Citation Nr: 1754616	
Decision Date: 11/29/17    Archive Date: 12/07/17

DOCKET NO.  13-01 098	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an effective date prior to July 9, 2009, for the grant of a 30 percent rating for inactive pulmonary tuberculosis with residuals of restrictive lung disease.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service from June 1960 to April 1961.

This matter comes before the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO).

This claim was previously before the Board in November 2016, at which time the Board remanded it for additional development.  The requested development has been completed, and the claim is properly before the Board for appellate consideration.

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

It was not factually ascertainable prior to July 9, 2009, that the Veteran's inactive pulmonary tuberculosis with residuals of restrictive lung disease had increased in severity to warrant a 30 percent rating.


CONCLUSION OF LAW

The criteria for an effective date earlier than July 9, 2009, for the assignment of a 30 percent rating for inactive pulmonary tuberculosis with residuals of restrictive lung disease have not been met.  38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. § 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. § 3.102, 3.156(a), 3.159, 3.326(a) (2017).

The resolution of the Veteran's appeal for earlier effective dates turns on the law as applied to the undisputed facts in the Veteran's claim regarding the date his claim was received and date his entitlement arose.  As this case turns on a matter of law, further assistance, such as the further procurement of records, would not assist the Veteran with the claim.  Consequently, no further notice or development under the VCAA is warranted.  See Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (en banc) (holding that the VCAA is not applicable where it could not affect a pending matter and could have no application as a matter of law).  Nonetheless, the Veteran has been notified of how VA assigns effective dates.

II.  Earlier Effective Date

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) (2017).

Generally, the effective date of an award of an increased evaluation is the date of receipt of claim or date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1) (2017).  For disability compensation, the effective date of an award shall 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 date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (2017).

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 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 the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a).  In addition, a communication received from a service organization, an attorney, or an agent may not be accepted as an informal claim if a power of attorney was not executed at the time the communication was written.

The Veteran filed a claim of entitlement to an increased rating for his service-connected inactive pulmonary tuberculosis with residuals of restrictive lung disease prior to July 9, 2009.  The October 2009 rating decision increased the rating to 30 percent effective July 9, 2009.  The Veteran appealed the effective date.

He wrote in June 2010 and August 2012 that he was awarded a 30 percent rating as of August 9, 1967 and that he should have been paid the difference between the rate for his 30 percent rating and the statutory Q rate for the period from August 9, 1967 to July 9, 2009. 

Rating decisions pertaining to the rate of compensation prior to the October 2009 rating decision presently on appeal are final.  See 38 U.S.C. § 7105(c) (2012).  As such, they are not subject to revision in the absence of clear and unmistakable error (CUE).  38 U.S.C. §§ 5109A, 7105; Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006).  The Veteran has not alleged CUE in any specific RO decision, and any such rating decisions are legal bars to effective dates prior the dates assigned therein.  Id.; Andre v. West, 14 Vet. App. 7, 10 (2000), aff'd sub nom, Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (CUE must be pled with specificity).  The Board further notes that although the RO discussed this issue in the December 2012 Statement of the Case, its analysis did not apply the regulations pertaining to CUE.  As such, the Board does not have jurisdiction over this issue.  38 C.F.R. § 19.9 (2017).  

The Veteran's inactive pulmonary tuberculosis with residuals of restrictive lung disease has been evaluated under Diagnostic Codes 6845.  Diagnostic Codes 6840 through 6845 are rated either under the General Rating Formula for Restrictive Lung Disease, or the primary disorder is rated.  The restrictive lung diseases include Diagnostic Code 6840 (diaphragm paralysis or paresis), Diagnostic Code 6841 (spinal cord injury with respiratory insufficiency), Diagnostic Code 6842 (kyphoscoliosis, pectus excavatum, pectus carinatum), Diagnostic Code 6843 (traumatic chest wall defect, pneumothorax, hernia, etc.), Diagnostic Code 6844 (post-surgical residual, e.g., lobectomy, pneumonectomy), and Diagnostic Code 6845 (chronic pleural effusion or fibrosis).  

The General Rating Formula for Restrictive Lung Disease (Diagnostic Codes 6840 through 6845) provides that Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) is 66- to 80-percent predicted, is rated 10 percent disabling.  FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted, is rated 30 percent disabling.  FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling.  FEV-1 less than 40 percent of the predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent of predicted, or; a maximum exercise capacity of less than 15 ml/kg/min oxygen consumption (with a cardiac or a respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling.  38 C.F.R. § 4.97. 

Notes to the General Rating Formula for Restrictive Lung Disease provide further rating guidance.  Note (1) provides that a 100-percent rating shall be assigned for pleurisy with empyema, with or without pleurocutaneous fistula, until resolved.  Note (2) provides that, following episodes of total spontaneous pneumothorax, a rating of 100 percent shall be assigned as of the date of hospital admission and shall continue for three months from the first day of the month after hospital discharge.  Note (3) provides that gunshot wounds of the pleural cavity with bullet or missile retained in lung, pain or discomfort on exertion, or with scattered rales or some limitation of excursion of diaphragm or of lower chest expansion shall be rated at least 20-percent disabling.  Disabling injuries of shoulder girdle muscles (Groups I to IV) shall be separately rated and combined with ratings for respiratory involvement.  Involvement of Muscle Group XXI (Diagnostic Code 5321), 
however, will not be separately rated.  38 C.F.R. § 4.97. 

A review of post-service treatment records does not show any complaints, symptoms, or treatment for inactive pulmonary tuberculosis with residuals of restrictive lung disease from July 2008 to July 2009.  There is no evidence, then, that a date during the year preceding July 9, 2009, is the earliest date as of which it is factually ascertainable that the Veteran's inactive pulmonary tuberculosis with residuals of restrictive lung disease produced increased symptomatology.

The evidence of record does not provide a basis for an effective date earlier than July 9, 2009, for the 30 percent disability rating.  Accordingly, an effective date earlier than July 9, 2009, the date of the increased rating claim, must be denied.

In summary, under the facts of this case, there is no legal entitlement to an effective date earlier than July 9, 2009, for the assignment of a 30 percent disability evaluation for inactive pulmonary tuberculosis with residuals of restrictive lung disease.  See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to an absence of legal entitlement).

ORDER

An effective date earlier then July 9, 2009, for the assignment of a 30 percent disability evaluation for inactive pulmonary tuberculosis with residuals of restrictive lung disease, is denied.




____________________________________________
Michael J. Skaltsounis
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs