Citation Nr: 0812033 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 05-02 134 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to an effective date earlier than December 12, 2003 for the assignment of an increased evaluation of 30 percent for chronic bronchitis. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Richmond, Associate Counsel INTRODUCTION The veteran had active military service from August 1989 to July 1995. This matter comes to the Board of Veterans' Appeals (Board) from a February 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, which granted an increased rating of 30 percent for chronic bronchitis, assigning an effective date of December 12, 2003. FINDINGS OF FACT 1. An October 2003 RO decision assigned an initial rating of 0 percent for chronic bronchitis effective July 24, 1995. The veteran did not file an appeal within one year of this decision and it is now final. 2. A December 12, 2003 VA examination report is considered an informal increased rating claim for chronic bronchitis; the evidence of record does not demonstrate that an increased rating for chronic bronchitis was factually ascertainable within one year prior to December 12, 2003. CONCLUSION OF LAW The criteria for an effective date prior to December 12, 2003 for an increased rating of 30 percent for chronic bronchitis are not met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.155, 3.157, 3.400, 20.302 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant with notice in April 2005, subsequent to the initial adjudication. While the notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was not subsequently readjudicated following provision of the notice; however, there also was no additional evidence submitted. The veteran has not alleged any prejudice as a result of the untimely notification, nor has any been shown. The notification substantially complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his possession that pertains to the claim. The letter specifically notified the veteran that in order to substantiate an earlier effective date claim, the evidence must show that he filed a claim on an earlier date, an informal claim was submitted at an earlier date, eligibility was due because of a change in the law, or the previous effective date for the claim was clearly and unmistakably erroneous. VA has obtained service medical records and assisted the veteran in obtaining evidence. Since the determinative issue in this case is whether the record shows entitlement to an earlier effective date, a VA examination would serve no useful purpose. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. Analysis The Board granted service connection for chronic bronchitis in September 2003. The RO effectuated this decision in October 2003 assigning a 0 percent rating, effective one day after separation from service on July 24, 1995. On December 12, 2003, the veteran was afforded a VA examination addressing his chronic bronchitis. The RO subsequently granted a 30 percent rating for chronic bronchitis based on the findings in this examination report. The effective date assigned for the 30 percent rating was December 12, 2003. The veteran appeals this action contending that the effective date should be the same date the original assignment of service connection became effective, July 24, 1995. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a 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. 38 C.F.R. § 3.400. In cases involving increases in disability compensation, the effective date will be the earliest date at which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date. Otherwise, the date of receipt of the claim will be the effective date. 38 C.F.R. § 3.400(o)(2). The veteran did not appeal the October 2003 rating that assigned the initial 0 percent rating for chronic bronchitis. He submitted a notice of disagreement (NOD) for the February 2004 rating decision which assigned a 30 percent rating, which NOD was filed within one year of the previous October 2003 decision. Even if this notice of disagreement were to be considered as a disagreement with the initial rating decision in October 2003, the veteran did not file his VA-Form 9 substantive appeal until December 2004, after receiving the statement of the case in September 2004. This is outside the requirement to file an appeal within 60-days from the date of the statement of the case, and more than one year from the October 2003 rating decision. Thus, the October 2003 rating decision is final. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.201, 20.202, 20.302(a). The December 12, 2003 VA examination report was used as an informal increased rating claim for bronchitis under 38 C.F.R. § 3.157. As the VA examination report/informal claim that ultimately lead to entitlement to an increased rating was dated on December 12, 2003, this is the proper effective date for the increased rating of 30 percent for chronic bronchitis. Entitlement to an increased rating for chronic bronchitis was not factually ascertainable within one year prior to December 12, 2003. The veteran's chronic bronchitis is rated under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6600, which evaluates the percentage of Forced Expiratory Volume in one second (FEV- 1) to predicted value, the ratio percentage of FEV-1/ Forced Vital Capacity (FVC), or the percentage predicted of Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO(SB)). The only evidence within one year of the December 2003 VA examination report includes May 2003 VA outpatient treatment reports, which note findings of dyspnea; but are otherwise unrelated to the chronic bronchitis. Therefore, an effective date earlier than December 12, 2003 for the assignment of a 30 percent rating for chronic bronchitis is not warranted in this case. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). ORDER Entitlement to an effective date earlier than December 12, 2003 for the assignment of an increased evaluation of 30 percent for chronic bronchitis is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs