Citation Nr: 1643372 Decision Date: 11/15/16 Archive Date: 12/01/16 DOCKET NO. 14-06 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 30 percent for cortical blindness of both eyes with diplopia postoperative complication which was found to be legally blind secondary to the service connected disability of residuals of liver transplant due to cancer. 2. Entitlement to an initial compensable disability rating for postoperative ventral hernia as secondary to the service connected disability of residuals of liver transplant due to cancer. 3. Entitlement to an effective date prior to May 19, 2009, for the award of service connection for residuals of liver transplant due to cancer as secondary to the service connected disability of pancoast squamous cell carcinoma, left lung apex status post lobectomy with restrictive lung disease, to include whether a timely appeal was filed. 4. Entitlement to an effective date earlier than August 14, 2009, for the assignment of a 30 percent rating for residuals of liver transplant due to cancer, to include whether a timely appeal was filed. 5. Entitlement to an effective date prior to May 19, 2009, for the award of special monthly compensation (SMC) based on housebound criteria, to include whether a timely appeal was filed. 6. Entitlement to effective date earlier than February 25, 2011, for the grant of SMC based on aid and attendance (A&A). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her spouse ATTORNEY FOR THE BOARD C. Bosely, Counsel INTRODUCTION The Veteran had active service from August 1979 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011, April 2012, and November 2013 decisions of the Department of Veterans Affairs (VA) Regional Office (RO). By a November 2013 rating decision, the RO granted aid and attendance effective from February 25, 2011. In May 2013, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. The Veteran then testified before the undersigned Veterans Law Judge in a hearing held in Washington, DC, in June 2016. At the hearing, the Veteran's representative submitted additional evidence. She waived initial RO consideration of the additional evidence. See 38 C.F.R. § 20.1304(c). At the June 2016 Board hearing, the Veteran disagreed with the 50 percent rating assigned for her eye disability assigned in a November 2013 rating decision effective June 18, 2013. She contended that the effective date should be June 23, 2008. At present, a standard notice of disagreement (NOD) form has not been filed. Because the Veteran's testimony cannot constitute a valid NOD at this point, the matter is not presently in appellate status before the Board and the Board can take no further action on the matter. See 38 C.F.R. § 20.201(a) (2015) (as amended September 25, 2014); see also 38 C.F.R. § 19.9(c). FINDINGS OF FACT 1. In June 2016, which was prior to the promulgation of a decision in the appeal, the Veteran informed the Board that a withdrawal of the appeal concerning the issues of entitlement to an initial disability rating in excess of 30 percent for cortical blindness of both eyes with diplopia postoperative complication which was found to be legally blind secondary to the service connected disability of residuals of liver transplant due to cancer, and entitlement to an initial compensable disability rating for postoperative ventral hernia as secondary to the service connected disability of residuals of liver transplant due to cancer, is requested. 2. A December 2010 Report of Contact, which was reduced to writing, shows that the Veteran requested an effective date for the service-connected residuals of liver transplant, and this was within one year of a February 2010 rating decision. 3. An original claim of service connection for residuals of liver transplant due to cancer was received on May 19, 2009, and the award of special monthly compensation based on housebound criteria was based on that disability award. 4. Cortical blindness of both eyes with diplopia has been service connected since May 19, 2009, and the evidence shows that the condition has involved blindness, a qualifying disability for A&A since her liver transplant in June 2008. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran have been met as to the issue of entitlement to an initial disability rating in excess of 30 percent for cortical blindness of both eyes with diplopia postoperative complication which was found to be legally blind secondary to the service connected disability of residuals of liver transplant due to cancer. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for withdrawal of an appeal by the Veteran have been met as to the issue of entitlement to an initial compensable disability rating for postoperative ventral hernia as secondary to the service connected disability of residuals of liver transplant due to cancer. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 3. A timely NOD was received within one year of the February 2010 rating decision. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.201 (2010). 4. The criteria for assignment of an effective date earlier than May 19, 2009, for the award of service connection for residuals of liver transplant due to cancer have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2010). 5. The criteria for assignment of an effective date prior to May 19, 2009, for the assignment of a 30 percent disability rating for residuals of liver transplant due to cancer have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2010). 6. The criteria for assignment of an effective date prior to May 19, 2009, for the award of service connection for of SMC based on the housebound criteria have not been met. 38 U.S.C.A. §§ 1114, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.350, 3.400 (2010). 7. The criteria for assignment of an effective date of May 19, 2009, for the grant of SMC A&A have been met. 38 U.S.C.A. §§ 1114, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.350, 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). I. Withdrawals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran withdrew her appeal at the June 2016 Board hearing as it concerns the issues of (1) entitlement to an initial disability rating in excess of 30 percent for cortical blindness of both eyes with diplopia postoperative complication which was found to be legally blind secondary to the service connected disability of residuals of liver transplant due to cancer; (2) entitlement to an initial compensable disability rating for postoperative ventral hernia as secondary to the service connected disability of residuals of liver transplant due to cancer. Hence, there remain no allegations of errors of fact or law for appellate consideration with regard to those issues. Accordingly, the Board does not have jurisdiction to review the appeal as to those issues, and they are dismissed. II. Effective Dates The Veteran is seeking an earlier effective date for the award of service connection for residuals of liver transplant due to cancer, as well as corollary benefits. The Veteran maintains that an effective date of June 23, 2008, should be assigned because she filed a claim on May 19, 2009, which was within a year of her discharge from the hospital for this surgery. Board Hr'g Tr. 13-14. Underlying this issue, she maintains that her original NOD, which was filed in February 2010, was timely. A. Applicable Law The effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). For increases in disability, the effective date will generally be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). Otherwise, the effective date may be assigned beginning from 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. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established. 38 C.F.R. § 3.400(o)(2). B. Discussion Timeliness of NOD As a threshold matter in this appeal, there is a question as to whether the Veteran timely appealed a February 2010 rating decision granting service connection for residuals of liver transplant due to cancer together with the corollary benefits. The record shows that a timely appeal was filed. Specifically, the Veteran filed an original claim of service connection on May 19, 2009, for liver transplant due to cancer. The RO issued a rating decision in February 2010 granting service connection for residuals of liver transplant due to cancer. The RO assigned an initial 100 percent disability effective May 19, 2009, and a 30 percent evaluation effective August 14, 2009. In December 2010, an RO representative called the Veteran to obtain certain information. The Report of Contact recorded the following: "The [V]eteran claimed an earlier effective date for the condition residual of liver transplant due to cancer associated with pancoast squamous cell carcinoma left lung apex status post lobectomy with restrictive lung disease." An oral statement reduced to writing may constitute a valid NOD. See Tomlin v. Brown, 5 Vet. App. 355, 356 (1993). Here, the December 2010 Report of Contact reduced her request for an effective date for the service-connected residuals of liver transplant to writing. This was within one year of the February 2010 rating decision. Her statement, as transcribed in the Report of Contact, did not specifically express her disagreement with the effective date assigned. Nonetheless, a liberal and sympathetic reading of her statement establishes that such was her intention. Accordingly, the December 2010 Report of Contact meets the requirements to be considered an NOD. See 38 C.F.R. § 20.201 (2010) (version prior to the requirement that an NOD be on a standard VA form). Because the December 2010 NOD was received within one year of the February 2010 rating decision, it was timely and, as such, served to initiate appellate review of the issues now on appeal. Earlier Effective Dates Having found that the Veteran timely appealed the February 2010 rating decision, the question remains whether an earlier effective date is warranted for (1) the award of service connection for residuals of liver transplant due to cancer; (2) the assignment of a 30 percent rating for residuals of liver transplant due to cancer; (3) the award of SMC based on housebound criteria; and (4) the grant of SMC A&A. With regard to issues (1) to (3), an earlier effective date may not be assigned because the current effective date, May 19, 2009, is the earliest effective date allowable under the law. Her original claim of service connection was filed on that date. At her Board hearing, she maintained that an earlier effective date from June 2008 should be assigned because the May 19, 2009 claim was filed within one year of her discharge from the hospital for the liver transplant. See Board Hr'g Tr. 14. At that point in time, however, an effective date earlier than the date of claim may only have been assigned under two circumstances, neither of which is applicable here. First, for an original claim of service connection, an effective date could have been assigned from the day following separation from active service or date entitlement arose if claim was received within 1 year after separation from service. See 38 C.F.R. § 3.400(b)(2) (2010). Second, an increased disability rating for an already service-connected disability could have been assigned from the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date. See 38 C.F.R. § 3.400(o)(2) (2010). Here, the Veteran's claim of service connection for secondary service connection does not involve an original claim of service connection filed within one year of her service separation. She separated from service in November 1993, which was greater than one year prior to May 19, 2009. Furthermore, her claim was not a claim for an increased disability rating for an already service-connected disability. Service connection for residuals of liver transplant had not yet been granted at that time. Because her claim does not meet either of these two criteria, the current May 19, 2009 effective date is the earlier effective date allowed under the law. See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Correspondingly, the 100 percent disability rating for residuals of liver transplant due to cancer cannot be assigned earlier because service connection was not yet in effect for the disability prior to May 19, 2009. (This issue is not directly on appeal, but is important to address as the two consequent issues directly flow from this discussion.) The 30 percent disability rating, in turn, cannot be assigned earlier than August 14, 2009, because the 100 percent rating under 38 C.F.R. § 4.114, Diagnostic Code (DC) 7351, was still in effect prior to that date, which is a greater benefit. More specifically, the 100 percent disability rating was assigned under 38 C.F.R. § 4.114, DC 7351, which provides for a 100 percent disability rating for an indefinite period from the date of hospital admission for transplant surgery. The subsequent 30 percent disability rating was assigned according to a note in DC 7351, which provides that the appropriate disability rating shall be determined by mandatory VA examination one year following discharge. Here, the Veteran's hospitalization occurred in June 2008, and she was discharged from the hospital in October 2008 (the discharge papers do not give an exact date of discharge, but appear to reflect October 2008). A VA examination was conducted in August 2009, and the 30 percent rating was assigned from the date of that examination. Under these circumstances, where service connection for the liver transplant was not in effect prior to May 19, 2009, the 100 percent disability rating, by law, cannot be assigned earlier than that date. Likewise, by operation of the rating schedule, the subsequent 30 percent disability rating cannot be assigned earlier than the date the 100 percent disability rating was discontinued. The Board notes that the 100 percent rating was not in effect for one year from her August 2009 rating decision. However, the staged 100 percent and 30 percent disability ratings were assigned retroactively in the February 2010 rating decision, and the propriety of the reduction from 100 percent to 30 percent on August 14, 2009, is not otherwise within the scope of the instant appeal. See Tatum v. Shinseki, 24 Vet. App. 139, 143 (2010); Singleton v. Shinseki, 23 Vet. App. 376, 380 (2010); see also Reizenstein v. Shinseki, 583 F.3d 1331 (Fed. Cir. 2009) (regarding total (100 percent) ratings); Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992) (rating reduction cases are separately appealable issues). On this same basis, the downstream issue involving an earlier effective date for SMC based on being housebound cannot be granted earlier than May 19, 2009. The grant of SMC at the housebound rate was awarded on the basis that the Veteran's residuals of liver transplant was rated 100 percent during this time period with additional service connected disability of pancoast squamous cell carcinoma, independently ratable at 60 percent. Because service connection for the residuals of liver transplant was not yet in effect prior to May 19, 2009, the 100 percent rating cannot be assigned earlier than that date, as indicated. This means, in turn, that the Veteran did not have a single permanent disability rated 100 percent disabling with additional disability or disabilities, separate and distinct, independently ratable at 60 percent or more prior to that date. 38 U.S.C.A. § 1114 (West 2002); 38 C.F.R. § 3.351(d)(1) (2010). Notwithstanding the above, an earlier effective date for the grant of SMC A&A is warranted. The current effective date is February 25, 2011. The RO granted the claim on the basis that the evidence of record revealed that the Veteran required aid and attendance of another person due to her cortical blindness of both eyes with diplopia. The effective date was assigned on the basis that the claim for this benefit was received on February 25, 2011. Contrary to the RO's determination, the claim for A&A was reasonably raised by the evidence of record, i.e., the evidence of record prior to February 25, 2011, suggested that the service-connected disability resulted in blindness. Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991); see also 38 C.F.R. § 3.155(d)(2) (2015); Standard Claims and Appeals Forms, 79 Fed. Reg. 57660-01 (Sept. 25, 2014) (VA will continue to award benefits reasonably raised by the evidence of record, including SMC benefits). Cortical blindness of both eyes with diplopia has been service connected since May 19, 2009, and the evidence shows that the condition has involved blindness, a qualifying disability under § 3.351(c)(1), since her liver transplant in June 2008. Thus, the criteria for SMC A&A have been met since May 19, 2009, which was when the issue was reasonably raised by the record. See 38 U.S.C.A. § 1114 (West 2002). The law requires that the effective date be the date of claim or the date entitlement arose, whichever is later. Because the later of these two dates is the date the SMC A&A issue was raised by the May 19, 2009 claim, there is no legal basis to assign an effective date earlier than May 19, 2009. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In short, even after resolving all reasonable doubt in the Veteran's favor, the appeal for an earlier effective date for the award (1) the award of service connection for residuals of liver transplant due to cancer; (2) the assignment of a 30 percent rating for residuals of liver transplant due to cancer; and (3) the award of SM based on housebound criteria, must be denied as the preponderance of the evidence is against those claims. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. However, an effective date of May 19, 2009, for the grant of SMC A&A is warranted. ORDER The appeal regarding the issue of entitlement to an initial disability rating in excess of 30 percent for cortical blindness of both eyes with diplopia postoperative complication which was found to be legally blind secondary to the service connected disability of residuals of liver transplant due to cancer is dismissed. The appeal regarding the issue of entitlement to an initial compensable disability rating for postoperative ventral hernia as secondary to the service connected disability of residuals of liver transplant due to cancer is dismissed. A timely NOD was filed within one year of February 2010 rating decision. An effective date earlier than May 19, 2009, for the award of service connection for residuals of liver transplant due to cancer is denied. An effective date earlier than May 19, 2009, for the assignment of a 30 percent rating for residuals of liver transplant due to cancer is denied. An effective date earlier than May 19, 2009, for the award of SMC based on housebound criteria is denied. An effective date of May 19, 2009, for the grant of SMC A&A is granted, subject to the laws and regulations governing the payment of monetary awards. ____________________________________________ RYAN T. KESSEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs