Citation Nr: 1609143 Decision Date: 03/08/16 Archive Date: 03/15/16 DOCKET NO. 13-20 402 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an effective date earlier than September 21, 2011, for the grant of a 60 percent evaluation for residuals of prostate cancer. 2. Entitlement to an effective date earlier than September 21, 2011, for the grant of special monthly compensation under 38 U.S.C.A. § 1114(s). 3. Entitlement to an effective date earlier than April 23, 2008, for the grant of a 100 percent evaluation for posttraumatic stress disorder (PTSD). 2. Entitlement to an effective date earlier than April 23, 2008, for the grant of a 40 percent evaluation for prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from November 1966 to October 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. Concurrent with his present appeals, the Veteran has argued that he is entitled to an earlier effective date for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Essentially, the Veteran was in receipt of a total schedular disability rating from December 8, 2005, to April 30, 2006. From May 1, 2006, to April 22, 2008, he was in receipt of a 60 percent disability rating. Thereafter, he again received a total schedular disability rating. The Veteran argues that he is entitled to a total disability rating from May 1, 2006, to April 22, 2008. In August 2007, the Veteran filed a claim of entitlement to a TDIU. This claim was denied in January 2008. The next correspondence regarding entitlement to a TDIU was filed in February 2009, when the Veteran, via his representative, requested retroactive establishment of a TDIU. In general, a notice of disagreement N(OD )with a determination by the agency of original jurisdiction (AOJ) (in this case, the RO) must be filed within 1 year from the date that notice of the determination was mailed to the veteran. Otherwise, that determination becomes final. See 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302. Even if the Board construed the February 2009 correspondence as a notice of disagreement with the January 2008 rating decision that denied entitlement to a TDIU, the correspondence was not filed within one year from the date the notice of the determination was mailed to the Veteran. Thus, the Veteran did not timely file a notice of disagreement with the January 2008 rating decision, and the decision became final. The RO construed the February 2009 correspondence claiming retroactive establishment of a TDIU as a claim for TDIU and denied this claim in July 2010. Again, no correspondence that could be construed as a notice of disagreement with the July 2010 determination was received within one year from the date the determination was mailed to the Veteran. That decision, too, became final. Thus, there is no current appeal for entitlement to a TDIU. The above discussion addresses the Veteran's correspondences regarding entitlement to a TDIU from May 1, 2006, to April 22, 2008. However, the Veteran also argued in his February 2009 correspondence that that he was entitled to an "increase[d] evaluation of the service connected PTSD and other disabilities." The Board construes this statement as a timely notice of disagreement with a July 29, 2008, rating decision, which increased the Veteran's rating for PTSD to 100 percent, effective April 23, 2008, and increased the rating for prostate cancer to 40 percent, effective April 23, 2008. Essentially, the Veteran's statement indicates disagreement with the effective dates assigned for the ratings for PTSD and prostate cancer. The Veteran is therefore entitled to an SOC addressing his disagreement with the disability rating and effective date elements of the claims. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the issues of entitlement to effective dates earlier than April 23, 2008, for a 100 percent rating for PTSD and a 40 percent rating for prostate cancer are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. VA will notify the appellant if additional action is required on his part. FINDINGS OF FACT 1. An informal claim for an increased evaluation for prostate cancer was received on September 21, 2011; it is not factually ascertainable that an increase in disability occurred in the one-year period prior to September 21, 2011. 2. The minimum requirements for special monthly compensation under 38 U.S.C.A. § 1114(s) were not met prior to September 21, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 21, 2011, for a 60 percent rating for prostate cancer have not been met. 38 U.S.C.A. § 1114(l), (s), 5103, 5103A, 5107(b), 5110 (West 2014); 38 C.F.R. §§ 3.350, 3.400 (2015). 2. The criteria for an effective date prior to September 21, 2011, for the award of entitlement to special monthly compensation under 38 U.S.C.A. § 1114(s) have not been met. 38 U.S.C.A. § 1114(l)(s), 5103, 5103A, 5107(b), 5110 (West 2014); 38 C.F.R. §§ 3.350, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Board observes that the Veteran's claim of entitlement to earlier effective dates for an increased rating for prostate cancer and for the award of special monthly compensation under 38 U.S.C.A. § 1114(s) is a downstream issue from the grant of entitlement. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no Veterans Claims Assistance Act of 2000 notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Relevant to the duty to assist, the Veteran did not identify any relevant outstanding evidence in connection with his claims decided herein. Thus, the Board finds that VA has fully satisfied the duty to assist and the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Earlier Effective Date for an Increased Rating In general, except as otherwise provided, 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. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400 (2015). 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, the AOJ will forward an application form to the claimant for execution. If the AOJ receives a complete application from the claimant within one year from the date it was sent, then the AOJ will consider it filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2015). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits under an existing law or for benefits under a liberalizing law or VA issue, if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157 (2015). Once a formal claim for compensation has been allowed, receipt of a report of examination by VA or evidence from a private physician will be accepted as an informal claim for benefits. In the case of examination by VA, the date of examination will be accepted as the date of receipt of a claim. The provisions of the preceding sentence apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination. In the case of evidence from a private physician, the date of receipt of such evidence by VA will be accepted as the date of the claim. Id. For claims of entitlement to an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of claim. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400(o)(2) (2015). See Hazan v. Gober, 10 Vet. App. 511 (1997); see also Servello, 3 Vet. App. at 196. In his May 2012 NOD, the Veteran argued he was entitled to an earlier effective date for the 60 percent disability rating for his prostate cancer and for the award of special monthly compensation based on housebound status. Essentially, the Veteran, via his representative, argued that a "vague" October 14, 2008, statement constituted an NOD with a July 29, 2008, rating decision, which raised the Veteran's disability rating for prostate cancer from 20 to 40 percent, and that the issue of entitlement to an increased disability rating for prostate cancer was in appeal status prior to the currently assigned September 21, 2011, effective date. In general, an NOD with a determination by the AOJ must be filed within 1 year from the date that notice of the determination was mailed to the veteran. Otherwise, that determination becomes final. See 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302. Initially, the Board finds that the preponderance of the evidence is against finding that the Veteran filed a NOD with the disability rating assigned for prostate cancer in the July 29, 2008, rating decision. The Veteran's representative argued that the statement was vague, but could nevertheless be construed as a notice of disagreement with the rating decision. There are two statements of record that were received by the RO on October 14, 2008. In one, the Veteran indicated that he was "entitled to [permanency] of PTSD." In the other, the Veteran's representative claimed entitlement to an increased rating for PTSD. Neither of these statements can be construed as a valid NOD with the portion of the July 29, 2008, rating decision that addressed an increased disability rating for prostate cancer. Nor can any other document received by the RO in the year following the date of the July 29, 2008, rating decision, be construed as a NOD for this decision. Accordingly, the July 29, 2008, rating decision became final, and the matter was not in appellate status prior to the instant appeal. See 38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.302. Therefore, for the Veteran to be entitled to an earlier effective date, he must show one is warranted through 38 C.F.R. § 3.400(o). As noted earlier, for claims of entitlement to an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, the effective date is the date of receipt of claim. The RO assigned a 60 percent disability rating for the Veteran's prostate cancer, status post radical prostatectomy based on a September 21, 2011, VA examination. There were no statements filed by the Veteran to initiate a claim. Rather, the September 21, 2011, examination constituted an informal claim for benefits because the medical findings relate to the Veteran's already service-connected prostate cancer. See 38 C.F.R. § 3.157. The examination showed an increase in urinating frequency and the use of absorbent materials. The Veteran had residuals of impotence and incontinence requiring five pads daily and one to two pads at night. See 38 C.F.R. §§ 4.115a, 4115b (2015). The Board has reviewed the evidence of record during the year prior to September 21, 2011. The Board finds that there was not a factually ascertainable increase in disability during this time period. The evidence simply does not show symptomatology that approximates the criteria for a 60 percent disability rating for the Veteran's prostate cancer. See 38 C.F.R. § 4.115a. The Veteran has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than September 21, 2011. Thus, the Board finds that the criteria for an earlier effective date than September 21, 2011, for the 60 percent rating for prostate cancer, have not been met. III. Earlier Effective Date for Special Monthly Compensation Special monthly compensation under 38 U.S.C.A. § 1114(s) is payable when a veteran has a single service-connected disability rated as 100 percent and: (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) is permanently housebound by reason of service-connected disability or disabilities. This requirement is met when the Veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). For the purpose of meeting the first criterion, a rating of 100 percent may be based on any of the following grants of total disability: on a schedular basis, on an extraschedular basis, or on the basis of a temporary total rating pursuant to 38 C.F.R. §§ 4.28 (pre-stabilization rating), 4.29 (temporary total hospital rating) or 4.30 (temporary total convalescence rating). Also, a TDIU meets the criterion only if assigned for a single disability. Buie v. Shinseki, 24 Vet. App. 242 (2011). The Veteran is not shown to have been permanently housebound by reason of service-connected disability or disabilities prior to September 21, 2011. Accordingly, special monthly compensation under 38 U.S.C.A. § 1114(s) is not warranted prior to that date unless the Veteran had a single service-connected disability rated at 100 percent plus additional service-connected disabilities rated at 60 percent of more. The Veteran's service-connected PTSD is rated 100 percent disabling, effective April 23, 2008. However, the Veteran did not have additional disabilities rated as 60 percent disabling until September 21, 2011. Specifically, from April 23, 2008, to September 20, 2011, the Veteran was additionally service connected for prostate cancer, rated 40 percent disabling, and tinnitus, rated 10 percent disabling. As the Veteran did not have additional disabilities rated as 60 percent disabling until September 21, 2011, an effective date earlier than that date is not warranted. ORDER Entitlement to an effective date earlier than September 21, 2011, for the grant of a 60 percent evaluation for residuals of prostate cancer is denied. Entitlement to an effective date earlier than September 21, 2011, for the grant of special monthly compensation under 38 U.S.C.A. § 1114(s) is denied. REMAND As noted above a July 29, 2008, rating decision granted increased disability ratings for PTSD and for prostate cancer, raising the ratings to 100 percent and 40 percent, respectively, effective April 23, 2008. In February 2009, VA received correspondence from the Veteran's representative, requesting a total disability rating due to a combination of an increase in evaluation for PTSD and "other disabilities." This statement constitutes an NOD with the effective dates for the increased ratings assigned for PTSD and prostate cancer in the July 2008 rating decision. The Veteran is therefore entitled to an SOC addressing his disagreement with the effective date elements of the claims. Manlincon v. West, 12 Vet. App. 238 (1999). The Veteran should be advised that he has not perfected appeal of these claims, and he should be advised of the time period in which he may perfect an appeal if he wishes to do so. Accordingly, the case is REMANDED for the following action: Issue a Statement of the Case addressing the Veteran's notice of disagreement with effective date assigned for the 100 percent disability rating for PTSD and 40 percent disability rating for prostate cancer in the July 29, 2008, rating decision. Advise the Veteran of the time allowed for perfecting an appeal on this issue. If the Veteran perfects his appeal by submitting a timely and adequate substantive appeal, the AOJ should return the claims to the Board for the purpose of appellate disposition, if the claims remain denied. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are 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 2014). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs