Citation Nr: 1340122 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 10-41 073 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE 1. Entitlement to an effective date prior to March 30, 1998, for the grant of service connection for left brachioradialis muscle atrophy and sensory dysesthesia of the left radial nerve. 2. Entitlement to an effective date prior to August 10, 2009, for the assignment of a 20 percent evaluation for left brachioradialis muscle atrophy and sensory dysesthesia of the left radial nerve. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Chance, Associate Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from July 1950 to May 1954. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision of the San Diego, California, Department of Veterans Affairs (VA) Regional Office (RO), which increased the evaluation to 20 percent for the service-connected left arm disability, effective August 10, 2009, the date of the claim for increase. The Veteran disagreed with the effective date of the increase, and argued that the rating should go back to the date of his separation from service. Although the RO adjudicated the appeal listing the issue solely as a request for an earlier effective date for the increase (rather than an earlier effective date for the grant of service connection), the Board finds that, in substance, it adjudicated both issues. In particular, while the August 2010 statement of the case indicated it would only address the increased rating decision, the May 2013 supplemental statement of the case also addressed the issue of the effective date of service connection directly. It is clear from the Veteran's statements that he continues to dispute the effective date of service connection, rather than his actual rating. Therefore, there is no prejudice to the Veteran for the Board to proceed with a decision on both issues. Although the Veteran initially requested a Travel Board Hearing on his October 2010 VA Form 9, he later cancelled his request in December 2012. As such, his request is considered withdrawn. The Board notes that in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper files or are irrelevant to the issue on appeal. 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). FINDINGS OF FACT 1. The Veteran separated from service in May 1954. 2. On March 30, 1998, the RO received a formal application for service connection for a left arm disability. 3. On October 7, 1998, the RO denied the claim of service connection for a left arm disability. 4. In November 1998, additional medical evidence and argument was received, which was ultimately sufficient to warrant the grant of service connection. The RO issued a rating decision in July 1999, granting service connection, and establishing an effective date of March 30, 1998, as the claim had been in continuous prosecution since the Veteran's original claim. The Veteran did not appeal that determination. 5. No correspondence was received from the Veteran from the time of his separation from service in May 1954 until his March 1998 claim for service connection. 6. The RO subsequently received the Veteran's claim for an increased rating on August 10, 2009. No correspondence was received prior to August 10, 2009, indicating his intent to claim an increase; nor is there medical evidence showing a factually ascertainable increase in severity within one year of that date. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 30, 1998, for the grant of service connection for the left arm disability, are not met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2013). 2. The criteria for an effective date earlier than August 10, 2009, for the assignment of a 20 percent rating for the service-connected left arm disability are not met. 38 U.S.C.A. §§ 5110, 7105 (West 2002); 38 C.F.R. §§ 3.151(a), 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In correspondence dated in September 2009, the agency of original jurisdiction (AOJ) satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013). Specifically, the notice informed the Veteran of information and evidence necessary to substantiate the claim for an increased rating and of the relative burdens of VA and the Veteran, relating the information and evidence that VA would seek to provide and that which he was expected to provide. The letter further notified the Veteran of the regulations regarding the effective date of the establishment of service connection. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. In October 2009, the Veteran was medically evaluated in conjunction with his claim for an increase. He has not alleged, nor does the evidence show, that his disability has worsened in severity since that examination. Therefore, the duty to assist has been fulfilled. Earlier Effective Date - Grant of Service Connection The Veteran separated from service in May 1954. On March 30, 1998, the RO received a formal application for service connection for a left arm disability. On October 7, 1998, the RO denied the claim of service connection for a left arm disability. In November 1998, additional medical evidence and argument was received, which was ultimately sufficient to warrant the grant of service connection. The RO issued a rating decision in July 1999, granting service connection, and establishing an effective date of March 30, 1998, as the claim had been in continuous prosecution since the Veteran's original claim. The Veteran did not appeal that determination. Because he did not appeal the effective date at that time, the decision establishing it as of the date of his claim became final. 38 U.S.C.A. § 7105(c) (West 1998); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1998). As an initial matter, the Board notes that VA claimants may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). Therefore, the Veteran's current claim for an earlier effective date is void as a matter of law. However, as it is clear that the Veteran does not yet understand why his effective date was established in March 1998, rather than May 1954, the Board will briefly discuss the applicable law as it relates to his case. The effective date of an award of compensation based on original claim received beyond one year after service discharge shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application thereof. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (emphasis added). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. See 38 U.S.C.A. § 5101(a). A "claim" is defined in the VA regulations as "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). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In this case, it is not a matter of a piece of correspondence that may or may not be construed as an informal claim for benefits. Here, no correspondence was received from the Veteran from the time of his separation from service in May 1954 until his March 1998 claim for service connection. While the Board understands why the Veteran believes that his left arm disability should have been service-connected from the date he got out of service, the Board is bound by the laws in effect, which hold that the effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Therefore, there is no provision of law that would allow an effective date for the Veteran's claim of service connection for a left arm disability prior to the date he claimed it, i.e., March 30, 1998. Earlier Effective Date - Increased Rating of 20 Percent In August 2009, the RO received an increased rating claim from the Veteran. In October 2009, the Veteran underwent a VA examination, the results of which led the RO to increase the Veteran's rating to 20 percent. The effective date of that increase was established as the date of the Veteran's claim for increase, August 10, 2009. The Veteran asserts that the effective date currently in effect for the 20 percent increased evaluation for the left arm disability is incorrect. Specifically, the Veteran claims that the increased evaluation should date back to the time of his military discharge in May 1954. As noted above, the grant of service connection was properly established as effective in March 1998. There can be no rating prior to the grant of service connection. The question becomes, therefore, whether his claim for an increase was received prior to August 2009. The effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013). An exception applies to the general rules, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in the service-connected disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2) (West 2002); see also 38 C.F.R. § 3.400(o)(2) (2012); Harper v. Brown, 10 Vet. App. 125 (1997). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the Veteran does not dispute, and the record does not disclose otherwise, that he filed his claim for an increased rating for his left arm disability any earlier than August 10, 2009. Based on the evidence developed as a result of his claim, the RO increased the evaluation rating from 10 percent to 20 percent in the November 2009 rating decision, effective the date of his claim for increase- August 10, 2009. The record contains no objective medical evidence dated within one year of August 10, 2009 which would make it factually ascertainable that an increase in the service-connected disability occurred prior to the VA examination report dated in October 2009. Although the Veteran submitted numerous personal statements during the appellate period recounting the incident in service which caused his arm disability, his many attempts to obtain historical medical records documenting such, the effects of his left arm disability upon his employment throughout the years, and research findings pertaining to the correct uses for mustargen, there is no medical evidence in the year prior to August 2009 that shows an increase in severity. Specifically, the record includes outpatient clinical records dated from October 2008 to July 2009. Those records include only one notation referable to the Veteran's service-connected left arm disability. In April 2009, the Veteran's treating physician noted that he had loss of muscle mass and sensory loss in his left upper extremity from his service. Unlike his October 2009 VA examination, there was no indication of the level of disability he was experiencing in the April record. By contrast, the symptoms reported in the October examination include pain at a level of 8, on a scale of 1 to 10, with decreased function of the left arm, and additional functional loss on repetitive motion. It was on this basis that the increase was granted. Because the April 2009 record does not show an increase in severity, the Board finds that it was not factually ascertainable that an increase was warranted in the year prior to the Veteran's August 2009 claim. Although evidence of a worsened condition was not available until October 2009- the date of the second VA examination, the effective date assigned for the 20 percent increased evaluation rating was August 10, 2009, the date the Veteran filed his claim for an increased evaluation because the filing preserved his entitlement initiation date. The Board finds that the preponderance of the evidence is against this claim. Therefore, the benefit of the doubt doctrine is not applicable. The claim for an effective date prior to August 10, 2009 for the assignment of a 20 percent rating for a left arm disability must be denied. (CONTINUED ON NEXT PAGE) ORDER An effective date prior to March 30, 1998, for the grant of service connection for left brachioradialis muscle atrophy and sensory dysesthesia of the left radial nerve disability, is denied. An effective date prior to August 10, 2009, for the assignment of a 20 percent rating for the service-connected left brachioradialis muscle atrophy and sensory dysesthesia of the left radial nerve disability, is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs