Citation Nr: 18144295 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-30 753 DATE: October 24, 2018 ORDER Entitlement to an effective date earlier than December 13, 2013, for the assignment of a 30 percent rating for nasal polyposis with recurrent nasal polyps is denied. FINDING OF FACT There is no evidence prior to December 13, 2013, demonstrating that the criteria for a 30 percent evaluation for nasal polyposis with recurrent nasal polyps had been met. CONCLUSION OF LAW The criteria for an effective date prior to December 13, 2013, for the grant of a 30 percent evaluation for nasal polyposis with recurrent nasal polyps have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1986 to September 21, 1989 and from September 27, 1989 to September 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision which assigned a 30 percent rating for nasal polyposis with recurrent nasal polyps, effective January 28, 2014. In an April 2016 Decision Review Officer (DRO) decision, the RO assigned an effective date of December 13, 2013 for the service-connected disorder. Entitlement to an effective date earlier than December 13, 2013, for the assignment of a 30 percent rating for nasal polyposis with recurrent nasal polyps Unless otherwise specified, 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 is to be fixed in accordance with the facts found, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In cases involving increases, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date. Otherwise, the effective date is the date of receipt of claim. 38 C.F.R. § 3.400(o)(2). 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. § 5101(a). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). In this case, the Veteran’s nasal polyposis with nasal polyps have been evaluated by analogy under 38 C.F.R. § 4.97, Diagnostic Code 6522. Under this Diagnostic Code, allergic or vasomotor rhinitis without polyps but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side warrants a 10 percent rating. Allergic or vasomotor rhinitis with polyps results in a maximum 30 percent rating. The Veteran’s claim for service connection for a “nasal condition” was received in October 2006. In a March 2007 rating decision, the RO granted service connection for rhinosinusitis and assigned a zero percent initial rating, effective from October 1, 2006 (the date of separation from service). The Veteran was notified of this decision in March 2007 but did not initiate an appeal as to the initial rating assigned. The March 2007 rating decision is thus “final” under 38 U.S.C. § 7105(c) as to the initial rating assigned. The Veteran’s claim for an increased evaluation for rhinosinusitis was received by the RO on January 30, 2014. Following a May 2014 VA examination revealing the presence of recurrent nasal polyps and sinusitis, the RO, in a June 2014 rating decision, determined that the Veteran’s disability warranted two separate evaluations – paranasal sinus disease and nasal polyposis with recurrent nasal polyps. The Veteran’s nasal polyposis with recurrent nasal polyps was assigned a 30 percent rating (still under Diagnostic Code 6522), effective January 28, 2014 (the date that the RO stated that the Veteran initiated the current claim). The Veteran appealed for an earlier effective date for the separate 30 percent rating for nasal polyposis with recurrent nasal polyps. The Veteran provided additional treatment records, to include a copy of a December 13, 2013 treatment record from the Naval Medical Center in San Diego which showed an assessment of nasal cavity polyps. In an April 2016 Decision Review Officer (DRO) decision, the RO assigned an effective date of December 13, 2013 for the service-connected nasal polyposis with recurrent nasal polyps. The Veteran continues to seek an earlier effective date for the assignment of a 30 percent rating for the nasal polyposis with recurrent nasal polyps. As noted above, an exception to the rule regarding increased ratings applies 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. 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. 3.400(o)(1)(2); VAOPGCPREC 12-98 (1998). The Board has reviewed the above evidence and first notes that the March 2007 rating decision which granted service connection, as well as an initial disability evaluation and effective date, for the disability at issue was not appealed and is “final” under 38 U.S.C. § 7105(c). The Veteran filed a claim for an increased rating for rhinosinusitis in January 2014. A December 13, 2013 treatment record shows the presence of recurrent nasal polyps. The records, however, do not show the presence of recurrent nasal polyps prior December 13, 2013. The above records are, in short, devoid of any findings that would support a 30 percent rating prior to December 13, 2013. In assigning December 13, 2013, as the effective date for the increased evaluation, VA has already assigned the earliest possible effective date for the 30 percent rating for the Veteran’s nasal polyposis with recurrent polyps because that was the earliest medical evidence showing that the disability warranted that evaluation. In the absence of any competent evidence showing that the criteria for a 30 percent evaluation for nasal polyposis with recurrent nasal polyps were met prior to   December 13, 2013, within one year of the January 2014 claim for increase, the Veteran’s claim for that benefit must be denied. 38 U.S.C. § 5107(b). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel