Citation Nr: 1305074 Decision Date: 02/12/13 Archive Date: 02/21/13 DOCKET NO. 09-19 767 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a stomach disorder. 2. Entitlement to service connection for a colon disorder. 3. Entitlement to service connection for a pneumothorax (hereinafter lung disorder). 4. Entitlement to an initial evaluation in excess of 10 percent for a scar, status post left flank shrapnel wound. 5. Entitlement to an initial evaluation in excess of 30 percent for a left nephrectomy. 6. Entitlement to an evaluation in excess of 40 percent for shell fragment wound (SFW) residuals of Muscle Group XX. 7. Whether new and material evidence has been submitted sufficient to reopen a claim of entitlement to service connection for malaria. 8. Entitlement to an effective date prior to July 28, 2004 for the award of a 100 percent evaluation for posttraumatic stress disorder (PTSD). 9. Entitlement to an effective date earlier than July 28, 2004 for the award of a 40 percent evaluation for SFW residuals of Muscle Group XX. 10. Entitlement to an effective date earlier than July 28, 2004 for the grant of service connection for a left flank scar. 11. Entitlement to an effective date earlier than July 28, 2004 for the grant of service connection for a left nephrectomy. 12. Entitlement to a total disability rating based on individual unemployability (TDIU). 13. Entitlement to an effective date earlier than July 28, 2004 for the grant of entitlement to special monthly compensation (SMC) based on housebound status. REPRESENTATION Appellant represented by: John F. Cameron, Attorney at Law ATTORNEY FOR THE BOARD H. Bunker, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1963 to July 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Under 38 C.F.R. § 19.37 a supplemental statement of the case (SSOC) should be issued where relevant, non-duplicative evidence is received prior to the transfer of the claim to the Board. Evidence was received by the RO after March and September 2007 rating decisions were issued. However, the Board finds that the evidence submitted is either duplicative of evidence already in the claims file or non-relevant to the issues listed on above. As such, the issuance of an SSOC is not necessary and the Board can move forward with the issues on appeal. The Board notes that the issue of entitlement to service connection for a chest scar has been raised by the record. See e.g., July 2004 and April 2005 VA examination reports. However, the issue of entitlement to service connection for a chest scar has never been adjudicated by the RO, and therefore, is REFERRED to the RO for proper adjudication. The issues of entitlement to service connection for stomach, colon and lung disorders are REMANDED. The issue of entitlement to a total rating for compensation on the basis of individual unemployability is REMANDED. The issues of entitlement to earlier effective date for service connection for a left nephrectomy, left flank scar and special monthly compensation are REMANDED. The issues of entitlement to an increased rating for a left nephrectomy and left flank scar and entitlement to an effective date prior to July 28, 2004 for SFW residuals to Muscle Group XX are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's SFW residuals of Muscle Group XX are productive of no more than a moderately severe disability. 2. A January 1976 rating decision denied the Veteran's claim of entitlement to service connection for malaria as there was no evidence establishing the Veteran was currently suffering from malaria. 3. Evidence received since the January 1976 rating decision is cumulative of the evidence of record at the time of the January 1976 RO denial and does not relate to an unestablished fact necessary to substantiate the claim of service connection for malaria. 4. On July 28, 2004, the RO received the Veteran's claim for service-connection for PTSD. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 40 percent for SFW residuals of Muscle Group XX have not been met at any point during the appeal period. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.1 to 4.14, 4.40, 4.56, 4.73, Diagnostic Code 5320 (2011). 2. The January 1976 rating decision which denied the Veteran's claim of service connection for malaria is final. 38 U.S.C.A. § 7105 (West 2002). 3. New and material evidence has not been submitted for the claim of entitlement to service connection for malaria and the claim is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2011). 4. The criteria for an effective date earlier than July 28, 2004, for the assignment of a 100 percent evaluation for PTSD have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.400 (o)(2) (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to review the entire record, the Board does not have to discuss each piece of evidence reviewed. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2011). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). SFW Residuals to Muscle Group XX As noted above, the notice requirements were met in this case by letters sent to the Veteran in November 2004 and August 2007 which provided the information necessary to substantiate the Veteran's claim. Although this notice was not provided prior to the March 2005 rating decision, the Veteran was provided with adequate notice in August 2007 and his claim was readjudicated in the September 2007 statement of the case. See Mayfield, supra. Furthermore, the Board finds that there can be no prejudice to the Veteran due to a lack of adequate 38 U.S.C.A. § 5103(a) notice where, as here, none has been specifically alleged. Id. The Veteran's service treatment records and VA treatment records are also in the claims file. 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). The Veteran was afforded a VA medical examination in January 2005 to determine the severity of his SFW residuals. This opinion was rendered by a medical professional following a thorough examination and interview of the appellant and review of the claims file. The examiner obtained an accurate history and listened to the appellant's assertions. The examiner laid factual foundations and reasoned bases for the conclusions that were reached. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder 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. Therefore, the Board finds that the examination is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Malaria The notice requirements were met in this case by letters sent to the Veteran in November 2004 and August 2007. The November 2004 letter advised the Veteran of the information necessary to substantiate his claims and of his and VA's respective obligations for obtaining specified types of evidence. See Quartuccio, supra; 38 C.F.R. § 3.159(b). In addition, the case of Kent v. Nicholson, 20 Vet. App. 1 (2006), requires that, prior to the adjudication of petitions to reopen service connection claims, the appellant be given notice of the elements of service connection, the elements of new and material evidence, and the reasons for the prior denial. This notice was provided in the November 2004 letter. The August 2007 letter also advised the Veteran of how disability ratings and effective dates are determined. See Dingess, supra. The Veteran has not alleged that VA failed to comply with the notice requirements of the VCAA, and he was afforded a meaningful opportunity to participate effectively in the processing of his claim, and has in fact provided additional arguments at every stage. See Mayfield, supra. The notice required by 38 U.S.C.A. § 5103(a) should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005). That was done in this case. As discussed above, the Veteran's service and VA treatment records have been obtained and associated with the claims file. A VA examination was not provided in conjunction with the Veteran's claim for malaria. Under the VCAA, however, VA's statutory duty to assist a claimant in the development of a previously finally denied claim does not attach until the claim has been reopened based on the submission of new and material evidence. 38 C.F.R. § 3.159(c)(4)(iii). As explained below, the appellant has not submitted new and material evidence here and therefore a new VA examination with medical opinion was not required. Earlier Effective Date The notice requirements were met in this case by letters sent to the Veteran in November 2004 and August 2007 which provided the information necessary to substantiate the Veteran's claim. Although this notice was not provided prior to the March 2005 rating decision, the Veteran was provided with adequate notice in August 2007 and his claim was readjudicated in the September 2007 statement of the case. See Mayfield, supra. Furthermore, the Board finds that there can be no prejudice to the Veteran due to a lack of adequate 38 U.S.C.A. § 5103(a) notice where, as here, none has been specifically alleged. Id. The Veteran's service treatment records and VA treatment records are in the file. The Veteran was also provided notice on substantiating his earlier effective date issue in a September 2007 statement of the case. The November 2004 and August 2007 letters informed the Veteran of all five elements of service connection, gave examples of the types of evidence the Veteran could submit in support of his claim, and provided notice of the Veteran's and VA's respective responsibilities for obtaining such evidence. Therefore, the Board concludes that the duty to notify has been satisfied. See Dingess, supra; see also Goodwin v. Peake, 22 Vet. App. 128, 136 (2008) (holding that in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been proven and thus section 5103(a) notice is no longer required). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis SFW Residuals to Muscle Group XX The Veteran's SFW residuals have been rated as 40 percent disabling as of July 28, 2004, the date the Veteran filed his claim for an increased evaluation. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a Veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 38 C.F.R. § 4.56 governs the evaluation of muscle disabilities. Specifically, (a) An open comminuted fracture with muscle or tendon will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal; (b) A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged; (c) For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement; (d) Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows: A moderately severe disability of the muscles anticipates a through and through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period of treatment of the wound with a record of cardinal symptoms consisting of loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement, and if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and exit scars indicating a track of a missile through one or more muscle groups. Objective findings should also include indications on deep palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe disability of muscles contemplates through and through or deep penetrating wounds due to high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. There are ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle damage: (A) x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electro-diagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56 (d)(4). Diagnostic Code 5320 pertains to impairment of Muscle Group XX, which is the lumbar region of the spinal muscles. The function of this muscle group is postural support of the body, as well as extension and lateral movements of the spine. 38 C.F.R. § 4.73, Diagnostic Code 5320 (2011). Under Diagnostic Code 5320, a moderately severe injury warrants a 40 percent evaluation, and a severe injury warrants a 60 percent evaluation. Id. The Veteran's service treatment records demonstrate that his lower left lumbar area was struck by shell fragments in November 1967. A December 1975 x-ray showed metallic foreign body in the upper left back and an x-ray of the abdomen showed a half inch metallic foreign body fragment just to the left of the 1st lumbar vertebra in the muscles of the back. See January 1976 rating decision. In a January 1976 rating decision, service connection was granted for SFW residuals of Muscle Group XX, with retained foreign body, rated as 20 percent disabling. The Veteran filed a claim of entitlement to an increased evaluation for his SFW residuals in July 1993. This claim was denied in a November 1993 rating decision and the Veteran did not appeal this issue. The Veteran's current claim stems from a July 2004 claim. In a March 2005 rating decision the Veteran's SFW residuals were increased to 40 percent disabling after the RO found that the January 2005 VA examination showed a moderately severe disability. An August 2002 VA treatment record noted the Veteran complained of back pain which had existed for approximately one year. A July 2004 x-ray of the Veteran's lumbar spine found that he had a normal lumbar spine with no compression fractures or evidence of spondylolisthesis. A March 2005 VA treatment record also noted the Veteran's complaints of lower back pain. At the Veteran's January 2005 VA examination he reported stiffness, pain, and spasms in his back and left side. He stated increased bending, lifting or twisting causes increased pain and spasms. He also reported that taking muscle relaxers helped to alleviate the pain. The examiner noted the Veteran had tendon damage and muscle tissue loss, secondary to the SFW. He also noted nerve involvement and decreased nerve sensation to the scarred area. The examiner found no appreciated muscle herniation, and he required no support by truss or belt. The Veteran had full active and passive range of motion of his spine, but he did have noted spasms and muscle weakness in the left flank muscle group. The examiner also noted the Veteran's scar on his left flank, secondary to his SFW. The examiner's ultimate diagnosis was chronic muscle spasms of the left muscle flank muscle and mild muscle weakness of the left flank muscle. The Board observes the Veteran's representative's May 2009 statement alleging the examination was inadequate because the claims file was unavailable. However, as this was a claim for an increased rating and service connection had already been established, the current severity of the Veteran's SFW residuals was the most important factors. Furthermore, the Board finds the examiner's opinion to be adequate. Pertinent to the current determination, all of these examinations indicate that the Veteran has subjective complaints of chronic low back pain exacerbated by activity. As noted above, a severe rating is warranted where there is a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. Although the Veteran's service treatment records are incomplete, the Board finds that the evidence of record does not demonstrate that he sustained more than a moderately severe injury to Muscle Group XX. The evidence does not reflect that the Veteran sustained SFWs to the lumbar spine resulting in severe disability. There was no through and through or deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or explosive effect of a high velocity missile, or shattering bone fracture with extensive debridement or prolonged infection and sloughing of soft parts, intermuscular binding and cicatrization. Presently there is no evidence that the Veteran's scar results in extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in the track of a missile. See January 2005 VA examination report. Moderate or extensive loss of deep fascia or of muscle substance has not been noted, nor have the muscles in the area of the injury been described as soft or flabby. There are no residuals indicative of intermuscular trauma and explosive effect of the missile. The scars do not adhere to one of the long bones, and atrophy is not measurable. As such, a higher rating under Diagnostic Code 5320 is not merited. The Board has reviewed the evidence of record, as discussed above, and concludes that the Veteran's shrapnel wounds to Muscle Group XX most closely approximate the criteria for a moderately severe muscle disability throughout this appeal. In light of the above, the Board finds that the Veteran is not entitled to an evaluation in excess of 40 percent for his SFW residuals any point in the appeal period. The Board has considered whether the benefit of the doubt rule applies to the present appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, supra. However, a preponderance of the evidence is against a higher evaluation; thus, this rule does not apply and the claim for an increased evaluation must be denied. Extra-Schedular Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2011). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for the disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his SFW residuals. Additionally, there is not shown to be evidence of marked interference with employment due to his SFW residuals. At his January 2005 VA examination he reported that his condition impacted his ability to work because he has problems straightening up after he bends. Even taking this statement into account, the Board does not find there is evidence of marked interference with employment. The Veteran has indicated that his SFW residuals cause lower back pain and muscle spasms. As noted above, any functional limitation is already contemplated in the ratings currently assigned. There is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the Veteran's disability causes impairment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Malaria Previously denied claims may be reopened with the submission of new and material evidence. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1105 (2011). 38 C.F.R. § 3.156(a) defines "new and material evidence." "[N]ew evidence" means evidence not previously submitted to agency decision makers, and "material evidence" means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The new and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. When determining whether the claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2011). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. The Veteran brought a prior claim for service connection for malaria in March 1975. The claim was denied in a January 1976 rating decision, of which the Veteran was notified in that same month. The Veteran did not appeal this decision and the January 1976 rating decision is final. 38 U.S.C.A. §§ 7105. The Veteran filed his application to reopen his claim in July 2004. At the time of the January 1976 denial, the evidence of record included service treatment records and a VA examination report. The RO determined there was no evidence to show the Veteran was currently suffering from malaria. See January 1976 rating decision. Following his application to reopen his claim, the Veteran submitted evidence including personal statements and VA treatment records. As discussed below, reopening is not warranted on the basis of this evidence. The evidence provided by the appellant after the January 1976 rating decision is either duplicative of evidence previously considered or does not pertain to the grounds of the prior, final denial. The VA and private treatment records do not indicate that the Veteran has suffered from malaria at any point during the appeal period. The Veteran's and his representative's statements repeat that he believes he has submitted new and material evidence sufficient to reopen his claim. See e.g., November 2005 Notice of Disagreement. The VA treatment records show the current state of the Veteran's various disabilities. However, they are not material because they do not show that he has residuals of malaria. To the extent that there is a lay assertion of malaria, such assertions are cumulative of the prior claim. The Board finds that new and material evidence has not been received for the Veteran's claim for malaria and the application to reopen the claim of service connection for malaria is denied. See 38 C.F.R. § 3.156(a). Consequently, the benefit-of-the-doubt rule does not apply, and the petition must be denied. 38 U.S.C.A. § 5107(b) (West 2002). Earlier Effective Date Under governing law, the effective date for a grant of compensation will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2011). Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. Id. 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) (2011). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a) (2011). PTSD Initially, this appeal had legal merit as the AOJ had not assigned a 100 percent evaluation as of the date of claim for service connection. However, since the AOJ has assigned an effective date as of the date of the grant of service connection, the issue of entitlement to an earlier effective date for a 100 percent evaluation lacks legal merit. It is important to note that the law governing effective dates speaks in terms of compensation (money) rather than the term service connection. Since the appeal involves the effective date of the award of money (compensation) 38 U.S.C.A. § 5110(a)(b)(1)(2) and (g) are all applicable. Under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2), the effective date for a claim for an increased evaluation can be up to one year prior to the date of claim. This provision only applies when the underlying disability increased during that one year period (or at least some part of the increase occurred during that period). See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (section 5110(b)(2) requires that "an increase in a veteran's service-connected disability must have occurred during the one year period prior to the date of the Veteran's claim in order to receive the benefit of an earlier effective date"). The legislative history made clear that the purpose of this provision was to provide a one-year grace period for filing a claim following any increase in severity of a service-connected disability. Id. at 983. In other words, if the increase in severity occurred more than one year before the date of claim the year prior to the application for benefits, 38 C.F.R. § 3.400(o)(2) does not apply. As noted above, the Veteran was granted service connection for his PTSD and assigned a 30 percent evaluation, effective July 28, 2004, the date he filed his claim. See December 2004 rating decision. In an April 2006 rating decision the Veteran was assigned a 50 percent evaluation effective July 28, 2004 and a 70 percent evaluation, effective October 20, 2005, the date of his VA examination. A March 2007 rating decision assigned a 100 percent evaluation, effective July 28, 2004, the date the Veteran's claim for entitlement to service connection was received. With regard to the Veteran's notice of disagreement with the December 2004 assigned evaluation, the Board notes that this issue is now moot as the Veteran has been assigned a 100 percent evaluation effective July 28,2004, the date he filed his claim for service connection. See January 2005 notice of disagreement and June 2006 VA Form 9 for issue of entitlement to increased rating. In the instant case, the Veteran maintains that an effective date earlier than July 28, 2004, for the grant of a 100 percent disability evaluation for his service-connected PTSD is warranted. Per 38 C.F.R. § 3.400(o)(2) the effective date should be the earliest date as of which it was factually ascertainable that an increase in disability had occurred. As noted above, an effective date may be awarded on the date of receipt of the claim or earlier than the date of claim if it is ascertainable from the medical and lay evidence that a disability was worse at any point in the year prior to the date the claim was received. However, 38 U.S.C.A. § 5110(b) is subject to 38 U.S.C.A. § 5110(a). It is axiomatic that compensation may not be awarded prior to the effective date of the initial grant of compensation (service connection). As noted above, the Veteran filed his claim for entitlement to service connection for PTSD and it was received by the RO on July 28, 2004. The Board has reviewed the claims file and finds that a 100 percent evaluation prior to July 28, 2004 is not warranted. Generally, the effective date of a grant of compensation is no earlier than the date of claim; however, there are numerous exceptions. An effective date of compensation earlier than the date of claim may be established if the claim for the particular disability were received within one year of separation from service. In addition, an effective date earlier than the date of claim may be awarded if the grant were based on a liberalizing law of VA issue. However, none of the exceptions are applicable in this case. The grant of compensation for PTSD was not based upon a liberalizing law or VA issue in this case. Similarly, the claim for benefits was received more than one year after separation from service. In addition, the Court has established that the provisions of 38 C.F.R. § 3.157 are not applicable in a claim for service connection. (Citations omitted). In essence, the 100 percent evaluation was assigned as of the earliest date for the award of compensation. Accordingly, the issue is without legal merit. ORDER Entitlement to an evaluation in excess of 40 percent for SFW residuals is denied. The petition to reopen the claim of service connection for malaria is denied. Entitlement to an effective date prior to July 28, 2004 for the award of 100 percent evaluation (compensation) for PTSD is denied. REMAND The Veteran was granted an increased rating of 40 percent for his service-connected SFW residuals of Muscle Group XX in a March 2005 rating decision. The Veteran then submitted a timely notice of disagreement (NOD) in November 2005. See 38 C.F.R. § 20.305 (2011). The RO has not issued a statement of the case (SOC) to the Veteran which addresses his NOD on this issue. The United States Court of Appeals for Veterans Claims (Court) has made it clear that the proper course of action when a timely notice of disagreement has been filed is to remand the matter to the RO. Manlincon v. West, 12 Vet. App. 238 (1999). Appropriate action, including issuance of a statement of the case, is now necessary with regard to this issue. 38 C.F.R. § 19.26 (2011). The Veteran will then have the opportunity to file a timely substantive appeal if he wishes to complete an appeal. With regard to the Veteran's claims of entitlement to initial increased evaluations for a left nephrectomy and a left flank scar, the Board finds that a remand is necessary. In the Veteran's May 2008 VA Form 9, his representative requested a copy of the April 2005 VA examination that was referenced in the September 2007 SOC. There is no evidence this examination report has been provided to him. He also states that the Veteran has not received adequate notice on substantiating his claims of entitlement to increased evaluations. Under the VCAA the VA must notify claimants seeking VA benefits what information or evidence is needed in order to substantiate a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002); 38 C.F.R. § 3.159 (2011); see Quartuccio v. Principi, 16 Vet. App. 183 (2002); see also Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III). In this case, the Veteran should be provided notice on how to substantiate a claim for an increased evaluation. In regard to all other issues, there is an assertion of outstanding hospital and surgical records. We also note the potential applicability of 38 U.S.C.A. § 1154(b). In view of the wording of the "original" claim for benefits, 21-526, such records could impact the service connection, effective date and TDIU issues. (The Board is aware that TDIU is no longer in effect, having been replaced by a 100 percent evaluation. Accordingly, the case is REMANDED for the following action: 1. Issue a statement of the case for the issue of entitlement to an effective date prior to July 28, 2004 for the award of a 40 percent evaluation for SFW residuals of Muscle Group XX. All appropriate appellate procedures should then be followed. The Veteran should be advised that he must complete his appeal of this issue by filing a timely substantive appeal following the issuance of a statement of the case. 2. Provide the Veteran with amended VCAA notice of how to substantiate a claim for an increased evaluation. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); see also Vazquez-Flores v. Shinseki, No. 05-0355, (U.S. Vet. App. October 22, 2010) (Vazquez-Flores III). 3. Provide the Veteran's representative with a copy of the April 2005 VA examination report 4. The AOJ should request all of the Veteran's in-service hospitalization, surgical and nursing notes. 5. The AOJ should schedule the appellant for an examination to determine if he has colon, stomach or respiratory disabilities and if such disabilities are linked to service to include the in-service shell fragment wound. 6. After completing the above, and any other development deemed necessary, the AOJ should readjudicate the claims. If the benefits sought on appeal are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant 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). 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. 2010). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs