Citation Nr: 1301308	
Decision Date: 01/14/13    Archive Date: 01/23/13

DOCKET NO.  09-17 278	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUE

Entitlement to an effective date prior to September 20, 2007, for the award of an increased evaluation of 10 percent for irritable bowel syndrome.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

W. Yates, Counsel



INTRODUCTION

The Veteran served on active duty from November 1983 to April 2006.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) 
Regional Office in Phoenix, Arizona.


FINDINGS OF FACT

1.  A September 2006 rating decision granted service connection at a noncompensable evaluation for irritable bowel syndrome, effective from May 1, 2006.  Notice of this decision was sent to the Veteran in September 2006, and a timely notice of disagreement was not received.

2.  The earliest claim, formal or informal, seeking an increased evaluation for the Veteran's service-connected irritable bowel syndrome was received by VA on September 20, 2007.

3.  It is not factually ascertainable, in the year prior to September 20, 2007, that an increased evaluation of 10 percent was warranted for the Veteran's irritable bowel syndrome.


CONCLUSION OF LAW

The criteria for an effective date prior to September 20, 2007, for the award of an increased evaluation of 10 percent for irritable bowel syndrome have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2012).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.  

In the present case, the RO's November 2007 letter advised the Veteran of the foregoing elements of the notice requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  With respect to the Dingess requirements, the November 2007 letter provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  Accordingly, the RO effectively satisfied the notice requirements with respect to the issue on appeal.  

A Veteran claiming entitlement to an earlier effective date is not prejudiced by failure to provide him with notice of the laws and regulations governing effective dates, if, based on the facts of the case, entitlement to an earlier effective date is not shown as a matter of law.  See Nelson v. Principi, 18 Vet. App. 407, 410 (2004).  No additional development could alter the evidentiary or procedural posture of this case.  Specifically, the Veteran's contentions herein concern the effective date of his award of an increased evaluation for irritable bowel syndrome.  There is no indication that any additional evidence is available herein, and in the absence of potential additional evidence, no notice is necessary.  See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (holding that VA's duty to notify a claimant is not required where there is no reasonable possibility that additional development will aid the claimant).  

The duty to assist the Veteran has also been satisfied in this case.  The RO has obtained the Veteran's service treatment records, and his identified VA and private medical treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In addition, the outcome of this earlier effective date claim rests with evidence that is already in the claims folder.  See Nelson v. Principi, 18 Vet. App. 407, 410 (2004).  Thus, no reasonable possibility exists that additional assistance would aid in substantiating the Veteran's claim herein.

There is no sign in the record that additional evidence relevant to the issue being addressed is available and not part of the record.  See Pelegrini, 18 Vet. App. at 112.  As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 473.  

Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1) (2012).  

An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation.  38 C.F.R. § 3.400(o)(2).  Under those circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997).  The question of when an increase in disability is factually ascertainable is answered by the Board based on the evidence in a Veteran's VA claims folder.  "Evidence in a claimant's file which demonstrates that an increase in disability was 'ascertainable' up to one year prior to the claimant's submission of a 'claim' for VA compensation should be dispositive on the question of an effective date for any award that ensues."  Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).  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) (2010).

Historically, the Veteran served on active duty in the Army from November 1983 to April 2006

A September 2006 rating decision granted service connection at a noncompensable evaluation for irritable bowel syndrome, effective May 1, 2006.  Although notice of this decision was sent to the Veteran that same month, he did not file a notice of disagreement, and the decision is final.  38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2012).  

The next correspondence of record is a VA letter to the Veteran, dated November 3, 2006, which informed the Veteran of his entitlement to a retroactive compensation payment in accordance with the Defense Authorization Acts of 2003 and 2004 programs regarding Combat Related Special Compensation (CRSC).

The file next contains a November 13, 2006 letter, sent by the Department of the Army to the Veteran, which informed the Veteran of his possible entitlement to a CRSC payment.

A December 5, 2006 letter, sent from the RO to the Veteran, noted that duplicative evidence submitted by the Veteran was being returned to him.

On September 20, 2007, the RO received a claim from the Veteran seeking an increased evaluation for his service-connected irritable bowel syndrome.  On this form, the Veteran indicated that he had previously filed this request on November 3, 2006.  No evidence of the earlier claim appears in the Veteran's claims file or on the Veteran's electronic claims file maintained on Virtual VA.

In December 2007, a VA examination for intestines was conducted.

In February 2008, the RO issued a rating decision granting an increased evaluation of 10 percent for irritable bowel syndrome, effective from September 20, 2007.  The only evidence cited by the RO in rendering this decision was the December 2007 VA examination for intestines.

A "claim" is defined in the VA regulations as "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) (2012).  An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits."  38 C.F.R. § 3.155(a) (2012).  VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).  In some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits.  38 C.F.R. § 3.157(b) (2012).  The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.  

A longitudinal review of the Veteran's claims file reveals no claim, formal or informal, seeking an increased evaluation for the irritable bowel syndrome prior to September 20, 2007.  The correspondence of record prior to that time does not expressly or implicitly raise a claim for an increased evaluation for irritable bowel syndrome.  
Although the Veteran contends that an earlier claim was filed, no such claim is shown in the Veteran's claims file or in the Veteran's electronic claims file maintained on Virtual VA.

The effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1).  Thus, under the general rule, the earliest effective date is September 20, 2007, the date of the Veteran's claim.  38 C.F.R. § 3.400(o)(1).  The Board must determine, however, whether the exception applies: whether an increased evaluation of 10 percent for the Veteran's irritable bowel syndrome was factually ascertainable within one year of September 20, 2007, the date of claim.  38 C.F.R. § 3.400(o)(2).  

The Board has completed a thorough review of all the evidence of record from this time period.  See Hazan v. Gober, 10 Vet. App. 511, 518 (1997) (holding that VA must review all evidence of record one year prior to the claim to ascertain the earliest possible effective date).  There is no evidence showing an increased disability during the one-year period prior to September 20, 2007.  The December 2007 VA examination for intestines served as the sole basis for the awarded increased evaluation for the Veteran's irritable bowel syndrome.  Thus, an increased evaluation for the Veteran's irritable bowel syndrome is not factually ascertainable prior to that time. 

Again, the effective date of an evaluation and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1).  As such, the proper effective date for the matter at issue is by default the date of the VA examination for intestines on December 5, 2007.  Accordingly, the Veteran is not entitled to an earlier effective date prior to the date of his claim on September 20, 2007.  38 C.F.R. § 3.400(o)(1)(2).

For the reasons discussed above, the preponderance of the evidence is against the Veteran's claim for the award of an increased evaluation of 10 percent for service-connected irritable bowel syndrome.  As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied.  See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

An effective date prior to September 20, 2007, for the award of an increased evaluation of 10 percent for irritable bowel syndrome is denied.


____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs