Citation Nr: 1634251	
Decision Date: 08/31/16    Archive Date: 09/06/16

DOCKET NO.  12-04 976A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

1.  Whether a timely substantive appeal was filed following a September 2007 rating decision that denied entitlement to an earlier effective date for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes.  

2.  Entitlement to an earlier effective date prior to December 7, 2005, for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes.  


REPRESENTATION

Appellant represented by:	The American Legion
ATTORNEY FOR THE BOARD

E. F. Brandau, Associate Counsel


INTRODUCTION

The Veteran had active duty service from March 1945 to March 1949.  The appellant is the Veteran's widow.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2007 and June 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO).


FINDINGS OF FACT

1.  A September 23, 2007 rating decision denied entitlement to an earlier effective date for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes.

2.  The appellant was notified of the September 2007 rating decision by letter dated September 27, 2007.

3.  A notice of disagreement with the September 2007 rating decision was received on September 17, 2008, and a Statement of the Case (SOC) was subsequently issued on September 22, 2009.  

4.  Following the SOC, the appellant submitted a VA Form 9, which was received at the RO on November 24, 2009.  

5.  In a March 2010 letter, the RO informed the appellant and her representative that they could not accept the November 2009 Form 9 as a substantive appeal given that the time limit to perfect her appeal had passed.  

6.  In November 2009, the appellant instituted the present claim to reopen the issue of entitlement to an earlier effective date for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes.  Following a June 2010 rating decision declining to reopen the claim, the appellant timely perfected her appeal.

7.  Resolving all reasonable doubt in her favor, the Board finds that the probative and competent evidence of record shows that the appellant delivered into the custody of the United States Postal Service a VA Form 9 pertaining to the earlier effective date issue, and that the VA Form 9 was received prior to the deadline for perfecting her appeal of the September 2007 rating decision.

8.  The probative, competent evidence is against a finding that the Veteran was entitled to an effective date prior to December 7, 2005, for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes.


CONCLUSIONS OF LAW

1.  The criteria for timely filing a substantive appeal to the September 2007 rating decision that denied an earlier effective date for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes have been met.  38 U.S.C.A. §§ 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.302(b) (2015).    

2.  The criteria for entitlement to an effective date prior to December 7, 2005 for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes, have not been met.  38 U.S.C.A. §§ 5107, 5110, 7105 (West 2014); 38 C.F.R. § 3.400 (2015). 


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

VA has a duty to notify and assist veterans in substantiating claims for VA benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § 3.159 (2015).  Compliant notice was provided in a December 2005 letter.

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the appellant.  Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, VA treatment records and examination reports, private medical records, and the death certificate.

The Board finds that the appellant was notified and aware of the evidence needed to substantiate her claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between herself and VA in obtaining such evidence.  The appellant was an active participant in the claims process by providing evidence and argument.  Thus, she was provided with a meaningful opportunity to participate in the claims process and has done so.  Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the appellant.  Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

After a careful review of the file, 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).  

Analysis

Timeliness of the November 2009 VA Form 9

It is well established that for the Board to have jurisdiction to review the denial of a claim, a timely substantive appeal must be received.  After a rating decision has been promulgated, a written notice of disagreement must be received within one year of notification of the RO's denial of the claim to initiate an appeal.  The RO subsequently issues a SOC on the matter appealed.  The appeal must be perfected by the filing of a properly completed VA Form 9, "Appeal to the Board of Veterans' Appeals," or correspondence containing the necessary information.  A timely substantive appeal must be received within 60 days of the date of the SOC, or within the remainder of the one-year period of the date notification of the RO decision being appealed, whichever is later.  The substantive appeal should set out specific arguments relating to errors of fact or law made by the agency of original jurisdiction in reaching the determination being appealed.  The date of mailing of the SOC will be presumed to be the same as the date of the SOC.  See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.302 (2015).  

The Board has the authority to determine whether it has jurisdiction to review a case and may dismiss any case over which it does not have jurisdiction.  38 U.S.C.A. § 7105(d)(3); 38 C.F.R. § 20.101(d) (2015).  The agency of original jurisdiction may close the case for failure to respond after receipt of the SOC (see 38 C.F.R. § 19.32 (2015)), but a determination as to timeliness or adequacy of any response for purposes of appeal is within the province of the Board.  38 U.S.C.A. § 7105(d); 38 C.F.R. § 20.101(d).  

In this case, the RO issued a rating decision on September 13, 2007 that denied entitlement to an earlier effective date for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes.  The appellant submitted a timely notice of disagreement that was received on September 17, 2008.  The RO sent the appellant a SOC on September 22, 2009.  The appellant completed and signed a VA Form 9 dated November 5, 2009, but it was marked as received by the RO on November 24, 2009.  The RO found that this VA Form 9 was not timely filed.  

The date of mailing of the letter of notification from the RO will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed.  38 C.F.R. § 20.302(a).  A VA Form 9 postmarked prior to the expiration of the proscribed period will be accepted as having been timely filed.  38 U.S.C.A. § 7105(b)(1); 38 C.F.R. § 20.305(a) (2015).  In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA according to the mailbox rule.  38 C.F.R. § 20.305(a).  In calculating this five-day period, Saturdays, Sundays, and legal holidays will be excluded.  38 C.F.R. § 20.305(a).  In this case, there was no postmark in the VA Form 9 correspondence.  Applying the mailbox rule to this case, the Board finds that the appellant's VA Form 9 could have been received as early as November 17, 2009, which would have been within the 60-day time limit (ending November 22, 2009) to perfect the appeal.  

The United States Court of Appeals for Veterans' Claims (Court) has held that a substantive appeal is not a jurisdictional requirement, and that the timeliness requirement may be waived implicitly or explicitly.  Percy v. Shinseki, 23 Vet. App. 37, 44-47 (2009).  The Board finds that applying the mailbox rule to the receipt of the VA Form 9, the appellant timely perfected her appeal within the applicable period. 

Earlier Effective Date

In light of the fact that the November 2009 VA Form 9 has been deemed timely filed, the Board has jurisdiction of the appeal stemming from the September 2007 rating decision.  

The provisions for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110.  Generally, the effective date for a grant of increased disability compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  The exception to this rule is that the effective date will be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim.  38 C.F.R. § 3.400(o)(2).  

In this case, the appellant has argued that she and the Veteran intended to file a notice of disagreement to an August 2004 rating decision that denied the issues of entitlement to an increased rating in excess of 10 percent for evaluation of residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar, and entitlement to service connection for degenerative joint disease of the left knee.  In May 2005, the Veteran submitted a signed statement indicating "please consider this as my notice of disagreement with the rating decision of August 25, 2004 which denied service connection for degenerative joint disease of the left knee as secondary to my service-connected disability of the right (patella) leg."  There was nothing in the statement referring to the increased rating claim.  While the Veteran submitted correspondence suggesting that he should be awarded a higher overall rating, to include consideration of his nonservice-connected left knee disability, nothing received in the year following notification of the August 2004 decision can be considered as expressing dissatisfaction or disagreement with the agency determination regarding the increased rating claim and a desire to contest the result, a requirement for a valid notice of disagreement.  38 C.F.R. § 20.201.  New evidence material to that issue was also not received during the requisite time period.  38 C.F.R. § 3.156.  As such, the August 2004 decision is final.  

In December 2005 the Veteran instituted another claim for entitlement to an increased rating for the right knee, and a February 2006 rating decision granted entitlement to an increased disability rating of 20 percent for the right knee, effective December 8, 2005, the date of the Veteran's application for an increased rating.  The Veteran submitted a notice of disagreement to the effective date of this award but died during the pendency of the appeal.  In November 2006, the appellant instituted this claim for an earlier effective date for accrued benefits purposes.  

There is no document dated between the RO's final denial in August 2004 and the December 2005 new claim that could be construed as a claim for entitlement to an increased disability in excess of 10 percent for a right knee disability.  As such, the relevant date of claim in this case is in December 2005.  

Although the Board is sympathetic to the appellant's claims, the Board is bound by the applicable statutes and regulations.  38 U.S.C.A. § 7104(c) (West 2014); 38 C.F.R. § 20.101(a) (2015).  Those laws and regulations provide specific guidance as to the documents on which effective dates may be based, and the fact that a disability or disabilities are of longstanding nature does not warrant a different result under these laws and regulations.  Again, the August 2004 rating decision was a final denial and a new claim was not filed until December 2005.  Thus, the effective date cannot be earlier than December 2005 unless the evidence reflects that the worsening of the Veteran's disability occurred in the year prior to the claim.  See 38 C.F.R. § 3.400(o).  Neither the medical evidence nor the appellant's statements (that the disability was worse in March 2004) suggest that is the case here.  As such, the current effective date of December 7, 2005 is proper.   

The Board notes that this discussion has been related to the appeal stemming from the September 2007 rating decision.  The outcome would not change if the discussion pertained to the appeal stemming from the June 2010 rating decision.  The Veteran passed away in May 2006, and the appellant filed her second claim in November 2009 that resulted in the June 2010 rating decision.  The Board notes that applications for accrued benefits must be filed within one year after the date of death.  38 U.S.C.A. § 5121(c) (West 2014); 38 C.F.R. § 3.100(c) (2015).  Therefore, assuming arguendo, even if the Board were to consider the appellant's entitlement to an earlier effective date based on her November 2009 claim, the issue would still be denied as the appellant would not have filed her application for accrued benefits within one year of the Veteran's death.  In addition, The Court has made clear that there is no "freestanding" earlier effective date claim which could be raised at any time.  See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006).  Essentially, once the rating decision establishing an effective date becomes final, an earlier effective date can only be established by request for revision of that decision based on clear and unmistakable error.  Id.  

The Board has broadly considered the Veteran's statements but also cannot find a basis for finding that during his lifetime the Veteran raised the issue of clear and unmistakable error in a prior decision by the RO.  See 38 C.F.R. § 3.105 (2015).  

For the foregoing reasons, the preponderance of the evidence is against the claim for an earlier effective date for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes.  The benefit of the doubt doctrine is therefore not for application and the claim must be denied.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

The appellant filed a timely substantive appeal to the September 2007 rating decision that denied entitlement to an earlier effective date for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes.

Entitlement to an earlier effective date prior to December 7, 2005, for the award of a 20 percent rating for residuals, old fractures, right patella, requiring removal of 1 square centimeter fragment with traumatic arthritis and tender scar for accrued benefits purposes is denied.




____________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs