Citation Nr: 18104264 Decision Date: 05/21/18 Archive Date: 05/21/18 DOCKET NO. 14-24 623A DATE: May 21, 2018 ORDER 1. Entitlement to an effective date prior to April 20, 2013 for the assignment of an increased rating to 20 percent for the service-connected peripheral neuropathy of the right lower extremity is denied. 2. Entitlement to an effective date prior to April 20, 2013 for the assignment of an increased rating to 20 percent for the service-connected peripheral neuropathy of the left lower extremity is denied. REMANDED Entitlement to a total disability rating based on unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In an April 2008 rating decision, the RO granted service connection for peripheral neuropathy of the bilateral lower extremities and assigned initial 10 percent ratings for each lower extremity, effective from November 9, 2007. The Veteran did not appeal that determination. 2. In a September 2010 rating decision, the RO confirmed and continued the previously assigned 10 percent ratings for the service-connected peripheral neuropathy of each lower extremity. The Veteran did not appeal that determination. 3. In November 2012, the RO received a VA Form 21-526b wherein the Veteran claimed service connection for sleep apnea as secondary to the service-connected diabetes mellitus, type II. 4. Although the November 2012 claim did not specifically identify a claim for an increased rating for the service-connected peripheral neuropathy, the RO granted increased ratings to 20 percent for the peripheral neuropathy of each lower extremity, effective from the date of an April 20, 2013 VA examination, the first date on which it was factually ascertainable that an increase in disability had occurred. CONCLUSIONS OF LAW 1. The April 2008 and September 2010 rating decisions, with respect to the Veteran’s peripheral neuropathy, are final. 38 U.S.C. § 7105 (2012). 2. The criteria for the assignment of an effective date prior to April 20, 2013 for the assignment of an increased rating of 20 percent for the service-connected peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.400(o) (2017). 3. The criteria for the assignment of an effective date prior to April 20, 2013 for the assignment of an increased rating of 20 percent for the service-connected peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.400(o) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1967 to April 1969 and from August 1970 to August 1973. This matter is on appeal from an October 2013 Regional Office (RO) rating decision which granted increased ratings to 20 percent for the peripheral neuropathy of the right and left lower extremities, effective from April 20, 2013. The Veteran disagreed with the effective date assigned for the increased ratings. The matter was remanded in March 2016 for additional development of the record. Entitlement to an effective date prior to April 20, 2013 for the assignment of an increased rating of 20 percent for the service-connected peripheral neuropathy of the right lower extremity and left lower extremity. RO decisions become final one year from the date of the letter accompanying the decision in the absence of clear and unmistakable error, or, where the appellant initiates a timely appeal by filing notice of disagreement (NOD) within one year of the date of the letter notifying the appellant of the rating decision; and, then, files a timely substantive appeal following the RO’s issuance of a statement of the case (SOC). Otherwise, the decision is final and not subject to revision except on receipt of new and material evidence. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. In the instant case, the RO issued a rating decision in April 2008 which granted service connection for peripheral neuropathy of the bilateral lower extremities and assigned initial 10 percent ratings for each lower extremity, effective from November 9, 2007. The Veteran did not appeal that determination, and it became final. Notably, the April 2008 rating decision also increased the ratings for Veteran’s service-connected diabetes mellitus type II (to 20 percent) and PTSD (to 30 percent); and, denied service connection for hypertension and erectile dysfunction. The Veteran submitted an NOD that was received in May 2008, but the NOD specifically disagreed with the denials of service connection for hypertension and erectile dysfunction only. In a September 2010 rating decision, the RO confirmed and continued the previously assigned 10 percent ratings for the service-connected peripheral neuropathy of each lower extremity. The Veteran did not appeal that determination; and, it too, became final. Notably, the September 2010 rating decision also confirmed and continued the previously assigned 30 percent rating for PTSD and the 20 percent rating for diabetes mellitus. The Veteran submitted an NOD that was received December 2010 but the Veteran’s NOD only disagreed with the continued evaluation of 30 percent for the service-connected PTSD. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability 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 increase 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); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). On March 24, 2015, VA amended its 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 his 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) (as 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 to reopen a previously denied claim or for an increased rating. 38 C.F.R. § 3.157(b)(1) (as in effect prior to March 24, 2015). In this case, as noted above, a September 2010 rating decision confirmed and continued the previously assigned 10 percent ratings for the service-connected right and left lower extremity peripheral neuropathy and the Veteran did not timely appeal that determination. A review of the record indicates that following the September 2010 denial of the Veteran’s claims, he did not subsequently request an increased rating for the service-connected peripheral neuropathy of the lower extremities. Rather, in a VA Form 21-526, received on November 9, 2012, the Veteran submitted a new claim specifically identified as service connection for sleep apnea claimed as secondary to the service-connected diabetes mellitus, type II. The Veteran did not check the box corresponding to a request for an increased evaluation of the disabilities that are already service connected. In response to the claim, the Veteran was afforded a VA diabetes examination on April 20, 2013. Based on the medical findings from that examination, the RO issued a rating decision in October 2013 which, in pertinent part, granted increased ratings to 20 percent for the peripheral neuropathy of the right and left lower extremities, effective from April 20, 2013, the date of the examination. Although the Veteran filed a claim in November 2012, that claim was specifically for service connection for sleep apnea, and there is no indication that the Veteran intended the claim to include a claim for increase for an already-service connected disability. Nevertheless, the RO awarded increased ratings for the peripheral neuropathy based on the findings from the April 20, 2013 examination report. In this regard, an increase in disability it is not factually ascertainable within the year prior to the April 20, 2013 examination report. In light of the foregoing, there is no basis on which to assign an effective date prior to April 20, 2013 for the assignment of increased ratings to 20 percent for the service-connected peripheral neuropathy of the right and left lower extremities. The RO essentially found that the medical findings in the April 20, 2013 examination report amounted to an informal claim for increase. There is no claim for increase, formal or informal, dated between the last final denial in September 2010 and the April 20, 2013 VA examination report. Additionally, VA treatment records were reviewed, and an increase in disability is not factually ascertainable within the one-year period prior to the April 20, 2013 examination date. To the extent that the Veteran believes his peripheral neuropathy of each lower extremity warranted 20 percent ratings at the time of the April 2008 and/or September 2010 rating decisions, or at some point in between the September 2010 rating decision and the April 20, 2013, this argument is an attempt to overcome the finality of a decision and amounts to a free-standing claim for an earlier effective date, which is not part of the legal framework governing effective dates. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The only way to overcome the finality of a decision is to request revision of the decision based on clear and unmistakable error (CUE). Id. Accordingly, an effective date prior to April 20, 2013 is not warranted for the assignment of increased ratings to 20 percent for the service-connected peripheral neuropathy of the right and left lower extremities. REMANDED Entitlement to a TDIU is remanded. REASONS FOR REMAND In a March 2016 remand, the Board found that a TDIU claim had been raised by the record based on a July 2010 statement wherein the Veteran alleged that his service-connected disabilities, including his PTSD, precluded him from obtaining or maintaining gainful employment. As the Veteran had not yet filed a formal TDIU claim, the Board instructed the RO to send a duty-to-assist letter to the Veteran and request that he submit a completed TDIU claim form. In July 2017, the RO sent the Veteran a TDIU claim form along with a duty-to-assist letter notifying him of how to substantiate a TDIU claim, and requesting that the Veteran return the completed form to the RO. The record does not show that the Veteran completed the VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability). Accordingly, the Veteran’s level of education and employment history are not clear. However, in a January 2018 supplemental claim, the Veteran again requested a TDIU. As such, it appears that the Veteran maintains that he is unemployable due to service-connected disabilities; yet, he has not yet completed the necessary documentation needed to adjudicate his claim. Additionally, a May 2008 VA PTSD examination report indicates that, per the Veteran’s self-reported history, he owns a commercial roofing company, and likes to work, but has not had any work since October 2017. Accordingly, it is not clear whether the Veteran is unemployable due to service-connected disabilities, particularly because he has not yet submitted a completed VA Form 21-8940. The matter is REMANDED for the following action: 1. Ask the Veteran to complete a TDIU claim form. Then, schedule the Veteran for an examination[s] by an appropriate clinician[s] regarding the current severity of his service-connected disabilities, including the effects on occupational functioning, alone, or in combination. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his PTSD alone, as well as in combination with his other service-connected disabilities, on employment. 2. Thereafter, readjudicate the issue of TDIU. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period in which to respond. (Signature on next page.) MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. B. Cryan, Counsel