Citation Nr: 1323277 Decision Date: 07/22/13 Archive Date: 08/01/13 DOCKET NO. 08-36 297 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to an effective date prior to May 15, 2006, for the award of a 30 percent evaluation for ulcerative colitis, stats post total colectomy and reattachment of the small intestine to the rectum (colitis). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Scott Walker, Counsel INTRODUCTION The Veteran served on active duty from November 1980 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which recharacterized the Veteran's service-connected hemorrhoids as ulcerative colitis (based on the findings shown at a September 2006 VA examination) and increased the evaluation for this disability from 0 percent to 30 percent, effective from May 15, 2006. The Board remanded the Veteran's claim for further development in September 2010. FINDINGS OF FACT 1. The Veteran filed a claim for an increased rating for the issue on appeal that was received by the RO on May 15, 2006. 2. There is no evidence of any earlier pending formal or informal claim, or supporting medical evidence that a compensable rating was warranted within one year of May 15, 2006. CONCLUSION OF LAW The criteria for an effective date earlier than May 15, 2006, for the assignment of a 30 percent rating for colitis have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.400, 3.501, 3.654, 3.700 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 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 AOJ. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran was notified of the provisions of the VCAA by the RO in correspondence dated in May 2006. The pre-adjudication letter notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified the Veteran's duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. In a November 2006 rating decision, the RO awarded the Veteran a 30 percent rating for the Veteran's service-connected colitis, effective May 15, 2006. In an October 2008 Statement of the Case, the RO denied entitlement to an earlier effective date for the evaluation of colitis. The Veteran appealed the assignment of the effective date for the 30 percent rating. The Veteran's claim for an earlier effective date arises from his disagreement with the assigned effective date for the award listed above. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In addition, it is clear from the Veteran's communications that he is cognizant as to what is required of him and of VA. The RO has obtained service. VA and private treatment records, and these records have been associated with the claims file. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Pursuant to a September 2010 Board remand, relevant treatment records appeared to be missing, to include private treatment reports reflecting his initial diagnosis for colitis in 1993. The Appeals Management Center (AMC) provided the Veteran with the appropriate release forms, and the Veteran submitted additional medical records thereafter. There is no indication that any additional, pertinent records are outstanding and not associated with the claims file. Consequently, neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Earlier Effective Date In this case, the Veteran and his representative have repeatedly asserted that he is entitled to an effective date earlier than May 15, 2006, for the award of a 30 percent evaluation for his service-connected colitis. More specifically, he has contended that evidence of record documented that he was entitled to a 30 percent rating prior to his separation from service, which is in itself specifically barred by VA regulations. See 38 C.F.R. § 3.400. The applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be 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. The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); see also 38 C.F.R. § 3.400(o); 38 C.F.R. § 3.157. In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In determining whether or not an increase was factually ascertainable during the year prior to receipt of an increased rating claim, the Board will review the entirety of the evidence of record. Hazan v. Gober, 10 Vet. App. 511, 520 (1997) (also holding that for effective date purposes, the claim must be the application on the basis of which the rating was awarded); Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."); Wright v. Gober, 10 Vet. App. 343, 346-47 (1997) (holding that an application that had been previously denied could not preserve an effective date for a later grant of benefits based on a new application). The terms "claim" and "application" mean 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). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r) (2012). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or a person acting as next friend of the claimant who is not sui juris, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a) (2012). In Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009), the Court has held that an informal claim must be (1) a communication in writing that (2) expresses an intent to apply for benefits, and (3) identifies the benefits sought. See also Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate original claim for benefits, "the claimant must submit a written document identifying the benefit and expressing some intent to seek it"). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The Court has held that the failure to consider evidence which may be construed as an earlier application or claim, formal or informal, that would have entitled the claimant to an earlier effective date is remandable error. Lalonde v. West, 7 Vet. App. 537, 380 (1999); see also 38 U.S.C.A. § 7104(a); Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992). The Court has held, however, that the Board is not required to "conjure up issues that were not raised by the appellant." Brannon v. West, 12 Vet. App. 32 (1998). Once a formal claim for pension or compensation has been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of an outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of an informal claim for increased benefits or an informal claim to reopen. Provided, the medical reports relate to examination or treatment of a disability for which service connection has previously been established. 38 U.S.C.A. § 501(a); 38 C.F.R. § 3.157(b)(1). Here, the Veteran has asserted that the effective date for his 30 percent rating for service-connected colitis should go back to "the date of the original misdiagnosis" while treated at Wright-Patterson Air Force Base in or around October 1988. See Statement, November 6, 2008. Per the Veteran, he was misdiagnosed during his period of active service, when he reported with stomach cramps and bloody diarrhea. A "short scope" was performed, though not a full colonoscopy, and the Veteran was told that his bleeding was caused by stress. He further indicated that he suffered with the symptoms of pain and bleeding for months before they subsided. According to the Veteran, he did not receive a diagnosis for ulcerative colitis until June 1993. At that time, he did not immediately make the connection between his current symptoms and those experienced during his period of active duty, and he did not file a claim for this specific disorder. After a VA examiner informed him of the misdiagnosis in November 2006, VA granted an increased rating under a new Diagnostic Code based on that opinion (despite the lack of a formal or informal claim for colitis) dating back to the date the Veteran filed a claim for an increase for every service-connected disability in May 2006. The Veteran was originally granted service connection for hemorrhoids in March 1990, and he did not perfect an appeal to that rating decision; it became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.200, 20.1103 (2012); Hanson v. Brown, 9 Vet. App. 29, 31 (1996). As noted above, subsequent to the November 2006 VA examination report, the Veteran's Diagnostic Code was changed to reflect his colitis diagnosis, which was found to have existed since service, and a higher rating of 30 percent was assigned at that time to reflect frequent exacerbations of ulcerative colitis or residuals thereof. The Veteran's colitis has been assigned a rating of 30 percent pursuant to Diagnostic Codes 7329-7323. 38 C.F.R. § 4.114 (2012). Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating. 38 C.F.R. § 4.27 (2012). Diagnostic Code 7323 assigns a 10 percent rating when the symptoms are moderate with infrequent exacerbations. A 30 percent is warranted when the symptoms are moderately severe with frequent exacerbations. A 60 percent evaluation is warranted when the symptoms are severe, there are numerous attacks a year and the Veteran's health is only fair during remissions. A total rating is warranted when symptoms are pronounced and result in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. Diagnostic Code 7329 provides ratings for resection of the large intestine. Resection of the large intestine with slight symptoms is rated 10 percent disabling. Resection of the large intestine with moderate symptoms is rated 20 percent disabling. Resection of the large intestine with severe symptoms, objectively supported by examination findings, is rated 40 percent disabling. A Note to that code provides that, where residual adhesions constitute the predominant disability, the disability is to be rated under Diagnostic code 7301. 38 C.F.R. § 4.114, Diagnostic Code 7329. The Board has carefully reviewed all of the evidence of record, but finds that the assignment of an effective date prior to May 15, 2006, is not warranted for the assigned 30 percent rating for the Veteran's service-connected colitis. Post-service VA and private treatment records demonstrate recurring treatment for colitis, to include multiple surgical procedures. However, when looking to the period beginning with his initial rating, there is no evidence of any earlier pending formal or informal claim for an increased rating for colitis between the March 1990 rating decision that granted service connection and assigned a noncompensable rating, and the May 15, 2006, claim for an increased rating. The Board finds that the earliest date of receipt of any increased rating claim for colitis by the RO would be on May 15, 2006, which is the currently-assigned effective date. In fact, the Veteran's June 2013 Brief supports this. In that document, his representative notes that service connection for hemorrhoids was granted in a March 1990 decision, and thereafter a claim for an increased was received by the RO in May 2006. At no time has the Veteran or his representative referenced any form of communication between those two dates which could be interpreted as a claim for an increased rating. Furthermore, the Board has determined that none of the correspondence received during the one-year time period from March 1990 to March 1991 can be construed as a notice of disagreement (NOD) with the March 1990 rating decision. While special wording is not required, the NOD must be in terms that can reasonably be construed as disagreement with the determination and a desire for appellate review. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2012); see also Gallegos v. Principi, 283 F.3d 1309 (Fed. Cir. 2002); Ortiz v. Shinseki, 23 Vet. App. 353, 361 (2010) (indicating that "mere dissatisfaction is the essence of an NOD" but may not be sufficient for a substantive appeal). Even on liberal review, no statement received during this time period expresses disagreement or a desire for appellate review. While the Veteran filed a claim for an increased rating for his service-connected toe in October 1997, that statement did not mention any other service-connected disability. Further, while various private and VA reports indicate severe symptomatology corresponding with the issue on appeal, these reports were not accompanied by any claim for an increased evaluation within one year (as no such claim was submitted by the Veteran until May 2006). Further, as to treatment reports dated within one year prior to the Veteran's claim for an increased rating, there is currently no evidence of record to show that, within that time frame, the Veteran's disability was more severe than currently rated. In fact, while records prior to, and subsequent to that period show treatment for serious colitis symptoms, to include surgical intervention, there is no report of colitis treatment within that time frame, save for a September 2005 CT scan indicating post-total colectomy. For the foregoing reasons, the record does not provide a basis for assignment of an effective date earlier than May 15, 2006, for a compensable rating for the Veteran's service-connected colitis. The Veteran has not properly raised an allegation of CUE with any prior final RO or Board decision, and because no claim was filed prior to May 2006 for an increased rating for colitis, his claim must be denied. Since the preponderance of the evidence is against this claim, the benefit of the doubt doctrine does not apply. See Schoolman v. West, 12 Vet. App. 307, 311 (1999). ORDER An effective date prior to May 15, 2006, for the award of a 30 percent rating for colitis is denied. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs