Citation Nr: 1330928	
Decision Date: 09/26/13    Archive Date: 09/30/13

DOCKET NO.  07-34 435	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO)
in Los Angeles, California


THE ISSUES

1.  Entitlement to service connection for hepatitis C.

2.  Entitlement to an effective date earlier than January 31, 2003, for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

M. McPhaull, Counsel


INTRODUCTION

The Veteran served on active duty from April 1964 to April 1966.

This appeal to the Board of Veterans' Appeals (Board) arose from August 2006 and September 2011 rating decisions.

Following a January 2006 rating decision in which the RO, inter alia, awarded a TDIU, in the August 2006 rating decision, the RO denied an effective date earlier than January 31, 2003 for the award.  In January 2007, the Veteran filed a notice of disagreement (NOD) with the denial.  A statement of the case (SOC) was issued October 2007, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in October 2007.

In the September 2011 rating decision, the RO denied service connection for hepatitis C.  In October 2011, the Veteran filed a NOD with the denial.  A SOC was issued January 2012, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2012.

In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO.  A transcript of the hearing has been associated with the claims file.

A September 2013 review of the Virtual VA paperless claims processing system  revealed no documents in addition to those reflected in the paper claims file pertinent to the present appeal.

The Board's decision on the claim for an earlier effective date is set forth below.  The claim for service connection for hepatitis C is addressed in the remand following the order; this matter is being remanded to the RO, via the Appeals Management Center (AMC), in Washington, DC for further action.  VA will notify the Veteran when further action, on his part, is required.



FINDINGS OF FACT

1.  All notification and development actions needed to fairly adjudicate the claim herein decided have been accomplished.

2.  On January 31, 2003, the RO received the Veteran's initial claim for a TDIU. 

3.  In a January 2006 rating decision, the RO increased the assigned rating for degenerative disc disease to 60 percent, effective January 31, 2003); as a result, the Veteran's combined evaluation for all service-connected disabilities was increased to 80 percent, and a TDIU was awarded, effective January 31, 2003.

4.  Prior to January 31, 2003, the Veteran did not meet the percentage requirements for award of a schedular TDIU, there was no pending claim pursuant to which a TDIU could have been granted., and no evidence from which it is factually ascertainable that the criteria for a TDIU were met in the one-year period prior to the filing of the claim.


CONCLUSION OF LAW

The claim for an effective date earlier than January 31, 2003, for the award of a TDIU is without legal merit.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3. 157, 3.400, 4.16 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) includes enhanced duties to notify and assist claimants for VA benefits.  VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013).

As regards the claim for an earlier effective date for the award of a TDIU, the Veteran has been notified of the reasons for the denial of the claim, and has been afforded opportunity to present evidence and argument with respect to the claim, to include during the June 2012 Board hearing.  The Board finds that these actions are sufficient to satisfy any duties to notify and assist owed the Veteran.  As will be explained below, the claim lacks legal merit.  As the law, and not the facts, is dispositive of the claim, the duties to notify and assist imposed by the VCAA are not applicable.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002).  See also Manning v. Principi, 16 Vet. App. 534, 542-543 (2002) (the provisions of the VCAA have no effect on an appeal where the law, and not the underlying facts or development of the facts are dispositive in a matter).

II. Analysis

Generally, the effective date for an evaluation and award of compensation based on an original claim or a claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

Specifically with regard to claims for increased disability compensation, the pertinent legal authority provides that 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).

A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  See 38 U.S.C.A. § 5101(a) ; 38 C.F.R. §3.151(a). 

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim.  Such informal claim must identify the benefit 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.  If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim.  See 38 C.F.R. §3.155(a).

Under 38 C.F.R. § 3.157(a), a report of examination or hospitalization will be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement.  However, there must first be a prior allowance or disallowance of a claim.  See 38 C.F.R. § 3.157(b). 

The basic facts in this case are not in dispute.  The Veteran filed an initial claim for a TDIU on January 31, 2003.  In a January 2006 rating decision, the RO assigned a higher, 60 percent rating for degenerative disc disease, effective January 31, 2003.  Prior to that date the degenerative disc disease was rated as 40 percent disabling, and the Veteran's other service-connected disabilities were rated, as follows: Acne vulgaris (rated as 30 percent disabling, effective January 8, 1999); and hemorrhoids (rated as 10 percent disabling, effective January 31, 2003).  

