Citation Nr: 18153301 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 16-53 302A DATE: November 27, 2018 ORDER Entitlement to an effective date earlier than October 28, 2010, for service connection for residuals of left hand and thumb laceration is denied. The appeal of the issue of whether the Veteran’s Notice of Disagreement (NOD) with the August 2011 rating decision that assigned a 10 percent rating for the right forearm is denied. FINDINGS OF FACT 1. A December 1986 rating decision granted service connection for the residuals of left middle finger fracture and a right forearm laceration, both rated noncompensable. Notification of the decision was mailed to the Veteran’s then current address of record with VA. The Veteran did not appeal the December 1986 rating decision. 2. An August 2011 rating decision granted a compensable rating of 10 percent for the right forearm laceration and denied service connection for the left thumb and left hand. 3. The Veteran’s July 2012 NOD only disputed the denial of service connection for the left thumb and left hand. 4. The Veteran’s attempt to appeal the right forearm rating was received by VA in September 2015. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than October 28, 2010, for service connection for residuals of left hand and thumb laceration are not met. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.155, 3.400. 2. The criteria for a timely appeal of the August 2011 rating decision that assigned a 10 percent rating for the right forearm are not met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an effective date earlier than October 28, 2010 for residuals of a left hand and thumb laceration Legal Requirements Generally, the effective date of an award based on an original claim, or a claim reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). Except as otherwise provided, the effective date of an 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. 38 C.F.R. § 3.400(a). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a). If received within 1 year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of an informal claim. Id. Discussion Pursuant to a May 2015 rating decision by the Board (05/15/2015 BVA Decision), a June 2015 rating decision granted service connection for left thumb and left hand laceration and assigned an initial 10 percent rating, effective October 28, 2010. See 06/01/2015 Rating Decision. In his September 2015 NOD with the assigned effective date, the Veteran referenced a statement he submitted in August 2012 and an August 2013 VA Form 9. See 07/13/2015 NOD. There is no VA Form 21-4138 from the Veteran dated in August 2012, but there is one received by VA in September 2012 which he signed on August 1, 2012. See 09/05/2012 VA 21-4138. In any event, that document was an appeal of the August 2011 rating decision that denied entitlement to service connection for the left thumb and left hand. The Veteran asserted that his service medical records (STRs) documented the fact of his injury in the 1970s, and that his claim should be allowed. Id. Although the issue on appeal was entitlement to service connection for the left thumb and hand, the Veteran asserted in the VA Form 9 that perfected his appeal of that issue that he had not been informed of the December 1986 rating decision. See 08/13/2013 VA Form 9. The Veteran also made assertions about falsification of records, which in fact have no relevancy to his appeal of the effective date of his award. The Board reads all of his correspondence to assert that the effective date of his grant of service connection for the left thumb/hand should be retroactive to the 1970s when he sustained the injury; or, at the latest, June 1986. The Board finds that the evidence of record is compellingly against the Veteran’s assertions. The Veteran served two tours of active service. See 12/07/1981 DD Form 214. VA received his initial application for VA compensation in June 1986, which was for service connection for his left hand and right forearm injuries sustained in November 1971. See 06/23/1986 VA 21-526. Based on a review of the STRs, the AOJ granted service connection for a right forearm laceration near the wrist, and residuals of left middle finger fracture and assigned initial noncompensable ratings for both. See 12/05/1986 Rating Decision. In a letter dated that same month, the AOJ notified the Veteran of the decision and of his right to appeal. See 12/15/1986 Notification. The letter was sent to the same address which was on the Veteran’s formal claim form, and there is no indication in the claims file that it was returned by the U.S. Postal Service as undeliverable as addressed. No additional information on the issue was received within one year of the decision, and neither did the Veteran appeal it. This will be discussed further on the issue of the timeliness of the right forearm appeal. Hence, the December 1986 rating decision became final. In October 2010, the Veteran applied for VA compensation for the left thumb. See 10/28/2010 VA 21-526b. An August 2011 rating decision denied the claim, and the Veteran appealed it. See 08/24/2011 Rating Decision; 07/25/2012 Correspondence; 08/13/2013 VA Form 9. As noted earlier, the May 2015 Board decision allowed the claim, and the June 2015 Rating decision executed the Board decision and assigned the effective date of October 28, 2010 for the grant of service connection. The Veteran’s assertion that there was an 8-year hiatus between his claim and a VA decision is simply incorrect. As noted above, his initial claim was received in June 1986 and adjudicated in December 1986. He did not dispute the AOJ’s determination that the left middle finger was the only part of his left hand that garnered service connection. As for the Veteran’s assertion that he did not know about the December 1986 rating decision, he conceded that when he reportedly told a VA representative in 1986 that he was relocating from Texas, he also told the representative that he did not have a forwarding address. See 11/26/2016 VA Form 9, P. 3. First, as noted, there is no evidence that the December 1986 Notification letter was returned to VA by the postal service. Hence, it is presumed to have been delivered. See Rios v. Mansfield, 21 Vet. App. 481, 482 (2007) (citing Rosenthal v. Walker, 111 U.S. 185, 193 (1884)) (Rios II). Second, as noted, the address to which the December 1986 notice was mailed was correct when it was mailed. It was the Veteran’s responsibility to inform VA that his mailing address had changed. Lamb v. Peake, 22 Vet. App. 227, 232 (2008). VA received the Veteran’s application for the left thumb, left hand laceration on October 28, 2010, which is the effective date the June 2015 rating decision assigned. Per law, that it is the earliest date to which he is entitled. 38 C.F.R. § 3.400. 2. Timeliness of NOD to August 2011 rating decision right forearm rating In September 2015, the Veteran attempted to appeal the rating on his right forearm laceration. See 09/17/2015 NOD. In a June 2016 letter, the AOJ informed the Veteran that his appeal was not timely, and the NOD was not accepted. See 06/11/2016 Appeal Process. The timeliness of an appeal is an appealable issue, 38 C.F.R. § 19.34, and the Veteran perfected an appeal of the determination of untimeliness. A claimant has one year from the date the AOJ mails notice of a determination; otherwise, it becomes final. The date a letter of notification was mailed is presumed to be the same date as the letter. 38 C.F.R. § 20.302(a). The Veteran’s October 2010 claim applied for “service connection” for right arm problems. As noted earlier, the December 1986 rating decision in fact granted service connection for right forearm laceration. Hence, the AOJ properly processed the Veteran’s right arm claim as one for an increased rating. The August 2011 rating decision granted a compensable rating of 10 percent for the right arm laceration, effective October 28, 2010, the date the claim was received. The Notice letter was dated August 26, 2011. The Veteran appealed the decision on the Form designated for that purpose. See 38 C.F.R. § 20.201; 07/25/2012 Correspondence. An NOD must be in terms which can be reasonably construed as disagreement with the determination in issue. Further, where a rating decision addressed more than one issue, the specific determination with which a claimant disagrees must be identified. 38 C.F.R. § 20.201(b). In his appeal of the August 2011 rating decision, the Veteran only addressed his right arm in passing. Specifically, the STR entry that noted the right arm injury also noted an injury to his left arm. All of the Veteran’s assertions in the July 2012 NOD addressed the issue of service connection for the left thumb and left hand. Even allowing for the fact that the Veteran is a layperson, the clear intent reflected in his July 2012 NOD was to appeal the AOJ’s determination on the left thumb and left hand, not the already-service-connected right forearm laceration. The four corners of the July 2012 NOD simply do not reflect an intend to appeal the 10 percent rating for the right arm laceration or its effective date. The appeal period for the right forearm rating expired in August 2012. 38 C.F.R. § 20.302. Hence, the Board is constrained to find that the Veteran’s September 2015 attempt to appeal the rating was not timely. Id. The Board notes the Veteran’s assertions that some of his STRs are missing, and that some of his military personnel records (MPR) are incorrect and even that some were altered. Those assertions are entirely immaterial to the issues currently before the Board, as service connection is in effect for both the right forearm laceration residuals and the left thumb and left hand. As for his assertions related to his MPR, he might consider seeking relief from his Service Board for the Correction of Military Records. As concerns his current rating, the Veteran is still at liberty to submit the requisite Form to file a claim of entitlement to an increased rating for the right forearm laceration residuals. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.T. Snyder