating the claim when such evidence is missing from the record or when the testimony at the hearing raises an issue for which there is no evidence in the record.  Id., at 496-97.  In this particular instance this was done and, indeed, the reason for holding the record open an additional 30 days following the hearing to allow the Veteran time to obtain and submit supporting evidence that had been elicited from him during the hearing as possibly existing and potentially relevant.

II.  Standard of Review

In deciding this claim, the Board has reviewed all of the relevant evidence in the claims file, both the physical claims file and electronic ("Virtual VA") file.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-1381 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

III.  Merits of the Claim

The Veteran contends that the effective date of the increased rating (i.e., higher 10 percent rating) for his service-connected tonsillitis/pharyngitis should coincide with the end of his active duty service on February 18, 1959.


Generally, and except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013).

Importantly, 38 C.F.R. § 3.400(b)(2) provides that if a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose, whichever is later.

The provisions of 38 U.S.C.A. § 5110 refer to the date an "application" is received.  And "date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2013).  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. § 3.1(p) (2013).  See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000).  The benefit sought must be identified, but need not be specific.  See Stewart v. Brown, 10 Vet. App. 15, 18 (1997); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).

That said, while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant.  VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed.  Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).


In the case of a claim for increase (that is, in the rating for an already established service-connected disability), the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date; otherwise the effective date will be the date of receipt of claim or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2).  The Veterans Court (CAVC) and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows:  if the increase 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 the claim.  If the increase occurred after the date of the claim, the effective date is the date of increase.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(1)(2).  See also Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98 (1998).  The Federal Circuit Court reaffirmed that "the plain language of [section] 5110(b)(2) ... only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."  Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year grace period for filing a claim following an increase in the severity of a service-connected disability).

The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim."  A claim for an earlier effective date generally must come before the Board as a result of a timely appeal from a decision granting service connection or an increased rating, because a Veteran cannot make a freestanding claim for an earlier effective date absent a claim of CUE in a prior rating decision.  Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006).  Indeed, the Board has to summarily dismiss any such appeal outright, for lack of jurisdiction, rather than simply denying the claim on its underlying merits. Id. at 300; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006).

A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013).  Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of CUE.  38 C.F.R. § 3.105(a) (2013); See also Flash v. Brown, 8 Vet. App. 332, 340 (1995).

Here, the earlier-effective-date claim being decided arises from the Veteran's timely appeal of the March 2011 rating decision granting a higher 10 percent rating for his tonsillitis/pharyngitis.  The RO made this rating increase retroactively effective from November 16, 2010, which is the date it had received his claim for an increased rating for this disability.

Despite his claim that the effective date for this higher rating instead should be the day he left service, there is no evidence of a worsened condition at that point in time.  He said himself during his August 2013 videoconference hearing before the Board that his condition was worse now than it was in 1959.  Furthermore, the original September 1959 grant of service connection for tonsillitis/pharyngitis, rated initially at the noncompensable level of 0 percent, was never appealed by him and thus is a final and binding determination, both as concerning that initial rating and effective date for it.  Similarly, his three subsequent attempts to establish his entitlement to an increased rating for this disability were all denied and again not appealed, meaning they too are all final and binding determinations.  He has not alleged, nor does the record indicate, that any of those past, final and binding rating decisions should be challenged or overturned on account of CUE.  Thus, those decisions remain in effect, in turn meaning his only recourse for an earlier effective date is if his symptoms and consequent disability warranted the higher 10 percent rating (or an even greater rating) at some point during the year before his most recent claim was received.  There is no such indication, however.


The record on appeal does not contain any evidence of a worsening of his tonsillitis/pharyngitis disability during the year immediately preceding the filing of his most recent increased-rating claim on November 16, 2010, at least not to the point deserving of a rating at the higher 10 percent or greater level.  And this is the relevant temporal focus.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007), citing 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2).

In fact, in its March 2011 decision granting the Veteran the higher 10 percent rating, the RO indicated it was basing the decision to assign this greater rating on the results of his VA compensation examination that had occurred in February 2011, several months after the date of receipt of his claim for a higher rating for this service-connected disability.  Thus, according to Harper, that actually should have marked the effective date of his higher rating since his entitlement to this higher rating was shown after, rather than at the time of or even before, the filing of his increased-rating claim.  Certainly then, he is not entitled to an earlier effective date seeing as though he nonetheless received this higher rating back to the time of filing his increased-rating claim.


ORDER

This claim of entitlement to an effective date earlier than November 16, 2010, for the higher 10 percent rating for the service-connected tonsillitis/pharyngitis is denied.


REMAND

The Veteran also is contending he is entitled to an even higher rating for his service-connected tonsillitis/pharyngitis, meaning even higher than the 10 percent he received in the rating decision at issue.  This disability is rated as laryngitis under 38 C.F.R. § 4.97, DC 6516.


In his August 2013 hearing testimony, he talked about how his voice is often scratchy or "raspy."  He said he often loses his voice entirely, that he has polyps, and that he has had neck surgery - although he acknowledged being uncertain of whether it was because of his service-connected disability.  He also referred to inflammation of his vocal cords and alleged his most recent VA compensation examination was inadequate, just cursory, since he was not physically examined only, instead, talked to.

In considering the severity of a disability, it is essential to trace the history of the disability.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  See 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Where, as here, entitlement to compensation already has been established, and an increase in the disability rating is at issue, the present level of disability is the primary concern.  Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 38 C.F.R. § 4.2.

According to DC 6516, for a 10 percent rating there must be evidence of hoarseness, with inflammation of cords or mucous membrane.  For the higher 30 percent rating there must be evidence of hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy.

At the conclusion of the February 2011 VA compensation and pension examination, the examiner diagnosed "chronic pharyngitis with atrophic tonsils" and listed tonsillitis/pharyngitis as a "problem associated with the diagnosis."  The examiner noted the Veteran's complaints of chronic soreness of the throat and that he "frequently expels little exudates, fetid, masses ('balls') from the tonsils."  The Veteran's use of lozenges and "prescription gargles" were also noted.  As well, the examiner discussed a small, non-tender mass on the Veteran's neck near some post-surgical scars and indicated this was related to the Veteran's condition.  

Interestingly, the examiner observed the Veteran did not display any hoarseness, which is the crux of DC 6516.  Regardless, the RO granted the Veteran's claim for an increased rating despite the lack of hoarseness during that examination based on "evidence of soreness of the throat and evidence of mucous membrane."  The RO also stated "[a]lthough the examiner reported no evidence of hoarseness, we have granted the 10 percent evaluation as the clinical picture noted by the continuous treatment with gargles and lozenges closes (sic) approximates the 10 percent evaluation."  See 38 C.F.R. § 4.7 (indicating to assign the higher rating if the disability picture more approximates the criteria for the higher rating versus the lesser rating).  This is especially true when § 4.7 is considered in combination with § 4.3 directing that VA resolve all reasonable doubt regarding the severity of a disability in the Veteran's favor.

But as the Veteran alleges, that February 2011 VA examination is inadequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (requiring that VA ensure the adequacy of an examination or a opinion).  While the examiner denied the Veteran had hoarseness, he subsequently received a higher rating regardless.  The Veteran has competently reported having hoarseness, including most recently in his videoconference hearing testimony under oath in August 2013.  The report of the February 2011 VA examination did not indicate whether he had the other symptoms or impairment contemplated by DC 6516.  Thus, it is impossible to properly rate his disability because the Board does not have the necessary information to determine, as examples, whether he has inflammation of cords or mucous membrane or thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy.  The Board therefore has to obtain this necessary information before deciding this increased-rating claim.  See 38 C.F.R. § 4.2 (indicating it is incumbent to return an inadequate examination report for correction).

Also, as already explained, the Veteran must be provided an SOC concerning his additional claim of entitlement to service connection for tinnitus since his March 2013 request for reconsideration of the June 2012 rating decision denying this claim was tantamount to a timely NOD since received within the required one year of notification of that decision.  38 C.F.R. § 20.201.

And after providing him this required SOC concerning this additional claim, he also has to be given opportunity in response to also file a Substantive Appeals concerning this claim (VA Form 9 or equivalent) to complete the steps necessary to perfect his appeal of this claim to the Board.  Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, these claims are REMANDED for the following additional development and consideration:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Send the Veteran an SOC concerning his additional claim of entitlement to service connection for tinnitus.  The SOC must cite the applicable statutes and regulations and contain a discussion of the reasons or bases for denying this claim in June 2012.  Apprise the Veteran that he still needs to file a Substantive Appeal (VA Form 9 or equivalent statement), in response to this SOC, to complete the steps necessary to perfect his appeal of this claim to the Board.  38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305, and 20.306.  Only if he does should this claim be returned to the Board for further appellate consideration.

*Note also that the Board is referring, rather than remanding, a still additional claim concerning whether there is new and material evidence to reopen a claim of entitlement to service connection for pneumonia.  So there also needs to be all necessary development and consideration of this other claim, as well.

2.  Schedule the Veteran for a VA otolaryngology (ear, nose & throat (ENT)) examination to reassess the severity of his tonsillitis/pharyngitis condition.  Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed.  The examiner should comment on the severity of this condition and discuss the effect it has on the Veteran's occupational functioning and daily activities.  

Specifically, the examiner must comment on whether the Veteran has the following symptoms: 

A) hoarseness, with inflammation of cords or mucous membrane

B) hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy. 

3.  Ensure the report of the examination contains this requested information and all other needed to address the relevant rating criteria.  If not, take corrective action.  38 C.F.R. § 4.2.

4.  Then readjudicate this claim for a rating higher than 10 percent for the tonsillitis/pharyngitis in light of this and all other additional evidence.  If a higher rating is not granted to the Veteran's satisfaction, send him and his representative another SSOC and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this claim.

The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding.  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).




______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs