Citation Nr: 1805556	
Decision Date: 01/29/18    Archive Date: 02/07/18

DOCKET NO.  14-15 836A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas


THE ISSUES

1. Entitlement to an effective date earlier than September 5, 2012, for the assignment of a 20 percent rating for an idiopathic seizure disorder.

2. Entitlement to an increased rating in excess of 20 percent for an idiopathic seizure disorder.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel



INTRODUCTION

The Veteran served on active duty from September 1979 to September 1982 and from March 1983 to May 1987.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). 

The Veteran submitted additional evidence in support of his claim after the November 2015 supplemental statement of the case. Based on the date the Veteran's substantive appeal was received by VA, a waiver of AOJ review of this evidence is presumed. 38 U.S.C. § 7105(e). As such, the Board may properly consider such evidence in the first instance.

The issue of entitlement to an increased rating for a seizure disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. In a May 1995 rating decision, the RO reduced the Veteran's disability rating for his service-connected seizure disorder from 20 percent to 10 percent. The Veteran was notified of the decision in June 1995 but did not appeal or submit new and material evidence within the appellate period.

2. The Veteran filed an informal claim for an increased rating for his seizure disorder on July 29, 2011. The RO acknowledged the informal claim and provided the Veteran with a formal claim form in correspondence dated February 6, 2012. 

3. The Veteran filed a formal claim for an increased rating on September 5, 2012, and in a January 2013 rating decision, the RO granted an increased rating of 20 percent for the seizure disorder, effective September 5, 2012.


CONCLUSION OF LAW

The criteria for an effective date of July 29, 2011, but no earlier, for the assignment of a 20 percent rating for a seizure disorder have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.114, 3.400 (2017); 38 C.F.R. §§ 3.155 (2011) (repealed 2015).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

Concerning the duty to notify, the claim adjudicated herein arises from the Veteran's disagreement with the effective date following the grant of an increased rating for his seizure disorder. Once a claim is substantiated additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no discussion of compliance with the duty to notify is required.

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). The RO associated all relevant post-service treatment records with the electronic file. While the Board is remanding the increased rating claim in part to attempt to obtain further records, this request is for recent treatment records that are not relevant to the effective date issue being decided herein as the records are not from the time period at issue in the effective date claim. No other records relevant to the effective date issue have been identified and are outstanding. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. 38 C.F.R. § 3.159(c)(4). In this case, however, a medical opinion or examination is not necessary to determine whether the Veteran is entitled to an earlier effective date for the award of an increased rating, and therefore VA had no duty to obtain one. Since VA has obtained all relevant identified records and the duty to obtain an opinion did not arise, its duty to assist in this case is satisfied.

II. Earlier Effective Date

Unless specifically provided otherwise, the effective date of an award based on a claim for compensation is to be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a) (2012). 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 an application for an increase in compensation is received within one year from such date. 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o) (2017). 

During the pendency of the appeal the definition of what constitutes a valid claim has changed. Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Id. As the Veteran's claim for an earlier effective date was pending on March 24, 2015, the Board will apply the laws and regulations as they existed prior to the amendment in determining whether a submission constituted a claim for benefits. Id. 

Under the law prior to the amendment, a claim was defined as 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) (2011) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2011) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

Upon receipt of an informal claim for benefits, if a formal claim for benefits had not been filed, VA was required to provide the Veteran with a formal claim form for the Veteran to complete and return. 38 C.F.R. § 3.155(a) (2011). If a formal claim for benefits was then filed within one year of the date the formal claim form was sent to the Veteran, the formal claim was considered to have been filed as of the date of receipt of the informal claim. Id.

In this case, the Veteran filed his claim for service connection for seizures in April 1987, and in a June 1987 rating decision the RO granted service connection for an idiopathic seizure disorder and assigned a rating of 20 percent, effective May 21, 1987. The Veteran was notified of the decision in July 1987, but did not appeal the assigned rating or submit new evidence during the appellate period. As such, that rating decision became final. 38 C.F.R. §§ 3.156(b), 19.129, 19.192 (1987).

The Veteran then filed another claim for benefits in January 1995. In a May 1995 rating decision, the RO reduced the Veteran's disability rating for his seizure disorder from 20 percent to 10 percent. The Veteran was notified of the decision in June 1995, but did not appeal the reduction or submit new evidence during the appellate period. As such, that rating decision also became final. 38 C.F.R. §§ 3.156(b), 20.302, 20.1103 (1995).

The next relevant piece of correspondence was a statement from the Veteran received by VA on July 29, 2011, in which the Veteran asserted that the military had assessed his seizure disorder as 40 percent disabling but that VA had only assigned a 10 percent rating. The statement further indicated a general desire to receive or pursue any VA benefits available to him. Liberally construed, this statement expressed an intent to apply for VA benefits and dissatisfaction with the 10 percent rating assigned for the seizure disorder at the time. Servello, 3 Vet. App. at 198. As such, this statement constituted an informal claim for an increased rating for the Veteran's seizure disorder. Id.; 38 C.F.R. § 3.155(a) (2011).

In correspondence dated February 6, 2012, the RO acknowledged the July 29, 2011 informal claim for benefits and provided the Veteran with a formal claim form to complete and return. 38 C.F.R. § 3.155(a) (2011). The correspondence further noted that if a formal claim for benefits was received within one year of the date of the letter and it was determined that VA benefits were warranted, such benefits would be paid as of the date of the informal claim.

The Veteran subsequently submitted a formal claim for an increased rating for his seizure disorder, which was received by VA on September 5, 2012. Based on this claim, in a January 2013 rating decision VA granted and increased rating of 20 percent for the seizure disorder effective September 5, 2012, the date of receipt of the formal claim for benefits. 

However, the formal claim for benefits was received within one year of the February 6, 2012 letter acknowledging the Veteran's informal claim and providing him with a formal claim form. As it was received within the one year period, the September 5, 2012, formal claim is to be treated as though it was filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2011). Therefore, the date of claim for the Veteran's increased rating claim is not September 5, 2012, the date the formal claim was received, but is instead July 29, 2011, the date the informal claim was received. Id. Thus, the appropriate date of claim in this case is July 29, 2011. 

Having determined the appropriate date of claim, the effective date of an award of increased compensation may be set up to one year prior to the date of claim if it is factually ascertainable during that one year period that there was an increase in the severity of the disability. 38 U.S.C. § 5110(b)(3) (2012). 

However, there is no evidence that the Veteran's seizure disability increased in severity during the period from July 29, 2010, to July 29, 2011. The only medical evidence from that period is a July 21, 2011, treatment record which noted that the Veteran stated he had not experienced a seizure in approximately four years. In an August 2012 treatment record the Veteran again denied any seizures in the past several years. 

The Board notes that the Veteran endorsed experiencing approximately one seizure per year since service during the December 2012 VA examination. However, this generic statement does not provide a date during the one year period from July 29, 2010, to July 29, 2011 when the seizure disorder worsened.  Further, this assertion to the VA examiner directly contradicts the statements the Veteran made to his treating physician in July 2011 and August 2012, rendering his statements concerning the frequency of his seizures during this period not credible. As there is no competent and credible evidence during or following the one year period prior to the July 29, 2011 claim establishing a date upon which it is factually ascertainable that the Veteran's seizure disorder worsened, the controlling date in this case is July 29, 2011, the date of the Veteran's informal claim for benefits.

The Board acknowledges the Veteran's arguments that his 20 percent award should be effective May 21, 1987. In support of this argument, the Veteran has pointed to the fact that the original notice letter accompanying the January 2013 rating decision stated that the effective date of the award of the 20 percent rating was May 21, 1987. While true, the rating decision itself and the accompanying code sheet both clearly indicate that the effective date for the award assigned at the time was September 5, 2012, and not May 21, 1987. Further, a corrected notice letter was sent in March 2013 which further specified that the effective date assigned was September 5, 2012. As such, the effective date printed on the initial notice letter appears to have simply been an administrative error and is not binding, with the actual intended effective date clearly delineated in the decisional documents and the later corrective notice letter.

Further, as delineated above, the Veteran's prior claims for compensation for his seizure disorder were both denied in unappealed rating decisions. Following the June 1995 rating decision, there is no document or submission that can be construed as a claim for an increased rating for the seizure disorder until the July 29, 2011 informal claim discussed above. As such, prior to the July 29, 2011, informal claim there were no pending, unadjudicated claims for benefits. 

Based on the foregoing, the Board finds that an effective date of July 29, 2011, the date of receipt of the Veteran's informal claim for an increased rating, but no earlier, is warranted for the grant of an increased rating of 20 percent for the Veteran's idiopathic seizure disorder.


ORDER

Entitlement to an effective date of July 29, 2011, but no earlier, for an increased rating of 20 percent for an idiopathic seizure disorder is granted, subject to the regulations governing the award of monetary benefits.


REMAND

In this case, the Veteran was provided with a VA examination for his seizure disorder in December 2012. Since that examination, treatment records associated with the file reflect that the Veteran has experienced seizures with increasing frequency, including two seizures between March 2013 and April 2013. Further, the Veteran has endorsed experiencing small seizures on a regular basis. See February 2017 Statement. As there is evidence of a worsening of the disability since the last VA examination, the claim must be remanded for a new examination. 38 C.F.R. 
§ 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

While on remand, the Veteran should also be requested to submit or authorize for release any recent treatment records concerning his seizure disorder.

Accordingly, the case is REMANDED for the following actions:

1. Contact the Veteran and request that he submit or authorize for release any additional recent treatment records relevant to his seizure disorder, to include from the Texas Department of Criminal Justice's University of Texas Medical Branch.

Then, make all appropriate efforts to obtain any records so authorized for release. If the any records cannot be located or do not exist, the Veteran should be notified and given opportunity to provide them.

2. After undertaking the development listed above to the extent possible, schedule the Veteran for a VA examination to determine the current severity of his seizure disorder. Any appropriate evaluations, studies, and testing deemed necessary by the examiner should be conducted, and the results included in the examination report. 

3. Thereafter, readjudicate the issue on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded the applicable time period in which to respond.

The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
	LANA K. JENG
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs