Citation Nr: 1421707 Decision Date: 05/14/14 Archive Date: 05/21/14 DOCKET NO. 11-15 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date prior to July 15, 2009, for the award grant of service connection for temporomandibular joint (TMJ) disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD VanValkenburg, A., Associate Counsel INTRODUCTION The Veteran served on active duty from October 1987 to October 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran was scheduled for a Board hearing on June 13, 2012. The Veteran failed to appear. She did not offer a reason for her failure to appear, nor did she request that her hearing be rescheduled. As such, the Board deems her hearing request withdrawn. See 38 C.F.R. § 20.704(d). The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in the Virtual VA and VBMS systems to ensure complete review of the evidence of record. FINDING OF FACT The RO received the Veteran's informal claim of an increase in her residuals of dental surgery claiming difficulty chewing and speaking with increased pain opening and closing her jaw on August 20, 2001. CONCLUSION OF LAW The criteria for an effective date of August 20, 2001, but no earlier, for the grant of service connection for TMJ are met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.114(a), 3.400 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a 'service connection' claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that, or 'immediately after,' VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). There are some claims to which the VCAA does not apply. Livesay v. Principi, 15 Vet. App. 165, 178 (2001). With respect to the Veteran's claim for an earlier effective date for the award of service-connection, no VCAA notice is necessary because, as is more thoroughly explained below, the outcome of this earlier effective date claim depends exclusively on documents which are already contained in the Veteran's VA claims folder. The Court has held that a Veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide her with VCAA notice of the law and regulations governing effective dates if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law. See Nelson v. Principi, 18 Vet. App. 407, 410 (2004). Additionally, the Veteran's appeal arises from disagreement with the effective date following the grant of service-connection. The Court of Appeals for Veterans Claims (Court) has held that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). The question of whether further notice for such 'downstream' issues as an effective date claim is required was also addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this precedential opinion, the General Counsel held that, in such circumstances, a statement of the case (SOC) was required in cases involving a 'downstream' issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the required SOC was issued in May 2011, and no additional notice is required. In any event, the Board notes that Veteran was in fact provided notice under the VCAA and Dingess regarding effective dates in a letter dated in August 2009. Concerning VA's duty to assist in the development of the Veteran's effective date claim, the Board notes that the Veteran's service treatment records, post-service treatment records, and lay statements of argument have been obtained. As was alluded to above, the outcome of this earlier effective date claims rests with evidence which is already in the claims folder, which will be discussed below. There is no indication in the record that additional evidence relevant to the issues decided herein is available but absent from the claims folder. In short, the Board has carefully considered the provisions of the VCAA in light of the record on appeal and, for the reasons expressed above, finds that the development of the issues on appeal has been consistent with said provisions. The Veteran has been accorded ample opportunity to present evidence and argument in support of her claims. See 38 C.F.R. § 3.103. Legal Criteria The assignment of effective dates of awards 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 of compensation based on an original claim shall be fixed in accordance with facts found but shall not be earlier than the date of receipt of application therefor. See 38 U.S.C.A. § 5110(a). The implementing VA regulation provides that the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(a). The effective date for an award of service connection for a disability shall be the day following separation from active service or date entitlement arose if the claim was received within one year after separation from service; otherwise, the effective date shall be date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran that may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 511(b)(2); 38 C.F.R. §§ 3.1(p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). 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 VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his or her representative, 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 a veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed which meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. Analysis The Veteran seeks an effective date earlier than the currently assigned July 15, 2009 for the grant of service connection for TMJ. The Veteran specifically asserts she is entitled to benefits from the date of her initial claim in November 1997. By way of history, the Veteran filed a claim for residuals of her in-service jaw surgery in November 1997. Although the claim was initially denied in a January 1998 decision, the Veteran was granted service connection evaluated at 10 percent disabling in an October 1998 rating decision, effective October 30, 1997. The initial disability assigned was based on findings of damage of the trigeminal nerve with paraesthesia. The Veteran filed a notice of disagreement in August 1999. During the course of the appeal, the RO increased the disability evaluation for damage of the trigeminal nerve to 20 percent in a November 1999 rating decision. The evidence at that time included new findings of popping of the TMJ. A statement of the case was issued in November 1999, but an appeal was never perfected. The October 1998 and November 1999 rating decisions thus became final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156, 20.1103 (2013). On August 20, 2001, the RO received a statement from the Veteran requesting an increase in her residuals of dental surgery claiming difficulty chewing and speaking with increased pain opening and closing her jaw. In a May 2006 rating decision, the RO assigned separate 30 percent evaluations for right and left trigeminal nerve disabilities effective from August 20, 2001. In a subsequent April 2010 rating decision, the RO awarded a separate 30 percent disability rating for TMJ disorder effective from July 15, 2009. The Veteran perfected a timely appeal of the effective date assigned for TMJ disorder. She contends that her effective date should be her date of original claim submitted in November 1997. As the October 1998 and November 1999 rating decisions are final, there is no basis to assign an effective date prior to the November 1999 rating decision that established a 20 percent disability rating for residuals of disability. Instead, the date must be the date the Veteran filed a new claim after the November 1999 final RO decision. The January 2007 rating decision reflects that the RO determined that the date of the claim was July 15, 2009. In the 2009 statement the Veteran pointed to an October 1999 TMJ diagnosis from a VA examination and reported her doctor recently stated that TMJ could be setting in. The Board has reviewed the record to determine whether any communication to VA by or on behalf of the Veteran was submitted beyond the final denial in November 1999 and prior to her June 15, 2009 statement that could be construed as a claim for service connection for TMJ. The Board notes that in Clemons v. Shinseki, 23 Vet. App. 1 (2009) the Court found that when a claimant makes a claim, she is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Based on Clemons, the Board has considered whether an earlier effective date can be assigned based on the Veteran's claims, irrespective of whether the claims were filed specifically for symptoms related to TMJ. The Board finds the August 20, 2001 claim for an increase for her service connected residuals of a jaw surgery, specifically her complaints of difficulty chewing and speaking with pain opening and closing her jaw represents an informal claim for service connection of TMJ. Thus, an effective date of August 20, 2001, is warranted. In reaching this conclusion, the Board acknowledges that the evidence shows that the Veteran had symptoms of TMJ prior to the effective date of service connection that has now been assigned. See e.g., October 23, 1999 VA examination. However, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. In this case, the Veteran's claim for an increased rating and or a separate rating for TMJ was received in August 2001. Thus, the date of claim was received after entitlement arose. Thus, the August 20, 2001, date of claim is the appropriate award for the grant of service connection for TMJ. In conclusion, for reasons stated above, the Board finds that the effective date for the grant of service connection for TMJ is August 20, 2001. The benefit sought on appeal, entitlement to an earlier effective date, is accordingly granted to that extent. ORDER Entitlement to an earlier effective date of August 20, 2001 for service connection for TMJ is granted. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs