Citation Nr: 1342860 Decision Date: 12/26/13 Archive Date: 01/07/14 DOCKET NO. 10-40 185 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manila, the Republic of the Philippines THE ISSUES 1. Entitlement to an effective date prior to February 6, 2008 for the grant of service connection for degenerative arthritis, right knee, status post total knee arthroplasty. 2. Entitlement to an effective date prior to February 6, 2008 for the grant of service connection for degenerative arthritis, left knee, status post total knee arthroplasty. 3. Entitlement to an effective date prior to February 6, 2008 for the grant of service connection for deep venous thrombosis, popliteal vein, left lower extremity. 4. Entitlement to an effective date prior to February 6, 2008 for the grant of service connection for deep venous thrombosis, popliteal vein, right lower extremity. 5. Entitlement to an initial rating in excess of 20 percent prior to April 5, 2010, for deep venous thrombosis, popliteal vein, right lower extremity. 6. Entitlement to a staged initial rating in excess of 40 percent on and after April 5, 2010, for deep venous thrombosis, popliteal vein, right lower extremity. 7. Entitlement to an initial rating in excess of 20 percent prior to April 5, 2010, for deep venous thrombosis, popliteal vein, left lower extremity. 8. Entitlement to a staged initial rating in excess of 40 percent on and after April 5, 2010, for deep venous thrombosis, popliteal vein, left lower extremity. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Sean G. Pflugner, Counsel INTRODUCTION The Veteran served on active duty from February 1970 to February 1974. These matters come to the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office in Manila, the Republic of the Philippines. In June 2010, the Veteran testified at a hearing with a Decision Review Officer. In April 2011, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge. Transcripts of those hearings have been associated with the claims file. In September 2009, the Veteran submitted a statement wherein he asked if VA had a program to replace VA-authorized amalgam tooth fillings due to mercury exposure. In March 2012, the Veteran submitted a statement inquiring about his claim regarding amalgam tooth filling replacements. It is unclear to the Board to what benefit the Veteran is submitting a claim of entitlement, though it appears to be for dental treatment and/or disability resulting from dental treatment. Neither of these issues have been developed or adjudicated by the RO and, thus, the Board does not have jurisdiction to consider it/them herein. The Board is referring this/these claim(s) to the RO in order to obtain clarification from the Veteran and for the RO to undertake the appropriate action with respect to the claim(s). The issues of entitlement to an initial rating in excess of 20 percent prior to April 5, 2010, for deep venous thrombosis, popliteal vein, right lower extremity; entitlement to a staged initial rating in excess of 40 percent on and after April 5, 2010, for deep venous thrombosis, popliteal vein, right lower extremity; entitlement to an initial rating in excess of 20 percent prior to April 5, 2010, for deep venous thrombosis, popliteal vein, left lower extremity; and entitlement to a staged initial rating in excess of 40 percent on and after April 5, 2010, for deep venous thrombosis, popliteal vein, left lower extremity, will be addressed in the remand portion of the decision below and are remanded to the Appeals Management Center in Washington, DC. VA will notify the Veteran if any further action is required. FINDINGS OF FACT 1. On February 6, 2008, the Veteran filed informal claims of entitlement to service connection for right knee disability, left knee disability, right lower leg disability, and left lower leg disability. 2. On July 10, 2008, the Veteran filed formal claims of entitlement to service connection for right knee disability, left knee disability, right lower leg disability, and left lower leg disability. 3. Service connection for degenerative arthritis, right and left knee, status post total knee arthroplasty, and deep venous thrombosis, popliteal vein, right and left lower extremity, was granted in an October 2009 rating decision. The effective date for the assigned disability ratings was February 6, 2008. 4. Prior to February 6, 2008, VA received no documentation from the Veteran or a representative wherein he claimed entitlement to service connection for right knee disability, left knee disability, right lower leg disability, or left lower leg disability. CONCLUSIONS OF LAW 1. An effective date prior to February 6, 2008 for the grant of service connection for degenerative arthritis, right knee, status post total knee arthroplasty, is denied. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). 2. An effective date prior to February 6, 2008 for the grant of service connection for degenerative arthritis, left knee, status post total knee arthroplasty, is denied. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). 3. An effective date prior to February 6, 2008 for the grant of service connection for deep venous thrombosis, popliteal vein, left lower extremity, is denied. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). 4. An effective date prior to February 6, 2008 for the grant of service connection for deep venous thrombosis, popliteal vein, right lower extremity is denied. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VA General Counsel has held that 38 U.S.C.A. § 5103(a) does not require VA to provide notice of the information and evidence necessary to substantiate newly raised or "downstream" issues, such as a claim for an earlier effective date and/or for a higher initial rating, following the initial grant of service connection for a disability, in response to notice of its decision on a claim for which VA has already given the appropriate section 5103(a) notice. See VAOPGCPREC 8-2003 (Dec. 22, 2003). The Veteran was not provided VA examinations pursuant to his claims of entitlement to earlier effective dates. A VA examination would not provide relevant evidence regarding when VA received his claims or aid in determining whether there were previously submitted formal or informal claims. As such, the Board finds that providing the Veteran with VA examinations is not required to fulfill VA's duty to assist regarding these issues. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Also, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As such, the Board finds that VA's duty to assist has been satisfied. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the hearing officer who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the Veteran testified at both a June 2010 hearing with a DRO and an April 2011 hearing with the undersigned Veterans Law Judge. During the April 2011 hearing, the Veterans Law Judge explained the requirements to obtain an earlier effective date. Further, the DRO and the Veterans Law Judge asked questions to ascertain the basis of the Veteran's earlier effective date claims. The hearings focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for earlier effective dates. The Veterans Law Judge asked a series of questions regarding potential evidence that could have supported the Veteran's claims. However, no pertinent evidence that might have been overlooked and that might substantiate the claims was identified by the Veteran. The Veteran has not suggested any deficiency in the conduct of either hearing. Therefore, the Board finds that the DRO and Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) consistent with the holding in Bryant. Throughout the pendency of this appeal, the Veteran has asserted that he submitted his initial claims of entitlement to service connection for right and left knee disabilities and right and left lower leg disabilities to a representative at Disabled American Veterans (DAV) sometime in May 2007 with the understanding that this representative would submit them to VA on his behalf. The DAV representative's office was apparently located within a VA Medical Center in San Diego, California. On February 6, 2008, the Veteran stated that he appeared at a VA office (in Manila, the Republic of the Philippines) to check on the status of his alleged May 2007 claims. He was informed by VA on that occasion that no claims had been received by VA and that he would have to submit "new" claims to VA. The Veteran submitted informal claims of entitlement to service connection for right and left knee disabilities and right and left lower leg disabilities on February 6, 2008. In an October 2009 rating decision, service connection was granted for degenerative arthritis, right and left knee, status post total knee arthroplasty, and deep venous thrombosis, popliteal vein, right and left lower extremity. The RO then assigned February 6, 2008 as the effective dates for the initial disability ratings. The Veteran perfected an appeal, claiming entitlement to effective dates prior to February 6, 2008 based on his assertion that the DAV representative either lost or intentionally discarded his May 2007 claims. In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A "claim" is 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2013). To determine when/if a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Preliminarily, the Veteran did not assert, nor did the evidence of record support finding, that he submitted a claim of entitlement to VA benefits within one year of his service discharge (February 1974) and, thus, the exception to the general rule of assigning effective dates is inapplicable in this case. Even accepting the Veteran's assertions as true, that he submitted claims of entitlement to VA benefits in May 2007 to a DAV representative at the VA Medical Center in San Diego, California, and that this representative either lost or intentionally discarded those claims, VA is obligated to apply the relevant regulations. These regulations, as cited above, require VA to assign one of two possible effective dates to the initial disability ratings at issue herein: (1) the date of claim or (2) the date entitlement arose, whichever is later. The Veteran's assertions implicitly, if not explicitly acknowledge that VA did not receive his claims prior to February 6, 2008. Indeed, the Veteran asserted that his May 2007 claims were either lost or discarded by the DAV representative and, thus, were not submitted to VA. Consequently, according to the regulations, the earliest effective date that VA is permitted to assign to the initial disability ratings at issue herein is February 6, 2008, which has already been assigned. Essentially, the basis of the Veteran's claim of entitlement to earlier effective dates is that he allegedly submitted claims of entitlement to VA benefits in May 2007 to a DAV representative at the San Diego VA Medical Center. There remains a question as to whether the Veteran actually submitted claims to the DAV representative in May 2007. Specifically, the evidence of record, including his testimony from a June 2010 hearing with a Decision Review Officer and an April 2011 hearing with the undersigned Veterans Law Judge, demonstrated that the Veteran repeatedly asserted that he submitted claims in May 2007 to the DAV representative. He also asserted that evidence, namely emails, had been obtained by VA demonstrating that the DAV representative acknowledged meeting the Veteran and acknowledged that he had received the Veteran's claims. Further, the Veteran claimed that these emails had been associated with the claims file. The Veteran also asserted meeting with the DAV representative and that the representative admitted to discarding his May 2007 claims. Despite the Veteran's assertions, during the pendency of this appeal, the Veteran requested and was scheduled for a meeting in January 2009 with a supervisor at the VA Regional Office in Manila. During that meeting, the supervisor informed the Veteran that the DAV representative had been contacted to discuss the Veteran's alleged May 2007 claims. According to the supervisor, the DAV representative remembered the Veteran, but that the representative advised the Veteran to "resubmit" his claims at the nearest VA Regional Office. The conversation between the supervisor and the DAV representative was documented in an email exchange that has been associated with the claims file. Although these emails demonstrated that the DAV representative remembered the Veteran, the Board found no evidence demonstrating that the DAV representative admitted to discarding the Veteran's May 2007 claims or receiving claims in May 2007 that were not subsequently submitted to VA on the Veteran's behalf. Regardless, even if the Veteran actually submitted claims to the DAV representative in May 2007, DAV is a Veterans service organization independent from VA, which does not serve as a proxy or agent for VA. Although the DAV representative's office was apparently located within a VA medical facility, the alleged submission of claims to the DAV representative in May 2007 does not amount to the submission of claims to VA. As such, the alleged submission of claims to the DAV representative in May 2007 cannot serve as a basis of a grant for earlier effective dates for the award of service connection and the assigned initial disability ratings, for the disabilities at issue. Prior to the submission of his February 6, 2008 informal claims, the evidence of record did not otherwise include documentation, communication, or action indicating that the Veteran intended to apply for VA benefits. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed.Cir.2001) (holding that the presumption of regularity doctrine allows courts to presume that what appears regular is regular, the burden shifting to the attacker to show the contrary). Although the Veteran asserted in his February 6, 2008 informal claims that he had previously submitted similar claims to the VA Regional Office in San Diego, California, no such claims were associated with the evidence of record. As such, the Board finds that an effective date prior to February 6, 2008 for the award of service connection for degenerative arthritis, right and left knees, status post total knee arthroplasties, and deep venous thrombosis, popliteal vein, right and left lower extremities, is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claims for an effective date prior to February 6, 2008 for the grant of entitlement to service connection for degenerative arthritis, right and left knees, status post total knee arthroplasties, and deep venous thrombosis, popliteal vein, right and left lower extremities, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). The Board acknowledges the presence of an undated and unsigned memorandum, received in January 2009 from the Veteran, purportedly written by the DAV representative and addressed to the Regional Office in San Diego. Therein, the DAV representative indicated that he submitted an un-indentified claim on behalf of the Veteran in May 2007. This letter or memorandum appears to contradict the DAV representative's statements made to the Manila RO supervisor, as was documented by the January 2009 email exchange associated with the claims file. These statements also contradict the Veteran's assertions that the DAV representative admitted to discarding the Veteran's May 2007 claims. Further, the letter or memorandum was not signed by the DAV representative. For these reasons, the Board finds that the letter or memorandum lacks all probative value. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (noting that the credibility of statements may be impeached by inconsistent statements and consistency with other evidence). Additionally, as will be discussed below, during the April 2011 hearing with the undersigned Veterans Law Judge, the Veteran stated that he had been granted disability benefits by the Social Security Administration (SSA). The Board found no indication the RO undertook efforts to obtain the documentation associated with his underlying application for SSA disability benefits or the SSA's decision to award him disability benefits. As such, remanding his increased rating claims is warranted in order to obtain said records. However, given the Veteran's assertions, that his May 2007 claims of entitlement to service connection for right and left knee disabilities and right and left lower leg disabilities were not received by VA due to the alleged misconduct of a DAV representative, the Board finds that there is no reasonably possibility that the SSA records are pertinent to his claim of entitlement to earlier effective dates. Murincsak v. Derwinski, 2 Vet. App. 363, 372-3 (1992); see also Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Further, the Board finds that the evidence of record does not reasonably raise other theories of entitlement, beyond the Veteran's assertions. See Robinson v. Mansfield, 21 Vet. App. 545, 553 (2008) (holding that the Board commits error only in failing to discuss a theory of entitlement that was raised either by the veteran or by the evidence of record). As such, a remand is not warranted for the Veteran's claims of entitlement to earlier effective dates. ORDER Entitlement to an effective date prior to February 6, 2008 for the grant of service connection for degenerative arthritis, right knee, status post total knee arthroplasty, is denied. Entitlement to an effective date prior to February 6, 2008 for the grant of service connection for degenerative arthritis, left knee, status post total knee arthroplasty, is denied. Entitlement to an effective date prior to February 6, 2008 for the grant of service connection for deep venous thrombosis, popliteal vein, right lower extremity, is denied. Entitlement to an effective date prior to prior to February 6, 2008 for the grant of service connection for deep venous thrombosis, popliteal vein, left lower extremity, is denied. REMAND During the April 2011 hearing with the undersigned Veterans Law Judge, the Veteran indicated that he had been granted entitlement to SSA disability benefits based, in part, on his degenerative arthritis, right and left knees, status post total knee arthroplasties, and his deep venous thrombosis, popliteal vein, right and left lower extremities. The Board finds no indication that the RO undertook efforts to obtain the documentation associated with his application for SSA disability benefits, including an SSA decision letter. Where there is notice the Veteran is receiving SSA disability benefits, VA has a duty to acquire a copy of the decision granting such benefits and the supporting medical documents when there exists a reasonable possibility that the records could help the Veteran substantiate the claims for benefits. Murincsak, 2 Vet. App. at 372-3; see also Golz, 590 F.3d at 1323. Given the Veteran's increased rating claims are predicated on assessing the severity of his claimed service-connected disabilities, there is a reasonably possibility that the SSA records could help substantiate the Veteran's claims. Consequently, the Board finds that a remand is warranted in order for the RO to attempt to obtain these records. Id. Accordingly, the case is REMANDED for the following action: 1. The RO must contact SSA and obtain a copy of all agency records and any decision that awarded or denied the Veteran disability benefits, including all records used to make the decision. All attempts to secure this evidence must be documented in the claims file by the RO. 2. Once the above actions have been completed, the RO must re-adjudicate the Veteran's claims on appeal, to include consideration of all relevant evidence of record. If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran. After the Veteran has had an adequate opportunity to respond, the case must be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B , 7112 (West Supp. 2013). ____________________________________________ U. R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs