Citation Nr: 1335325 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-26 999 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUE Entitlement to an effective date earlier than April 15, 2008, for the reinstatement of VA compensation benefits. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD W.T. Snyder, Counel INTRODUCTION The Veteran had active service from July 1970 to February 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), in Augusta (Togus), Maine, that awarded an increased disability rating from 10 to 30 percent, effective April 15, 2008. The RO in Detroit, Michigan, exercises current jurisdiction of the claims file. The Veteran did not appeal the assigned 30 percent disability rating, but disputed the effective date for restoration of his VA compensation benefits. The Veteran's April 2008 request for reinstatement of benefits included a claim of entitlement to service connection for a low back disorder. In a June 2008 Statement In Support Of Claim (VA Form 21-4138), he withdrew the claim. The Veteran has a Virtual file, which is a highly secured paperless repository, associated with his appeal. The Board has considered the documents in both files while reviewing this appeal. FINDINGS OF FACT 1. In May 1972, service connection for anxiety neurosis was granted and an initial 10 percent disability rating was assigned. 2. In February 1977, the RO scheduled the Veteran for a VA examination so as to re-examine the service-connected disability. The Veteran did not report for the examination and did not request to be rescheduled. 3. In a March 1977 letter, the RO informed the Veteran that unless he indicated a willingness to undergo a VA examination for his non-static nervous condition, his benefits would be suspended. He was given 15 days to respond. 4. The Veteran did not respond within a year of the date of the letter, and his disability payments were discontinued. 5. On April 15, 2008, the Veteran requested his service-connected compensation benefits be restored retroactively, and also applied for an increased disability rating. CONCLUSION OF LAW Entitlement to an effective date earlier than April 15, 2008, for the reinstatement of VA compensation benefits is not warranted. 38 C.F.R. §§ 3.158, 3.327, 3.330, 3.655 (1977); 38 C.F.R. § 3.158 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) Inasmuch as the Veteran's claim is determined solely by regulations in existence at the time of the suspension and resumption of his benefits, and there is no dispute as to the pertinent facts, the notice and assistance provisions of the VCAA, 38 U.S.C.A. § 5100 et seq. (West 2002), are not applicable to this appeal. Livesay v. Principi, 15 Vet App 165, 178 (2001). Background In May 1972, the RO granted service connection for anxiety neurosis, which it rated as 10 percent disabling. He underwent a re-examination in March 1975. In April 1975, the RO advised him that his "claim" had been carefully reviewed, and that no change was warranted in his condition. A confirmed rating decision dated in April 1975, indicates that the examination was actually a "routinely scheduled VA examination" rather than an examination scheduled in conjunction with a claim. In January 1977, the Cleveland, Ohio, RO requested that the Veteran undergo a VA examination for anxiety neurosis. The examination was scheduled for a date in February 1977. In February 1977, the medical center where the examination was scheduled, advised the RO that the Veteran had failed to cooperate by reason of not reporting for the examination. In March 1977, the RO advised the Veteran that unless he indicated a willingness to undergo VA examination for his "non-static nervous condition" benefits would be suspended. He was advised that he should reply within 15 days. His benefits were suspended on May 1, 1977. No communication was received from the Veteran until April 15, 2008, when his representative forwarded his request for reinstatement of benefits. In January 2009, the Veteran submitted a November 1976 letter from the VA Center in St. Paul, Minnesota, that informed him of an overpayment of education benefits in the amount of $441.00. The letter noted the Veteran's service connection compensation, and that $38.00 per month would be withheld from his benefits until the overpayment was recouped. The Veteran asserted his service connection benefits were to be restarted after the overpayment was satisfied, but his service connection benefits were never re-established. Records in the Veteran's claims file confirm that an overpayment was created in October 1976, and collection was to begin with the Veteran's check due March 1, 1977. In November 1977, it was noted that the Veteran's pay status was "suspend" and that his account had been in suspense for six months or more. Collection efforts were terminated in April 1978, but the RO was advised that if benefits were awarded, the overpayment should be recovered. In the June 2009 Statement of Accredited Representative, the Veteran's representative asserted that the RO did not follow proper due process in 1977, when it suspended his compensation for failure to report for an examination. The Veteran's representative also suggested that 15 days was an insufficient time for the Veteran to respond to the notice letter. Analysis The regulation in effect at the time of the suspension of benefits provided that the RO could arrange a subsequent VA examination no less than two nor more than five years after the initial VA examination "within the judgment of the rating board." One of the bars to a subsequent examination was if the disability was deemed static. 38 C.F.R. § 3.327(b)(1) and (2) (1977). The February 1977 examination request was in full accord with 38 C.F.R. § 3.327 (1977). Although there was no prior annotation in the claims file, the March 1977 RO letter did inform the Veteran that his anxiety neurosis was not a static disability. This is supported by the fact the Veteran had undergone an examination in March 1975 after his initial examination in April 1972. Thus, there was no impropriety in the RO asking the Veteran to appear for an examination in 1977, as it was within the two-year window. Further, there is no evidence in the claims file that the March 1977 letter was returned by United States Postal authorities as undeliverable as addressed. Thus, there is no issue as to whether the March 1977 letter was properly mailed to the Veteran's then last known address of record. There is also no indication that the Veteran ever requested an examination be rescheduled. In 1977, Section 3.158(a) provided that where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement was not furnished within one year after the date of request, the claim would be considered abandoned. After the expiration of one year, further action would not be taken unless a new claim was received. 38 C.F.R. § 3.158(a) (1977). Regarding VA examinations, where a Veteran failed without adequate reason to respond to an order to report for VA examination within one year from the date of request and payments have been discontinued, the claim for such benefits would be considered abandoned. 38 C.F.R. § 3.158(b) (1977). Section 3.655 provided that when a Veteran without adequate reason failed to report for VA examination, the awards to the Veteran and any dependents would be discontinued, except as provided in paragraph (b) of the section, effective date of last payment. 38 C.F.R. § 3.655(a) (1977). Paragraph b of the section provided that if the Veteran had one or more compensable static disabilities verified by VA examination and without adequate reason failed to report for examination, the awards to the Veteran and any dependents would be amended to pay an amount based solely on the degree of disability of such static disabilities effective the day following the date of last payment, and if the Veteran had a disability or disabilities for which a prestabilization rating had been assigned, the minimum evaluation provided by the 1957 Loose-leaf Edition of the Schedule for Rating Disabilities, 1945 (Section 4.40 et. seq. of this chapter) will be assigned for each disability clearly established by the evidence of record and such disabilities will be considered static for the purpose of the award procedures of the foregoing sentence. 38 C.F.R. § 3.655(b) (1977). In this case, as previously noted, the Veteran's disability was not static, as noted in the March 1977 letter. Thus, the RO properly discontinued payment of benefits to the Veteran in 1977. On April 15, 2008, VA the Veteran's request for reinstatement of his disability benefits and his claim for an increased disability rating. Under the circumstances of this case, the provisions of 38 C.F.R. § 3.158(a) and (b) and 3.655 control. Specifically, if the claim was abandoned for one year or more and payments were discontinued, restoration of benefits will be effective not earlier than the date of the receipt of a new claim, if the rate of disability is shown to exist. 38 C.F.R. § 3.158 (a) and (b) (2012). Further, the regulation specifically precluded restoration of the Veteran's 10-percent rating for the termination period because his claim was deemed abandoned. 38 C.F.R. § 3.655(c). There also is the matter of the absence of any evidence as to the severity of the disability during that period. Id. In this case, as already noted, the record establishes that the Veteran's request for reinstatement was received on April 15, 2008, and thereafter, a VA examination was conducted, which established the Veteran's disability warranted a 30 percent disability rating, effective the date of receipt of his claim, April 15, 2008. The earliest date at which payment could start was May 1, 2008. See 38 C.F.R. § 3.400. As such, the proper effective date of April 15, 2008, has been assigned, and the criteria for entitlement to an earlier effective date have not been met. 38 C.F.R. §§ 3.158(a). The Veteran's reliance on the offset to repay the debt related to his education benefits is misplaced. The letter he submitted does not address the mechanics of his then disability payments. It only noted their existence, and that a portion was a means of repayment. No more, no less. The letter had nothing to do with the Veteran's responsibility to report for his examination in 1977, or that he failed to communicate with the RO, thereafter, until 2008, more than 30 years later. In light of the evidence set forth above, entitlement to an effective date earlier than April 15, 2008, for the reinstatement of VA compensation benefits is not warranted. Where the law and not the evidence is dispositive, the claim shall be denied or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law. Sabonis, 6 Vet. App. 425 (1994); Shields v. Brown, 8 Vet. App. 346, 351 (1995). The Veteran's appeal is denied. ORDER An effective date earlier than April 15, 2008, for the reinstatement of VA compensation benefits is denied. ____________________________________________ DEMETRIOS G. ORFANOUDIS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs