Citation Nr: 21064211 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 14-38 987A DATE: October 19, 2021 ORDER Entitlement to an effective date earlier than December 20, 2011, for the assigned 50 percent rating for the service-connected cognitive disorder (previously diagnosed as organic brain syndrome) is denied. FINDING OF FACT 1. A January 2007 rating decision granted service connection for organic brain syndrome and awarded an initial 10 percent rating from December 28, 2005. 2. The Veteran filed a claim for an increased disability rating later in January 2007, and this was addressed in a February 2008 rating decision, wherein the Veteran's 10 percent rating was continued. The Veteran did not appeal this decision. 3. On December 20, 2011, the Veteran's claim for an increased rating for his service-connected cognitive disorder was received; there is no earlier unadjudicated increased rating claim, and a factually ascertainable increase did not occur within the preceding one-year period. CONCLUSION OF LAW The criteria for an effective date earlier than December 20, 2011, for the assignment of a 50 percent rating for the service-connected cognitive disorder have not been met. 38 U.S.C. §§ 5107, 5110. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 2002 to December 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that decision, the RO found that a clear and unmistakable error had been made in the rating of the Veteran's cognitive disorder and assigned a 50 percent disability rating, effective December 20, 2011. On the January 2014 Notice of Disagreement (NOD), the Veteran expressed disagreement with the assigned effective date for his increased rating claim and not with the assigned rating. The Veteran requested a hearing before the Board on his October 2015 substantive appeal (VA Form 9). A hearing was scheduled for April 2018, and the Veteran requested to reschedule that hearing. Due to the COVID-19 pandemic and resulting closures, the Veteran was scheduled for a tele-hearing in February 2021 but did not appear. Another hearing was scheduled for September 2021, and the Veteran again did not appear. The Veteran has not requested that his hearing be rescheduled and has not provided an explanation for his non-attendance for his scheduled hearing. As such, the Veteran's hearing request is deemed withdrawn. The Veteran has not raised any issues in the current appeal that are not discussed herein, nor have any other issues been reasonably raised by the record. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Entitlement to an effective date earlier than December 20, 2011, for the award of a 50 percent rating for the service-connected cognitive disorder Generally, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the one-year period preceding the date of receipt of a claim for increased compensation. 38 U.S.C. § 5110(3). In that situation, the law provides that the effective date of the award 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. Id.; 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). For an increased rating claim, three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App. at 126. Date of receipt means the date on which VA received a claim, information, or evidence. 38 C.F.R. § 3.1(r). The Board acknowledges that effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 38 C.F.R. § 20.201; 79 Fed. Reg. 57660, 57696 (Sept. 25, 2014). Prior to March 24, 2015, however, VA recognized formal and informal claims. For VA compensation purposes, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). In his January 2014 NOD, the Veteran asserted that the effective date for his increased rating should be April 26, 2006, which he reports is the date of receipt of his original claim for service connection. Historically, in a January 2007 rating decision, the RO awarded service connection for organic brain syndrome, effective December 28, 2005. Later in January 2007, the Veteran submitted an informal claim for a higher disability rating. His claim for an increased rating was addressed in a February 2008 rating decision, wherein the 10 percent rating was continued. No notice of disagreement was received within a year of the issuance of the February 2008 decision, and no new and material evidence was received within that same period. Thus, the February 2008 rating decision became final. The Veteran submitted an informal claim for an increased rating on December 20, 2011. In a December 2012 rating decision, the RO continued the Veteran's 10 percent rating. The Veteran filed a formal claim for an increase in July 2013 which was addressed in a July 2013 rating decision. As noted in the Introduction therein, that decision found that a clear and unmistakable error had been made in the evaluation of the Veteran's cognitive disorder and assigned a 50 percent disability rating, effective December 20, 2011. Generally, the effective date can be no earlier than the date of receipt of the claim for increase. In this case, the earliest evidence of a claim for an increased rating was December 20, 2011, the date the Veteran's prior claim for an increased rating was received by VA. There were no pending, unadjudicated claims for an increase for the Veteran's service-connected cognitive disorder that were received between the notice letter sent in February 2008 (for the February 2008 rating decision) and the claim received December 20, 2011. The Board has considered the exception to the general rule, but the evidence does not demonstrate that it was factually ascertainable that the Veteran's cognitive disorder was at least 50 percent disabling within the one-year period prior to December 20, 2011. 38 C.F.R. § 3.400(o)(2). There are no VA or private medical records that were of record in the claims file in the one-year period preceding the December 20, 2011, claim. No VA medical records were constructively of record during that period, either. For this reason, it cannot be said that it was factually ascertainable that the Veteran's cognitive disorder manifested with such symptoms to have warranted a 50 percent rating prior to December 20, 2011. The Board has carefully reviewed the evidence of record and has found no formal or informal communication expressing an intent to apply for an increased rating prior to December 20, 2011. Thus, the Board finds that the effective date has been appropriately assigned as December 20, 2011, the date of receipt of the prior claim for an increased rating which prompted the finding of a clear and unmistakable (CONTINUED ON NEXT PAGE) error in the prior, December 2012 rating decision. Consequently, entitlement to an effective date earlier than December 20, 2011, for the assigned 50 percent rating for the service-connected cognitive disorder is denied. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.