Citation Nr: 18144431 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-30 708 DATE: October 24, 2018 ORDER Entitlement to an effective date earlier than July 8, 2015, for the assignment of a 30 percent rating for irritable bowel syndrome (IBS) is denied. FINDING OF FACT The evidence of record does not show a factually ascertainable date prior to July 8, 2015, during which the Veteran’s IBS manifested in diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. CONCLUSION OF LAW The criteria for an effective date earlier than July 8, 2015, for the assignment of a 30 percent rating for IBS have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.400(o), 38 C.F.R. § 4.114, Diagnostic Code 7319. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from May 1987 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2015 rating decision of the Department of Veterans Affairs. 1. Entitlement to an effective date earlier than July 8, 2015, for the assignment of a 30 percent rating for IBS is denied. The Veteran seeks an earlier effective date for the assignment of a 30 percent rating for his IBS. The Veteran was awarded a 30 percent rating for his IBS in an October 2015 rating decision pursuant to a claim for an increased rating received on July 8, 2015. He contends the assignment of the 30 percent rating should date back to December 17, 2008, the date his original service connection claim for IBS was received. The Veteran was granted service connection for IBS in a June 2010 rating decision and was assigned a noncompensable initial rating, effective from December 17, 2008. He provided notice of disagreement with the rating assigned in that decision, and was issued a statement of the case (SOC) which denied a higher initial rating. The Veteran did not perfect an appeal of the denial and additional evidence was not received within the appeal period; thus, the decision is final and this matter does not stem from an appeal of the assignment of the noncompensable initial rating for IBS. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As noted above, this matter stems from the Veteran’s claim for an increased rating for his service-connected IBS received on July 8, 2015. VA regulations provide that for increased rating claims, the effective date of an award is either the date the claim is received or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). This general rule has an important exception that provides: the effective date will be the “[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, the date of receipt of the claim.” 38 C.F.R. § 3.400(o)(2). The Veteran’s increased rating claim was received on July 8, 2015; thus, the relevant rating period for consideration is from 1 year prior to that date, or July 7, 2014. Id. If the record contains evidence to support a 30 percent rating for IBS within that period, the Veteran is eligible for an effective date earlier than July 8, 2015. Here, the relevant evidence of record does not reveal a factually discernable date within one year of July 8, 2015, that supports a 30 percent rating for IBS. During a follow-up with his primary care physician on May 13, 2015, the Veteran reported that he was doing well and did not report any worsening of his IBS. His only complaint was related to his right hand. See Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact); see also Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (holding that the Board may consider many factors when assessing the credibility and weight of lay evidence, including self-interest or bias, internal consistency, and consistency with other evidence). The corresponding physical examination revealed a soft, nontender abdomen, with normal bowel sounds. Other pertinent medical records show that he sought treatment, care or evaluation for multiple conditions during this period, including for pain in his shoulders, knees and right hand, recurrent skin infections, and hearing loss and tinnitus, but he did not report worsening IBS or symptoms of the type, frequency and severity required for a 30 percent rating. The Veteran did not otherwise submit and the evidence during this period does not show that the Veteran’s IBS symptoms were of the type, frequency, and severity necessary for a 30 percent rating. Therefore, the Board finds that the preponderance of the evidence is against the claim. The fact that the Veteran has a longstanding IBS condition does not automatically entitle him to an effective date earlier than the day VA received his increased rating claim. He is only entitled to such a benefit if the evidence of record demonstrates that his IBS increased to the level necessary to support a 30 percent rating within one-year prior to July 8, 2015—and the evidence does not show that. Where the evidence of record does not contain evidence of such an increase during the one-year period, the appropriate effective date of the award is the later of the date VA received the claim or the date entitlement arose. 38 C.F.R. § 3.400(o)(2). As such, there is no basis for the award of an effective date earlier than July 8, 2015 for the assignment of a 30 percent rating for IBS. As the preponderance of the evidence is against the claim, the appeal is denied. U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Kutrolli, Associate Counsel