Citation Nr: 1801586	
Decision Date: 01/10/18    Archive Date: 01/23/18

DOCKET NO.  14-13 269	)	DATE
	)
	)

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


THE ISSUE

Entitlement to an effective date earlier than August 30, 2010, for the grant of an increased rating of 10 percent for amputation of right ring finger.  



REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

The Veteran 


ATTORNEY FOR THE BOARD

E. Vample, Associate Counsel
INTRODUCTION

The Veteran served on active duty from August 1977 to October 1980.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. 

In October 2017, the Veteran testified before the undersigned Veteran's Law Judge with regard to his service connection claim for an earlier effective date for a grant of an increased rating for amputation of right ring finger.  A transcript of that hearing is associated with the claims file. 


FINDINGS OF FACT

1. An October 1981 rating decision for service connection for right ring finger amputation became final as new and material evidence or a Notice of Disagreement was not received within one year of notice of the decision. 

2. The RO granted an increased rating of 10 percent for right ring finger amputation effective from August 30, 2010. 


CONCLUSION OF LAW

The criteria for an effective date earlier than August 30, 2010, for a rating in excess of 10 percent for right ring finger amputation disability have not been met.  38 U.S.C. § 5110(b)(2) ; 38 C.F.R. § 3.400(o)(2) (2017).






REASONS AND BASES FOR FINDING AND CONCLUSION

Notice and Assistance

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). Here, the duty to notify was satisfied by a way of a letter sent March 2011.

VA also has a duty to assist a claimant in the development of a claim.  This duty includes assisting the claimant in the procurement relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.  The Board finds that all necessary development has been accomplished and all available evidence pertaining to the matter decided herein has been obtained. The RO has obtained the Veteran's VA treatment records, private treatment records, service treatment records, VA examination reports, hearing testimony, and statements from the Veteran and his representative.  Neither the Veteran nor his representative has notified VA of any outstanding evidence, and the Board is aware of none.  Hence, the Board is satisfied that the duty-to-assist was met. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c).

Earlier Effective Date 

In a September 2011 rating decision, the RO granted an increased rating of 10 percent for right ring finger amputation, effective August 30, 2011.  The Veteran contends that he is entitled to an earlier effective date for this award of service connection. 

The effective dates for a claim seeking an increased rating for an already service-connected disability that is based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400 (2017).  However, the effective date may also be the earliest date as of which it is "factually ascertainable" that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record.  38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999).  In determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable."  See Hazan, 10 Vet. App. at 521.  

A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998).  Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155(a) (2017).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

The Board notes that the Veteran filed an increased rating claim for right finger amputation in a claim received August 30, 2010.  The October 1981 rating decision that originally granted service connection became final as the Veteran did not initiate an appeal of the decision or submit any new and material evidence with respect to the claim within one year of the notice of the decision.  The effect of this finality is to preclude an award of an earlier effective date for an increased rating based on that decision.  

Thereafter, the next communication from the Veteran regarding his right ring finger amputation was a claim for an increased rating received August 30, 2010.  This is the current effective date for the grant of an increased rating for right ring finger amputation.  As a consequence, the only question remaining is whether a 10 percent rating is factually ascertainable within a year prior to the filing of the claim.  However, there is no evidence to indicate that a 10 percent rating is warranted for the one-year period prior to August 30, 2010.
Under diagnostic code (DC) 5155, an amputation of the ring finger, without metacarpal resection, at the proximal interphalangeal joint or proximal thereto warrants a 10 percent evaluation.  In this case, the October 1980 separation examination and the November 2017 VA examination note amputation of the right distal phalanx, which is not the proximal interphalangeal joint or proximal thereto; therefore, the criteria for 10 percent rating under DC 5155 are not met.  

Therefore, given the evidence of record, the Board determines that because the criteria for a 10 percent rating under DC 5155 for the right ring finger amputation have not been met, it is not factually ascertainable that entitlement to the 10 percent rating ever arose.  Nonetheless, the RO granted a 10 percent rating under DC 5155 for the right ring finger amputation effective August 30, 2010, and the Board will not disturb the grant of benefits.  As such, an effective date earlier than the August 30, 2010 is not legally permissible, and the appeal must be denied. 


ORDER

Entitlement to an effective date earlier than August 30, 2010, for the grant of an increased rating of 10 percent for amputation of right ring finger is denied.  



____________________________________________
B.T. KNOPE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs