Citation Nr: 18157303 Decision Date: 12/12/18 Archive Date: 12/12/18 DOCKET NO. 16-46 342 DATE: December 12, 2018 ORDER Entitlement to an effective date of April 7, 2015, but no earlier, for the assignment of a 10 percent rating for service-connected gastrointestinal reflux disease (GERD) is granted. FINDING OF FACT The Veteran filed a claim for an increased rating for the service-connected GERD within one year of the April 7, 2015, evidence that showed an increase in the disability had occurred. CONCLUSION OF LAW Resolving all doubt in the Veteran’s favor, the criteria for an effective date of April 7, 2015, but no earlier, for service-connected GERD have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active service in the United States Army from April 1978 to December 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Decatur, Georgia, which granted an increased rating for service-connected GERD. In a March 2017 letter, the Veteran was notified that the appeal had been placed on the Board's docket and she had 90 days to request a change in representation. In January 2018, the Veteran submitted a VA Form 21-22 appointing a new service organization as her representative. Although the Veteran does not appear to have been attempting to change her representation for the issues on appeal, the Board nevertheless notes that she has not demonstrated that there was good cause for the delayed request to change representatives. As such, the request to change representation for the issues on appeal is denied. 1. Earlier Effective Date for GERD The Veteran currently has a 10 percent rating for GERD, effective June 17, 2015 with a noncompensable rating prior to that date. In her June 2016 notice of disagreement, the Veteran argued that the effective date of the 10 percent evaluation for GERD should be April 2013, when she first applied for service connection for GERD. After review of the evidence, and resolving all doubt in the Veteran’s favor, the Board finds that the Veteran is entitled to a 10 percent rating for service-connected GERD effective April 7, 2015, but no earlier. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1) (2017). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. §§ 3.157(b)(1); 3.400(o)(2) (2017); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). If the increase 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 the claim. 38 C.F.R. § 3.400(o)(1), (2) (2017). If the increase occurred after the date of the claim, the effective date is the date of increase. Id. The Veteran's original claim for service connection for GERD was submitted in April 2013. An October 2013 rating decision granted service connection for GERD and assigned a noncompensable rating. The Veteran did not appeal the April 2013 rating decision and did not submit any evidence within one year of its issuance and it became final. See 38 U.S.C. §§ 5104, 7105(c) (2012); see also 38 C.F.R. §§ 3.160(d), 3.156(b), 20.200, 20.302(a), 20.1103 (2017). The Court has held that once a rating decision is final, a challenge to the effective date or rating assigned in that final rating decision may only be entertained on the basis of CUE. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). In June 2015, the Veteran submitted a claim for an increased rating for the service-connected GERD. To support the claim, the Veteran submitted a May 8, 2015 esophagogastroduodenoscopy examination report. The examination report indicated the Veteran was prescribed Protonix every four hours as needed for GERD symptoms. During an August 2015 VA examination, the Veteran reported, acid reflux, pain, nausea, and vomiting with solid foods. The VA examiner noted the Veteran was prescribed Protonix as part of the treatment plan for GERD. A review of the record also reflects VA treatment records that include an April 2015 note where the Veteran complained of chronic pain with swallowing and epigastric pain. The physician noted she was on medication and the assessment indicated that the protonix was increased to twice a day and she was referred to GI for consideration of an esophagogastroduodenoscopy. An October 2015 rating decision assigned a 10 percent evaluation for GERD, effective June 17, 2015, based on the date the Veteran’s claim for an increased rating was received. The Veteran filed a June 2016 notice of disagreement with the assigned effective date. Because the April 7, 2015, VA treatment record noted an increase of symptoms which was further documented by the May 8, 2015, esophagogastroduodenoscopy examination report, the Board finds an earlier effective date is warranted. Specifically, these records are dated within a year prior to the date of the Veteran’s increased rating claim, and it shows the Veteran was prescribed the increased dosage of Protonix for the treatment of GERD symptoms. Accordingly, the Board finds that the Veteran is entitled to an earlier effective date for her current 10 percent evaluation. Therefore, of April 7, 2015, but no earlier, for the 10 percent evaluation for GERD is granted. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Teague, Associate Counsel