Citation Nr: 20006945 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-15 159 DATE: January 28, 2020 ORDER An effective date prior to September 11, 2014, for the grant of a 10 percent rating for a painful residual scar status post right hernia repair is denied. FINDING OF FACT It is not factually ascertainable that the Veteran's residual scar status post right hernia repair was 10 percent disabling prior to September 11, 2014. CONCLUSION OF LAW The criteria for an effective date earlier than September 11, 2014, for the grant of a 10 percent rating for a painful residual scar status post right hernia repair have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1968 to September 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). A discussion of the procedural history of this case is warranted to clear up the confusion caused by the rating decisions issued. In a May 2010 rating decision, service connection for a right inguinal hernia was granted, effective December 10, 2008. Thereafter, in a September 2013 rating decision, service connection for scar, bilateral inguinal hernia repair, was granted, effective May 14, 2012 and a noncompensable rating was assigned under Diagnostic Code 7805. In March 2014, a duplicate rating decision was issued. In September 2014, the Veteran filed a claim for an increased rating for his scar, stating that it was causing pain. In a November 2014 rating decision, the RO, granted a 10 percent rating for the already service connected scar, but in doing so, granted a separate award of service connection, effective September 11, 2014, in order to switch to a different Diagnostic Code (7804) for painful scars. When in fact, the appropriate action was to stage the rating, and change the Diagnostic Code to 7804 from the date of the grant of the 10 percent rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Butts v. Brown, 5 Vet. App. 532, 538 (1993). In a February 2017 rating decision, an earlier December 10, 2008 effective date was awarded for the initial grant of service connection and the noncompensable rating for residual scar status post right hernia repair. Earlier Effective Date for Painful Residual Scar The Veteran contends that a compensable rating is warranted since the effective date of the grant of service connection for residual scar status post right hernia repair. The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C. § 5110 (a) and (b)(2), and 38 C.F.R. § 3.400 (o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "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, otherwise the date of receipt of the claim." 38 U.S.C. § 5110 (b)(2). See 38 C.F.R. § 3.400 (o)(2). The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred within one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term "increase" as used in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). VA has amended the regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. See Fed. Reg. 57,660, 57,695 (Sept. 25. 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). A claim is 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); 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. Further, under 38 C.F.R. § 3.157 (b)(1) an informal claim may consist of a VA report of examination or hospitalization. Under this regulatory provision, the date of the VA outpatient examination or hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established. VA examinations of the Veteran’s hernia were conducted in December 2006, October 2011, and August 2013. None of these examinations note or indicate that the Veteran had pain at his right hernia repair scar. Additionally, private medical records associated with the claims file prior to September 2014 do not show that the Veteran had or reported pain at his right hernia repair scar. Though pain in the right hernia area was noted, that pain was attributed to his actual hernia repair/groin and was not attributed to the scar associated with his surgical repair. The August 2013 VA examination specifically included an examination of the Veteran’s scar. It was not found to be painful and the Veteran did not report that the scar was painful. In September 2014, the Veteran indicated that the scar associated with his right hernia repair was painful. A November 2014 VA examination of the Veteran’s hernia repair scars noted that he had one painful scar associated with his right hernia repair which was linear, not unstable, and measured 6 cm. Based on the foregoing, the Board finds that the evidence of record does not support a finding that the Veteran’s right hernia repair scar warranted a rating higher than 10 percent prior to September 11, 2014. There is no evidence which indicated that the Veteran had a painful scar associated with his right hernia repair prior to his September 2014 statement to VA. Indeed, the August 2013 VA examination did not find any pain associated with the Veteran’s right hernia repair scar. Furthermore, the Veteran’s January 2015 Statement and March 2017 Form 9 do not state that he had scar pain prior to September 2014 but argue for an earlier effective date based on the date of his claim for service connection for his right hernia. However, the Board has no authority to grant claims on an equitable basis; instead, the Board is constrained to follow specific provisions of law. Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As there is no evidence of record prior to September 11, 2014, indicating the Veteran’s right hernia scar was painful – either via medical records or a statement from the Veteran seeking service connection or a higher rating – the Board finds that there is no evidence upon which to grant an earlier effective date for service connection of the 10 percent rating for the Veteran’s right hernia repair scar. Thus, the preponderance of the evidence is against the claim, and, accordingly, there is no doubt to resolve in the Veteran’s favor. LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals A. Parrish, Attorney for the Board Department of Veterans Affairs 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.