Citation Nr: 20005276 Decision Date: 01/22/20 Archive Date: 01/22/20 DOCKET NO. 17-45 473 DATE: January 22, 2020 ORDER Entitlement to an earlier effective date than May 25, 2010 for the 10 percent evaluation assigned to the service-connected chronic laryngitis, as residuals of removal of epithelioma of vocal cords, is denied. FINDINGS OF FACT 1. A claim for increased rating for service-connected chronic laryngitis was not received before May 25, 2010. 2. It is not factually ascertainable that the Veteran’s service-connected chronic laryngitis increased in severity within one year of May 25, 2010. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than May 25, 2010 for the assignment of a 10 percent evaluation for chronic laryngitis are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active military service from October 1958 to July 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Decision Review Office (DRO) in March 2016 and transcript of the hearing is of record. The Veteran requested copies of the VA examination from 1972, but in May 2019, he withdrew this request. Further, in November 2019, the VA provided the Veteran with a copy of the entire claims file. He has not raised any other issues with the duty to notify or duty to assist in obtaining documentary evidence. 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). Thus, the Board need not discuss any potential issues in this regard. Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400, which state the effective date for an increase of compensation “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” See 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date for increased compensation “will be the date of receipt of the claim or the date entitlement arose, whichever is later.” See 38 C.F.R. § 3.400. Regarding the assignment of effective dates for increased rating claim, “the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” See 38 U.S.C. § 5110(b)(2). Thus, three possible dates may be assigned depending on the facts of an increased rating earlier effective date case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) 38 C.F.R. § 3.400(o)(2). Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). As to what constitutes a claim, a claim is defined as 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); 3.155. Any communication or action from a claimant indicating an intent to apply for one or more benefits under the laws administered by VA and which identifies the benefit sought, may be considered an informal claim. See 38 C.F.R. § 3.155(a). Further, under former 38 C.F.R. § 3.157(b)(1), a report of examination or hospitalization may constitute an informal claim. However, “[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit.” Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006) (emphasis added). Thus, 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); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). The Court has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation. Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, “the only cognizable ‘increase’ for this purpose is one to the next disability level” provided by law for the particular disability). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Id. at 521. Review of the record shows no evidence to support an effective date earlier than May 25, 2010 for a 10 percent evaluation for chronic laryngitis. The currently-assigned effective date of the 10 percent evaluation for his chronic laryngitis is the date of his claim for an increase. The Veteran has not identified an earlier claim. Although the Veteran appealed the assigned effective date, neither the Veteran nor his representative has provided the basis for assigning an earlier effective date. By way of history, a January 1968 rating decision granted service connection for the Veteran’s chronic laryngitis with a 10 percent evaluation, effective January 1967. Thereafter, the Veteran received treatment and had several surgeries for his condition; he then underwent a VA examination in December 1972 where the examiner noted the Veteran’s complaints of frequent hoarseness, but the examination revealed his larynx was symmetrical, his vocal cords were clean, and there were no irregularities or lesions. Therefore, in a December 1972 rating decision, the RO decreased the Veteran’s service-connected chronic laryngitis to a non-compensable evaluation, effective March 1, 1973. After submitting a claim for an increase in May 2010, he was granted a 10 percent evaluation in the September 2011 rating decision, with an effective date of May 25, 2010, and in an August 2015 rating decision, was granted a 30 percent evaluation, effective May 1, 2015. The Veteran has argued that an effective date earlier than May 25, 2010 is warranted for the assignment of a 10 percent evaluation for his service-connected chronic laryngitis; specifically, he has argued that he should have had the 10 percent evaluation continuously since service and that he never underwent an examination in 1972, but was denied benefits because he checked himself out of the VA hospital in 1969, and was told he would be unable to have VA benefits by doing so (see August 2010 and May 2015 statements). He also testified during the DRO hearing that he received care from VAMC in Brooklyn between 1967 to 1973, but the RO determined such records do not exist except for hospitalization for his surgeries and for the records already in his file. As for his allegation he never underwent an examination in 1972, that report is in his file and contains a medical/occupational history, list of treatment, and present complaints form completed and signed by the Veteran himself, dated in December 1972. It may be that with the passage of time, he has forgotten that he reported for an examination. Regardless, following the 1972 VA examination, the RO determined he no longer met the criteria for a 10 percent evaluation and his rating was decreased to noncompensable effective March 1973. The Veteran never appealed that decision, nor were any records or documents added to his file until October 2009. That reduction is therefore final, and he cannot now revisit that decision. He has asked for “reinstatement” of the rating that was discontinued, but that decision is final. He has not specifically pled clear and unmistakable error, so the Board will not discuss that, as doing so would be potentially prejudicial to him. The Board acknowledges the Veteran’s contentions that he was given misinformation regarding his VA benefits and sympathizes with his situation. Unfortunately, while it is not in dispute that the Veteran had some symptoms of chronic laryngitis between 1973 and 2010, the VA regulations and laws as discussed above must be followed. As such, there is no evidence of record that shows either formal or informal claims for increased rating were filed prior to May 25, 2010, nor is there evidence that would enable the Board to ascertain whether the Veteran’s condition increased in severity to warrant the higher evaluation one year prior to May 25, 2010. (emphasis added). In fact, although private medical records showed he occasionally reported cough, congestion, and sore throat to his doctors, he also reported no hoarseness in a form in August 1998, and a December 2003 chest X-ray was normal and revealed clear diaphragms and costophrenic angles; these sporadic reports in his medical records do not factually demonstrate whether the Veteran’s symptoms warranted a higher rating in the year prior to May 2010. Further, the Veteran stated at the 2016 DRO hearing that he had another surgery done at Mercy Medical Center in 1980, but that his medical records had been destroyed after six years and were unavailable, and he had no other records of this surgery. However, regardless, no claim for an increase was filed prior to 2010. The RO assigned an effective date of May 25, 2010, the date of the claim for increase, and this is the earliest date warranted. See 38 C.F.R. § 3.400(o)(2); see also Gaston, 605 F.3d at 982-84; Harper, 10 Vet. App. at 126. Accordingly, the Board finds that the preponderance of the evidence does not support an effective date earlier than May 25, 2010 for the 10 percent evaluation for the Veteran’s service-connected chronic laryngitis, and the claim must be denied. see 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.