Citation Nr: 1418432 Decision Date: 04/25/14 Archive Date: 05/02/14 DOCKET NO. 10-41 632 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than April 18, 2000 for the grant of service connection for hepatitis C. 2. Entitlement to an effective date earlier than July 2, 2001 for the grant of service connection for a mood disorder with depressive features associated with hepatitis C. 3. Whether the Veteran's VA Form 9 was timely to perfect the appeal of a September 2008 rating decision. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from November 1973 to September 1977. This appeal comes to the Board of Veterans' Appeals (Board) from February 2010 and November 2011 rating actions. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also his files on the "Virtual VA" system and the VBMS system to insure a total review of the evidence. FINDINGS OF FACT 1. Service connection for hepatitis C was granted by a December 2000 rating decision with an effective date of April 18, 2000. 2. The Board denied the Veteran's appeal for an earlier effective date for service connection for hepatitis C in an August 2002 decision and also denied that Clear and unmistakable error (CUE) had been made in the December 2000 rating decision. 3. The Veteran has not alleged that CUE was made in the August 2002 Board decision. 4. A separate rating for depression, secondary to hepatitis C, was assigned on the first day the revised hepatitis C regulations became effective that allowed for a separate psychiatric rating. 5. Prior to July 2, 2001, it was more favorable to rate the Veteran under the schedular rating criteria for hepatitis C than under the schedular rating criteria for psychiatric disabilities, as he was assigned a 100 percent schedular rating for hepatitis C at that time. 6. The Veteran's claims file does not show receipt of a VA-9 within 60 days of the July 2009 statement of the case or within a year of the September 2008 rating decision. 7. Even if it were accepted that a substantive appeal was received, perfecting the July 2009 statement of the case, an earlier effective date would not be assigned for the grant of service connection for hepatitis C. CONCLUSIONS OF LAW 1. The claim for an effective date earlier than April 18, 2000 for the grant of service connection for hepatitis C is dismissed. 38 U.S.C.A. §§ 511, 7104, 7105, 7108, 7111 (West 2002); 38 C.F.R. §§ 3.104, 3.105, 3.400, 20.1100 (2013). 2. The claim for an effective date earlier than July 2, 2001 for the grant of a separate compensable rating for depression as secondary to hepatitis C is denied. 38 U.S.C.A. §§ 1155, 5110, 7104, 7105, 7108, (West 2002); 38 C.F.R. § 4.114, Diagnostic Code 7345 (2000); 38 C.F.R. § 3.400, 4.114, 4.130, Diagnostic Codes 7354, 9435 (2013). 3. The Veteran did not timely perfect his appeal of a September 2008 rating decision. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Earlier effective date for the grant of service connection for hepatitis C In this case, the Veteran is seeking an effective date earlier than April 18, 2000 for the grant of service connection for hepatitis C. The basic facts of the case are as follows: In April 1990, the Veteran filed a claim seeking service connection for hepatitis and for high blood pressure. This claim was denied by a May 1990 rating decision, as residuals of hepatitis were not shown on his last examination. The Veteran was notified of this decision in a letter dated May 15, 1990. The letter referred the Veteran to an attached VA From 1-407 which explained his appellate rights. While the VA Form 1-407 is not in the claims file, the presumption of regularity dictates that the Veteran was provided with such notice since the letter in the claims file indicates that they were provided. See Butler v. Principi, 244 F.3d 1337, 1339-40 (Fed. Cir. 2001) (holding that the Court properly applied the presumption of regularity to the mailing of notice of appellate rights even though the record did not contain a copy of such notice and the appellant asserted nonreceipt). The Veteran did not appeal this decision, and he did not submit new and material evidence within a year. That decision became final. On April 18, 2000, a claim was received from the Veteran seeking service connection for hepatitis C. Service connection for hepatitis C was granted by a December 2000 rating decision, effective April 18, 2000, the date his claim was received. The Veteran appealed the effective date that was assigned, but that claim was eventually denied by the Board in August 2002 Board decision. This Board decision is final. 38 C.F.R. § 20.1100. Once a decision becomes final, the law holds that the decision will not be subject to revision on the same factual basis, except by duly constituted appellate authorities, for new and material evidence, or for clear and unmistakable error (CUE). 38 C.F.R. § 3.104(a), 3.105(a). Therefore, in order for the Veteran to obtain an earlier effective date for the grant of service connection for hepatitis C, he must show either that CUE was made in the rating decision that established the effective date, or theoretically submit new and material evidence. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). Rudd explained that VA regulations do not provide for freestanding earlier effective date claims. A freestanding effective date claim means that after the time period has expired to appeal the effective date assigned for a grant of service connection, an appellant attempts to once again seek an earlier effective date based on the evidence of record. The Veteran previously alleged that CUE was made in the 1990 rating decision which originally denied the his claim for service connection for hepatitis C. However, the Board in an August 2002 decision concluded that CUE had not been made. As such, that Board decision has effectively subsumed the earlier rating decision from 1990, and the Veteran would therefore have to show that CUE was made in the 2002 Board decision. This has not been done. Here, the Veteran has attempted to raise a freestanding effective date claim, which is prohibited by the case law. Therefore, under the undisputed facts of this case, there is no legal entitlement to an effective date earlier than April 18, 2000 for the grant of service connection for hepatitis C. Based on the procedural history of this case, the Board has no alternative but to dismiss the appeal. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to an absence of legal entitlement). Effective date earlier than July 2, 2001 for the grant of service connection for a mood disorder with depressive features associated with hepatitis C. Service connection was granted for a mood disorder with depressive features associated with hepatitis C by a July 2001 rating decision with an effective date of July 2, 2001 was assigned. This effective date was based on the fact that on July 2, 2001 the VA regulations for rating hepatitis C were revised, and the revised regulations no longer considered depression within the criteria used to rate hepatitis C. Prior to July 2, 2001 infectious hepatitis was rated under Diagnostic Code 7345, which provided a 60 percent rating when hepatitis caused moderate liver damage and disabling recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression. (emphasis added). 38 C.F.R. § 4.14, in effect prior to July 2, 2001, provided that the evaluation of the same disability under various diagnoses, pyramiding, was to be avoided. As such, to provide a separate psychiatric rating for the Veteran's depression that was secondary to his hepatitis C, when the schedular rating for hepatitis C specifically included consideration of depression would be considered pyramiding because the symptoms of depression would have been rated twice. Effective July 2, 2001, hepatitis C was rated under Diagnostic Code 7354 which no longer rated hepatitis C based on any related psychiatric impairment. As such, at that time, it became appropriate to rate the Veteran's psychiatric symptomatology separately. The change in regulations was made effective July 2, 2001. When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria to determine whether a higher rating is warranted for a service connected disability. VA's General Counsel has determined however that the amended rating criteria, if more favorable to the claim, only may be applied prospectively, so only for the periods from and after the effective date of the regulatory changes. However, the Veteran gets the benefit of having both the former and revised regulations considered for the period after the change was made. See VAOPGCPREC 3-2000 (Apr. 10, 2000). See also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003). This guidance is consistent with longstanding statutory law, to the effect that an increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made. See 38 U.S.C.A. § 5110(g). See also 38 C.F.R. § 3.114 . The Veteran's contention is essentially that he has experienced problems with hepatitis C related impairment, including depression, since service. However, the effective date for a grant of service connection cannot be earlier than the date a claim was received. See 38 C.F.R. § 3.400. Here, the Veteran's claim for depression secondary to hepatitis C was received in December 2000, at a time when the Veteran was already in receipt of a 100 percent schedular rating for hepatitis C. Thus, even if service connection were granted for depression, because the depression could not be rated separately earlier than the 100 percent rating that was assigned for hepatitis C, the Veteran cannot be prejudiced by the decision not to rate him separately for depression rather than separately for psychiatric impairment. As described, the effective date for the separate psychiatric rating is proper, and the Veteran's claim is denied. Timeliness of the Veteran' Substantive appeal In this case, the Veteran's claim for an earlier effective date for the grant of service connection for hepatitis C was denied by a September 2008 rating decision. The Veteran filed a notice of disagreement in September 2008 and a statement of the case was issued in July 2009. In the letter accompanying the statement of the case, the Veteran was informed that to perfect his appeal to the Board a substantive appeal needed to be received either within one year of the rating decision, or within 60 days of the statement of the case. In this case, the Veteran's substantive appeal was not received by VA until February 2010. No motion for an extension of time was received, although the Veteran has argued that he filed a timely substantive appeal that was simply not received by, or was lost by, VA. The Court of Appeals for Veterans Claims (Court) has stated that, if an appellant fails to comply with the requirements of 38 C.F.R. § 20.303, the appellant has forfeited his opportunity to appeal a VA decision to the Board. See Roy v. Brown, 5 Vet. App. 554, 556-57 (1993) (applying the requirement in § 20.303 that extensions of time to file a Substantive Appeal must be filed in writing and within 60 days of the issuance of an SOC). The Court acknowledged that the requirements of § 20.303 are not jurisdictional in nature. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). However, the Court has cautioned that the holding in Percy does not relieve an appellant of the necessity of complying with the extant regulations governing the appellant process, which include the filing of a timely substantive appeal. In Percy, the Board had treated the appellant's appeal as though he had properly appealed his claim to the Board for an extensive amount of time. The Court there found that the Board had waived the time requirement by its treatment of the claim as being in appellate status for a period of years. Under those circumstances, the Board was not permitted to dismiss the appellant's claim in its final decision on the basis of a late filing because it had not raised the issue during the extensive proceedings that took place between the late filing and the final determination. Id. at 46. In this case, the Veteran's claims file simply does not show receipt of a substantive appeal by VA within 60 days of the July 2009 statement of the case or within a year of the September 2008 rating decision. The RO explained this to the Veteran when he called in December 2009, and it was again explained to him again in a letter that was dated in December 2009. As such, at no point has VA ever waived the timing requirement for the substantive appeal. The Veteran has argued that he did submit a VA-9 and in February 2010 he wrote that he did submit a substantive appeal to the RO prior to the time period expiring. He reported calling the RO to see if his form 9 had been received. He stated that he drove to the RO, but reported that they had been unable to find his claims file. He indicated that it was eventually found in a VSO's office. However, this statement simply does not rebut the presumption of regularity which holds that if the Veteran properly mailed a letter to VA that it would have been placed in his claims file. See Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) ("Government officials are presumed to carry out their duties in good faith and proof to the contrary must be almost irrefragable to overcome that presumption."). Therefore, the Board concludes that the Veteran did not timely appeal the denial of his claim for an earlier effective date for the grant of service connection for hepatitis C. However, it is very important for the Veteran to understand that even if the Board were to conclude that the Veteran had timely perfected the appeal of the September 2008 rating decision, the Veteran would not be prejudiced by this decision and remand would not be warranted. The reason for this is that even if the appeal of the September 2008 rating decision were perfected, the claim was nothing more than a freestanding earlier effective date claim which would be dismissed as a matter of law. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The claim for an earlier effective date for hepatitis C that is denied above stemmed from a claim that was received in October 2010, as opposed to the unperfected claim of the same issue which had been received in February 2008. As such, whether the date of receipt of the claim is February 2008 or October 2010, the claim would be denied pursuant to the prohibition on freestanding effective date claims. See id. As discussed, the Veteran's claim is denied. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Veteran's claims for service connection were granted and he is now appealing the downstream issues of the effective dates that have been assigned. Under these circumstances, since the original claims were granted, there are no further notice requirements under the aforementioned law with regard to that issue. In any event, the Veteran has neither alleged, nor demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 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). Thus, adjudication of his claim at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Veteran testified at a hearing before the Board, and all relevant evidence is of record. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above 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, during the March 2014 Board hearing, the Veteran was assisted at the hearing by an accredited representative. The representative and the Veterans Law Judge asked questions to ensure that the Veteran understood what the issues were in the Veteran's case. While specific evidence was not discussed, it is the nature of effective date claims that the decision is essentially determined based on when claims were received or whether they were appealed. As such, there is no suggestion that pertinent evidence that might have been overlooked that might substantiate the claim. Therefore, the Board finds that, consistent with Bryant, the Veterans' Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER An effective date earlier than April 18, 2000 for the grant of service connection for hepatitis C is dismissed. An effective date earlier than July 2, 2001 for the grant of service connection for a mood disorder with depressive features associated with hepatitis C is denied. The claim that the Veteran filed a timely VA Form 9 within a year of the September 2009 rating decision is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs