Citation Nr: 0812023 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-37 736A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma THE ISSUES 1. Entitlement to a compensable rating for residuals of fractures of the right side 3rd through 8th ribs. 2. Entitlement to a rating in excess of 10 percent for residuals of a right clavicle fracture. 3. Entitlement to an effective date earlier than July 24, 2003, for the assignment of a 10 percent rating for residuals of a liver laceration. 4. Entitlement to a compensable rating for postoperative diplopia. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. B. Freeman, Associate Counsel INTRODUCTION The veteran served on active duty from September 1975 to September 1979 and from May 1980 to June 1992. He had additional periods of active service as an activated Naval Reservist from June 1995 to November 1995, from April 1998 to September 1998 and from March 2000 to December 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of the RO in Muskogee, Oklahoma, which, in pertinent part, continued noncompensable ratings for residuals of rib fractures and diplopia, granted 10 percent evaluations for residuals of a right clavicle fracture and for a healed liver laceration. The veteran contested the effective dates of the compensable awards and was granted a retroactive award in a November 2006 rating decision for the clavicle fracture residuals. The veteran appealed the appropriateness of the 10 percent rating for the clavicle residuals from the November 2006 rating decision. The Board notes, with respect to increased ratings, the United States Court of Appeals for Veterans Claims (Court) has held that on a claim for an original or increased rating, the appellant will generally be presumed to be seeking the maximum benefit allowed by law or regulations, and it follows that such a claim remains in controversy where less than the maximum benefit is allowed. AB v. Brown, 6 Vet. App. 35, 38 (1993). The Court further held that, where a claimant has filed a notice of disagreement as to a RO decision assigning a particular rating, a subsequent RO decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the appeal. Id. The grant of an earlier effective date for the veteran's clavicle fracture residuals was to September 4, 1998, the day following separation from service for the period in which the veteran broke his clavicle. This is the earliest possible date that can be assigned. See 38 C.F.R. § 3.400. The appeal was granted in full, and is not before the Board. See AB, supra. The veteran also appealed a claim for service connection for hypertension, but this was granted in the November 2006 rating decision. This appeal has also been granted in full and is not before the Board. See id. The veteran brought a claim for service connection for lower back and leg disabilities which were denied in June 2007. The veteran initiated an appeal on the issues in his June 2007 Notice of Disagreement. The veteran failed to perfect that issue with a timely Substantive Appeal following the August 2007 issuance of the Statement of the Case; the issues are not before the Board. The Board also notes that the veteran has submitted statements in February and April 2007 requesting an award adjustment based on spouse and dependents. The veteran also raised issues of service connection for a right rotator cuff tear and bone spurring of the right acromion in several statements. The RO has taken no action on these matters. The request for an award adjustment and claims for service connection are REFERRED to the RO for appropriate action. The issue of a compensable rating for post operative diplopia is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. FINDINGS OF FACT 1. The veteran's service-connected rib disability has been manifested by healed fractures with deformity, without rib removal or resection. 2. The veteran's right arm is the major arm. 3. The veteran's service-connected residuals of a right clavicle fracture have been manifested by pain on motion, without malunion, nonunion or loss of range of motion. 4. The veteran's claim for an increased rating for his liver disability was received by the RO on July 24, 2003; subsequently, a 10 percent disability was granted, effective July 24, 2003. 5. The veteran's July 24, 2003, statement was not a Notice of Disagreement to a January 2003 rating decision; prior to receipt of the claim on July 24, 2003, there were no pending requests for an increased rating that remained unadjudicated. 6. In the year prior to July 24, 2003, the medical evidence did not factually show that the veteran's liver condition had increased in disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable disability evaluation for the veteran's service-connected postoperative residuals of right 5th rib resection have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.3, 4.7. 4.20, 4.27, 4.71a, Diagnostic Code 5297 (2007). 2. The criteria for a disability rating greater than 10 percent for residuals of a right clavicle fracture have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5201, 5203 (2007). 3. The criteria for entitlement to a 10 rating for residuals of a liver laceration, prior to July 24, 2003, have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2007); 38 C.F.R. § 4.118, Diagnostic Codes 7301, 7311, 7312, 7345 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the veteran's claims folders. The Board has an obligation to provide reasons and bases supporting this decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act With respect to the veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the veteran's claim, a letter dated in August 2003 fully satisfied the duty to notify provisions for the first three elements on the rib and eye claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The veteran was provided notice of the requirements for earlier effective dates in a December 2006 letter and the requirements for an increased rating for his clavicle fracture residuals in July 2007. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The December 2006 and July 2007 letters also told him to provide any relevant evidence in his possession for all of his claims. See Pelegrini II, at 120-121. Although these letters was not sent prior to initial adjudication of the veteran's claim, this was not prejudicial to him, since he was subsequently provided adequate notice in December 2006 and July 2007, he was provided an opportunity to respond with additional argument and evidence and the claim was readjudicated and a Statement of the Case for the clavicle fracture residuals claim and an additional supplemental statement of the case (SSOC) for the other claims were provided to the veteran in August 2007. See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the veteran's claim, a letter dated in [month/year] fully satisfied the duty to notify provisions elements 2, 3, and 4. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187; Pelegrini II. In order to satisfy the first Pelegrini II element for an increased-compensation claim, section 5103(a) compliant notice must meet the following four part test: (1) that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 21 Vet. App. 37 (2008). For the following reasons, the Board finds that the elements of the Vazquez-Flores test have either been met or that any error is not prejudicial. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez-Flores. As such it does not take the form prescribed in that case. Failure to provide pre-adjudicative notice of any of the necessary duty to notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated that this was not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Prior to the initial adjudication of the claim, the RO sent the veteran an August 2003 letter, which requested that the veteran provide evidence describing how his disability had worsened. In addition, the veteran was questioned about the effect that worsening has on his employment and daily life during the course of the 2003 and 2005 VA examination performed in association with this claim. The veteran provided statements in which he details the impact of his rib and clavicle disabilities with his March 2004 Notice of Disagreement and his May 2007 Form 9, respectively, on his employment. The Board finds that the notice given, the questions directly asked and the responses provided by the veteran both at interview and in his own statements show that he knew that the evidence needed to show that his disability had worsened and what impact that had on his employment and daily life. As the Board finds veteran had actual knowledge of the requirement, any failure to provide him with adequate notice is not prejudicial. See Sanders, supra. The Board finds that the first criterion is satisfied. See Vazquez- Flores. As to the second element, the Board notes that the veteran is service connected for rib and clavicle disabilities. As will be discussed below, rib disabilities are rated under Diagnostic Code 5297 and clavicle disabilities under Diagnostic Code 5203, 38 C.F.R. § 4.71a. These are the only Diagnostic Codes to rate these disabilities and they are not cross referenced to any other Codes for the purposes of evaluation. See id. Furthermore, there is no single measurement or test that is required to establish a higher rating. See id. The Board finds that no more specific notice is required of VA and that any error in not providing the rating criteria is harmless. See Vazquez-Flores. As to the third element, the Board notes that the veteran was provided notice that a disability rating would be determined by application of the ratings schedule and relevant Diagnostic Codes based on the extent and duration of the signs and symptoms of his disability and their impact on his employment and daily life in the November 2006 letter. See Vazquez-Flores. The veteran was afforded an opportunity to respond and readjudication in August 2007. The Board concludes that the timing error is harmless. See Prickett, supra. As to the fourth element, the August 2003 and November 2006 letters did provide notice of the types of evidence, both medical and lay, including employment records, that could be submitted in support of his claim. The Board finds that the fourth element of Vazquez-Flores is satisfied. See id. In light of the foregoing, the Board finds that the requirements of Vazquez-Flores are met. The Board, therefore, finds that the requirements of Pelegrini II are met and that the VA has discharged its duty to notify. See Pelegrini II, supra. The Board also concludes VA's duty to assist has been satisfied. The veteran's service medical records and VA medical records are in the file. Private medical records identified by the veteran have been obtained, to the extent possible. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2007). The RO provided the veteran appropriate VA examinations in 2003 and 2005. There is no objective evidence indicating that there has been a material change in the severity of the veteran's service-connected disorders since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The 2003 and 2005 VA examination reports are thorough and supported by VA outpatient treatment records. The examination in this case is adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002 & Supp. 2007); 38 C.F.R. § 4.1 (2007). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2007). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). In the present case, it should also be noted that when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. a. Ribs The veteran contends that he is entitled to a compensable rating for his rib fracture residuals. For the reasons that follow, the Board concludes that an increased rating is not warranted. The veteran's rib disability is currently rated under Diagnostic Code (DC) 5297, for removal of the ribs. The Board notes that this is the only Diagnostic Code to address ribs disability. See 38 C.F.R. § 4.71a (2007). DC 5297 provides that a 10 percent evaluation is warranted for the removal of one rib or the resection of two or more ribs without regeneration. Id. A 20 percent evaluation is warranted where two ribs have been removed. Id. A 30 percent evaluation is warranted where three or four ribs have been removed. Id. A 40 percent evaluation is warranted where five or six ribs have been removed. Id. And a maximum 50 percent evaluation is warranted for the removal of six or more ribs. Id. Notes to this code provide that the rating for rib resection or removal is not to be applied with ratings for purulent pleurisy, lobectomy, pneumonectomy or injuries of pleural cavity. Id. However, rib resection will be considered as rib removal in thoracoplasty performed for collapse therapy or to accomplish obliteration of space and will be combined with the rating for lung collapse or with the rating for lobectomy, pneumonectomy or the graduated ratings for pulmonary tuberculosis. Id. The veteran broke his right side 3rd through 8th ribs in a car accident in 1978. The veteran did not have any ribs removed. There is no evidence of resection. An August 2003 x-ray study showed that the ribs had healed with some deformity. The veteran retains his ribs without resection. The Board finds that the criteria for a compensable rating have not been met under DC 5297. See 38 C.F.R. § 4.71a, supra. As discussed above, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to weakened movement, excess fatigability and incoordination. The veteran has complained of pain in his side, due to his ribs. No additional compensation is warranted, however, because no functional loss, disability, or other manifestations of the service- connected postoperative residuals of right 3rd through 8th rib fracture residuals have been shown. Under Spurgeon v. Brown, 10 Vet. App. 194 (1997), the Board is not required to assign a separate rating for pain. A compensable rating under the criteria of DeLuca is not warranted. The Board has considered the possibility of staged ratings. Fenderson; Hart, both supra. The Board, however, concludes that the criteria for a compensable rating have at no time been met. Accordingly, staged ratings are inapplicable. See id. As such, the Board finds that the preponderance of the evidence is against the veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). b. Clavicle The veteran contends that he is entitled to a rating in excess of 10 percent for his clavicle fracture residuals. For the reasons that follow, the Board concludes that an increased rating is not warranted. The veteran's clavicle fracture is currently rated under DC 5203. Under the laws administered by VA, disabilities of the shoulder and arm are rated under Diagnostic Codes 5200 through 5203. A distinction is made between major (dominant) and minor musculoskeletal groups for rating purposes. In the instant case, the evidence shows that the veteran's right shoulder is the major upper extremity. In cases of clavicular or scapular impairment, with dislocation, a 20 percent rating is warranted where either the major or minor arm is involved. Nonunion of the clavicle or scapula with loose movement shall be assigned a 20 percent rating, while nonunion without loose movement warrants a 10 percent evaluation. Malunion of the clavicle or scapula may be assigned a 10 percent rating, or may be rated based on impairment of function of the contiguous joint. 38 C.F.R. § 4.71a. On x-ray examination in August 2003, the veteran's clavicle was shown to be healed. There is no notation in the veteran's medical records of malunion or nonunion of the clavicle. For a higher rating, the veteran must be evaluated on impairment of the contiguous joint. See id. Major arm shoulder disabilities, under DC 5201, are rated 30 percent for limitation of the arm midway between side and shoulder level and 40 percent for limitation of the arm to 25 degrees from the side. 38 C.F.R. § 4.71a. The average range of motion of the shoulder is forward elevation (flexion) to 180 degrees; abduction to 180 degrees, external rotation to 90 degrees and internal rotation to 90 degrees. 38 C.F.R. § 4.71. At examinations in August 2003 and January 2005, the veteran had 180 degrees of forward flexion and abduction, and internal and external rotation to 90 degrees. There is no evidence in the veteran's remaining medical records that he has lost range of motion in the shoulder. VA treatment records from March and May 2005 indicate that the veteran had "full" and "fairly good" range of motion. The Board concludes that the criteria for a rating in excess of 10 percent under DC 5201 for limitation of motion have not been met. See 38 C.F.R. § 4.71a, supra. The Board has considered application of the DeLuca criteria. The veteran's disability does not, however, meet the minimum requirements for a compensable rating under either the clavicle impairment Diagnostic Code or the limitation of motion Diagnostic Code. See 38 C.F.R. § 4.71a, DCs 5201 and 5203, supra. The veteran has received numerous injections into the shoulder for pain control. The veteran's current 10 percent was granted in recognition of the DeLuca criteria of painful motion. An even higher rating is not warranted or legally permissible. The Board has considered the possibility of staged ratings. Fenderson; Hart, both supra. The Board, however, concludes that the criteria for a compensable rating have at no time been met. Accordingly, staged ratings are inapplicable. See id. As discussed in the Introduction, the veteran has also claimed service connection for a rotator cuff tear and bone spurring of the acromion. The manifestations of non service connected disabilities are not to be used in evaluating a service connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998) (When it is not possible to separate the effects of the service-connected condition from a nonservice- connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the veteran's favor, and that such signs and symptoms be attributed to the service-connected condition). In this case, however, the Board has relied on all of the veteran's manifestations of shoulder disability and cannot assign a rating in excess of 10 percent. As such, there is no harm in proceeding without remanding for consideration of service connection. See Bernard v. Brown, 4 Vet. App. 384 (1993). As such, the Board finds that the preponderance of the evidence is against the veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). III. Earlier Effective Date The veteran contends that he is entitled to an effective date prior to July 24, 2003, for the increased rating of 10 percent for his service connected liver laceration. Specifically, he has argued that the January 2003 rating decision continuing a noncompensable rating did not become final, and that the claim leading to that decision should be the one used to assign the effective date for the increased rating. For the reasons that follow, the Board concludes that an increased rating is not warranted. A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. A claim is 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). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. §§ 3.1(p), 3.155(a) (2006). See Servello v. Derwinski, 3 Vet. App. 196 (1992). Except as otherwise provided, the effective date of an award based on an original claim or a claim for an increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim. The effective date of an award of increased compensation shall be the earliest date at which it is ascertainable that an increase in disability has occurred, if the claim for an increased rating is received within one year from such date, otherwise the date of receipt of the claim. 38 U.S.C.A. § 5110(a), (b)(2); 38 C.F.R. § 3.400(o). The award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time. See also VAOGCPREC 12-98. Determining whether the effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." See Hazan v. Gober, 10 Vet. App. 511, 521 (1992). The United States Court of Appeals for Veterans Claims has held that 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet App 125, 126 (1997). Thus, three possible 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 (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App. at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). The Board will therefore first determine the date of receipt of the veteran's claim, then proceed to consider whether the evidence showed entitlement prior to the assigned effective date for a 10 percent rating for a liver laceration. The veteran brought a prior claim for a compensable rating in January 2002. The RO denied this claim in a January 2003 rating decision, of which the veteran was notified in the same month. The veteran contends that his statement, received by the RO on July 24, 2003, should be held a Notice of Disagreement to the January 2003 rating decision. If the statement is held a Notice of Disagreement, the January 2003 rating decision would not be final, and the correct date of claim would be the January 2002 claim. An appeal is initiated by filing a timely Notice of Disagreement (NOD). See 38 C.F.R. § 20.201 (2007). A NOD must express dissatisfaction or disagreement with a denial of a claim and a desire to contest the result. Id. Although any communication from the claimant will be liberally construed, it still must be expressed in terms that can reasonably be construed as disagreement with a denial and desire for appellate review. Id. The veteran's July 2003 statement addresses service connection for hypertension before turning to his service-connected disabilities. The veteran stated that he "would like to file for increase in my other service connections [sic] disabilities." He then requested that the RO ensure that his service medical records from his last period of service be used to evaluate his disabilities. There is no indication of a desire for appellate review and no reference to the prior decision or dissatisfaction with prior decisions. The Board finds that the veteran's July 2003 statement did not constitute a Notice of Disagreement to the January 2003 rating decision. A Notice of Disagreement must be received within one year of the notice of an adverse decision. See 38 C.F.R. § 20.302. No other communication was received prior to the expiration of one year following notice of the rating decision that could be construed as a Notice of Disagreement. The Board concludes that the January 2003 rating decision is final. 38 U.S.C. §§ 7104, 7105 (West 2002); 38 C.F.R. § 3.104 (2007). The Board notes that there are two statutory exceptions to the rule of finality. First, pursuant to 38 U.S.C. § 5108, the Secretary must reopen a claim if new and material evidence regarding the claim is presented or secured. Second, a decision is subject to revision on the grounds of clear and unmistakable error. 38 U.S.C. §§ 5109A (decision by the Secretary) & 7111 (decision by the Board). These are the only statutory exceptions to the finality of VA decisions. Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). The Board notes that while the veteran has disagreed with the effective dates assigned for his service-connected liver disability, he has not filed a claim for clear and unmistakable error (CUE) with regard to any rating decision. A claim for benefits based on CUE in a prior final rating decision entails special pleading and proof requirements to overcome the finality of the decision by collateral attack because the decision was not appealed during the appeal period. In order for a claimant to successfully establish a valid claim of CUE in a final RO rating decision, the claimant must articulate with some degree of specificity what the alleged error is, and, unless the alleged error is the kind of error that, if true, would be CUE on its face, the claimant must provide persuasive reasons explaining why the result of the final rating decision would have been manifestly different but for the alleged error. As no CUE has been alleged in the unappealed January 2003 rating decision, this decision is final and the effective date for a grant of a higher rating necessarily must be after the date of this decision. See 38 C.F.R. §§ 3.105, 3.400. The RO found that the veteran's July 2003 statement was the claim from which the instant appeal arises. There is no other statement from the veteran after the previous final denial that might constitute an earlier claim. The Board finds that July 24, 2003 was the date of claim. The remaining question is when was it factually ascertainable that a 10 percent evaluation for residuals of a liver laceration was warranted. See 38 C.F.R. § 3.400, supra. The veteran's liver laceration residuals are rated as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7311. That DC indicates to rate any specific residuals as adhesions of the peritoneum (DC 7301), cirrhosis of the liver (DC 7312), or chronic liver disease without cirrhosis (DC 7345). The veteran was granted a 10 percent rating for his liver laceration residuals because he reported abdominal pain during his August 2003 VA examination. The RO assigned a 10 percent rating under DC 7312, which requires symptoms such as weakness, anorexia, abdominal pain, and malaise. See 38 C.F.R. § 4.114. The Board has reviewed the veteran's medical records, both before and since, and the veteran has not repeated this complaint to any other treatment provider. There is no indication in the record of abdominal pain. The veteran was seen for a variety of complaints pertaining to his right shoulder and back, but not for abdominal pain. The Board concludes that an increase in disability was not factually ascertainable prior to July 24th, 2003 under DC 7312. A minimum compensable rating under DC 7301 would have required moderate pulling pain on attempting to work or aggravated by movements of the body, or occasional colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distention. See 38 C.F.R. § 4.114. As before, there were no abdominal complaints prior to July 24, 2003. There were no complaints of colic pain, nausea, constipation or distension. The Board concludes that an increase in disability was not factually ascertainable prior to July 24, 2003 under DC 7312. See id. A minimum compensable rating under DC 7345 is applicable where the disability is productive of intermittent fatigue, malaise, and anorexia, or where there are incapacitating episodes with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia and right upper quadrant pain, having a total duration of at least one week, but less than two weeks during the previous 12 month period. 38 C.F.R. § 4.114, Diagnostic Code 7345 (2007). Again, there were no complaints of intermittent fatigue, malaise, and anorexia, and no indication of incapacitating episodes. The Board concludes that an increase in disability was not factually ascertainable prior to July 24, 2003 under DC 7345. See id. Having looked to every possible Diagnostic Code, the Board finds that the increase in disability was not factually ascertainable prior to July 24, 2003. In light of the Board's finding that July 24, 2003 is the correct date of claim, the Board finds that the preponderance of the evidence is against the veteran's claim for an earlier effective date. Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to a compensable rating for residuals of fractures of the right side 3rd through 8th ribs is denied. Entitlement to a compensable rating for PO diplopia is denied. Entitlement to a rating in excess of 10 percent for residuals of a right clavicle fracture is denied. Entitlement to an effective date earlier than July 24, 2003, for the assignment of a 10 percent rating for residuals of a liver laceration is denied. REMAND The veteran's only VA examination in the course of this claim was in September 2003. To ensure that the record reflects the current severity of the veteran's condition, the Board finds that a more contemporaneous examination is needed to properly evaluate the service-connected disability under consideration. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered "contemporaneous"). The examination should include a review of the veteran's claims file and past clinical history, with particular attention to the severity of present symptomatology, as well as any significant pertinent interval medical history since his examination in 2003. The Board also notes that the ratings criteria for diplopia require the administration and submission of a Goldmann Perimeter Chart in order to evaluate the disability. In reviewing the record, the Board observes that the VA examination for diplopia in 2003 did not provide the RO with a Perimeter Chart. At the time, the examiner indicated that the condition was entirely correctable and did not complete a Perimeter Chart. The regulation governing diplopia ratings appears to require the completion of such a Chart for an examination to be considered thorough. See 38 C.F.R. § 4.77. The Board also instructs that a Goldmann Perimeter Chart be completed at the examination. As this claim must be remanded, the Board will take this opportunity to remedy other defects in the record. In order to satisfy the Veterans Claims Assistance Act (VCAA) duty to notify requirements for an increased-compensation claim, section 5103(a) compliant notice must meet the following four part test: (1) that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). The VCAA notice provided for the veteran's increased rating claim did not satisfy the first, second and third requirements set out above. The Board, therefore, remands for VCAA compliant notice. Accordingly, the case is REMANDED for the following action: 1. Provide to the veteran all notification action required by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), with respect to the increased rating claim. The notice should conform to the requirements of Vazquez-Flores, as described above. Any notice given, or action taken thereafter, must comply with current, controlling legal guidance. 2. Schedule the veteran for a VA examination to determine the current nature and severity of his diplopia. Sufficient evaluations should be scheduled to evaluate the veteran's symptomatology. All indicated tests and studies should be accomplished and the findings then reported in detail. A Goldmann Perimeter Chart should be completed. The examiner should identify the limitation of activity imposed by the veteran's service-connected diplopia with a full description of the effect of the disability upon his ordinary activities. 3. Then, the RO should readjudicate the claims on the merits. If the benefits sought are not granted, the veteran and his representative should be furnished a SSOC and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). No action is required of the veteran until further notice. However, the Board takes this opportunity to advise the veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for a comprehensive and correct adjudication of his claims. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655. This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs