Citation Nr: 1328197 Decision Date: 09/04/13 Archive Date: 09/10/13 DOCKET NO. 06-26 234 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to a rating in excess of 30 percent for deformity of the duodenal bulb with gastroesophageal reflux symptoms. 2. Entitlement to an effective date earlier than July 9, 2005, for the 30 percent rating for deformity of the duodenal bulb with gastroesophageal reflux symptoms. (The issue of service connection for a psychiatric disability, characterized as a major depressive disorder will be the subject of a separate decision.) REPRESENTATION Appellant represented by: Joseph R. Moore, Attorney at Law WITNESSES AT HEARING ON APPEAL The Veteran and J.N. ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from October 1974 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the VA Regional Office (RO) in North Little Rock, Arkansas. In August 2007, the RO increased the disability rating to 30 percent disabling, effective July 9, 2005. The Board notes that since the increase did not constitute a full grant of the benefit sought, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). In May 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The case was remanded in August 2009 to obtain Social Security Administration (SSA) records. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observes that since the most recent supplemental statement of the case (SSOC) in August 2010, additional evidence was received at the RO consisting of medical records beginning in 2010 as well as VA examinations in 2012. When additional evidence is received by the agency of original jurisdiction (AOJ) prior to the transfer of records to the Board, an SSOC will be furnished unless the additional evidence received duplicates evidence previously of record or the additional evidence is not relevant to the issue on appeal. 38 C.F.R. § 19.37 (2012). As discussed in the remand below, the issue of a rating in excess of 30 percent for deformity of the duodenal bulb with gastroesophageal reflux symptoms requires that an additional SSOC be issued. As regards the earlier effective date claim, the additional evidence received is not relevant as to this issue as it shows the severity of the Veteran's disability from 2010 to the present and does not contain any evidence pertinent to whether the currently assigned 30 percent rating was warranted prior to July 9, 2005. Consequently, a remand for an SSOC for this issue is not necessary. The issue of a rating in excess of 30 percent for deformity of the duodenal bulb with gastroesophageal reflux symptoms being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's current claim for an increased rating for deformity of the duodenal bulb with gastroesophageal symptoms was received on November 9, 2005. 2. There is no evidence of record prior to July 9, 2005, during the year prior to November 9, 2005, which demonstrates that it is factually ascertainable that an increase in disability occurred so that the Veteran became entitled to a 30 percent disability rating for his deformity of the duodenal bulb with gastroesophageal reflux symptoms. CONCLUSION OF LAW The criteria for an effective date earlier than July 9, 2005, for the assignment of a 30 percent rating for deformity of the duodenal bulb with gastroesophageal reflux symptoms have not been met. 38 U.S.C.A. §§ 5101, 5103, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist The 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). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The notice 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. Such notice 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). The Veteran was notified in letters dated in January 2006, May 2008 and March 2012 regarding the type of evidence necessary to establish his claim. He was instructed that to show entitlement to an increased evaluation for his service-connected disability, the evidence must show that the disability has gotten worse. The Veteran was notified of what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. In addition, a March 2006 letter as well as the May 2008 and March 2012 letters notified the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, VA obtained the Veteran's post-service medical records, SSA records and also secured examinations in furtherance of his claims. Pertinent VA examinations were obtained in February 2006, August 2007, January 2009, April 2012 and June 2012. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable law and regulations, and offered well supported opinions based on consideration of the full history of the disorder. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). II. Analysis The Veteran contends that he is entitled to an effective date earlier than July 9, 2005, for the assignment of a 30 percent rating for deformity of the duodenal bulb with gastroesophageal reflux symptoms. See, e.g., April 2006 notice of disagreement. To the extent that the Veteran's former representative argued that the Veteran was entitled to a 30 percent rating dating back to his initial claim in the 1970s, the representative specifically reported that she did not "at this point want to say [clear and unmistakable error] CUE but if it happens to fall under that, that's kind of where I'm going." T. at 5. To date, no specific CUE claim has been raised as to the initial rating decision granting service connection and rating the disability as zero percent disabling. Consequently, the Board will not address contentions indicating CUE. The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C.A. § 5110(a) and (b)(2) (West 2002) and 38 C.F.R. § 3.400(o) (2012). The general rule as to the effective date of an award of increased compensation is that the effective date of the award "shall not be earlier than the date of receipt of the application thereof." 38 U.S.C.A. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the 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)(1)(2); VAOPGCPREC 12-98 (1998). Any communication or action, indicating an intent to apply for VA benefits from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2012). The date of receipt of evidence from a private physician or a lay person will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows a reasonable possibility of entitlement to benefits. 38 C.F.R. § 3.157(b)(2) (2012). Also, the date of VA outpatient or hospital examination, or the date of admission to a VA or uniformed services hospital, will be accepted as the date of receipt of a claim when the report of such treatment or examination relates to a disability for which increased compensation is sought. 38 C.F.R. § 3.157(b)(1) (2012). In this case, the Veteran was initially granted service connection and assigned a zero percent or noncompensable rating in a June 1977 rating decision. There is no contention that the Veteran appealed the June 1977 rating decision that assigned a noncompensable rating for his stomach disability. The June 1977 determination is final. Increased rating claims were denied in December 1982 and November 1991. The Veteran did not appeal either of those decisions. In finding that the June 1977, December 1982 and November 1991 rating decisions are final, the Board is cognizant of the recent holding of the United States Court of Appeals for the Federal Circuit (Federal Circuit) in Bond v. Shinseki, 659 F.3d 1362 (2011). In that case, the Federal Circuit found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions during relevant time periods to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362 (2012). Here, no additional evidence pertinent to the issue of the severity of the Veteran's deformity of the duodenal bulb with gastroesophageal reflux symptoms was received within one year of each of those rating decisions. Those rating decisions are thus final. As such, entitlement to an earlier effective date for a 30 percent rating for deformity of the duodenal bulb with gastroesophageal reflux symptoms is not warranted on this basis. The Veteran was hospitalized for a few days beginning July 9, 2005, for symptoms associated with this service-connected disability. A claim for an increased rating was received by the RO on November 9, 2005. The evidence does not show, nor does the Veteran contend, that an informal or formal claim for an increase was filed prior to November 9, 2005. A review of the claims file fails to show that any claim was received between the November 1991 rating decision denying an increased rating and the November 9, 2005, increased rating claim. Although additional treatment records for the Veteran were received during this time period, as they did not show an increase in disability until the July 9, 2005, treatment records, the Board concludes that they do not raise informal claims for an increased rating. As no claim was filed prior to November 9, 2005, an earlier effective date based on an earlier claim is not warranted. As the November 1991 rating decision is final and as no claim was received prior to November 9, 2005, the Veteran can only be granted an earlier effective date if there is medical evidence of record within the one year period prior to November 9, 2005, showing that the 30 percent rating was warranted. In this case, the RO assigned the 30 percent rating effective July 9, 2005, as that is the date that the evidence showed that an increased rating was warranted. Treatment records prior to July 9, 2005, did not show a worsening of the Veteran's condition. There is no medical evidence of record showing that the Veteran's disability warranted a 30 percent evaluation between November 2004 and July 9, 2005. In this case, the earliest date showing that the Veteran's disability had increased in severity within the one year period prior to his November 2005 claim is the July 9, 2005, record showing that the Veteran was admitted to the hospital for this disability. Therefore, an earlier effective date prior to July 9, 2005, is not warranted. As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply, and the Veteran's claim of entitlement to an effective date earlier than July 9, 2005, for the assignment of a 30 percent rating for deformity of the duodenal bulb with gastroesophageal reflux symptoms is denied. See 38 U.S.C.A §5107 (West 2002 & Supp. 2012). ORDER Entitlement to an effective date earlier than July 9, 2005, for the 30 percent rating for deformity of the duodenal bulb with gastroesophageal reflux symptoms is denied. REMAND Regrettably, another remand of the issue of a rating in excess of 30 percent for deformity of the duodenal bulb with gastroesophageal reflux symptoms is required. As noted in the Introduction, since the most recent SSOC, additional evidence was received at the RO consisting of medical records beginning in 2010 as well as VA examinations in 2012. When additional evidence is received by the AOJ prior to the transfer of records to the Board, an SSOC will be furnished unless the additional evidence received duplicates evidence previously of record or the additional evidence is not relevant to the issue on appeal. 38 C.F.R. § 19.37. In this case, a rating decision instead of an additional SSOC was issued as the RO mistakenly believed that the Veteran had filed a new claim for an increased rating, even though his appeal of the March 2006 rating decision was still pending. However, as 38 C.F.R. § 19.37 requires that an SSOC be issued, the Board concludes that a remand is necessary for the issuance of an SSOC addressing the Veteran's increased rating claim. As a remand is necessary, any additional treatment records identified by the Veteran should be obtained. The Veteran receives VA treatment through the Central Arkansas Health Care System (HCS) and has also received private treatment. On remand, records of any VA and private treatment that the Veteran has recently received should be obtained. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the case is REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, procure records of post-service treatment that the Veteran has recently received. The Board is particularly interested in records of treatment that the Veteran may have received from the Central Arkansas HCS as well as from private physicians. If any such records identified by the Veteran are not available, he should be so informed, and notations as to the unavailability of such records and as to the attempts made to obtain the documents should be made in the claims file. All such available reports should be associated with the claims folder. 2. Then, readjudicate the increased rating issue remaining on appeal. If any benefit remains denied, the Veteran should be provided a supplemental statement of the case and given an appropriate opportunity to respond. The case should then be returned to the Board for further consideration. The Veteran has the right to submit additional evidence and argument on the 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. 2012). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs