Citation Nr: 1335483 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 05-38 745 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to an effective date earlier than October 25, 2004 for service connection for multiple sclerosis. 2. Entitlement to a rate of special monthly compensation (SMC) greater than that allotted for loss of use of one foot from October 25, 2004 to February 11, 2010. 3. Entitlement to a rate of SMC greater than that allotted for loss of use of one hand and one foot beginning February 11, 2010. REPRESENTATION Appellant represented by: Robert Chisholm, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from December 1968 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a June 2011 rating decision issued by the Regional Office (RO) in Boise, Idaho. The Veteran testified before the undersigned Veterans Law Judge regarding his reopened service connection claim for multiple sclerosis in March 2011. That claim has since been granted and this appeal arises out of a disagreement with the effective date and amount of special monthly compensation awarded as a result of the grant of service connection. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for multiple sclerosis which was denied in March 1997. The Veteran did not perfect a timely appeal from the March 1997 decision or submit additional evidence within one year. 2. In May 2004, it was discovered that the original claims file for the Veteran was lost and the file was rebuilt. Some years later, the original claims file was located. 3. The Veteran told a VA employee at the RO that he wanted to file a new claim for service connection for multiple sclerosis on July 26, 2004. 4. The Veteran filed a formal reopened claim for service connection for multiple sclerosis that was received by VA on October 25, 2004. 5. Prior to February 11, 2010, loss of use of the right lower extremity was shown, but loss of use of one or more upper extremities was not shown. 6. The Veteran's right sided weakness did not amount to loss of use of the right lower extremity to a level or with complications preventing normal knee action and loss of use of the right upper extremity to a level or with complications preventing normal elbow action. CONCLUSION OF LAW 1. The criteria for an effective date of July 26, 2004 for service connection for multiple sclerosis were met. 38 U.S.C.A. § 5110 (West 2002 and Supp. 2013); 38 C.F.R. § 3.102, 3.155, 3.156, 3.400 (2013). 2. The criteria for payment of SMC at a higher rate for the period from October 25, 2004 to February 11, 2010 were not met. 38 U.S.C.A. §§ 1114, 5107, 5121 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350, 3.1000 (2013). 3. The criteria for payment of SMC at a higher rate for the period beginning February 11, 2010 were not met. 38 U.S.C.A. §§ 1114, 5107, 5121 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.350, 3.1000 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. A November 2004 letter explained how VA could help the Veteran obtain evidence in support of his claim and what the evidence needed to show in order to establish service connection for a claimed disability. The Veteran was not sent a letter that met the requirements of Dingess. This error was harmless because the Veteran's service connection claim was granted and a rating and effective date were assigned. However, in any event the Veteran was sent a statement of the case (SOC) in November 2012 that explained how VA assigns effective dates for service connection and explained the different types of SMC that are available. The Veteran's claims for an earlier effective date for service connection for multiple sclerosis and for a higher level of SMC are downstream issues from his claim for entitlement to service connection for multiple sclerosis. The RO granted service connection for multiple sclerosis effective October 25, 2004 and at the same time granted SMC for loss of use of one foot from October 25, 2004 to February 11, 2010 and for loss of use of one hand and one foot beginning February 11, 2010. The Board notes that the RO initially rated the Veteran's multiple sclerosis by assigning a 50 percent rating for right upper extremity atrophy with clawed hand associated with multiple sclerosis and a 40 percent rating for right lower extremity atrophy with foot drop and these separate ratings were converted to a combined 100 percent rating for loss or use of one hand and one foot due to multiple sclerosis effective February 11, 2010. The Veteran filed a notice of disagreement arguing that he should have received an earlier effective date for service connection and additional SMC. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8-2003. In this precedential opinion, the General Counsel held that although VA is required to issue an SOC if the downstream issue is not resolved, 38 U.S.C.A. § 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. Here, the Veteran was sent an SOC that addressed the proper effective date for service connection and the appropriate types of SMC in November 2012. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, written statements from the Veteran and other lay witnesses, private medical records, and various VA examination reports and opinions. There is no indication that additional evidence exists which would bear upon the appropriate amounts of SMC to be awarded or the proper effective date for the Veteran's service connection claim. Effective Date The Veteran contends that he should receive an effective date for service connection for multiple sclerosis that is earlier than October 25, 2004. The Veteran contends that the proper effective date should be September 19, 1996, when VA received his first claim for service connection for multiple sclerosis. While the Veteran's attorney references 38 C.F.R. § 3.156(c), which pertains to the reconsideration of claims when additional service department records are added to the claims file after VA promulgates a decision, it is unclear how this pertains to this claim. There is no evidence that additional service records were added to the claims file that were not of record in March 1997 when the Veteran's initial claim for service connection for multiple sclerosis was denied. It appears that the Veteran's attorney is referring to the circumstance that in May 2004 the Veteran's original claims file was discovered to be lost and was resultantly rebuilt, but some years later, during the processing of this claim, the original claims file was found. However, all of this occurred many years after the March 1997 rating decision. It is noted that the Veteran has not alleged that there was clear and unmistakable error (CUE) in the March 1997 rating decision; therefore, that theory of entitlement will not be discussed herein. The assignment of an effective date for an award of service connection is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication or a claim for increase, of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). However, if the claim is filed within one year of the Veteran's discharge or release from active service, the effective date shall be the day following the date of such discharge or release. 38 U.S.C.A. § 5110(b). The implementing regulation, 38 C.F.R § 3.400, states that the effective date for an award of compensation based on an original claim for service connection will be "the date of the receipt of the claim or the date entitlement arose, whichever is later." However, if the claim is received within 1 year after separation from service, the effective date will be the day following separation from active service. Id. When there is a prior final denial of a claim, and new and material evidence is subsequently received to reopen the claim, the effective date for the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Here, the Veteran initially filed a claim for service connection for multiple sclerosis that was received by VA on September 19, 1996. VA denied the Veteran's claim in March 1997, and the Veteran was notified of the denial and his appellate rights in March 1997. Evidence reviewed at that time consisted of the Veteran's service medical records for the period from December 3, 1968 to July 6, 1970; a November 1996 VA examination report; and outpatient treatment records from a private hospital dated in June 1996. The Veteran did not appeal the March 1997 decision and did not submit additional evidence in support of the claim within one year. In May 2004 it was discovered that the Veteran's claims file, which had been used in March 1997, was lost, and a rebuilt claims file was established. It is not clearly documented, but it appears that the file was discovered to be missing after the Veteran requested copies of some of his records. On July 26, 2004 the Veteran asked for a copy of the rebuilt file so that he could file a new claim for service connection for multiple sclerosis. On October 25, 2004, VA received the Veteran's formal application to reopen his claim for service connection for multiple sclerosis. Additional evidence including private treatment records, lay statements, and testimony from the Veteran were associated with the claims file after the formal claim was filed. Also, at some point during the processing of this claim, the Veteran's original claims file was located. There is no basis for allowing an effective date in September 1996. The claim filed on that date was denied in March 1997, and the decision subsequently became final. The face of the decision clearly reflects that all of the Veteran's service treatment records were considered at that time. While the Veteran's claims file was apparently misplaced for a period of time many years later, this does not indicate that the claims file or service treatment records were unavailable in March 1997. Indeed, the March 1997 rating decision clearly states otherwise. The fact that the Veteran's file was temporarily lost many years later does not affect the finality of the March 1997 rating decision. Accordingly, to the extent that the Veteran has improperly raised a freestanding claim for an earlier effective date in an attempt to overcome the finality of the prior regional office decision, his appeal will be dismissed. Rudd v.Nicholson, 20 Vet. App. 296 (2006). The appropriate effective date for a reopened claim for compensation is the date that the claim was received. The Veteran's claim was received on October 25, 2004, and this is the effective date assigned by the RO. However, the Board finds that the Veteran's July 26, 2004 statement to an RO employee that he wanted to file a new claim for service connection for multiple sclerosis constituted an informal claim. 38 C.F.R. § 3.155(a). Clearly the contact was by telephone. However, the conversation was reduced to writing and identified the benefit sought "a claim for service connection for MS." Therefore, July 26, 2004 is the proper effective date for service connection for multiple sclerosis. The Board has considered the benefit of the doubt doctrine, but the weight of the evidence is against an effective date earlier than July 26, 2004. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). SMC When the Veteran was granted service connection for multiple sclerosis, October 25, 2004, he was also granted SMC. For the initial period from October 25, 2004 to February 11, 2010 the Veteran was granted SMC for loss of use of one foot, pursuant to 38 U.S.C.A. § 1114(k); 38 C.F.R. § 3.350(a). Beginning February 11, 2010, the Veteran was granted special monthly compensation for the loss of use of one hand and one foot pursuant to 38 U.S.C.A. § 1114 (l); 38 C.F.R. § 3.350(b). The Veteran seeks a higher level of SMC. He did not elucidate what type of SMC he is seeking or why he believes he is entitled to additional SMC. SMC is an additional level of compensation to Veterans above the basic levels of compensation for various types of losses or levels of impairment due to service connected disabilities. It reflects VA's recognition that certain disabilities, either alone or in combination, have an impact on Veteran's beyond what is contemplated in the rating schedule. 38 C.F.R. § 4.1. A determination of the correct SMC award level requires layering of different entitlements. In the case of the Veteran, the RO determined that he had established entitlement to SMC under 38 U.S.C.A. § 1114 at the (k) level until February 11, 2010 and at the (l) level thereafter. Compensation at the (k) level is warranted for loss of use of one hand or one foot, both buttocks, one or more creative organs, blindness of one eye having only light perception, deafness of both ears, complete organic aphonia, in the case of females loss of 25% or more tissue from a single breast or both breasts in combination. Compensation at the (l) level is warranted for anatomical loss or loss of use of both feet, one hand and one foot, blindness in both eyes with visual acuity of 5/200 or less, or being permanently bedridden or so helpless as to be in need of regular aid and attendance. Prior to February 11, 2010, medical records document a right foot drop. For example, a June 1996 treatment record reflected that the Veteran dragged his right foot and was unable to support himself on his right leg. An October 1998 examination showed a "dropped foot on the right." Although there was some loss of strength in the intrinsic muscles of both hands at that examination, no actual loss of use of either hand was documented. A February 2000 VA treatment note reflects difficulty walking and a weak right hand, but does not reflect actual loss of use of the hand. Private treatment records continued to reference balance and gait problems. This is consistent with SMC (k) for loss of use of one foot. There is no indication that the criteria for the next higher level, SMC (l), were met until loss of use of the right hand was documented on February 11, 2010. The first indication of loss of use of the right hand was at a February 11, 2010 VA examination which noted mostly loss of function on the right side from spinal cord lesions. The Veteran's right hand was clawed, weak, and numb to the wrist. His right arm was weak. His right leg had foot drop and the Veteran dragged his leg and was numb to the mid-calf. His leg was weak to the hip and he could not walk effectively. This is consistent with SMC (1) for loss of use of one hand and one foot. While an increase to the next higher level is warranted when a Veteran is entitled to a separate and independent 100 percent rating, in this case the Veteran's 100 percent rating for multiple sclerosis is based on his loss of use of his right hand and foot. Therefore, it cannot provide a basis for increasing the SMC rate to the next higher step. To receive SMC (m), the next higher level of SMC, there must be anatomical loss or loss of use of both hands, anatomical loss or loss of use of both legs at a level, or with complications, preventing natural knee action with prosthesis in place, anatomical loss or loss of use of one arm at a level, or with complications, preventing natural elbow action with prosthesis in place with anatomical loss or loss of use of one leg at a level, or with complications, preventing natural knee action with prosthesis in place, blindness in both eyes having only light perception, or blindness in both eyes leaving the Veteran so helpless as to be in need of regular aid and attendance. The Veteran has not lost the use of both his hands or both legs at a level preventing natural knee action with prosthesis in place. His loss of function is mostly on the right side and there is no indication of impairments on the left side which are severe enough to constitute loss of use at the indicated levels. Moreover, while the Veteran's right arm and right leg are noted to be weak, there is no evidence that this is equivalent to the loss of use of the right leg at a level or with complications preventing natural knee action, or loss or use of the right arm at a level or with complications preventing natural elbow action. There is no indication in any of the evidence of record that the Veteran is unable to move his right elbow or right knee. Rather, his impairment is progressive right sided weakness with right foot drop and difficulty with grasping and fingering of the right hand. Furthermore, an additional increase due to needing aid and attendance is not warranted. Assuming that aid and attendance is necessary, it would be based on the Veteran's multiple sclerosis with right sided weakness resulting in loss of use or one hand and one foot which is the Veteran's only service connected disability. The same disabilities cannot be used to support both the foundational level of SMC and any of the increases to such. 38 C.F.R. § 3.350(e)(3). This would constitute pyramiding, which is prohibited. 38 C.F.R. § 4.14. The Board considered the benefit of the doubt doctrine. However, the weight of the evidence is against the claim for higher SMC. ORDER An effective date of July 26, 2004 for service connection for multiple sclerosis is granted. For the period prior to February 11, 2010, a higher level of SMC is denied. For the period beginning February 11, 2010, a higher level of SMC is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs