Citation Nr: 18151818 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-10 863 DATE: November 20, 2018 ORDER Entitlement to an earlier effective date than December 5, 2013, for the grant of a 60 percent evaluation for residuals of a vagotomy and pyloroplasty with exploratory laparotomy for peptic ulcer disease with deformity of the duodenal bulb with dumping syndrome and scar is denied. Entitlement to an earlier effective date than December 10, 2013, for the grant of special monthly compensation (SMC) based on the need for aid and attendance of another is denied. FINDINGS OF FACT 1. The Veteran submitted a claim of entitlement to an increased evaluation for residuals of a vagotomy and pyloroplasty with exploratory laparotomy for peptic ulcer disease with deformity of the duodenal bulb with dumping syndrome and scar on December 5, 2013; no earlier claim that was not subject to a final decision was submitted. 2. The evidence does not demonstrate a factually ascertainable increase in disability that occurred within the one-year period preceding the date of receipt of the claim of entitlement to an increased evaluation for residuals of a vagotomy and pyloroplasty with exploratory laparotomy for peptic ulcer disease with deformity of the duodenal bulb with dumping syndrome and scar. 3. The Veteran submitted a claim of entitlement to SMC based on the need for aid and attendance of another on December 10, 2013; no earlier claim was submitted. 4. The evidence does not demonstrate a factually ascertainable increase in disability that occurred within the one-year period preceding the date of receipt of the claim of entitlement to SMC based on the need for aid and attendance of another. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than December 5, 2013, for the grant of a 60 percent evaluation for residuals of a vagotomy and pyloroplasty with exploratory laparotomy for peptic ulcer disease with deformity of the duodenal bulb with dumping syndrome and scar have not been met. 38 U.S.C.§§ 5101 (a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1 (p), 3.102, 3.151, 3.155, 3.159, 3.314, 3.400 (2018). 2. The criteria for an effective date earlier than December 10, 2013, for a grant of SMC based on aid and attendance have not been met. 38 U.S.C.§§ 5101 (a), 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1 (p), 3.102, 3.151, 3.155, 3.159, 3.314, 3.400, 3.401 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1971 to June 1972. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Officer (DRO) in an October 2015 hearing. A transcript of the hearing is associated with the record. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Effective Date 1. Entitlement to an earlier effective date than December 5, 2013, for the grant of a 60 percent evaluation for residuals of a vagotomy and pyloroplasty with exploratory laparotomy for peptic ulcer disease with deformity of the duodenal bulb with dumping syndrome and scar Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. The Veteran’s claim for an increase was submitted prior to March 2015. As such, the regulations extant prior to March 24, 2015, apply. Prior to March 24, 2015, a claim was “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Also prior to March 24, 2015, in some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). A report of examination implies that the medical record describes the results of a specific, particular examination and reflects a worsening of the condition. Massie v. Shinseki, 25 Vet. App. 123, 133-34 (2011) (noting that a letter from a VA physician generated for a pending Social Security claim was not a report of examination). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). The Veteran claims entitlement to an earlier effective date than December 5, 2015, for the grant of a 60 percent evaluation for residuals of a vagotomy and pyloroplasty with exploratory laparotomy for peptic ulcer disease with deformity of the duodenal bulb with dumping syndrome and scar. In the January 2015 Notice of Disagreement, the Veteran asserted that an effective date in January 1986 or January 1993 should be applied. The Veteran’s claim for an increased rating for his disorder has been adjudicated on several occasions. In December 1986, the Board denied an appeal for an evaluation in excess of 20 percent. The Veteran perfected another appeal of entitlement to a disability rating in excess of 40 percent when he submitted a VA Form 9 in March 1994. In an October 1995 statement, however, the Veteran withdrew his entire appeal. Most recently, rating decisions were issued in July 2011 and November 2012 denying entitlement to a disability rating in excess of 40 percent. All decisions are now final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.1100, 20.1103 (2018). The Board decision from 1986 was final upon its issuance. The Veteran withdrew his appeal of entitlement to an increased rating in 1995, abandoning his claim and rendering the prior decision final. The July 2011 and November 2012 decisions are final because the Veteran did not appeal them in a timely manner nor submit new and material evidence within one year of their issuance. The Board notes that in February 2013, the Veteran requested that the decision continuing his 40 percent evaluation be reconsidered. However, the Board does not construe this statement as a Notice of Disagreement because it did not express a desire for appellate review. 38 C.F.R. § 20.201(b). This is particularly true because the Veteran demonstrated objective knowledge of the required contents of a Notice of Disagreement when he correctly appealed other issues that were decided in the November 2012 rating decision. As such, the February 2013 letter does not operate to prevent the finality of the November 2012 rating decision. All this is to say that there were no active claims for an increased rating for the Veteran’s disorder prior to December 5, 2013. On that date, the Veteran submitted a claim for benefits that was construed as a claim for an increased rating for his residuals of a vagotomy and pyloroplasty with exploratory laparotomy for peptic ulcer disease with deformity of the duodenal bulb with dumping syndrome and scar. A review of the record indicates there was no earlier pending claim of entitlement to an increased rating after the November 2012 rating decision and before the December 5, 2013 claim. The Veteran submitted claims benefits for a psychiatric disorder and in order to receive SMC during this short period. Although his stomach disability was mentioned in the course of the development for these claims, there was no communication, formal or informal, indicating an intent to apply for an increased rating. Therefore, the Board finds that the date of claim is December 5, 2013. This is the current effective date assigned for the 60 percent evaluation. As such, even if entitlement to an increased rating arose prior to this date, an earlier effective date is not warranted under the general provisions governing effective dates for increased evaluations. Additionally, the evidence does not demonstrate that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). There is no evidence of record that provides adequate insight into the severity of the Veteran’s residuals of a vagotomy and pyloroplasty with exploratory laparotomy for peptic ulcer disease with deformity of the duodenal bulb with dumping syndrome and scar in the year preceding his December 5, 2013, claim. In conclusion, there is no basis to award an effective date earlier than December 5, 2013, for the grant of a 60 percent evaluation for residuals of a vagotomy and pyloroplasty with exploratory laparotomy for peptic ulcer disease with deformity of the duodenal bulb with dumping syndrome and scar. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an earlier effective date than December 10, 2013, for the grant of SMC based on the need for aid and attendance of another In addition to the effective date provisions pertaining to the award of an increased rating claim, awards of aid and attendance will be effective the date of receipt of claim or date entitlement arose, whichever is later, except as provided in 38 C.F.R. § 3.400(o)(2). 38 C.F.R. § 3.401(a)(1). Under 38 C.F.R. § 3.400 (o)(1), an earlier effective date may be assigned based on when an increased was factually ascertainable. Additionally, when an award of pension or compensation based on an original or reopened claim is effective for a period prior to the date of receipt of the claim, any additional pension or compensation payable by reason of need for aid and attendance or housebound status shall also be awarded for any part of the award’s retroactive period for which entitlement to the additional benefit is established. Special monthly compensation is payable if the Veteran, as the result of service-connected disability, is so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l) (2018); 38 C.F.R. § 3.350(b) (2018). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. “Bedridden” will be a proper basis for the determination. 38 C.F.R. § 3.352 (2018). The Veteran’s claim was submitted prior to March 24, 2015. Thus, the regulations extant prior to that date will be applied. The Veteran disagrees with the effective date assigned for the grant of SMC based on aid and attendance. The presently assigned effective date for this award is December 10, 2013. On that date, the Veteran communicated to a VA employee via telephone that he wished to submit a claim for SMC. The Board has carefully reviewed the record in order to determine if there was an earlier pending claim of entitlement to SMC for aid and attendance prior to December 10, 2013, but has identified no such document, nor has the Veteran pointed to any communication evidencing an intent to submit a claim. See Servello v. Derwinski, 3 Vet. App. 196. Therefore, the Board concludes that a formal or informal claim was not received prior to December 10, 2013. December 10, 2013, is the presently assigned effective date. As such, even if entitlement to SMC arose prior to this date, an earlier effective date is not warranted under the general provisions governing effective dates for increased evaluations. The Board has considered the exception to the general rule for effective dates for increased ratings claims, which applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). On VA examination in October 2012, the Veteran was noted to be able to perform all activities of daily living. He could perform both physical and sedentary occupation but may have experienced limitations due to alternating diarrhea and constipation. The Veteran had expressed great fear of having bowel accidents which could limit him from performing at full potential. This examination does not demonstrate a factually ascertainable increase sufficient to support the award of SMC based on the need for aid and attendance of another. On psychiatric examination through VA on July 2013, the Veteran reported psychiatric issues as well as difficulties coping with his service-connected gastrointestinal problems. He describing adjusting his food intake to compensate for bowel problems when leaving the house. This examination also does not demonstrate a factually ascertainable increase sufficient to support the award of SMC based on the need for aid and attendance of another. It only became factually ascertainable that SMC based on the need for aid and attendance was warranted after VA provided an examination to assess whether this benefit was warranted in January 2014. Therefore, 38 C.F.R. § 3.400(o)(2) does not operate to enable an effective date earlier than December 10, 2013, based on there being a factually ascertainable increase in disability that occurred within the one-year period preceding the date of receipt of the claim. In conclusion, there is no basis to award an effective date earlier than December 10, 2013, for the grant of SMC based on the need for aid and attendance of another. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel