Citation Nr: 0716855 Decision Date: 06/07/07 Archive Date: 06/18/07 DOCKET NO. 02-13 293 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to a date earlier than October 27, 2000 for a 20 percent evaluation for fracture of the left mandible with temporomandibular joint involvement. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Catherine Cykowski, Associate Counsel INTRODUCTION The veteran had active duty service from July 1986 to October 1986, from October 1988 to February 1989 and from September 1989 to June 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2001 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. FINDINGS OF FACT 1. In October 2000, the RO received the veteran's claim for an increased evaluation for fracture, left mandible, with temporomandibular joint involvement. 2. In November 2001, the RO increased the evaluation assigned for the veteran's fracture, left mandible, with temporomandibular joint involvement from 0 to 20 percent disabling, effective October 27, 2000. 3. It was not factually ascertainable prior to October 27, 2000 that the veteran's fracture, left mandible, with temporomandibular joint involvement had increased in severity to such an extent that it rendered him 20 percent disabled. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to October 27, 2000, for the assignment of a 20 percent evaluation for fracture, left mandible, with temporomandibular joint involvement have not been met. 38 U.S.C.A. §§ 5101, 5102, 5103, 5103A, 5110(a) (West 2002); 38 C.F.R. §§ 3.1, 3.155, 3.157, 3.159, 3.400 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002), became law. Regulations implementing the VCAA were then published at 66 Fed. Reg. 45,620, 45,630-32 (August 29, 2001) and are now codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2006). The VCAA and its implementing regulations are applicable to this appeal. The duty to notify under the VCAA requires VA to notify the claimant and the claimant's representative, if any, of the information and medical or lay evidence that is necessary to substantiate the claim. In Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004), the Court specifically held that the VCAA requires VA to provide notice that informs the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim, (2) that VA will seek to provide, and (3) that the claimant is expected to provide. In what can be considered a fourth element of the requisite notice, the Court further held that, under 38 C.F.R. § 3.159(b), VA must request the claimant to provide any evidence in his possession that pertains to the claim. Id. at 120-21. The Court has indicated that notice under the VCAA must be given prior to an initial unfavorable decision by the agency of original jurisdiction. Id. The VCAA and its implementing regulations provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim. Under these provisions, VA is required to obtain service medical records and relevant VA healthcare records and must make reasonable efforts to help the veteran obtain other relevant medical records. The duty to assist also requires VA to provide the claimant with a medical examination or a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R § 3.159 (2006). The Court has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. at 183 (2002). In this case, as explained below, VA has strictly complied with the VCAA by providing the veteran adequate notice and assistance with regard to the claims on appeal. Accordingly, the veteran is not prejudiced by the Board's decision to proceed with the disposition of this appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). During the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Dingess/Hartman at 488. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. A. Duty to Notify The RO provided the veteran with VCAA notice in an August 2004 letter. This letter informed the veteran of the evidence required to substantiate the claim for an increased rating. This letter explained VA's duty to assist the veteran with the development of his claim and specified what types of evidence VA would be responsible for obtaining and what type of evidence VA would assist the veteran in obtaining. The veteran was advised to submit any relevant medical records in his possession. This notice reflects compliance with the timing requirements set forth in Pelegrini, as it was provided prior to the initial unfavorable rating decision. The Board finds that the duty to notify has been satisfied. All the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996). B. Duty to Assist The RO made reasonable efforts to assist the veteran. The medical records identified by the veteran have been obtained and associated with the claims file. The veteran has been afforded VA examinations. The veteran has not identified any outstanding evidence that is relevant to this claim. The Board therefore finds that the duty to assist has been satisfied. II. Analysis of Claim The veteran claims entitlement to an effective date prior to October 27, 2000 for assignment of a 20 percent rating for his service-connected temporomandibular joint disability. In a claim for an increased evaluation, 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 therefore. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. 3.400. An effective date for a claim for increase may be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. §§ 3.400(o)(1) and (2) (2006); see Harper v. Brown, 10 Vet. App. 125, 126 (1997); VAOPGCPREC 12-98 (1998). VA regulations provide that a veteran may receive benefits by filing an informal claim. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs from a claimant may be considered an informal claim. 38 C.F.R. § 3.155 (2006). Such an 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 claimant, it will be considered filed as of the date of receipt of the informal claim. Id. Once a formal claim for compensation has been allowed, receipt of a VA hospitalization report, a record of VA treatment or hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). Except as provided in 38 C.F.R. § 3.652, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within one year after the date of request, the claim will be considered abandoned. After the expiration of one year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. chapter 18 based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a). Determining the appropriate effective date to be assigned for a 20 percent evaluation thus requires analyzing when the claim for an increased evaluation was received and, to the extent possible, when the increase in disability actually occurred. The veteran's disability was initially assigned a non- compensable rating under Diagnostic Code 9904, which pertains to malunion of the mandible. A 20 percent evaluation Diagnostic Code 9904 requires evidence of severe displacement. 38 C.F.R. § 4.150, Diagnostic Code 9904 (2006). A November 2001 rating decision assigned a 20 percent rating pursuant to Diagnostic Code 9905, which applies to limited motion of temporomandibular articulation. Under Diagnostic Code 9905, a 20 percent rating is warranted when there is an inter-incisal range of 21 to 30 mm. 38 C.F.R. § 4.150, Diagnostic Code 9905 (2006). The RO granted service connection for fracture of the mandible with temporomandibular joint symptoms in an October 1992 rating decision and assigned a non-compensable rating, effective June 2, 1992. It was noted in the rating decision that the veteran was living outside of the country and was unable to report for a VA examination in conjunction with his claim. The only medical evidence of record at that time was the service medical records which indicated that the veteran sustained a left mandible fracture during active duty service. The RO determined that there was no medical evidence establishing the current level of disability. A claim for increased rating was received on May 4, 1994. Following the receipt of that claim, the RO sent letters to the veteran in December 1994 and in September 1995 requesting evidence of treatment. The September 1995 letter advised the veteran that a VA examination would be scheduled on his behalf. Records indicate that two September 1995 letters were returned to the RO as undeliverable, and it was noted that the veteran's whereabouts were unknown. There was no clinical evidence of record within one year of the veteran's May 4, 1994 claim that would establish entitlement to a 20 percent evaluation under the pertinent rating codes. A claim for increased evaluation was received on October 26, 2000. The veteran underwent a VA dental examination in May 2001. A report of that examination reflects a diagnosis of left temporomandibular joint dysfunction. The examination found limitation of intercisal range of motion. The examiner noted that the veteran had a 30 mm intercisal opening with pain. The Board finds that the evidence does not demonstrate that it was factually ascertainable that the veteran's temporomandibular joint disability had increased to 20 percent disabling prior to October 27, 2000. Prior to this date, there was no medical evidence that demonstrated evidence of malunion of the mandible productive of severe displacement, as required for a 20 percent evaluation under Diagnostic Code 9904 or temporomandibular articulation, with limited motion of inter-incisal range of 21 to 30 mm, as required for a 20 percent rating under Diagnostic Code 9905. The Board therefore concludes that the criteria for the assignment of an effective date prior to October 27, 2000 for a temporomandibular joint disability have not been met. As there is a preponderance of the evidence against the veteran's claim, he may not be afforded the benefit of the doubt. ORDER An effective date prior to October 27, 2000 for the assignment of a 20 percent evaluation for fracture of the left mandible with temporomandibular joint involvement is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs