Citation Nr: 1420414 Decision Date: 05/07/14 Archive Date: 05/21/14 DOCKET NO. 09-45 434 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to an effective date earlier than September 3, 2004, for the assignment of a 30 percent rating for chronic frontal sinusitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Marotta INTRODUCTION The Veteran served on active duty from May 1967 to March 1971. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. In a February 2008 decision, the Board increased the Veteran's disability rating for chronic frontal sinusitis from 10 percent to 30 percent. The RO implemented the Board decision in its March 2008 rating decision, and assigned an effective date of September 3, 2004, the date of receipt of the Veteran's claim. FINDINGS OF FACT 1. The Veteran's claim for an increased rating for chronic frontal sinusitis was received on September 3, 2004. 2. There is no evidence of record that demonstrates that it is factually ascertainable that an increase in disability occurred during the year prior to September 3, 2004. CONCLUSION OF LAW The criteria for an effective date earlier than September 3, 2004, for the assignment of a 30 percent rating for chronic frontal sinusitis, have not been met. 38 U.S.C.A. §§ 5101, 5103, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). The issue of entitlement to earlier effective date arises from the Veteran's disagreement with the effective date assigned in connection with the grant of an increased evaluation for his chronic frontal sinusitis. Where the underlying claim has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional notice and any defect in the notice is not prejudicial. 38 C.F.R. § 3.159(b)(3); Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). Rather, 38 U.S.C.A. § 7105 requires the RO to provide a Statement of the Case, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. The RO has provided the Veteran the required Statement of the Case discussing the reasons and bases for not assigning an earlier effective date and citing the applicable statutes and regulations. As to VA's duty to assist, the Veteran asserts that an earlier effective date is warranted based on the evidence already of record. VA's duty to secure records extends only to relevant records. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1); Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007); Loving v. Nicholson, 19 Vet. App. 96, 102 (2005). The Board thus finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of his claim. II. Effective Date The Veteran seeks entitlement to an effective date earlier than September 3, 2004, for the assignment of a 30 percent evaluation for his chronic frontal sinusitis. Generally, 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 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). The Board notes that this includes informal claims which are "[a]NY communication or action, indicating intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, [or] his or her duly authorized representative." 38 C.F.R. § 3.155(a). However, an exception applies for the effective date for increased ratings applies, 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). Based on a review of the evidence of record, the Board concludes that an effective date earlier than September 3, 2004, for the assignment of a 30 percent disability rating for the Veteran's chronic frontal sinusitis is not warranted. In November 2001, the RO granted service connection for chronic frontal sinusitis and assigned a 10 percent disability rating, effective January 25, 1995. The Veteran did not appeal this decision and no additional evidence pertinent to the issue of the severity of the Veteran's sinusitis was received within one year of the rating decision. The rating decision therefore became final. A claim for an increased rating for chronic frontal sinusitis was received by the RO on September 3, 2004. The evidence does not show, nor does the Veteran contend, that an informal or formal claim for an increase was filed prior to September 3, 2004. A review of the claims file fails to show that any claim was received between the November 2001 rating decision and the September 3, 2004 increased rating claim. Therefore, an earlier effective date based on an earlier claim is not warranted. As the November 2001 rating decision is final and as no claim was received prior to September 3, 2004, the Veteran can only be granted an earlier effective date if there is medical evidence of record that shows that a 30 percent rating was warranted within the one year period prior to September 3, 2004. Treatment records prior to September 3, 2004 do not show a worsening of the Veteran's sinusitis. A VA record dated in March 2004 notes that when seen for his regular appointment, he indicated that he needed something for his sinuses. No details were noted. A record dated in June 2004 noted that he called regarding a recurrent sinus infection. His primary care provider was to be notified of his request for a refill of Zithromax. The Board notes that as this was a request for a refill for a recurrent problem, it does not suggest a new problem or an increase in the severity. During the November 2004 VA examination, the examiner noted that the Veteran was treated for sinusitis on one occasion during the preceding year. The pertinent evidence fails to show that the Veteran's chronic frontal sinusitis had an ascertainable increase within one-year prior to the claim so as to warrant a rating of 30 percent prior to the September 3, 2004 claim. 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 September 3, 2004, for the assignment of a 30 percent rating for chronic frontal sinusitis is denied. 38 U.S.C.A §5107. ORDER Entitlement to an effective date earlier than September 3, 2004, for the assignment of a 30 percent rating for chronic frontal sinusitis, is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs