Citation Nr: 1314968 Decision Date: 05/07/13 Archive Date: 05/15/13 DOCKET NO. 10-29 866 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to service connection for gastroesophageal reflux disease (GERD). 2. Entitlement to an effective date earlier than January 23, 2004, for the assignment of a disability rating of 100 percent (or higher than 20 percent) for common variable immunodeficiency (CVID) manifested by colitis, diarrhea, history of duodenal ulcer, and chronic sinusitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to August 1963. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the New York, New York Regional Office (RO) of the United States Department of Veterans Affairs (VA). In a February 2007 decision, the RO denied service connection for GERD. In a May 2010 decision, the RO combined service-connected disabilities that previously were rated separately, and assigned for the combined disability a 100 percent disability rating effective January 23, 2004. In March 2013 the Veteran had a hearing at the Board's offices in Washington, DC, before the undersigned Veterans Law Judge (VLJ). In the hearing, the Veteran withdrew his appeal for service connection for GERD. The Board has reviewed both the Veteran's physical claims file and the Veteran's file on the Virtual VA electronic file system, to ensure a total review of the evidence. In a July 2012 written statement and in the March 2013 Board hearing, the Veteran raised the issue of clear and unmistakable error (CUE) in a March 1964 rating decision in which the RO granted service connection for duodenal ulcer and assigned a 20 percent disability rating. That issue has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. In a March 2013 Board hearing, prior to promulgation of a decision in the appeal for service connection for GERD, the Veteran withdrew that appeal. 2. On January 23, 2004, the RO received the Veteran's claim for service connection for sinusitis. That claim became what has become to be evaluated as CVID manifested by colitis, diarrhea, history of duodenal ulcer, and chronic sinusitis. 3. During the year preceding January 23, 2004, it did not become factually ascertainable that an increase in disability had occurred in any of the disorders that have come to be evaluated as CVID manifested by colitis, diarrhea, history of duodenal ulcer, and chronic sinusitis. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of service connection for GERD have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. A disability rating higher than 20 percent for the disorders that have come to be evaluated as CVID manifested by colitis, diarrhea, history of duodenal ulcer, and chronic sinusitis may not be effective earlier than January 23, 2004, the date of receipt of a claim for a higher rating or ratings. 38 U.S.C.A. §§ 5107, 5110(a) (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determinations being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). The Veteran sought service connection for GERD separate from established service connection for CVID manifested by colitis, diarrhea, history of duodenal ulcer, and chronic sinusitis. In the March 2013 Board hearing the Veteran communicated that he was withdrawing his appeal for separate service connection for GERD. A written transcript of the hearing is associated with the record for the Veteran's case. Thus, with respect to the GERD service connection claim, there is no remaining allegation of error of fact or law for appellate consideration, and the appeal is withdrawn. Accordingly, the Board does not have jurisdiction to review the appeal of that claim, and the appeal of that claim is dismissed. Effective Date In November 1963, the Veteran filed a claim for service connection and disability compensation for several conditions. In a March 1964 rating decision, the RO granted service connection for duodenal ulcer, and assigned a disability rating of 20 percent. The Veteran did not appeal. On January 23, 2004, the RO received the Veteran's claim for service connection for sinusitis. In a February 2007 rating decision, the RO granted service connection, effective January 23, 2004, for sinusitis. The RO assigned a 30 percent rating. The RO changed the description for the service-connected disability duodenal ulcer to "chronic infectious lymphoid colitis with combined immunoglobulin G/immunoglobulin A deficiency and duodenal ulcer." Effective April 15, 2005, the RO increased the rating for that disability to 60 percent. In a May 2010 rating decision, the RO changed from having separate digestive system disability and sinusitis to one service-connected disability, described as "common variable immunodeficiency (CVID) manifested by colitis with diarrhea and history of duodenal ulcer and chronic sinusitis." The RO indicated that the combined disability was rated at 20 percent from August 29, 1963, and 100 percent from January 23, 2004. The Veteran appealed the January 23, 2004, effective date for the 100 percent rating combined CVID disability. He essentially contends that the 100 percent rating should be effective earlier, or that a rating higher than 20 percent should be effective earlier. Unless otherwise provided, the effective date for an award of compensation for service-connected disability shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. The effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an award of increased disability compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within year from such date, and otherwise the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. In January 2004 the Veteran requested service connection for sinusitis and in April 2005 he requested an increased rating for a stomach condition. The date of receipt of a claim for a higher evaluation for any part of what eventually was addressed as the combined CVID disability therefore was January 23, 2004, the date of receipt of the claim for service connection for sinusitis, because a grant of service connection and a compensable rating for sinusitis would increase the rating for the combined CVID disability. An earlier effective date for a rating higher than 20 percent for the combined CVID disability rating may be warranted if during the year preceding January 23, 2004, it became factually ascertainable that an increase in disability had occurred. The Veteran's service-connected CVID disability has been manifested by duodenal ulcer, colitis, diarrhea, fatigue, sinusitis, and impaired immunity. The VA rating schedule provides for evaluating duodenal ulcer as follows: Severe; pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health ......................... 60 percent Moderately severe; less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year ..................... 40 percent Moderate; recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations ................ 20 percent Mild; with recurring symptoms once or twice yearly ........................................................... 10 percent 38 C.F.R. § 4.114, Diagnostic Code 7305 (2012). The rating schedule provides for evaluating irritable colon syndrome as follows: Severe; diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress ..... 30 percent Moderate; frequent episodes of bowel disturbance with abdominal distress ..................................... 10 percent Mild; disturbances of bowel function with occasional episodes of abdominal distress ......................... 0 percent 38 C.F.R. § 4.114, Diagnostic Code 7319 (2012). The rating schedule provides for evaluating sinusitis as follows: Following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries ..................... 50 percent Three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting ........................ 30 percent One or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting ........................ 10 percent Detected by X-ray only ................................. 0 percent Note: An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6510 (2012). The RO has evaluated the Veteran's CVID as an immune disorder, as comparable to lupus erythematosus, under 38 C.F.R. § 4.88b, Diagnostic Code 6350, which provides as follows: Acute, with frequent exacerbations, producing severe impairment of health ................................. 100 percent Exacerbations lasting a week or more, 2 or 3 times per year ........................................................... 60 percent Exacerbations once or twice a year or symptomatic during the past 2 years .............................................. 10 percent Note: Evaluate this condition either by combining the evaluations for residuals under the appropriate system, or by evaluating DC 6350, whichever method results in a higher evaluation. On VA examination in December 1963, the Veteran reported having frequent diarrhea. He reported that for about one week out of each month he had watery stools about twelve times daily. He indicated that he was always tired, and that he was maintaining the same weight. In the March 2013 Board hearing, the Veteran indicated that during or around the period from January 2003 to January 2004 he had bad sinus problems, chronic diarrhea, and fatigue. The claims file contain records of VA and private medical treatment of the Veteran from the 1990s forward. Those records show longstanding gastrointestinal problems manifested by diarrhea and longstanding sinus problems. The records that are dated between January 23, 2003, and January 23, 2004, do not show for the first time that the gastrointestinal, sinus, and overall health manifestations of the Veteran's CVID had increased such that they warranted a rating higher than the rating that was assigned, a 20 percent rating for gastrointestinal problems. The records from that period do not show that the Veteran had weight loss, anemia, or incapacitating episodes of gastrointestinal problems, and do not show for the first time that he had more or less constant abdominal distress. Those records do not show that the Veteran had at least three non-incapacitating episodes per year of sinusitis. The records do not show for the first time that the Veteran had immune disorder exacerbations one or more times per year. During the year preceding January 23, 2004, then, it did not become factually ascertainable that an increase in the Veteran's CVID disability had occurred. Therefore, the effective date for the increased rating may not be before January 23, 2004, the date of receipt of the claim for the increase. Simply stated, the Board has no basis to go beyond the date of this claim for an increase. Even the Veteran's own testimony at hearing would not provide a basis to find that within one year of his January 2004 claim there was enough evidence to increase the evaluation at that time. While the Board has considered the Veteran's contentions, it is important for the Veteran to understand that a review of the evidence of record makes it clear that for many years it was highly difficult for medical providers to determine the etiology of the Veteran's problem. The Veteran's own statements and claims in November 1963 and January 2004 indicate that the Veteran himself was having difficulty indentifying the problem he was suffering from, providing evidence against this claim in this respect: Indentifying the disability is the first step before VA can compensate a Veteran for the residuals of that disability. If the disability is not indentified in a timely manner, compensation (or increased compensation) cannot begin. As the understanding of the disability increased, the evaluation of the disability increased. Retroactive review of the record, however, is not allowed. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The RO provided the Veteran with VCAA notice in letters issued in September 2006, May 2008 and July 2008, and September 2010. Those letters addressed the information and evidence necessary to substantiate claims for service connection and increased disability ratings and informed the Veteran how VA assigns effective dates. The letters also addressed who was to provide the evidence. The claims file (including the electronic records) contains the Veteran's service medical records, post-service medical records, VA medical examination reports, and a transcript of the March 2013 Board hearing. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. In the March 2013 hearing the VLJ fully explained the issues on appeal and inquired as to the existence of any relevant evidence not included in the file. The Veteran was assisted at the hearing by a representative from Disabled American Veterans who asked the Veteran questions about the issues on appeal. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor identified any prejudice in the conduct of the Board hearing. As such, the Board finds that the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the hearing was harmless error. The Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claim, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claim on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). ORDER The appeal for service connection for GERD is dismissed. Entitlement to an effective date earlier than January 23, 2004, for the assignment of a disability rating higher than 20 percent for CVID manifested by colitis, diarrhea, history of duodenal ulcer, and chronic sinusitis, is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs