Citation Nr: 1342225 Decision Date: 12/20/13 Archive Date: 12/31/13 DOCKET NO. 10-23 115 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island THE ISSUE Entitlement to an effective date earlier than May 22, 2009 for the assignment of a 60 percent rating for the service-connected status post left lower lobectomy for bronchiectasis. REPRESENTATION Appellant represented by: Massachusetts Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from March 1960 to March 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the RO. In May 2012, the Veteran testified at a hearing held at the RO before the undersigned Veterans Law Judge. The VBMS and Virtual VA folders have been reviewed. FINDINGS OF FACT 1. In an October 2006 rating action, the RO continued a 30 percent rating for the service-connected status post left lower lobectomy for bronchiectasis. The Veteran disagreed with the evaluation and a Statement of the Case was furnished to him in May 2007; a timely Substantive Appeal was not received. 2. The Veteran's next claim for increase was received on May 22, 2009. 3. A factually ascertainable increase in disability is not shown during the one-year period preceding the receipt of the Veteran's claim on May 22, 2009. CONCLUSION OF LAW The criteria for the assignment of an effective date earlier than May 22, 2009 for a 60 percent rating for the service-connected status post left lower lobectomy for bronchiectasis are not met. 38 U.S.C.A. §§ 1155, 5110, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400(o)(2), 4.96, 4.97 including Diagnostic Codes 6600, 6601, 6844 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. The appeal regarding an earlier effective date is a "downstream" issue in that it arose following the grant of an increased evaluation to 60 percent for service-connected respiratory disability. By letter dated in May 2009, prior to the rating decision in question, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim for increase, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. This letter also provided information as to how VA assigns disability ratings and effective dates. VA has also satisfied its duty to assist. The claims folder contains VA medical records and identified private medical records. The Veteran was provided a VA examination in June 2009. Another VA examination is not needed as current findings would not serve to establish entitlement to an earlier effective date for the increase in question. The Veteran provided testimony at the May 2012 hearing and the Veterans Law Judge's actions at that time supplemented VCAA and complied with any hearing-related duties. On review, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. See 38 C.F.R. § 3.159. Laws and Regulations The general rule with respect to the effective date for an award of increased compensation is that the effective date of an award 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); 38 C.F.R. § 3.400. An exception to that rule applies under circumstances where evidence demonstrates a factually ascertainable increase in disability during the 1-year period preceding the date of receipt of a claim for increased compensation. In that situation, the law provides that the effective date of the award shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within 1 year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In all other cases, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). In determining when a claim for increase was received, the Board notes that a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid 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 intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155(a). When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for increased benefits and is requested to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196 (1992). Under 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. The date of the VA outpatient or hospital examination will be accepted as the date of claim. Id. When the evidence is from a private physician, the date of receipt of such evidence will be accepted when the evidence furnished by or on behalf of the claimant is within the competence of the physician and shows the reasonable possibility of entitlement to benefits. Id. at (b)(2). The mere existence of medical records, however, generally cannot be construed as an informal claim. Rather, there must be some intent by the claimant to apply for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). A claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009); 38 C.F.R. § 3.160(c) (2012). A claim will also remain pending if VA has failed to notify the claimant of the denial of the claim. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). The presumption of regularity applies to the RO's mailing of a VA decision to a veteran. Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). Regarding when a factually ascertainable increase in disability occurred, the Board notes that disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA evaluated the Veteran's disability pursuant to Diagnostic Codes 6601-6600. Diagnostic Code 6601, for bronchiectasis, states that a 60 percent rating is warranted for incapacitating episodes of infection of four to six weeks total duration per year, or near continuous findings of cough with purulent sputum associated with anorexia, weight loss, and frank hemoptysis requiring antibiotic use almost continuously. Incapacitating episodes are defined as episodes requiring best rest and treatment by a physician. 38 C.F.R. § 4.97, Diagnostic Code 6601. Diagnostic Code 6601 also provides that bronchiectasis may be rated according to pulmonary impairment, as for chronic bronchitis, under Diagnostic Code 6600. Under this diagnostic code, a 60 percent rating is warranted if FEV-1 is 40 to 55 percent of predicted value, or FEV-1/FVC is 40 to 55 percent, or if DLCO (SB) is 40-55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). 38 C.F.R. § 4.97, Diagnostic Code 6601. The Board notes that post-surgical residuals (lobectomy, pneumonectomy, etc.) are evaluated under the General Rating Formula for Restrictive Lung Disease. Under this formula, a 60 percent evaluation is assigned based on the same criteria as bronchitis, as previously set forth. See 38 C.F.R. § 4.97, Diagnostic Code 6844. Post-bronchodilator studies are required when pulmonary function tests (PFT's) are done for disability evaluation purposes except when the results of pre-bronchodilator PFT's are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). When evaluating based on PFT's, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. 38 C.F.R. § 4.96(d)(5). Analysis Service connection was established for status post left lower lobectomy for bronchiectasis and evaluated as 30 percent disabling effective on April 16, 1962. In July 2006, the Veteran submitted a claim for increase. In October 2006, the RO continued the 30 percent evaluation. The Veteran disagreed with the decision and a Statement of the Case was furnished in May 2007. The Veteran did not submit a VA Form 9 or otherwise perfect an appeal. On May 22, 2009, the RO received a claim for increase. The Veteran noted that, if a Statement of the Case was mailed, either he failed to respond or misplaced it. In July 2009, the evaluation for the service-connected status post lower lobectomy for bronchiectasis was increased to 60 percent on May 22, 2009. The Veteran disagreed with the effective date and perfected this appeal. At the hearing, the Veteran testified that he should have been at 60 percent a lot sooner. He stated that he appealed the prior decision but it "got sidetracked or fell through the cracks" and they had no idea what happened. The Board has considered the Veteran's contentions regarding the May 2007 Statement of the Case. On review, it appears that it was sent to the Veteran's address of record. The mail was not returned as undeliverable, and there is otherwise no indication that it was not received. To the extent that the Veteran did not submit a timely Substantive Appeal or claim clear and unmistakable error (CUE), the October 2006 decision is final. See 38 C.F.R. § 20.1103 (2013). The Veteran has not specifically asserted CUE in this rating decision. On review, the next communication or other evidence that could reasonably be construed as a claim for increase was the Veteran's statement received on May 22, 2009. The Board has considered the medical evidence of record including treatment notes that address the service-connected disability, but there is no indication of any intent to file a claim for increase. Having determined that the date of claim is May 22, 2009, the Board must consider when a factually ascertainable increase in disability was shown. A February 2005 private pulmonary function report shows post-drug FEV-1 of 61 percent predicted. FEV-1/FVC was 64 percent. A May 2005 record indicates that full PFT's were reviewed and showed FEV-1 of 61 percent and FEV-1/FVC of 48 percent. A January 2006 note shows FEV-1 of 45 percent and a FEV-1/FVC of 56 percent. An August 2006 note indicates that FEV-1 was 47 percent and that FEV-1/FVC was 56 percent. An undated private medical statement from Dr. J.L., received in January 2007 and again in May 2009, noted that the Veteran was under his care for severe chronic obstructive pulmonary disease with an FEV-1 of 47 percent predicted. On review, this statement appears to have been based on the PFT's referenced in August 2006. The Board acknowledges that some of the values shown arguably fall within the criteria for a 60 percent evaluation. However, to the extent that the February 2005 report included post-drug values, it is unclear whether the reduced percentages referenced in the progress notes were pre- or post-bronchodilator. Hence, the Board does not find them sufficient to show a factually ascertainable increase, particularly considering the September 2006 VA examination, which showed a post-drug FEV-1 of 61 percent and FEV-1/FVC of 84 percent. A factually ascertainable increase to 60 percent is not shown until the June 2009 VA examination. At that time, post-drug FEV-1 was 50 percent of predicted. In summary, there is no evidence of a factually ascertainable increase in disability within the one-year period preceding the May 22, 2009 claim for increase, and an earlier effective date is not warranted. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. ORDER An effective date earlier than May 22, 2009, for the assignment of a 60 percent rating for the service-connected status post left lower lobectomy for bronchiectasis is denied. ____________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs