Citation Nr: 1809167 Decision Date: 02/12/18 Archive Date: 02/23/18 DOCKET NO. 10-09 419 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date prior to February 6, 2009, for the assignment of a 60 percent rating for status post antrectomy and vagotomy for duodenal ulcer with dumping syndrome, bile gastritis, and gastroesophageal reflux. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1982 to February 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The September 2009 rating decision increased the rating for the Veteran's service-connected status post antrectomy and vagotomy for duodenal ulcer with dumping syndrome, bile gastritis, and gastroesophageal reflux, from 30 percent to 60 percent, effective February 6, 2009. The Veteran has perfected an appeal as to the effective date assigned for the rating increase. See notice of disagreement of September 2009; VA Form 9 of February 2010. In May 2012, a decision review officer of the RO conducted an informal conference with the Veteran as to the appealed issue. A summary of the conference discussion is of record. The Board remanded this matter in December 2014. FINDINGS OF FACT 1. On February 6, 2009, the Veteran filed a claim for an increased rating for his service-connected status post antrectomy and vagotomy for duodenal ulcer with dumping syndrome, bile gastritis, and gastroesophageal reflux. 2. It is not factually ascertainable for the one-year period prior to February 6, 2009 that the criteria for a 60 percent disability rating were met for the status post antrectomy and vagotomy for duodenal ulcer with dumping syndrome, bile gastritis, and gastroesophageal reflux. CONCLUSION OF LAW The criteria for an effective date earlier than February 6, 2009 for the assignment of a 60 percent rating for status post antrectomy and vagotomy for duodenal ulcer with dumping syndrome, bile gastritis, and gastroesophageal reflux, are not met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400(o)(2) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The VCAA applies to the instant claim, and VA has satisfied the notification and duty-to-assist provisions of the VCAA. The duty to notify in this case was satisfied by a letter sent to the Veteran in February 2009. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. §§ 3.159(c), (d) (2017). The duty to assist contemplates that VA will help a claimant obtain records relevant to the claim and that VA will provide a medical examination or obtain a medical opinion when necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2017). The evidence of record includes service treatment records, post-service VA and private treatment records, statements of the Veteran, and a lay statement. The Veteran underwent a VA medical examination in February 2009. The VA examination report is adequate. See 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In the instant case, VA has no duty to provide a further medical examination as to the current severity of the Veteran's disability, because the Veteran's claim for an earlier effective date relates to the level of the Veteran's disability prior to February 6, 2009. The Veteran has not raised any issue with respect to the duties to notify and assist. The Board is not required to search the record to address procedural arguments that a claimant has not raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016) (applying Scott to the duty to assist). The agency of original jurisdiction (AOJ) substantially complied with the Board's remand instructions of December 2014. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to earlier effective date for grant of increased rating of 60 percent for duodenal ulcer disability Unless the law specifically provides otherwise, the effective date of an award based on a claim for an increased rating shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application for the increase. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2017). The effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. See 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2017). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2017). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence as to any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107(b) (2017); 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For a claim to be denied on the merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet App. 518, 519 (1996). In February 1994, the Veteran filed a service connection claim for stomach ulcer. A rating decision of June 1994 granted service connection for status post antrectomy and vagotomy for duodenal ulcer with dumping syndrome, bile gastritis, and gastroesophageal reflux. A 30 percent rating and an effective date of February 11, 1994 were assigned. In February 2009, the Veteran filed a claim for rating increase. A rating decision of September 2009 increased the evaluation of status post antrectomy and vagotomy for duodenal ulcer with dumping syndrome, bile gastritis, and gastroesophageal reflux from 30 percent to 60 percent, with an effective date of February 6, 2009 (the date of receipt of the claim). The rating increase was based on the results of a February 2009 VA medical examination for stomach, duodenum, and peritoneal adhesions. This appeal stems from the September 2009 rating decision. The Veteran has appealed as to the effective date assigned for the rating increase. See notice of disagreement of September 2009; VA Form 9 of February 2010. A rating decision of August 2015 determined that a clear and unmistakable error (CUE) occurred in the initial evaluation of status post antrectomy and vagotomy for duodenal ulcer with dumping syndrome, bile gastritis, and gastroesophageal reflux. Accordingly, a retroactive increased evaluation to 40 percent disabling was established from February 11, 1994. It was also determined that the September 2009 rating decision that granted an increased 60 percent evaluation, effective from February 6, 2009, was properly based on the available evidence of record and was not clearly and unmistakably erroneous. See August 2015 rating decision. The Veteran did not appeal. The Veteran argues that the effective date for a 60 percent disability rating should be March 1, 1994, the date on which he alleges his duodenal ulcer was misdiagnosed as hiatal hernia. See notice of disagreement of September 2009. A review of the record reveals no communication from the Veteran or his representative in the period from the June 1994 rating decision grating service connection to the February 2009 claim for rating increase that can be construed as a formal or informal claim for an increased rating for the service-connected disability. Accordingly, the effective date of the rating increase is February 6, 2009, the date of receipt of the claim for an increased rating. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(o)(1) (2017). The law also provides that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. See 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2017). If the increase in severity occurred more than one year prior to the date of the claim, the increase is effective as of the date of the claim. See Harper v. Brown, 10 Vet. App. 125 (1997). The February 2009 VA medical examination establishes a basis for the 60 percent rating. The VA examiner determined that the Veteran had nausea, chest pain, sweating, diarrhea, and weight loss with malnutrition. There is no earlier competent and credible evidence of a factually ascertainable increase in disability. The Veteran is competent to report his experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). He asserts that he has had the symptoms listed for the schedular rating of 60 percent since being diagnosed with duodenal ulcer while on active duty. See VA Form 9 of February 2010. The Board finds the Veteran not to be credible on this point, however, due to his inconsistent reporting. See Caluza v. Brown, 7 Vet. App. 498 (1995). For example, in August 1999, the Veteran specifically denied having nausea, chest pain, and diarrhea, and reported a weight gain of 13 pounds over the preceding year. See August 1999 record of Dr. I. B. In January 2009, he again denied nausea, weight loss, and any change in bowel habits. See January 2009 record of Dr. I. B. Because the Veteran's claim for an increased rating was received on February 6, 2009, and the VA examination establishing entitlement to a rating increase took place on February 24, 2009, the effective date for a 60 percent rating cannot be earlier than February 6, 2009, the date upon which the increased rating claim was received by VA. See 38 U.S.C. § 5110(b)(3) (2012); 38 C.F.R. § 3.400(o)(2) (2017). The evidence of record for the one year prior to the date of receipt of the Veteran's February 2009 claim for increase does not approximate the criteria for a 60 percent disability rating. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an effective date prior to February 6, 2009, for the assignment of a 60 percent rating for status post antrectomy and vagotomy for duodenal ulcer with dumping syndrome, bile gastritis, and gastroesophageal reflux is denied. ____________________________________________ G. A. Wasik Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs