Citation Nr: A19001551 Decision Date: 09/26/19 Archive Date: 09/25/19 DOCKET NO. 190321-6392 DATE: September 26, 2019 ORDER Entitlement to a 40 percent disability rating from April 17, 2017, but no earlier, for angioneurotic edema (angioedema) is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an effective date prior to April 17, 2018, for the award of service connection for chronic urticaria is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s angioneurotic edema with laryngeal involvement lasted one to seven days and occurred more than eight times a year. 2. For the entire period on appeal, the Veteran’s angioneurotic edema without laryngeal involvement lasted longer than seven days and occurred more than eight times a year. 3. An Intent to File form was submitted on April 17, 2018, and a subsequent claim for service connection for chronic urticaria was not received until September 18, 2018. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a 40 percent disability rating for angioneurotic edema have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code (DC) 7118. 2. The criteria for entitlement to an effective date prior to April 17, 2018, for the award of service connection for chronic urticaria have not been met. 38 U.S.C. §§ 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1966 to December 1967. The Board notes that the rating decision on appeal was issued in October 2018. In December 2018, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § § 19.2(d)). The Veteran selected the Higher-Level Review lane when he opted in to the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Accordingly, the March 2019 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran then timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). Importantly, the Board notes that service connection is in effect for the urticaria disability, effective April 17, 2018. In the March 2019 AMA rating decision, the RO assigned an effective date of April 17, 2018, for the disability based on the Veteran’s submission of an Intent to File form on that date. However, the rating code sheet associated with the March 2019 decision, as well as subsequently issued rating code sheets, incorrectly lists September 18, 2018, as the effective date for the award of service connection for the urticaria disability. The Board notes that this needs to be corrected. Thus, the current appeal has been characterized as entitlement to an effective date prior to April 17, 2018, for the award of service connection Of note, the Board observes that the Veteran has submitted much correspondence requesting revision of his original claim for service connection, which the Board interprets as his contention that the 10 percent disability rating awarded him in a December 1967 rating decision for angioneurotic edema was improperly reduced in July 1970. The Board encourages the Veteran to file a formal claim regarding this issue so that it may be adjudicated by the Regional Office, as the Board currently has no jurisdiction to adjudicate this contention. See 38 C.F.R. §§ 3.155; see also 3.327(b); 3.105. 1. Entitlement to an evaluation in excess of 40 percent disabling from April 17, 2017 to December 21, 2018 for angioneurotic edema Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Evaluations shall be based as far as practicable, upon the average impairments of earning capacity with the additional requirement that the Secretary should from time to time readjust this schedule of ratings in accordance with experience. Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The effective date for an increased rating is to be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Determining an appropriate effective date for an increased rating involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). The Veteran’s angioneurotic edema is evaluated under DC 7118, which provides a 10 percent rating for attacks without laryngeal involvement lasting one to seven days and occurring two to four times a year. A 20 percent rating is warranted for attacks without laryngeal involvement lasting one to seven days and occurring five to eight times a year, or; attacks with laryngeal involvement of any duration occurring once or twice a year. A 40 percent rating is warranted for attacks without laryngeal involvement lasting one to seven days or longer and occurring more than eight times a year, or; attacks with laryngeal involvement of any duration occurring more than twice a year. Of note, the 40 percent disability rating is the maximum schedular rating allowed. The Veteran asserts that his 40 percent disability rating for his service-connected angioedema should be awarded from his initial award of service connection, the date following his separation from service in September 1967. As stated above, the Veteran’s appeal is being decided under the AMA; as such, appellate review is limited to the period from one year prior to the submission of his Intent to File form, indicating his intent to file a claim, to the date that his RAMP opt-in form was received, December 21, 2018. See 38 C.F.R. § 3.400; Swain v. McDonald, 27 Vet. App. 219 (2015). The Board finds that the Veteran’s 40 percent disability rating is warranted for the entire period on appeal. Turning to the relevant medical evidence of record, the Veteran’s VA treatment records describe the symptomatology associated with his angioneurotic edema. An April 2017 record notes that the Veteran was “[h]aving trouble with ‘angioedema’ swollen red eyes, feels his neck is enlarged over past months.” A June 2017 treatment note reflects that the Veteran “state[d] he was hospitalized 2016 for angioedema.” An October 2017 treatment note reports that the Veteran had transient morning hoarseness intermittently for decades, which the Veteran attributed to his recurrent angioedema. A November 2017 VA Sleep Apnea examination reported that the Veteran “continues to have frequent random neck angioedema.” In October 2018, the Veteran was afforded a VA examination for his angioneurotic edema. The examiner reported the frequency and severity of the characteristic attacks of the Veteran’s angioneurotic edema, noting laryngeal involvement that lasts one to seven days, and occurs more than eight times a year. The examiner further noted that the Veteran experienced symptoms without laryngeal involvement that lasts longer than seven days, which occurs more than eight times a year. Evaluating the relevant evidence as outlined above, the Board finds that the medical evidence of record shows that the maximum schedular rating of 40 percent is warranted for the Veteran’s angioedema from April 17, 2017, as it was factually ascertainable that his symptoms more closely approximate the criteria for a 40 percent rating from this date. The Board notes that the medical evidence shows that the Veteran’s angioneurotic edema symptoms were described as recurrent, with morning hoarseness (laryngeal involvement), frequent random neck angioedema, and lasting for months. In addition, the VA examiner explicitly noted that the Veteran had characteristic attacks with and without laryngeal involvement occurring more than 8 times a year. Thus, the evidence shows that the requirements for a 40 percent disability rating under DC 7118 have been met since April 2107. To the extent that the Veteran contends that he should receive an even earlier effective date for his 40 percent rating for angioedema, the Board highlights that he did not file an Intent to File form or a claim seeking an increased rating for the disability prior to April 17, 2018. As discussed above, an increased rating can only be assigned one year prior to a claim for increased if it is factually ascertainable that an increase in disability occurred. An increase in his disability was factually ascertainable one year prior to the receipt of his Intent to File form, specifically April 17, 2017. Thus, a 40 percent rating is warranted for the disability from April 17, 2017, but no earlier. Accordingly, the maximum schedular rating of 40 percent disabling for the Veteran’s angioneurotic edema is warranted from April 17, 2017. 2. Entitlement to an effective date prior to April 17, 2018, for the award of service connection for chronic urticaria The Veteran asserts that the appropriate effective date for his service-connected urticaria should be the date of his initial award of service connection for angioneurotic edema in September 1967. By way of background, the Veteran submitted an Intent to File for on April 17, 2018, indicating his intent to file a claim(s). On September 18, 2018, the Veteran submitted an initial claim for service connection for urticaria, among other claims. In a November 2018 rating decision, the Regional Office (RO) granted service connection for chronic urticaria with a 60 percent disability rating, effective September 18, 2018. Then, in the same month, the RO issued a rating decision decreasing the Veteran’s disability rating from 60 percent to 10 percent based on a clear and unmistakable error, as the 60 percent disability rating was based on the wrong diagnostic code; the effective date was noted as September 18, 2018. In the March 2019 AMA rating decision, the RO assigned an earlier effective date of April 17, 2018, based on the date of the Veteran’s submission of an Intent to File form and subsequent submission of the urticaria claim in September 2018. Generally, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, 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. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). Effective on March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See 79 Fed. Reg. 57660 (Sept. 25, 2014). For claims filed prior to March 24, 2015, a communication not on the appropriate form is treated as an informal claim. 38 C.F.R. § 3.155 (a) (2018). VA then will send a claimant a formal application in response to the informal claim. If the formal application form is returned within 1 year from the date it was sent to the claimant, the effective date for the award of service connection will be the date of the informal claim. Jernigan v. Shinseki, 25 Vet. App. 220, 229 (2012) (discussing 38 U.S.C. § 5103(a); 38 C.F.R. § 3.155). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran which may be interpreted as applications or claims— formal and informal — for benefits. In particular, VA is required to identify and act on informal claims for benefits. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). The Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop the Veteran’s claim to its optimum, which includes determining all potential claims raised by the evidence and applying all relevant laws and regulations. See Harris v. Shinseki, 704 F.3d 946, 948-49 (Fed. Cir. 2013); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004); Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Board is required to adjudicate all issues reasonably raised by a liberal reading of the appeal, including all documents and oral testimony in the record prior to the Board’s decision. See Brannon v. West, 12 Vet. App. 32 (1998); Solomon v. Brown, 6 Vet. App. 396 (1994). However, in determining whether an informal claim has been made, VA is not required to read the minds of the veteran or his representative. Cintron v. West, 13 Vet. App. 251, 259 (1999). Moreover, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). As stated above, the first time that the Veteran submitted a claim for urticaria was on September 18, 2018, subsequent to when the Veteran submitted his Intent to File form on April 17, 2018. Prior to this date (April 17, 2018), there are no documents that can be construed as a claim, informal claim, or intent to file a claim of entitlement to service connection for urticaria. The Board finds that under the law, the earliest effective date is the date his Intent to File form was received, April 17, 2018. 38 C.F.R. § 3.155. Thus, there is no basis to assign an earlier effective date for the service-connected disability. As to the Veteran’s assertion that the effective date should be back to the time he separated from service, the Board reiterates from above, “VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995).” Here, the first written communication from the Veteran seeking benefits for urticaria is the April 17, 2018, Intent to File for. As such, April 17, 2018, is the appropriate date for the award of the Veteran’s service connection for chronic urticaria. (Continued on the next page)   Accordingly, an effective date prior to April 17, 2018, is not warranted for the Veteran’s service-connected chronic urticaria, and the appeal is denied. DELYVONNE M. WHITEHEAD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Nelson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § § 20.1303.