Citation Nr: 0217298 Decision Date: 12/02/02 Archive Date: 12/12/02 DOCKET NO. 01-03 470A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an earlier effective date prior to June 24, 1998 for the assignment of a 50 percent evaluation for a gastrointestinal disability. 2. Entitlement to an effective date earlier than April 24, 2001 for additional compensation based on recognition of a dependent child. REPRESENTATION Appellant represented by: Missouri Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The veteran (appellant) served on active duty from August 1989 to September 1996. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. FINDINGS OF FACT 1. The RO has notified the veteran of the evidence needed to substantiate her claims, and has obtained and fully developed all evidence necessary for the equitable disposition of the claims. 2. A claim for an increased evaluation for a gastrointestinal disability was received in June 1998, and it is not factually ascertainable that the veteran's gastrointestinal disability had increased in severity to the degree that a 50 percent rating is warranted within one year prior to that time. 3. In December 1999, the veteran was granted a disability rating which qualified her for additional compensation for dependents. That same month, the veteran received VA Form 21-8764, information on claiming additional allowance for dependents. The veteran did not respond within one year of the date of notification. 4. On April 24, 2001, the RO received the veteran's VA Form 21-686c, and the veteran was granted additional compensation benefits for dependents effective from the date of her claim. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to June 24, 1998, for a 50 percent rating for a gastrointestinal disability have not been met. 38 U.S.C.A. §§ 5110, 5103A, 5107(b) (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2002). 2. The criteria for entitlement to an earlier effective date for the payment of benefits by reason of dependent spouse or child have not been met. 38 U.S.C.A. §§ 1155, 5102-7, 5110, 5111 (West 1991 & Supp. 2002); 38 C.F.R. §§ 3.31, 3.400, 3.401 (2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Initially, the Board notes that there has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), which contains revised notice provisions, and additional requirements pertaining to the VA's duty to assist. The new law applies to all claims filed on or after the date of the law's enactment, as well as to claims filed before the date of the law's enactment, and not yet finally adjudicated as of that date. The record indicates that the RO has had the opportunity to consider the claim on appeal in light of the above-noted change in the law, and that the requirements of the new law have been satisfied. The Board notes that by means of a statement of the case, the veteran was advised of the laws and regulations governing both claims. Hence, the veteran has been given notice of the information and evidence necessary to substantiate her claim. Furthermore, the record indicates that all pertinent records have been obtained and associated with the claims file. Under these circumstances, the Board finds that the claim is ready to be considered on the merits. In addition, in this regard, in August 2001, the RO contacted the veteran and notified her of the evidence needed to establish entitlement to the benefit sought, and what the RO would obtain, as well as what evidence was needed from the veteran and what she could do to help with her claim. No further assistance in this regard appears to be warranted. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The evidence of record indicates that the veteran first filed an application for service connection for a gastrointestinal disability in February 1997. A rating decision in March 1997 granted service connection, and a 10 percent evaluation was assigned. In April 1997, the veteran was informed of this action. The 10 percent evaluation was confirmed and continued in August 1997. On June 24, 1998, the RO received a claim for an increased evaluation from the veteran. The RO denied the claim in August 1998. The veteran timely disagreed with that finding. In December 1999, the RO increased the veteran's evaluation to 30 percent disabling, effective from June 24, 1998. This was based on private treatment records dated in 1999 which showed the veteran had obstruction and decreased motility to solid foods. In March 2000, the RO denied an earlier effective date for the assignment of the 30 percent evaluation. In April 2001, the veteran testified at a personal hearing on the issues of an increased evaluation for her gastrointestinal disability and an earlier effective date for the assignment of a 30 percent evaluation. A substantive appeal was submitted at that time. In July 2001, the RO increased the veteran's evaluation to 50 percent disabling, effective from June 24, 1998. This was based on private medical records which showed that the veteran underwent surgery in March 2001. The provisions of 38 U.S.C.A. § 5110(a) state that, unless specifically provided otherwise, 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. The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1). The provisions of 38 C.F.R. § 3.400 stipulate that, 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 final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. These provisions also stipulate, however, that such compensation may also be assigned based on the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within one year from such date, otherwise date of receipt of claim." 38 C.F.R. § 3.400(o)(2) (2002). In order to determine whether an earlier effective date is warranted, the Board must determine whether the schedular criteria for a 50 percent evaluation were met earlier than the date currently in effect, that is the date of the claim, June 24, 1998. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 1991). Separate diagnostic codes identify the various disabilities. Thus, three possible effective dates may be assigned depending on the facts of the 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)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (38 C.F.R. § 3.400(o)(2)). To make its determination, the Board must review all the evidence of record. Swanson v. West, 12 Vet. App. 442 (1999); Hazan v. Gober, 10 Vet. App. 511, 521 (1997). The veteran's claim for an increase was received in June 1998, and thus the evidence from within one year prior to that claim is the most relevant to the claim for an earlier effective date for a 50 percent rating. Under Diagnostic Code 7301, a 50 percent disability evaluation is warranted for severe adhesions of the peritoneum with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distention, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. The record shows that in service, in March 1994 and in September 1995, the veteran underwent two separate laparoscopic Nissen fundoplications of the stomach, with complaints of bloating and pain thereafter. In June 1998, the RO received a February 1996 private medical statement in which it was reported that the veteran presented in 1993 with complaints of pain, and was ultimately placed on Prilosec. On VA examination in March 1997, the veteran complained of pain and bloating, including gas symptoms every other day. She was not anemic, did not have periodic vomiting, or recurrent hematemesis. The Board finds that the effective date for the assignment of the 50 percent evaluation should be no earlier than June 24, 1998, the date of the veteran's claim, since there is no showing that the disability increased to 50 percent disabling within one year prior to that date. That is, there is no showing of severe adhesions of the peritoneum with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distention, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. The veteran has argued that her rating should be effective from her date of claim for service connection. She did not appeal the grant of service connection and initial assignment of the 10 percent evaluation within one year of notification thereof. Thus, an effective date commensurate with the claim for service connection is not for consideration. Effective Date Earlier Than April 24, 2001 for Additional Compensation Based on Recognition of a Dependent Child. In December 1999, the veteran was granted a disability rating which qualified her for additional compensation for dependents. That same month, the veteran received VA Form 21-8764, information on claiming additional allowance for dependents. The veteran did not respond within one year of the date of notification. On April 24, 2001, the RO received the veteran's VA Form 21-686c, and the veteran was granted additional compensation benefits for dependents effective from the date of her claim. 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 U.S.C.A. § 5101 (West 1991); 38 C.F.R. § 3.151(a) (2002). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2002). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (2002). According to the applicable law and regulation, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (2002). The statute provides that an award of additional compensation on account of dependents based on the establishment of a disability rating in the percentage evaluation specified by law for the purpose shall be payable from the effective date of such rating; but only if such proof of dependents is received within one year from the date of such rating action. 38 U.S.C.A. § 5110(f). The statute further provides that the effective date of the award of any benefit or any increase therein by reason of marriage or the birth or adoption of a child shall be the date of such event if proof of such event is received by the Secretary within one year from the date of marriage, birth, or adoption. 38 U.S.C.A. § 5110(n). The enabling regulation provides with respect to the effective date for additional compensation or pension for dependents that the effective date will be the latest of the following dates: (1) date of claim; (2) date dependency arises; (3) effective date of the qualifying disability rating provided evidence of dependency is received within one 1 year of notification of such rating action; (4) date of commencement of veteran's award. 38 C.F.R. § 3.401(b). The regulation further defines the date of claim for additional compensation for dependents as the date of veteran's marriage or birth of his or her child or adoption of a child, if the evidence of the event is received within one year of the event; otherwise, the date notice is received of the dependent's existence, if evidence is received within 1 year of notification of such rating action. 38 C.F.R. § 3.401(b)(1). Analysis The veteran contends that she is entitled to an earlier effective date for the payment of benefits by reason of her dependent child. She posits that additional compensation should have been effective earlier since the evidence of her dependents was in the file before the date that she became eligible for additional compensation for them. Veterans who are entitled to compensation for service- connected disabilities are entitled to additional compensation for dependents, including a spouse and child, provided that the disability is rated not less than 30 percent disabling. 38 U.S.C.A. § 1115 (West 1991). In this case, the veteran was granted an increased rating to 30 percent for her gastrointestinal disability in December 1999. She was informed of her eligibility for additional compensation that same month, and provided a form to submit to VA. She did not respond within one year. Subsequently in April 2001, she submitted a form declaring dependents and additional compensation was granted effective the date of receipt of her declaration. As noted above, 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 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. Awards of additional compensation for dependents shall be effective the latest of the following dates: (1) Date of claim. This term means the following listed in order of applicability: (i) Date of veteran's marriage or birth of his or her child, or adoption child, if the evidence of the event is received within one year of the event otherwise. (ii) Date notice is received of the dependent's existence, if evidence is received within one year of VA request. (2) Date dependency arises; (3) Effective date of the qualifying disability rating provided evidence of dependency is received within one year of notification of such rating; or (4) Date of commencement of veteran's award. In this case, the veteran did not inform the RO of her dependent's existence within one year of the VA's request in December 1999. Thus, the effective date for the assignment of additional compensation based on recognition of a dependent child is the date the VA was informed via Form 21- 686c, April 24, 2001. ORDER An earlier effective date prior to June 24, 1998, for the assignment of a 50 percent evaluation for a gastrointestinal disability is denied. An effective date earlier than April 24, 2001 for additional compensation based on recognition of a dependent child is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals IMPORTANT NOTICE: We have attached a VA Form 4597 that tells you what steps you can take if you disagree with our decision. We are in the process of updating the form to reflect changes in the law effective on December 27, 2001. See the Veterans Education and Benefits Expansion Act of 2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the meanwhile, please note these important corrections to the advice in the form: ? These changes apply to the section entitled "Appeal to the United States Court of Appeals for Veterans Claims." (1) A "Notice of Disagreement filed on or after November 18, 1988" is no longer required to appeal to the Court. (2) You are no longer required to file a copy of your Notice of Appeal with VA's General Counsel. ? In the section entitled "Representation before VA," filing a "Notice of Disagreement with respect to the claim on or after November 18, 1988" is no longer a condition for an attorney-at-law or a VA accredited agent to charge you a fee for representing you.