Citation Nr: 18143494 Decision Date: 10/23/18 Archive Date: 10/19/18 DOCKET NO. 16-34 072 DATE: October 23, 2018 ORDER Entitlement to an effective date of February 16, 2011, but no earlier, for the award of an increased (10 percent) rating for residuals, laceration of right Achilles tendon, with repair, is granted. FINDINGS OF FACT 1. In a December 1981 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for residuals, laceration of right Achilles tendon, with repair, and assigned an initial noncompensable disability rating, from November 1, 1981; the Veteran did not appeal any aspect of this decision within one year of its issuance and new and material evidence was not received within that year. 2. A formal claim for an increased rating for residuals, laceration of right Achilles tendon, with repair was received on February 16, 2012; an increase in the Veteran’s disability was factually ascertainable one year prior to her February 2012 increased rating claim. CONCLUSION OF LAW The criteria for an effective date of February 16, 2011, but no earlier, for the award of an increased (10 percent) rating for residuals, laceration of right Achilles tendon, with repair have been met. 38 U.S.C. §§ 5107 (b), 5110, 7105(d)(3); 38 C.F.R. §§ 3.104, 3.155(a) (in effective prior to March 24, 2015), 3.156 (a)-(b), 3.157(b)(1) (in effective prior to March 24, 2015), 3.400, 4.71a, (Diagnostic Code (DC) 5284), 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from November 1980 to October 1981. This matter comes before the Board of Veterans’ Appeals (Board) from a January 2013 rating decision. The Veteran testified before the undersigned Veterans Law Judge at a November 2016 hearing and a transcript of the hearing is associated with her claims file. The Board apologizes for the delay between the date of the hearing and the issuance of this decision, which was apparently due to the docket number of the case. See 38 U.S.C. § 7107(a) (providing that cases be considered and decided in docket order unless the case is advanced on the docket based on motion). Earlier Effective Date The assignment of effective dates for increased ratings is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that unless specifically provided otherwise, the effective date of an award based on a claim for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefrom. 38 U.S.C. § 5110 (a). Specifically as to claims for increase, the statute provides that 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 application is received within one year from such date. 38 U.S.C. § 5110 (b)(2). The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Specifically as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (o). The United States Court of Appeals for Veterans Claims (Court) and VA’s General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1),(2). The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or her 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 effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). A report of VA examination or hospitalization can be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157 (b)(1) (in effect prior to March 24, 2015). Entitlement to an effective date earlier than February 16, 2012 for the award of an increased (10 percent) rating for residuals, laceration of right Achilles tendon, with repair The Veteran contends that the 10 percent rating assigned for her service-connected residuals, laceration of right Achilles tendon, with repair should be effective since the November 1981 effective date of service-connection for the disability. She claims that the initial rating decision which awarded service connection and an initial noncompensable disability rating for this disability did not become final because she did not receive notice of the decision. Moreover, she contends that she has experienced the same symptoms that supported the award of an increased (10 percent) rating in the January 2013 rating decision ever since the November 1981 effective date of service connection. The Board finds, for the following reasons, that an effective date of February 16, 2011, but no earlier, is warranted for the award of an increased (10 percent) rating for residuals, laceration of right Achilles tendon, with repair. The AOJ awarded service connection for residuals, laceration of right Achilles tendon, with repair and assigned an initial noncompensable disability rating, from November 1, 1981, by way of a December 1981 rating decision. During the November 2016 hearing, the Veteran claimed that she did not receive notice of this decision. In support of this contention, she noted that her claims file includes a November 1981 letter from VA which was returned as undeliverable. The Board acknowledges that there is such a letter in the claims file that was returned as undeliverable. This letter, however, was not sent for the purpose of notifying the Veteran that her service connection claim was granted. Rather, this letter was only sent to notify her that her claim had been received. As for the December 1981 rating decision, the Veteran was notified of this decision by way of a December 1981 letter. The Board points out that the Veteran’s last name on this letter was different than the one included on the November 1981 letter and that the address to which the December 1981 letter was sent is slightly different than the one to which the November 1981 letter was sent. While the Veteran contends that she did not receive notice of the December 1981 decision, there is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties.” United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (VA need only mail notice to the last address of record for the presumption to attach). This presumption of regularity in the administrative process may be rebutted by “clear evidence to the contrary.” Schoolman v. West, 12 Vet. App. 307, 310 (1999). An allegation of non-receipt, by itself, is insufficient to rebut the presumption of regularity. Id. Rather, a claimant bears the burden of producing clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. Clarke v. Nicholson, 21 Vet. App. 130 (2006). Once the presumption of regularity has been rebutted, the burden shifts to VA to show that regular mailing practices were followed in mailing the document in question in accordance with applicable laws and regulations, or that the claimant actually received the notice. Crain v. Principi, 17 Vet. App. 182, 186 (2003). Applying this presumption to the instant case, the Board must conclude that the Veteran received notice of the December 1981 rating decision. As noted above, the December 1981 letter notifying the Veteran of this decision was sent to her address of record and was not returned as undeliverable. There is no other evidence to indicate that the Veteran did not receive notice of the December 1981 decision, other than the Veteran’s allegation of non-receipt. Hence, the Board does not find that the presumption of regularity has been rebutted and the Veteran was notified of the AOJ’s December 1981 decision. Moreover, the Veteran did not appeal any aspect of the December 1981 decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the December 1981 decision became final as to the initial rating assigned for residuals, laceration of right Achilles tendon, with repair. See 38 U.S.C. § 7105 (d)(3); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran submitted a formal claim for an increased rating for residuals, laceration of right Achilles tendon, with repair (VA Form 21-526) which was received by VA on February 16, 2012. In the January 2013 rating decision, the AOJ awarded an increased (10 percent) rating for residuals, laceration of right Achilles tendon, with repair. The AOJ noted that the disability was previously rated noncompensable under 38 C.F.R. § 4.71a, DC 5310, which provides for a noncompensable rating for slight muscle injury of Muscle Group X. The increased (10 percent) rating was reflective of a moderate foot injury under 38 C.F.R. § 4.71a, DC 5284 and was based on the findings made during a January 2013 VA examination. These findings included right foot/ankle pain and tenderness. The AOJ assigned an effective date of February 16, 2012 for the award of the 10 percent rating for residuals, laceration of right Achilles tendon, with repair, based on the date that the Veteran’s formal increased rating claim was received by VA. The Veteran contends that she has experienced the same right foot/ankle symptoms that supported the award of a 10 percent rating ever since her initial 1981 claim. She is competent to report the symptoms and history of her residuals, laceration of right Achilles tendon, with repair. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Also, there is nothing to explicitly contradict her reports and they are consistent with the evidence of record. Thus, the Board finds that the Veteran’s reports as to her right foot/ankle symptoms (in particular the symptoms present during the one-year period prior to VA’s receipt of her February 2012 increased rating claim) are credible. This evidence is sufficient to show that an increase in the severity of the Veteran’s residuals, laceration of right Achilles tendon, with repair was factually ascertainable at least a year prior to her February 16, 2012 claim. Hence, an effective date of February 16, 2011 is warranted for the award of an increased (10 percent) rating for residuals, laceration of right Achilles tendon, with repair. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (all of the facts should be examined in determining the effective date and the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of severity can be ascertained). An effective date earlier than February 16, 2011 is not warranted because the earliest possible effective date for an increase in compensation is one year prior to the claim for increase. In this case, February 16, 2011 is one year prior to the Veteran’s February 16, 2012 claim for increase. There is no evidence of any unadjudicated formal increased rating claim for residuals, laceration of right Achilles tendon, with repair subsequent to the final December 1981 rating decision and prior to February 16, 2012, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same. Thus, February 16, 2011 is the earliest possible effective date. The Board is sympathetic to the Veteran but is bound by the laws and regulations that apply to veterans claims. 38 U.S.C. § 7104(c) (2012); 38 C.F.R. §§ 19.5, 20.101(a) (2017). Those laws and regulations, and the presumption of regularity, preclude an effective date earlier than February 16, 2011. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Elwood, Counsel