Citation Nr: 21009911 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 20-00 108A DATE: February 23, 2021 ORDER Entitlement to reinstatement of total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 19, 2018 is denied. Entitlement to reinstatement of basic eligibility to Dependents' Educational Assistance (DEA) prior to June 19, 2018 is denied. FINDINGS OF FACT 1. An October 2011 rating decision discontinued entitlement to TDIU and DEA effective January 1, 2012; notice of this decision was mailed to the Veteran’s last known address of record. The Veteran did not perfect an appeal of that decision, and evidence establishing continued unemployability was not received within one year of notice of its issuance. 2. The Veteran filed a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC, on June 19, 2018, and a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on August 16, 2018, claiming entitlement to TDIU. 3. The Veteran did not have a total service-connected disability, permanent in nature, prior to June 19, 2018. CONCLUSIONS OF LAW 1. The October 2011 rating decision denying entitlement to TDIU and DEA effective January 1, 2012 is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.1103. 2. The criteria for assignment of an effective date prior to June 19, 2018 for the award of TDIU have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16. 3. The criteria for assignment of an effective date prior to June 19, 2018 for eligibility to DEA under 38 U.S.C. chapter 35, have not been met. 38 U.S.C. §§ 3501, 5110; 38 C.F.R. §§ 3.400, 21.3020, 21.3021. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1965 to January 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2019 rating decision issued by a Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA) Regional Office (RO). The Board notes that it has liberally construed the Veteran’s January 2020 VA Form 9, Appeal to Board of Veterans’ Appeals, to include the issue of entitlement to reinstatement of basic eligibility to DEA prior to June 19, 2018. See Robinson v. Shinseki, 557 F.3d 1355, 1356 (Fed. Cir. 2009) (The direct appeal regulations impose an obligation on the Board of Veterans’ Appeals to read appeal filings by claimants in a liberal manner, regardless of whether the claimant is represented by an attorney). 1. Entitlement to reinstatement of total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 19, 2018 The Veteran claims entitlement to a February 1, 2012 effective date for the most recent grant of entitlement to TDIU in February 2019. Procedurally, the record reflects that a June 2011 rating decision proposed to discontinue entitlement to TDIU due to non-return of an employment questionnaire proving continued entitlement to TDIU; a notice of this proposal is in the record and dated the next day, which was also in June 2011. An October 2011 rating decision in the file discontinued entitlement to TDIU and DEA effective January 1, 2012. The Veteran, in essence, claims entitlement to a February 1, 2012 effective date for the most recent grant of entitlement to TDIU (or a retroactive reinstatement of TDIU back to and effective as of that date), based on his assertion, by and through his representative, that he did not receive the employment questionnaire or the “subsequent decision letter in 2011” that actually discontinued those benefits. After review of the claims file, for the following reasons, the Board concludes that the preponderance of the evidence is against an effective date earlier than June 19, 2018. In 2011, VA’s regulations required the Secretary to provide written notice to claimants and their representatives of any decision made by VA affecting the payment of benefits or the granting of relief. The Secretary was also required to advise the claimant and his or her representative, in the notice, of the reason for the decision; the date the decision would be effective; the right to a hearing; the right to initiate an appeal by filing a Notice of Disagreement which would entitle the individual to a Statement of the Case for assistance in perfecting an appeal; and the periods in which an appeal was required to be initiated and perfected. Further, it was required that the notice would include a summary of the evidence considered. 38 C.F.R. § 3.103(e) (2011). “Notice,” at the time, was defined as written notice sent to a claimant or payee at his or her latest address of record. 38 C.F.R. § 3.1 (2011). There is a presumption of regularity under which it is presumed that government officials “have properly discharged their official duties”. Clarke v. Nicholson, 21 Vet. App. 130, 133 (2007) (quoting United States v. Chem. Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The United States Court of Veterans Appeals (Court) has applied the presumption of regularity to all manner of VA processes and procedures. See, e.g., Redding v. West, 13 Vet. App. 512, 515 (2000) (applying presumption of regularity as to whether RO received veteran’s power of attorney that was mailed by veteran to correct RO address); Baldwin v. West, 13 Vet. App. 1, 5-6 (1999) (applying presumption of regularity as to whether RO examined and considered service medical records); Schoolman v. West, 12 Vet. App. 307, 310 (1999) (applying presumption as to whether RO sent to claimant the application form for dependency and indemnity compensation). In accordance with the presumption of regularity, there is a presumption that the Secretary properly discharged his official duties by mailing a copy of the required notice to the claimant or payee and his or her representative at their last known address(es) on the date that the decision was issued. See, e.g., Woods v. Gober, 14 Vet. App. 214, 220 (2000). However, the appellant may rebut that presumption by submitting clear evidence to the effect that VA’s regular mailing practices are not regular or that they were not followed, and the burden then shifts to the Secretary to establish that the VA decision was mailed to the veteran. See id. Although the presumption of regularity is not absolute and it may be rebutted by the submission of clear evidence to the contrary, an appellant’s assertion of nonreceipt without more is insufficient to overcome the presumption of regularity that VA properly mailed its decision in the regular course of business. See Mason v. Brown, 8 Vet. App. 44, 55 (1995) (“[A]ppellant’s statement of nonreceipt, standing alone, is not the type of ‘clear evidence to the contrary’ which is sufficient to rebut the presumption of regularity.”); see also Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). Absent evidence that the veteran notified VA of a change of address and absent evidence that any notice sent to him at his last known address has been returned as undeliverable, VA is entitled to rely on that address. See Woods, 14 Vet. App. 214, 220 (2000). Here, the Veteran’s representative wrote in the January 2020 VA Form 9 that the Veteran did not receive the June 2011 rating decision proposing the discontinuance of the Veteran’s entitlement to TDIU or the October 2011 rating decision that actually discontinued those benefits because his health was failing, he was not able to monitor incoming mail at his home, and his family moved him from Florida to New Jersey. However, nothing in the claims file indicates that the Veteran or anyone else on his behalf notified VA that he was living in New Jersey when those rating decisions were issued, and review of the claims file reflects that the Veteran’s address on file was the Florida address that those decisions were mailed to. See, e.g., VA Form 119, Report of Contact dated April 15, 2008; SHARE Print Screens dated June 27, 2011. Furthermore, neither the Veteran nor his representative have contended that he notified VA of his New Jersey address before the aforementioned 2011 rating decisions were issued, nor have they argued that those decisions were not mailed to his last known address. Both the June and October 2011 rating decisions clearly reflect that the Veteran’s representative was carbon copied on those decisions. The Veteran’s assertions of not receiving those rating decisions are thus not, in the Board’s view, clear evidence sufficient to overcome the presumption of regularity that VA properly mailed its decision in the regular course of business. While the Board sympathizes with the Veteran regarding his health concerns and consequent change of residence at the time, the fact remains that there is no contention or evidence that they were not sent to his last known address. Thus, the Board finds that the presumption of regularity applies and has not been rebutted and that VA presumably fulfilled its duty to mail the Veteran and his representative adequate notice of the aforementioned decisions in June and October 2011. The Veteran did not respond to the June 2011 rating decision or notice, nor did he appeal either the June or October 2011 decisions, and evidence establishing continued unemployability was not received within one year of notice of their issuance. As the Veteran did not appeal those rating decisions or provide evidence of continued eligibility for TDIU within one year of his notice of those decisions, the decisions became final. See 38 U.S.C. § 7105 (2011); 38 C.F.R. § 20.1103 (2011). The Board also notes that the Veteran’s representative, citing 38 C.F.R. § 3.344(a) and (b), has claimed that the Veteran had the right to have a C & P (in other words, a VA medical examination) and VA needed to prove that the Veteran’s condition permanently improved since the Veteran had the IU rating for more than five years. However, 38 C.F.R. § 3.344 addresses stabilization of disability evaluations and neither 38 C.F.R. § 3.344(a) nor 38 C.F.R. § 3.344(b) contain any language mandating the provision of a VA examination. The Board notes that 38 C.F.R. § 3.343(a) provides that “[t]otal disability ratings, when warranted by the severity of the condition and not granted purely because of hospital, surgical, or home treatment, or individual unemployability will not be reduced, in the absence of clear error, without examination showing material improvement in physical or mental condition”; however, the plain language of that regulation indicates that it does not apply to a reduction of benefits granted purely because of individual unemployability (see italicized portion above, specifically). 38 C.F.R. § 3.343(c) provides that, “[i]n reducing a rating of 100 percent service-connected disability based on individual unemployability, the provisions of § 3.105(e) are for application but caution must be exercised in such a determination that actual employability is established by clear and convincing evidence.” 38 C.F.R. § 3.105(e) provides that where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph 38 C.F.R. § 3.105(i), if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(i) provides that in the advance written notice concerning proposed actions under paragraphs (d) through (h) of 38 C.F.R. § 3.105, the beneficiary will be informed that he or she will have an opportunity for a predetermination hearing, provided that a request for such a hearing is received by VA within 30 days from the date of the notice, and if so, such a hearing will be conducted by VA personnel who did not participate in the proposed adverse action and who will bear the decision-making responsibility. If a predetermination hearing was not requested or if the beneficiary failed without good cause to report for a scheduled predetermination hearing, the final action will be based solely upon the evidence of record. Here, as instructed by 38 C.F.R. § 3.343(c), the provisions of § 3.105(e) were applied. In June 2011, a rating proposing the reduction or discontinuance of the Veteran’s employability status was prepared setting forth all material facts and reasons. The Veteran was notified at his latest address of record of the contemplated action, furnished detailed reasons therefor, and given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Additional evidence was not received within that period, final rating action was taken in the October 2011 rating decision, through which the award was reduced or discontinued effective the date of the last payment, January 1, 2012 (which was after the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expired) because the Veteran did not return an employment questionnaire that he was sent in April 2011. See 38 C.F.R. §§ 3.652, 3.501(f). Considering all of the above, the Veteran did not timely respond to the June 2011 rating decision and notice, nor did he timely appeal either the June 2011 rating decision proposing discontinuance or the October 2011 rating decision discontinuing entitlement to TDIU. Those decisions became final. Furthermore, the Board notes that the Veteran’s representative’s argument that it was required under 38 C.F.R. § 3.344(a) and (b) that he be afforded a VA examination before his entitlement to TDIU was discontinued is unpersuasive, as no such requirement exists under pertinent laws and regulations. Thus, the issue before the Board now is the effective date of the subsequent grant of entitlement to TDIU. In that regard, the Board notes that after the aforementioned final rating decision discontinuing entitlement to TDIU, the Veteran filed a VA Form 21-0966, Intent to File a Claim for Compensation and/or Pension, or Survivors Pension and/or DIC, on June 19, 2018. He then filed a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on August 16, 2018, wherein he claimed entitlement to TDIU. The effective date of an award of a TDIU will be the date of receipt of the claim or the date entitlement arose, whichever is the later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. See 38 C.F.R. § 3.400(o)(1). The effective date of an award of a TDIU may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability causing unemployability had occurred, if the application for a TDIU is received within one year from that date. See 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). “Claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). VA amended its regulations on March 24, 2015 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. None of the evidence of record shows that the Veteran’s condition worsened during the one-year period prior to the June 19, 2018 Intent to File a Claim. To the contrary, the evidence shows that the Veteran is “[u]nable to do physical activities… wheelchair bound and cannot stand or ambulate” and has been since 2011. See, e.g., letter received August 17, 2018; Hip and Thigh Conditions Disability Benefits Questionnaire (DBQ) dated December 23, 2018; Medical Opinion DBQ dated December 23, 2018. Considering the foregoing, in this case, by law, the effective date of the grant of TDIU must be the date of receipt of the claim, or in this case the intent to file a claim which is June 19, 2018. 38 C.F.R. § 3.400(o). Thus, entitlement to an earlier effective date, including entitlement to a reinstatement of TDIU from January 1, 2012, the date it was last discontinued, is denied. 2. Entitlement to reinstatement of basic eligibility to Dependents' Educational Assistance (DEA) prior to June 19, 2018 The Veteran also claims entitlement to an earlier effective date, prior to June 19, 2018, for the grant of DEA. For purposes of DEA benefits under 38 U.S.C. Chapter 35, the law relevant to the Veteran’s current claim provides that basic eligibility exists where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C. § 3501(a)(1); 38 C.F.R. §§ 3.807 (a), 21.3021. (Continued on the next page)   With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113(a). With respect to this matter, because entitlement to an earlier effective date prior to June 19, 2018 for TDIU has not been shown, the effective date for entitlement to eligibility for educational assistance under Chapter 35 also cannot be earlier than June 19, 2018. Accordingly, an earlier effective date is denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Tiffany Dawson Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banks, Associate Counsel 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.