Citation Nr: 18139863 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 14-33 356 DATE: October 1, 2018 ORDER Entitlement to an effective date earlier than February 13, 2009, for a grant of a 10 percent increased disability rating for a right ankle disability is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for a right ankle disability from February 13, 2009 is remanded. FINDINGS OF FACT 1. The Veteran was granted service connection for a right ankle disability and assigned a noncompensable rating in a February 1994 rating decision; he did not contest the rating assigned in that decision and it subsequently became final. 2. On February 13, 2009, the Veteran filed a new claim of service connection for a right ankle disability, which the RO, affording the Veteran the benefit of the doubt, interpreted to be a claim for an increased disability rating; prior to February 13, 2009, the Veteran had not contested the noncompensable rating assigned to his right ankle disability or requested an increase. CONCLUSION OF LAW The criteria for an effective date earlier than February 13, 2009, for a grant of a 10 percent increased disability rating for a right ankle disability have not been met. 38 U.S.C. §§ 5104, 5107, 5110; 38 C.F.R. §§ 3.102, 3.104, 3.400, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1976 to August 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In July 2017, the Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO. A transcript of that hearing is of record. This case has a complicated procedural history due to confusion about what is actually on appeal. The Veteran has been service connected for a right ankle disability since March 1993, granted in a February 1994 rating decision based on a claim to reopen after an earlier claim which was denied in 1980. In February 2009 he filed a new claim of service connection for a right ankle disability, which the RO interpreted to be an increased rating claim. The June 2009 rating decision on appeal granted an increased rating effective February 13, 2009, the date of receipt of the claim for increase. The Veteran’s notice of disagreement contests the effective date for that rating, asserting that he should be service-connected since his initial claim in 1980. To date the issue on appeal has been adjudicated as an earlier effective date claim for the increased rating. Nonetheless, at his hearing before the undersigned, the Veteran also provided testimony regarding an increased rating in excess of 10 percent for his right ankle disability. As such, the Board determines that the Veteran contested both his effective date of the assigned increase and the rating assigned for his right ankle disability, as described below. Further, the Board also acknowledges the Veteran’s statements in his hearing and in his notice of disagreement that he believes he should be service connected from the date of his initial claim in 1980. To the extent that his claim for service connection was granted in the February 1994, he would have had to timely appeal that decision because free-standing earlier effective date claims that could be raised at any time are impermissible as such claims would vitiate decision finality. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). In cases where this is not done, only a finding of clear and unmistakable error (CUE) could enable an earlier effective date. A claim for CUE entails special pleadings and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. Fugo v. Brown, 6 Vet. App. 40 at 44 (1993); Duran v. Brown, 7 Vet. App. 216, 223 (1994). The Veteran has not filed such a claim as of this time and the Board cannot address it in this decision. Going forward, if the Veteran wishes to contest the initial effective date assigned for his grant of service connection for a right ankle disability, he must file a claim based on CUE with the February 1994 rating decision. Entitlement to an effective date earlier than February 13, 2009, for a grant of a 10 percent increased disability rating for a right ankle disability The Veteran seeks an effective date earlier than February 13, 2009, for the increased disability rating granted in the rating decision on appeal. The Board finds the claim should be denied. Generally, except as otherwise provided, the effective date of an evaluation and award of 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 later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.104 (a), a decision of the rating agency shall be final and binding... as to conclusions based on the evidence on file at the time VA issues written notification in accordance with 38 U.S.C. § 5104. A determination on a claim by the Agency of Original Jurisdiction (AOJ), of which the claimant is properly notified, is final if an appeal is not timely perfected. 38 C.F.R. § 20.1103. A decision becomes final one year after its issuance, unless a notice of disagreement is filed. 38 C.F.R. § 20.302 (a). If a notice of disagreement is filed, and a statement of the case is subsequently issued, a Substantive Appeal must be filed within 60 days from the date that the AOJ mails the statement of the case to the appellant, or within the remainder of the 1-year period from the date of the mailing of the underlying rating decision, which ever period ends later. 38 C.F.R. § 20.302 (b). In the instant matter, the Veteran filed a claim of service connection of a right ankle disability and a left knee disability in July 1980. In October 1980 that claim was administratively denied because the Veteran failed to prosecute the claim. The Veteran did not appeal that decision and it became final. In April 1990 the Veteran submitted a statement indicating his wish to reopen his previously denied claim. Several days later a letter was issued that requested clarification as to which claim he wished to reopen. The Veteran did not respond and in July 1990, the claim was also administratively denied due to lack of prosecution. The Veteran did not appeal that decision and it became final. On March 3, 1993, the Veteran submitted a new statement indicating a desire to reopen both claims denied in the October 1980 administrative disallowance. The RO de facto reopened the claims and granted service connection in a February 1994 rating decision. The effective date assigned in that decision was March 3, 1993, the date of the claim to reopen. The Board has carefully reviewed the evidence of record but found no evidence that the Veteran ever contested to effective date assigned in that rating decision. As such, it became final one year after it was issued. In February 13, 2009, the Veteran submitted a new claim requesting service connection of a right ankle disability. Because he was already in receipt of service connection for that disability with a noncompensable rating since March 1993, the RO developed that claim as a claim for an increased disability rating. In June 2009, the RO issued the rating decision now on appeal, granting an increased disability rating for the Veteran’s right ankle disability of 10 percent, effective February 13, 2009. After careful review, the Board must determine that an earlier effective date cannot be assigned for the increased disability rating. Prior to the February 13, 2009, claim, there was no indication that the Veteran ever contested the noncompensable rating assigned for his right ankle disability which had been in effect since March 1993, or otherwise sought a new claim for increase. Absent any evidence of a timely appeal of the February 1994 rating decision, or an earlier claim for an increased rating, the Board cannot assign an effective date for the increase earlier than the actual claim for increase. In this case, the Veteran filed a claim on February 13, 2009, which the RO reasonably interpreted to be for an increased rating. That is the earliest identifiable claim for an increased rating. In sum, the Veteran was in receipt of service connection for a right ankle disability with a noncompensable rating since March 3, 1993. He did not contest that rating at the time it was assigned. He did not file a claim for increase until February 13, 2009. As such, an earlier effective date for the grant of a 10 percent rating for a right ankle disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet App. 49 (1990); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an increased rating in excess of 10 percent for a right ankle disability from February 13, 2009, is remanded. To the extent that the Board has found that the Veteran’s notice of disagreement also included an appeal of the rating decision assigned in the June 2009 rating decision, that issue has yet to be fully adjudicated by the RO and there is no statement of the case of record. Therefore, on remand, the RO should take steps to fully develop the increased rating claim and issue a statement of the case. Thereafter, if and only if the Veteran perfects that claim, return it to the Board for further appellant review. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matter is REMANDED for the following action: 1. Send the Veteran and his representative a statement of the case that addresses the issue of an increased disability rating for a right ankle disability, from February 13, 2009. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Pryce, Associate Counsel