Citation Nr: 1320523 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 09-44 124 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than March 2, 2007 for the award of a 30 percent evaluation for irritable bowel syndrome. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD K. Osegueda, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1988 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Montgomery, Alabama. In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. A review of the documents in the paperless claims file reveals that they are either duplicative of the evidence in the paper claims file or they are irrelevant to the issue on appeal. FINDINGS OF FACT 1. The most recent claim for an increased rating for irritable bowel syndrome was received March 2, 2007. 2. It was not factually ascertainable that an increase in disability of irritable bowel syndrome occurred during the preceding year. CONCLUSION OF LAW The criteria for an effective date prior to March 2, 2007 for a 30 percent evaluation for irritable bowel syndrome have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012), redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, VA 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; and (3) that the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In an August 2008 letter, the RO notified the Veteran of the evidence needed to substantiate the claim for an earlier effective date. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service private and VA treatment records. The determination in this case turns on when the Veteran filed his claim for an increased rating for his irritable bowel syndrome and on the earliest effective date allowed by law. There is no indication or suggestion from the Veteran that any claim he believes was filed is not associated with the claims file. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. Therefore, the claim for an earlier effective date is ready to be considered on the merits. Laws and Regulations The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002 & Supp. 2012) and 38 C.F.R. § 3.400 (2012). Congress has provided that, unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim will be the day following service or date entitlement arose if the claim for service connection is received within one year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(b)(2)(i). Under 38 U.S.C.A. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). A claim is defined 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). In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court addressed the issue of entitlement to an earlier effective date and pointed out that the applicable statutory and regulatory provisions, properly construed, require that the Board look to all communications in the file that may be interpreted as applications for claims, formal and informal, for increased benefits and, then, to all other evidence of record to determine the "earliest date as of which," disability is ascertainable. 38 U.S.C.A. § 5110(b)(2); see also 38 C.F.R. § 3.400(o)(2); 3.155(a) (2012); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Factual Background and Analysis The Veteran has appealed the denial of an effective date earlier than March 2, 2007 for the assignment of a 30 percent disability evaluation for irritable bowel syndrome. After review of the record, the Board finds that the currently assigned effective date of the award is the most appropriate effective date in this case. Historically, review of the record discloses that the Veteran filed an application to reopen a claim of service connection for irritable bowel syndrome in January 2006. In a June 2006 rating decision, the RO determined that new and material evidence had not been submitted to reopen the claim. The RO properly notified the Veteran of this determination by a letter dated in June 2006. In July 2006, the Veteran's representative noted that a previously submitted VA treatment note, dated in May 2006, was not considered in the rating decision. Thereafter, by a rating decision dated in November 2006, the RO granted service connection for irritable bowel syndrome and assigned a 10 percent evaluation, effective on September 9, 2002. The RO properly notified the Veteran of this determination by letter dated in December 2006. In March 2007, the Veteran filed a claim for an increased rating for irritable bowel syndrome. Following VA examination in August 2007, from which the RO determined that his gastrointestinal symptoms had worsened, a 30 percent disability rating was awarded, effective from the date of the claim received on March 2, 2007. Initially, the Board has thoroughly reviewed the record to determine whether there were any unrecognized claims, informal claims, or evidence showing an intent to file a claim. Our review reflects that there were no new claims for an increased rating prior to the claim received on March 2, 2007. The Board must review the evidence to determine whether it is factually ascertainable that an increase in disability occurred within the one-year period prior to March 2, 2007. See 38 U.S.C.A. § 5110 (b)(2); see also 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet.App. 125, 126 (1997). In this regard, VA outpatient records dating from March 2006 demonstrate that the Veteran sought treatment and diagnostic work-up primarily for complaints and disorders of abdominal pain. In a March 2006 VA gastroenterology consultation, the Veteran reported he had chronic abdominal pain and discomfort and severe reflux. Thereafter, he underwent an Esophagoscopy Gastroscopy Duodenoscopy (EGD) and colonoscopy in April 2006. The endoscopy and colonoscopy revealed non-significant findings with no evidence of any bowel obstruction or pathology. An April 2006 VA endoscopy outpatient note indicated that the Veteran's discharge diagnoses were mild gastritis and mild, nonspecific colitis. He was advised to continue taking Pepto-Bismol and the discharge note included no dietary restrictions. In a May 2006 VA gastroenterology note, the gastroenterologist noted that the Veteran underwent a colonoscopy that showed no evidence of any pathology or illness. The Veteran complained that he had diarrhea three to four times per day immediately after eating with significant urgency and frequency. The diagnosis was irritable bowel syndrome and the Veteran was directed to continue to use Pepto-Bismol and restrict his diet to control his symptoms. In a February 2007 letter, received with the reopened claim for an increase, a private physician, who noted that he had previously evaluated the Veteran at the VA Medical Center (VAMC), indicated that the Veteran continued to have unrelenting symptoms of chronic diarrhea, abdominal pain, cramping, and discomfort. He took Pepto-Bismol four times per day which alleviated some of his diarrhea but did not completely resolve his abdominal pain and discomfort. He also noted that the Veteran had a normal colonoscopy one year ago. There were normoactive bowel sounds in all four quadrants. The abdomen was soft and non-distended. The Board finds that the generalized abdominal pain complaints and statements the Veteran made during treatment for gastroenterology complaints between March 2006 and March 2007 do not rise to the level that approximates the criteria for a 30 percent disability rating under 38 C.F.R. § 4.114, Diagnostic Code 7319 (2012) (irritable colon syndrome) under which he is currently rated. He has complained of more significant symptoms than have been clinically established. While there are VA outpatient records dated within one year of the written claim for an increased rating, the treatment notes do not establish any increase in disability within the one year prior to the claim. Thus, 38 U.S.C.A. § 5110(b) is not applicable. Specifically, there is no indication that he had severe irritable colon syndrome with diarrhea or alternating diarrhea and constipation, with more or less constant abdominal distress to warrant an evaluation in excess of 10 percent prior to March 2, 2007. In fact, an April 2006 colonoscopy procedure showed non-significant findings with no evidence of any bowel obstruction or any pathology, and his discharge diagnosis was mild gastritis and mild, nonspecific colitis. Subsequent findings included normal bowel signs without reports of constipation. There is reported relief with medication during this earlier time. Similar findings were recorded on the February 2007 letter. It was not until VA examination in August 2007 that the evidence provides more findings pertaining to increased symptoms of irritable bowel syndrome (including episodic diarrhea four to six times daily with more than 12 episodes per year for three days at a time, alternating with constipation) that the benefit of the doubt was invoked to find a basis to award a 30 percent disability evaluation for the service-connected irritable bowel syndrome, effective on the date of the claim for an increased rating. The Board acknowledges the Veteran's contentions that he has had severe gastroenterology symptoms as early as September 2002, the effective date of the initial 10 percent evaluation, and that the disability should have been rated 30 percent disabling going back for years. See July 2008 claim. However, the Board notes that even if an increase in disability precedes the claim by more than a year, which is not the case here, the effective date is the date that the claim is received (date of claim). 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (explaining the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide veterans with a one-year grace period for filing a claim following an increase in a service-connected disability). The evidence in the year preceding the current claim revealed mild symptoms objectively confirmed, as discussed above. In consideration of the above, and under the circumstances, the effective date is governed by the date of receipt of the claim which is March 2, 2007. As the applicable law and regulatory provisions are clear as to this matter, the Board concludes that the appeal for an earlier effective date for the grant of a 30 percent disability rating for irritable bowel syndrome must be denied. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). (CONTINUED ON NEXT PAGE) ORDER An effective date earlier than March 2, 2007 for the award of a 30 percent evaluation for irritable bowel syndrome is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs