Citation Nr: 0814666 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 07-38 013 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Fort Harrison, Montana THE ISSUE Entitlement to an effective date prior to July 8, 2003 for the grant of a 10 percent rating for irritable bowel syndrome as a residual of an abdomen shell fragment wound. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from June 1969 to June 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Fort Harrison, Montana Department of Veterans Affairs (VA) Regional Office (RO). In February 2008, a videoconference hearing was held before the undersigned. A transcript of the hearing is of record. At the hearing, the veteran submitted additional evidence with a waiver of RO initial consideration of such evidence. FINDINGS OF FACT 1. Prior to September 12, 2002, the evidence did not show that symptoms of the veteran's irritable bowel syndrome were more than mild. 2. On September 12, 2002, the RO received a statement from the veteran indicating that residuals of an abdomen shell fragment wound also involved internal injuries related to the colostomy and related surgeries he had during service and that these symptoms were getting worse; subsequent examination confirmed he has moderate irritable bowel syndrome related to his service connected shell fragment wound residuals. CONCLUSION OF LAW An effective date of September 12, 2002 (but no earlier) is warranted for the assignment of a 10 percent rating for irritable bowel syndrome as a residual of an abdomen shell fragment wound. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400, 4.114, Diagnostic Code (Code) 7319 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 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(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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) must ask the claimant to provide any evidence in his or her possession that pertains to the claim. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Since the September 2006 rating decision that is on appeal granted service connection for irritable bowel syndrome, assigned a staged rating and an effective date for the award, statutory notice had served its purpose and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). An October 2007 statement of the case (SOC) provided notice on the "downstream" issue of effective dates of awards and readjudicated the matter after the veteran and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). Notably, an undated letter also provided the veteran with notice regarding the effective dates of awards. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Neither the veteran nor his representative has alleged that notice in this matter was less than adequate. All evidence relevant to the veteran's claim has been secured. It is noteworthy that determinations regarding effective dates of awards are based, essentially, on what was shown by the record at various points in time and application of governing law to those findings, and generally further development of the evidence is not necessary unless it is alleged that evidence constructively of record is outstanding. The Board notes that a September 2002 statement from the veteran indicates that he was applying for disability benefits from the Social Security Administration (SSA). While SSA records are constructively of record, the Board finds that the veteran is not prejudiced by VA not obtaining these records prior to adjudicating his effective date claim as there is no reasonable possibility that obtaining these records would aid in substantiating this claim. There is no indication from the record and the veteran has not alleged that SSA records would show that symptoms of irritable bowel syndrome were more than mild prior to September 12, 2002; as will be explained more below, the veteran and several lay witnesses have stated that he only recently began seeking medical treatment for his condition. Hence, there is no reasonable possibility that obtaining SSA records will help the veteran substantiate his effective date claim. The veteran has not identified any other pertinent evidence that remains outstanding. Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claim. B. Factual Background Service medical records (SMRs) reveal that in January 1970, the veteran sustained multiple shell fragment wounds to the abdomen, causing injury to the transverse colon, one loop of the small bowel, and the head of the pancreas and duodenum. He underwent a colostomy in March 1970. He subsequently began having nausea and occasional vomiting, crampy abdominal pain, and dizzy, sweaty sensations. A May 1970 barium enema demonstrated some stricture of the left transverse colon; in August 1970, a revision of the stricture at the colostomy closure site using a Heinke-Mikulicz's procedure was performed. In September 1970, the veteran was treated for acute gastroenteritis. On March 1971 service separation examination, the veteran reported frequent indigestion and stomach, liver, or intestinal trouble. Clinical examination of the abdomen and viscera was normal. In a June 1971 statement of medical condition, the veteran reported that since his March 1971 separation examination, his medical condition had changed and that he was having abdominal cramps, constant nausea, and the "runs". On November 1971 VA examination, the veteran reported experiencing occasional left abdominal cramps as well as loose stools, three to four times a day. He stated his appetite was good and he denied nausea or vomiting; he reported intolerance to roughage and fatty foods. The veteran did not report for a barium enema scheduled to determine whether he had a gastrointestinal condition. A February 1972 rating decision granted the veteran service connection and a 20 percent rating for residuals of a gunshot wound to the abdomen with multiple scars. The rating decision noted that the digestive examination was negative except for surgical scars and that the veteran failed to report for a "barium enema scheduled because of complaint of abdominal cramps and loose stools-colostomy due to [gunshot wound] in service." A subsequent May 1972 rating decision indicated that the 20 percent rating had been assigned in error and adjusted the rating for residuals of gunshot wound to the abdomen to 30 percent. This rating decision did not address gastrointestinal complaints. In a December 2000 statement, the veteran requested an increase in evaluation of the wounds he received while in combat in Vietnam. He specifically noted his hearing had decreased and that he had discomfort and decreased agility in his legs and thighs. He did not report that he was experiencing any gastrointestinal disturbances as a result of his service-connected abdominal gunshot wound. During a February 2001 VA examination, the veteran reported that the abdominal gunshot wound perforated the abdomen and that he lost some intestine, had to have a colostomy that was subsequently taken down, and had to have an abdominal stricture. The examiner indicated that there were no operative reports in the record regarding these surgeries and he did not examine the veteran further for abdominal complaints, other than for scars. An October 2001 rating decision granted service connection for abdominal scars and denied a rating in excess of 30 percent for service-connected residuals of shell fragment wound of the abdomen. In a statement received on September 12, 2002, the veteran disagreed with the October 2001 rating decision, noting that the gunshot wound to his abdomen required extensive repair of his intestines and a colostomy during service and indicating that his condition had been getting worse during the most recent year. On July 2003 VA examination, the veteran reported having abdominal complaints for the last 29 years. He indicated he experienced some abdominal discomfort and had to make considerable dietary changes over the years. He had been having narrowing of his stools and increased frequency of stools in the last few years. He experienced occasional bloating and cramping with bowel movements. Five years ago he would have one bowel movement a day, but currently he was having about three bowel movements every morning. His stools were narrower than they used to be. The examiner provided the following impression: "He continues to have narrowing of bowel habits, fecal frequency, and must pay careful attention to dietary aspects for normal bowel function. Bowel [symptoms] have increased over the course of the last five to six years." An August 2003 colonoscopy revealed rare sigmoid diverticula. In an August 2006 statement, the veteran reported that he had not sought treatment for his abdominal condition since service. He stated he self-medicated for constipation and diarrhea with over the counter medication with some relief. He reported he had lost time at his job because of the condition. A September 2006 rating decision granted service connection for irritable bowel syndrome, rated noncompensable from June 19, 1971 and 10 percent from July 8, 2003. The decision granted service connection retroactive to the day after the veteran's discharge from service because SMRs of his abdominal surgeries that were not previously of record had been located and associated with the claims file. 38 C.F.R. §§ 3.156(c), 3.400(q)(2). In June 2007, the veteran submitted several lay statements attesting that he had experienced chronic irritable bowel condition since his discharge. An April 2007 lay statement from his brother indicates that as a result of his abdominal wound and surgeries, the veteran experienced persistent abdominal discomfort and bowel control difficulties. He reported the veteran used to change his diet frequently trying to lessen his discomfort; had used over-the-counter medications for decades to try to reduce his symptoms; and had refused to seek medical help because of his distrust of the entire medical profession and the Government. May 2007 lay witness statements from three of the veteran's longtime friends stated that he was in excellent health prior to service and enjoyed athletic activities. However, subsequent to service, abdominal issues precluded his participation in physical activities or extended travel. Over the years, he would self-medicate. They reported the veteran did not trust VA to take care of him properly and that he only agreed to seek treatment after he married his current wife and fathered a child. One of these lay witnesses, J. D., reported being the veteran's roommate and business partner for several years after service. Because of their relationship and the fact that they shared the same bathroom facilities, he knew the veteran had a hard time digesting food properly and indicated that food tended to putrefy in his digestive tract. A June 2007 statement from the veteran's wife states that she has known the veteran for fifteen years and that he has always complained of stomach and digestive trouble, used over-the-counter remedies, and watched his diet. In his November 2007 VA Form 9, Substantive Appeal, the veteran stated that he did not have additional medical evidence to support his complaints of abdominal distress since his discharge from service because he developed a "severe mistrust in the medical profession and any governmental agency." This mistrust caused him to not seek medical help for his abdominal condition. He stated that he has suffered from daily abdominal distress with alternating constipation and diarrhea, and that his symptoms are ever- present. He indicated that the rating decision's statement that he had complained of abdominal symptoms immediately after service and that his symptoms had worsened in recent years was accurate. During the February 2008 hearing, the veteran's representative discussed and submitted a report of barium enema dated May in 1970 and indicated that it showed the veteran had reported for the November 1971 barium enema requested on VA examination which the RO had stated he had not appeared for, and that the barium enema showed that his condition warranted a 10 percent rating upon discharge from service. The May 1970 barium enema revealed reflux into the terminal ileum with a noted area of stenosis in the region of the splenic flexure, which never opened wider than about 1.5 to 2 centimeters. Other evidence submitted at the hearing includes May 1970 SMRs showing the veteran complained of experiencing nausea and vomiting after meals for about two weeks. September 1970 SMRs reveal the veteran was experiencing abdominal pain with one episode of passing out. C. Legal Criteria and Analysis Except as otherwise provided, the effective date of an evaluation and award of 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. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. An exception to this rule provides that the effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application. See Hazan v. Gober, 10 Vet. App. 511 (1997). 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(a); 38 C.F.R. § 3.151(a). A "claim" or "application" 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). An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). If a formal claim is received within one year of an informal claim, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. The veteran's irritable bowel syndrome has been rated under 38 C.F.R. § 4.114, Code 7319. This Code provides for a noncompensable rating where the condition is mild; disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted where the condition is moderate; frequent episodes of bowel disturbance with abdominal distress. The veteran believes that he is entitled to an effective date of June 19, 1971 for the assignment of a 10 percent evaluation for irritable bowel syndrome. The current July 8, 2003 effective date was assigned because the VA examination conducted on that date showed that the veteran had symptoms warranting an increased 10 percent rating. The Board finds that the veteran is entitled to an effective date of September 12, 2002, when he submitted a statement indicating that because of the abdominal gunshot wound he had to have extensive intestinal repair and that his injury residuals were internal and related to the colostomy and subsequent surgeries during service and that his symptoms were getting worse. The July 8, 2003 examination was completed to confirm and determine the extent of the veteran's disabilities as a result of the complaints alleged in the September 12, 2002 statement. On July 2003 VA examination, the veteran stated that his symptoms had been worsening for the last several years. Hence, the Board finds that he is entitled to an effective date back to the date of the September 12, 2002 statement, which is the first evidence of record indicating that gastrointestinal symptoms were worsening. The Board notes that in December 2000 the veteran filed a claim for increase of his service-connected disabilities, specifically noting his hearing had decreased and that he had discomfort and decreased agility in his legs and thighs. He did not state that he was experiencing any gastrointestinal disturbances as a result of his service-connected abdominal gunshot wound. Additionally, during the February 2001 VA examination, while the veteran indicated he had undergone several surgeries in service because of the abdominal gunshot wound, he did not complain about experiencing any gastrointestinal disturbances as a result of these surgeries and only discussed muscle and scar residuals. Hence, the September 12, 2002 statement is the first evidence of record indicating that residuals involving gastrointestinal symptoms had worsened since service discharge. The veteran submitted a May 1970 barium enema report to support that he appeared for the post-service barium enema scheduled in November 1971. The May 1970 barium enema was completed prior to the abdominal stricture release surgery and over a year prior to his separation from service; it does not (and cannot) show that he reported for the November 1971 VA barium enema requested to determine whether he had a gastrointestinal disability (warranting compensation). SMRs show he experienced symptoms of abdominal disturbance prior to separation and subsequent to his surgeries in September 1970 and September 1971, and that he continued to complain of such symptoms on November 1971 VA examination. However, as he failed to appear for the November 1971 barium enema, VA was unable to determine at that time the extent of any gastrointestinal disability. Notably, the symptoms described in these records show no more than disturbances of bowel function with occasional abdominal distress. The veteran complained of symptoms in September 1970, but then not again until June 1971. In November 1971, he reported having occasional abdominal cramps without nausea or vomiting with disturbances of bowel function. His symptoms did not show frequent episodes of bowel disturbance with more than occasional abdominal distress. The Board acknowledges lay witness statements from the veteran's family and friends that the veteran has suffered from this condition since his discharge from service. While these lay witnesses are competent to testify to what they observed regarding the veteran's symptoms, they have not provided specific evidence regarding the frequency or severity of his symptoms during the more than 30 year gap between service and the July 2003 VA examination, the first medical evidence documenting his condition since service. The Board recognizes that service connection for the veteran's gastrointestinal disability has been made effective back to June 19, 1971, the day after the veteran's discharge from service; however, the evidence of record does not support that his symptoms at that time were more than mild, with disturbances of bowel function with occasional episodes of abdominal distress. The preponderance of the evidence is against a finding that he had moderate symptoms of irritable bowel syndrome, involving frequent episodes of bowel disturbance with abdominal distress prior to September 12, 2002. Hence, an effective date for the 10 percent rating prior to September 12, 2002 is not warranted. ORDER An effective date of September 12, 2002 (but no earlier) is granted for the assignment of a 10 percent rating for irritable bowel syndrome as a residual of an abdomen shell fragment wound. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs