Citation Nr: 1753224	
Decision Date: 11/20/17    Archive Date: 12/01/17

DOCKET NO.  16-57 819	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1.  Entitlement to an earlier effective date of November 12, 1997, for the award of a 30 percent disability rating for recurrent dislocation of the right shoulder (a right shoulder disability).

2.   Entitlement to an effective date earlier than July 29, 1994, for additional compensation benefits for the Veteran's dependents. 


ATTORNEY FOR THE BOARD

R. Scarduzio, Associate Counsel







INTRODUCTION

The Veteran served on active duty from July 1979 to December 1983 and from December 1985 to October 1987.  

This matter comes before the Board of Veterans' Appeals (Board) from a May 2015 rating decision and an August 2016 administrative decision of a Department of Veterans Affairs (VA) Regional Office (RO).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).


FINDINGS OF FACT

1.  On November 12, 1997, the Veteran filed a claim for an increased evaluation for a right shoulder disability.

2.  In September 2005, the Board granted an increased evaluation from 20 percent to 30 percent prior to November 15, 2000, for the Veteran's right shoulder disability.

3.  In October 2005, the RO effectuated the Board's September 2005 decision and assigned an effective date of November 12, 1997, for the Veteran's increased evaluation. 

4.  Prior to July 29, 1994, the Veteran's total disability evaluation for her combined service-connected disabilities was 20 percent; service connection was established for posttraumatic stress disorder (PTSD) as of July 29, 1994, and the Veteran's combined evaluation for compensation purposes rose to 60 percent. 




CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than November 12, 1997, for the assignment of a 30 percent disability rating for a right shoulder disability are not met.  38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017).

2.  The criteria for an effective date earlier than July 29, 1994, for a grant of additional compensation benefits for the Veteran's dependents have not been met.  38 U.S.C. §§ 1155, 5110, 5111 (2012); 38 C.F.R. §§ 3.400, 3.401 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran has not raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

I.  Earlier Effective Date - Right Shoulder Disability

By way of history, the Veteran's last day of active service was October 22, 1987.  In an October 1989 rating decision, the Veteran was awarded service connection for a right shoulder disability, evaluated at 20 percent disabling, and assigned an effective date of January 1, 1988.  The 20 percent evaluation was continued in a September 1994 rating decision.  The Veteran was provided notice of this decision and her appellate rights.  In December 1994 she submitted a statement detailing the symptomatology she experienced in her arm.  She did not express dissatisfaction or disagreement with the September 1994 rating decision, a requirement for a notice of disagreement.  38 C.F.R. § 20.201 (1994).  The Regional Office responded in February 1995 stating that if the Veteran wanted the disability rating for her right shoulder reconsidered she should submit current medical evidence.  After the Veteran did not respond, VA again denied the claim in a May 1995 letter.  The Veteran was also informed of her appellate rights at that time.  The Veteran did not appeal the 1995 decision or submit new and material evidence within one year of the decision.  Thus, the decision is final.  38 C.F.R. §§ 3.156, 20.201, 20.302, 20.1103 (1994).  

On November 12, 1997, the Veteran filed a claim for an increased evaluation for her right shoulder disability, which was denied in May 1998.  The Veteran filed a notice of disagreement the following month.  In August 2002, a decision review officer at the RO, subsequent to a November 2000 VA examination, increased the Veteran's disability evaluation for the right shoulder to 30 percent, effective the date of the examination.  In a September 2005 Board decision, the Board held that the Veteran's right shoulder disability had increased in severity prior to the November 2000 VA examination.  As such, in a rating decision dated October 2005, the RO assigned a November 12, 1997 effective date for the Veteran's increased evaluation, the date the Veteran's claim for an increase was received.  

In addition, the Board notes that a May 2015 rating decision determined a clear and unmistakable error (CUE) occurred in the October 1989 rating decision that granted service connection for the right shoulder disability, in that it failed to grant the original 20 percent evaluation effective from the day following the Veteran's discharge from service, and assigned a new effective date of October 23, 1987.  

In the present appeal, it is the Veteran's assertion that the increased 30 percent evaluation for her right shoulder disability should also be effective back to the day following her discharge from service on October 23, 1987.  For the foregoing reasons, the Board finds that the Veteran's claim is without merit.

The assignment of effective dates for increased evaluations is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  The statute provides, in pertinent part, that unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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. § 5110(a).  The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  38 U.S.C. § 5110(b)(2).  

The pertinent provisions of 38 C.F.R. § 3.400 clarify that, 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.  The earliest date as of which it is factually ascertainable that an increase in disability had occurred can be assigned as the effective date if the claim is received within 1 year from such date; otherwise, the proper effective date is the date of receipt of the claim.  38 C.F.R. § 3.400(o)(2).

Thus, three possible dates may be assigned for the effective date of an increased rating claim depending on the facts of the case: 1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose); 2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable); or 3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim).  38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998).

The Board finds no medical or other evidence showing a worsening of the Veteran's right shoulder disability during the year prior to the November 1997 claim for an increased disability rating.  As such, the date of claim - November 12, 1997 - is the proper effective date.  38 C.F.R. § 3.400.

II.  Earlier Effective Date - Addition of Dependents

The Veteran seeks entitlement to an effective date earlier than July 29, 1994, for additional compensation for her three children, spouse, and ex-spouse.  As with the Veteran's above claim for an earlier effective date for the award of service connection for a right shoulder disability, the Veteran is asserting that the effective date for the addition of dependents should be the day after her discharge from active service.  Again, the Board finds that the Veteran's claim is without merit.  

Veterans having a 30 percent or more service-connected condition may be entitled to additional compensation for a spouse, dependent parents, or unmarried children under 18 (or under 23 if attending an approved school), or when prior to age 18 the child has become permanently incapable of self-support because of mental or physical defect.   See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2).

Regarding additional compensation for dependents based on the establishment of a rating in the percentage specified by law for that purpose, the effective date will be the latest of the following dates: (1) date of claim; (2) date the dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within 1 year of notification of such rating action; or (4) date of commencement of the service member's award.  38 C.F.R. § 3.401(b).  The "date of claim" for additional compensation for dependents is the date of the Veteran's marriage or birth/adoption of a child, if evidence of the event is received within a year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within a year of notification of such rating action.  38 U.S.C. § 5110; 38 C.F.R. § 3.401.

From October 23, 1987, to July 29, 1994, the Veteran was service connected for only her right shoulder disability, which was evaluated as 20 percent disabling during that period.  The Board notes again, for the purposes of the present issue, that it has denied an effective date earlier than November 12, 1997, for Veteran's current evaluation of 30 percent for that disability.  In a May 2000 rating decision, the RO granted service connection for PTSD, and assigned effective May 25, 1995.  An additional rating decision dated October 2000 assigned an earlier effective date of July 29, 1994, for PTSD.  Therefore, as the Veteran's combined disability evaluation for compensation purposes rose from 20 to 60 percent on July 29, 1994, the Veteran became eligible for additional compensation for her dependents on that date.  

Prior to July 29, 1994 the Veteran did not meet the disability percentage requirements for additional compensation for dependents.  See 38 U.S.C. § 1115; 38 C.F.R. § 3.4(b)(2).  As such, the claim must be denied.


ORDER

Entitlement to an effective date earlier than November 12, 1997, for the award of a 30 percent disability rating for a right shoulder disability, is denied.

Entitlement to an effective date earlier than July 29, 1994, for additional compensation benefits for dependents, is denied. 




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



Department of Veterans Affairs