As result of the RO's increase in the rating for degenerative disc disease effective January 31, 2003, the Veteran's combined evaluation was increased to 80 percent and TDIU was awarded, effective January 31, 2003.  The effective date of the award of a TDIU was thus based on the date the Veteran met the percentage requirements for a schedular TDIU (see 38 C.F.R. § 4.16(a)), or-consistent with 38 C.F.R. § 3.400-the date entitlement to a TDIU arose.

The Veteran has generally contended that he is entitled to an effective date of February 1, 1999 for TDIU because "evidence warranted an effective date on that date".  Such argument, however, is without legal merit.

In February 1999, there was no pending claim for a TDIU pursuant to which an earlier effective date could have been granted.  The record does reflect the Veteran's assertion, as early as January 2000 that he could not work; however, such assertions, without more, do not convey intent to apply for a TDIU due to service-connected disabilities.  Further, because the Veteran had not previously filed a claim for a TDIU, the January 2000 record cannot be accepted as an informal claim for a TDIU, pursuant to 38 C.F.R. § 3.157.  As indicated, the Veteran did not file a claim for TDIU until January 31, 2003. 

Specifically addressing the provisions of 38 C.F.R. § 3.400(o)(2), the Board also finds that the January 2000 report does not constitute evidence from which it is factually ascertainable that the Veteran became unemployable due to his service-connected disabilities within the one-year prior to filing of the January 2003 claim. For reasons discussed above, the Board finds that such report does not provide persuasive evidence that the Veteran was, in fact, then rendered unemployable due to his service-connected disabilities; simply stated, the report was not objectively supported.  Significantly, notwithstanding the January 2000 report, as discussed above, the Veteran did not then have sufficient service-connected disability to meet the requirements for a schedular TDIU until action taken by the RO in the January 2006 rating decision. 

Thus, notwithstanding the Veteran's assertion, the Board finds that there simply is no legal basis for awarding a TDIU prior to the date in question.  Rather, the governing legal authority makes clear that, under these circumstances, the effective date can be no earlier than that assigned.  See 38 U.S.C.A. § 5110(a) ; 38 C.F.R. § 3.400(b)(2)(i).  The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority.

As, on these facts, no effective date for the award of a TDIU earlier than January 31, 2003, is assignable, the claim for an earlier effective date for the award of a TDIU must be denied.  Where, as here, the law and not the evidence is dispositive, the claim must be terminated or denied as without legal merit.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).



ORDER

An effective date earlier than January 31, 2003, for the award of a TDIU is denied.


REMAND

Unfortunately, a remand is required with the remaining issue on appeal.  Although the Board regrets the delay, it is necessary to ensure that there is a complete record upon which to decide the Veterans' claim so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  38 U.S.C.A. § 3 .159(c) (2013).

The Veteran's DD 214 Form shows that he served in the United States Army from April 1964 to April 1966.  He has no awards or decorations indicative of combat. 

Review of the service treatment records (STRs) does not reflect any complaints, treatment, or a diagnosis referable to hepatitis C during service.  The STRs include a December 30, 1963 enlistment examination report which fails to reflect that the Veteran had any sort of body marking, such as a scar or tattoo.  The February 1966 separation examination report was negative for any liver complaints. 

The Veteran filed a service connection claim for hepatitis C in August 2010.  In a September 2010 "Risk Factors for Hepatitis Questionnaire", the Veteran indicated that he had no risk factors.  Attached with the Questionnaire was a statement that indicated that the use of "jet injectors" used for inoculations possibly infected service members with hepatitis C.

The file includes VA outpatient treatment records that show elevated liver function test results as early as October 9, 2008, with a diagnosis of hepatitis C given as early as January 14, 2009.  Private medical records from Kaiser Permanente also show elevated liver function test results on October 17, 2008 with a diagnosis of hepatitis given on November 5, 2008.  Subsequent records show ongoing treatment for this condition.

During the June 2012 Board hearing, the Veteran testified that he believed he contracted hepatitis C by way of inoculations given through the "jet gun" during his military service. 

The Board notes that, despite the lack of any scientific evidence to document transmission of hepatitis C through jet air gun injectors, VA has deemed such transmission biologically plausible.  See VBA Fast Letter 211 (04-13) (June 29, 2004).

The Veteran was afforded a VA examination in December 2012.  Although, the VA examiner essentially stated, with in-depth rationale, that the Veteran's hepatitis C was less likely related to service, the examiner did not address the likelihood that any jet air gun injection during military service played a role in the Veteran contracting hepatitis C.  Consequently, the Board finds that an addendum opinion addressing the Veteran's contentions is necessary.

Hence, the RO should forward the claims file to the physician who provided the December 2012 medical opinion for an addendum opinion with a complete, clearly-stated rationale, as to whether it is at least as likely as not that the Veteran's current hepatitis C is etiologically related to his claimed in-service Vacu-jet immunizations. The RO should only arrange for further examination of the Veteran if the December 2012 examiner is unavailable, or if further examination of the Veteran is deemed necessary.

The Veteran is hereby advised that failure to report for any scheduled examination, without good cause, may well result in denial of the claim (as the original claim for service connection will be considered on the basis of the evidence of record).  See 38 C.F.R. § 3.655 (2013).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member.  If the Veteran fails to report to any scheduled examination, the RO should obtain and associate with the claims file a copy(ies) of the notice(s) of the examination sent to him by the pertinent VA medical facility.

Prior to seeking the requested opinion, to ensure that all due process requirements are met, and that the record is complete, the RO should undertake appropriate action to obtain and associate with the claims file all outstanding, pertinent records.

Regarding VA records, the claims file currently includes outpatient treatment records from the West LA VA Medical Center (VAMC) dated through July 2010; however, more recent records from this facility may exist.  Records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file.  See Dunn v. West, 11 Vet. App. 462, 466-67 (1998); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).  Hence, the RO must obtain from the West LA VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since July 2010, following the current procedures prescribed in 38 C.F.R. § 3.159 as regards requests for records from Federal facilities.  

The RO should also give the Veteran another opportunity to provide information and/or evidence pertinent to the claim on appeal.  The RO's letter to the Veteran should explain that he has a full one-year period for response.  See 38 U.S.C.A. § 5103(b)(1) (West 2002); but see also 38 U.S.C.A. § 5103(b)(3) (West Supp. 2013) (amending the relevant statute to clarify that VA may make a decision on a claim before the expiration of the one-year notice period).

Thereafter, the RO should attempt to obtain any additional evidence for which the Veteran provides sufficient information, and, if needed, authorization, following the current procedures prescribed in 38 C.F.R. § 3.159 (2013).

The actions identified herein are consistent with the duties imposed by the Veterans Claim Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  However, identification of specific actions requested on remand does not relieve the RO of the responsibility to ensure full compliance with the VCAA and its implementing regulations.  Hence, in addition to the actions requested above, the RO should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the claim on appeal.

Accordingly, this matter is hereby REMANDED for the following actions:

1.  Obtain from the West LA VAMC all outstanding, pertinent records of evaluation and/or treatment of the Veteran, since July 2010.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) as regards requesting records from Federal facilities.  All records and/or responses received should be associated with the claims file.

2.  Send to the Veteran a letter requesting that he provide sufficient information, and if necessary, authorization to enable it to obtain any additional evidence pertinent to the claim remaining on appeal that is not currently of record.

Clearly explain to the Veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period).

3.  If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159.  All records/responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran and his representative of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

4.  After all records and/or responses received from each contacted entity have been associated with the claims file, forward the Veteran's entire claims file, to include a complete copy of this REMAND, along with copies of any relevant Virtual VA records, to the physician who provided the December 2012 medical opinion, for an addendum opinion.

The physician should offer an opinion, based on full consideration of the record, and consistent with sound medical principles, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that the Veteran's current hepatitis C is etiologically related to the Veteran's claimed in-service Vacu-jet immunizations.

If the December 2012 physician is not available, or is unable to provide the requested opinion without examining the Veteran, arrange for the Veteran to undergo VA examination, by an appropriate physician, to obtain an opinion responsive to the question posed above.  Under such circumstance, the entire claims file, to include complete copy of the REMAND, along with copies of any relevant Virtual VA records,  must be made available to the individual designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions.

The physician should set forth all examination findings (if any), along with a complete, clearly stated rationale for the conclusions reached, in a printed (typewritten) report.

5.  If the Veteran fails to report to any scheduled examination, obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to him by the pertinent VA medical facility.

6.  To help avoid future remand, ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  Stegall v. West, 11 Vet. App. 268 (1998).

7.  After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim remaining on appeal in light of all pertinent evidence and legal authority.

8.  If the benefit sought on appeal remains denied, furnish to the Veteran an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford him the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The purpose of this REMAND is to afford due process and to accomplish additional development and adjudication; it is not the Board's intent to imply whether the benefits requested should be granted or denied.  The Veteran need take no action until otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame.  See Kutscherousky v. West, 12 Vet. App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996); Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).

This REMAND must be afforded expeditious treatment.  The law requires that all claims 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. 2013).




______________________________________________
JACQUELINE E. MONROE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs