Citation Nr: 1313461 Decision Date: 04/23/13 Archive Date: 05/03/13 DOCKET NO. 09-49 164 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an effective earlier than December 1, 2003, for the grant of a 100 percent schedular rating for service-connected ventral hernia with colostomy. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from November 1963 to July 1969 and from July 1970 to November 1975. This matter is before the Board of Veterans' Appeals (Board) on appeal of July 1995 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in July 2012. A transcript of the hearing is in the Veteran's file. FINDINGS OF FACT 1. A VA hospitalization record dated June 19, 1994, showed treatment for a recurrent ventral hernia; a formal claim for compensation under 38 U.S.C.A. § 1151 for VA treatment of the ventral hernia was received by VA on December 22, 1994; there is no prior formal or informal claim. 2. In a July 1995 rating decision, the RO granted compensation for a ventral hernia with a colostomy, effective June 19, 1994; a temporary total rating was assigned from June 19, 1994; a 10 percent rating was assigned from August 1, 1994; a temporary total rating was assigned effective February 14, 1995, a noncompensable rating was assigned from April 1, 1995; a 40 percent rating was assigned from December 20, 1999; a temporary total rating was assigned from July 21, 2003; a 40 percent rating was assigned from December 1, 2003; a 100 percent rating was assigned from December 1, 2003. 3. In a decision in July 2010, the Board denied a maximum schedular rating of 100 percent for the service-connected ventral hernia with colostomy for any staged rating period from June 19, 1994, to December 1, 2003, and the Board decision is final. CONCLUSION OF LAW The criteria for an effective date earlier than December 1, 2003, for the grant of a 100 percent schedular rating for service-connected ventral hernia with colostomy have not been met. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(i)(o) (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Whereas service connection has been granted and the initial disability ratings and effective dates have been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for benefits has been substantiated, the filing of a notice of disagreement with the RO's decision rating the disability or assigning an effective date does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) with respect to the claim for an effective date earlier than December 1, 2003, for a 100 percent rating is no longer applicable. Goodwin v. Peake, 22 Vet. App. 128 (2008). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the service records, VA and private medical records, and records from the Social Security Administration. As the Veteran has not identified any additional evidence pertinent to the claim and as there are no additional records to obtain, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. And a medical examination or medical opinion is not needed to decide the claim for an earlier effective date. Criteria for Assigning an Effective Date The effective date for the award of disability compensation by reason of 38 U.S.C.A. § 1151 shall be the date such injury was suffered if the application is received within one year from such date. If the claim is not received within one year of the injury, the effective date will be the date the claim is received. 38 U.S.C.A. § 5110(c); 38 C.F.R. § 3.400(i). The effective date of an increased rating is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within 1 year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). Under 38 C.F.R. § 3.155, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. Under 38 C.F.R. § 3.157(b)(1), once a formal claim for compensation has been allowed, receipt of one of the following will be accepted as an informal claim for increase: report of VA examination or treatment or VA hospitalization. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1) (2012). Facts VA records show that in May 1993 the Veteran was admitted to a VA facility and underwent an exploratory laparotomy with sigmoid resection and a sigmoid colostomy. On June 19, 1994, the Veteran was admitted for treatment of a ventral hernia repair related to the colostomy in 1993. The Veteran complained that he had hernia for about a year. In a statement received by VA on December 22, 1994, the Veteran requested compensation for the colostomy, result from surgical treatment by VA in 1993. . He requested an effective date of May 13, 1994. He stated that he had been informed that VA had no record of the claim he had submitted in May 1994. The Veteran provided a copy of a letter dated May 13, 1994, in which he had requested compensation for a ventral hernia that had occurred as a result of colostomy. He also submitted a copy of a certified mail receipt bearing a date stamp of May 13, 1994. In a rating decision in July 1995, the RO granted disability compensation under 38 U.S.C.A. § 1151 for ventral hernia with colostomy, effective June 19, 1994. A temporary total rating for convalescence was assigned from June 19, 1994. A 10 percent rating was assigned from August 1, 1994. A temporary total rating for convalescence was assigned from February 14, 1995, and a noncompensable evaluation was assigned from April 1, 1995. The Veteran perfected an appeal as to the initial ratings. In October 2001 in a rating decision, the RO assigned a 40 percent rating from December 20, 1999. In August 2003 the Board remanded the case for further development. In March 2004 in a rating decision, the RO assigned a temporary total rating for convalescence from July 21, 2003, and a 40 percent rating from December 1, 2003. The Board remanded the case for further development in December 2004 and in May 2006. In November 2008 in a rating decision, the RO assigned a 100 percent schedular disability rating from December 1, 2003, and continued to deny increased ratings prior to December 1, 2003. The Veteran then submitted a Notice of Disagreement to the effective assigned for the 100 percent rating. In a decision in July 2010, the Board granted an initial 20 percent rating for the ventral hernia with colostomy from August 1, 1994, to February 13, 1995. A temporary total rating for convalescence was already in effect from February 14, 1995. The Board also awarded a 20 percent rating from April 1, 1995, to December 19, 1999. The Board determined that ratings higher than 20 percent were not warranted. The Board also determined that a rating in higher than 40 percent for from December 20, 1999, to December 1, 2003, was not warranted. Analysis The Veteran contends that he is entitled to an effective date earlier than December 1, 2003, for the grant of a 100 percent schedular rating for his service-connected ventral hernia with colostomy. In October 2009 in a statement, the Veteran stated that he is entitled to an effective date of May 30, 1993, the date he was first seen at a VA facility for ruptured intestines. In July 2012, the Veteran testified that the severity of his condition warranted a 100 percent schedular rating since 1994. The effective date of an award for increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefore. The effective date of the award of an increase in compensation is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). There is no legal basis upon which the Veteran could have an effective date of May 30, 1993. The requested effective date of May 30, 1993, precedes the date that a claim for compensation under 38 U.S.C.A. § 1151 was received by VA. In order to obtain an effective date of May 30, 1993, for any rating, the evidence would have to show that a formal or informal claim for compensation under 38 U.S.C.A. § 1151 was received on that date, or within a year of the date the injury was suffered (i.e., between May 30, 1993, and May 20, 1994). Here, the Veteran's formal claim for 1151 benefits was not received until December 22, 1994. However, the Veteran submitted a VA hospitalization record showing he was admitted for surgical repair of his hernia on June 19, 1994. The VA hospitalization record was apparently accepted as an informal claim. Therefore, the RO assigned an effective date of June 19, 1994, as the date of the claim. Prior to June 19, 1994, there is no record of a formal for compensation under 38 U.S.C.A. § 1151, and the record contains no communication or treatment record that could be considered an informal claim for VA compensation for the same. Also, the Veteran's formal claim for 1151 benefits was not received within a year of the date injury was suffered that is by May 30, 1994. 38 C.F.R. § 3.400(i). Therefore, there is no legal basis upon which the Veteran could have an effective date of May 30, 1993, or any date prior to June 19, 1994, for the assignment of a 100 percent schedular rating or any schedular rating. In order to obtain an effective date earlier than December 1, 2003, for the 100 percent schedular rating, the evidence would have to show entitlement to a 100 percent schedular rating before December 1, 2003. Prior to December 1, 2003, the Veteran had staged ratings since June 19, 1994. Specifically, he had a temporary total rating assigned from June 19, 1994; a 20 percent rating from August 1, 1994; a temporary total rating from February 14, 1995; a 20 percent rating from April 1, 1995; a 40 percent rating from December 20, 1999; a temporary total rating from July 20, 2003. In its decision in July 2010, the Board adjudicated whether the Veteran was entitled to higher ratings for the periods from August 1, 1994, to February 13, 1995; from April 1, 1995, to December 19, 1999; and from December 20, 1999, to December 1, 2003. The Board determined that the criteria for a 100 percent schedular rating for a ventral hernia with colostomy were not met at any time from June 19, 1994, to December 1, 2003. See Fenderson v. West, 12 Vet. App. 119; AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board's decision is final and is not subject to revision on the same factual basis. 38 U.S.C.A. §§ 5108, 7103, 7104 (a). Accordingly, the evidence of record does not show entitlement to a 100 percent schedular rating before December 1, 2003. With regarding the exception to the effective date for a claim for increase the exception does not apply because the case involves an initial rating, following the initial grant of benefits under 38 U.S.C.A. § 1151. And no disability rating for the ventral hernia with colostomy can be assigned before the effective date of the grant of benefits under 38 U.S.C.A. § 1151, that is, before June 19, 1994, for the reasons already discussed. There is no other legal basis by which an earlier effective date, for the grant of a 100 percent schedular rating for service-connected ventral hernia with colostomy may be assigned. ORDER Entitlement to an effective earlier than December 1, 2003, for the grant of a 100 percent schedular rating for service-connected ventral hernia with colostomy is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs