Citation Nr: 1757504 Decision Date: 12/13/17 Archive Date: 12/28/17 DOCKET NO. 12-18 817 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to an effective date earlier than October 31, 2007, for an evaluation of 20 percent for a gunshot wound of the left forearm. 2. Entitlement to an effective date earlier than October 31, 2007, for an evaluation of 20 percent for a gunshot wound of the left leg. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hodzic, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1963 to September 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC). The Agency of Original Jurisdiction for the Veteran's case is the Regional Office (RO) in Oakland, California. The Veteran originally requested a Central Office Board hearing in his July 2012 substantive appeal form (VA Forms 9). Although he was notified of the time and place of the scheduled hearing by a September 2017 letter, he withdrew his hearing request in an October 2017 written statement. Accordingly, his request for a hearing is considered withdrawn. See 38 C.F.R. § 20.702(e) (2017). 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. The Veteran filed claims of entitlement to disability ratings in excess of 10 percent for his gunshot wounds of the left forearm and left leg that were received by VA on September 30, 2003. 2. In a May 2009 decision, the Board granted disability ratings of 20 percent, but not higher, for the Veteran's gunshot wounds of the left forearm and left leg for the entire appeal period for the increased rating claims. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 30, 2003, but not earlier, for an evaluation of 20 percent for a gunshot wound of the left forearm have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for an effective date of September 30, 2003, but not earlier, for an evaluation of 20 percent for a gunshot wound of the left leg have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has not raised any issues with the duty to notify or 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 duty to assist argument). The Veteran is seeking earlier effective dates for evaluations of 20 percent for his left forearm and left leg gunshot wounds. The record shows that these disabilities are currently rated as 10 percent disabling from October 1, 1972, to October 30, 2007, and as 20 percent disabling since October 31, 2007. However, the Veteran contends in multiple statements, including his November 2010 notice of disagreement (NOD), that the 20 percent disability ratings should be assigned effective September 2003, the date that he filed increased rating claims for these disabilities. Because the evidence pertaining to these earlier effective date claims is located in the same or similar documents, the Board shall analyze them together below. The law regarding effective dates provides that, unless specifically provided otherwise, 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). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). The term "claim" or "application" means 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) (2017). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155 (2017); 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that 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. 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. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). In multiple statements, including his July 2012 VA Form 9, the Veteran contended that the evaluations of 20 percent for the gunshot wounds of the left forearm and left leg should be effective the date he submitted his claims for increased ratings in September 2003. Procedurally, the record shows that VA received the Veteran's claims of entitlement to disability ratings in excess of 10 percent for his gunshot wounds of the left forearm and left leg on September 30, 2003. He underwent a VA examination in December 2003 for these disabilities. In a March 2004 rating decision, the RO in Seattle, Washington denied disability ratings in excess of 10 percent for the gunshot wounds of the left forearm and left leg. The Veteran appealed this decision and was afforded another VA examination in October 2007. The Veteran perfected an appeal to the Board for increased rating claims for these disabilities. In a May 2009 decision, the Board granted disability ratings of 20 percent, but not higher, for the Veteran's gunshot wounds of the left forearm and left leg for the entire appeal period for the increased rating claims. Specifically, the Board analyzed the evidence of record, including the December 2003 and October 2007 VA examination reports, and determined that the evidence showed that the Veteran's gunshot wounds were entitled to disability ratings of 20 percent, but not higher. Although the Board did not expressly state the effective date of the 20 percent evaluations for the gunshot wounds of the left forearm and left leg, a reasonable reading of the Board's decision shows that the higher ratings were assigned for the entire period on appeal, i.e., since September 30, 2003. When the AMC effectuated the Board's decision in a May 2010 rating decision, it assigned an effective date of October 31, 2007, for the 20 percent evaluations for these disabilities. The May 2010 rating decision explained that entitlement to evaluations of 20 percent were not warranted prior to the October 31, 2007, VA examination report because the evidence did not show that the Veteran's gunshot wounds symptoms warranted a disability rating in excess of 10 percent prior to this date, i.e., entitlement arose for the higher evaluations on October 31, 2007. However, the Board determines that an effective date of September 30, 2003, but not earlier, for evaluations of 20 percent for the gunshot wounds of the left forearm and left leg are warranted. As shown in the December 2003 VA examination report and as noted in the Board's May 2009 decision, entitlement to disability evaluations of 20 percent, but not higher, for the gunshot wounds of the left forearm and left leg arose at the time the Veteran filed his increased rating claims on September 30, 2003. Accordingly, an effective date of September 30, 2003, but not earlier, for evaluations of 20 percent for gunshot wounds of the left forearm and left leg is warranted, and the Veteran's claims must be granted. See 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155(a), 3.400. ORDER An effective date of September 30, 2003, but not earlier, for an evaluation of 20 percent for a gunshot wound of the left forearm is granted. An effective date of September 30, 2003, but not earlier, for an evaluation of 20 percent for a gunshot wound of the left leg is granted. ____________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs