Citation Nr: 20021479 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-20 902 DATE: March 25, 2020 ORDER Entitlement to an effective date of July 9, 2012, for the award of a 60 percent rating for restrictive pulmonary disease is granted. FINDING OF FACT 1. A December 2013 rating action granted service connection for restrictive pulmonary disease; a noncompensable evaluation was assigned, effective July 9, 2012. 2. New and material evidence was received within a year of the December 2013 rating action as to the proper initial rating to be assigned. 3. The evidence establishes that the Veteran’s restrictive pulmonary disease met the criteria for a 60 percent rating as of July 9, 2012. CONCLUSION OF LAW The criteria for entitlement to an effective date of July 9, 2012, but not earlier, for a 60 percent rating for restrictive pulmonary disease have been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2001 to November 2002 and July 2004 to October 2005. Effective Date Under governing law, the effective date for a grant of compensation will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. Id. As relevant herein, a claim or application 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). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400 (a). With regard to the award of an increased rating for compensation, the effective date shall be the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from that date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). The increase in disability must have occurred during the one-year period prior to the date of the Veteran’s claim in order to receive the benefit of an earlier effective date. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Entitlement to an effective date prior to April 9, 2014 for a 60 percent increased rating for restrictive pulmonary disease In July 2012, the Veteran submitted an informal claim for service connection for chronic bronchitis. A formal claim was received in September 2012, and in a December 2013 rating decision, service connection was granted for restrictive pulmonary disease (claimed as chronic bronchitis). A noncompensable rating was assigned effective July 9, 2012. At the time, the VA fee basis examiner noted that the Veteran was using inhalers from family members because insurance was a problem. The examiner nevertheless checked the boxes on the examination form to note that the Veteran did not require the use of corticosteroid medication. In November 2014, within a year of the December 2013 rating action, the Veteran submitted a request for VA to reconsider the noncompensable disability rating. In support of her request, the Veteran submitted private treatment records from HealthPoint and Multicare. Private treatment records dated April 9, 2014 from CHI Franciscan Health show that the Veteran was admitted to the emergency department for her respiratory disability and prescribed Prednisone. A May 2, 2014 treatment note from HealthPoint shows the Veteran was seen for respiratory symptoms and was prescribed Prednisone. She was also seen in September 2014 and November 2014 and again prescribed Prednisone for respiratory symptoms. Based on the Veteran’s request for reconsideration she was scheduled for a VA respiratory examination. The May 2015 VA respiratory report shows that the Veteran was diagnosed with restrictive lung disease which required the use of oral or parenteral corticosteroid medications in the form of intermittent courses or bursts of systemic corticosteroids four or more times in the past twelve months. The Veteran’s respiratory disability also required the use of inhaled bronchodilator therapy and anti-inflammatory medications intermittently. A chest x-ray was normal and a pulmonary function test (PFT) showed FEV-1/FVC of 71 to 80% of predicted value. A June 2015 rating decision increased the rating for restrictive pulmonary disease to 60 percent effective May 2, 2014. In July 2015, the Veteran submitted a notice of disagreement (NOD) with the effective date assigned stating the effective date should be 2012, the date she initially filed for service connection. A March 2016 rating decision assigned an effective date of April 9, 2014 for the 60 percent increased rating for restrictive pulmonary disease based on the April 9, 2014 CHI Franciscan Health emergency department note. The Board notes that a September 2016 rating decision retroactively increased the rating from 0 to 10 percent effective July 9, 2012 based on the November 2013 VA respiratory examination showing a FEV1/FVC of 78%. After reviewing the record, the Board finds that the proper effective date for the award of a 60 percent rating is July 9, 2012. First, the Board points out that within a year of the December 2013 rating action the Veteran presented new and material evidence as to the proper rating assignable for the service-connected respiratory disorder; the December 2013 rating action thus did not become final as to the correct initial rating to be assigned. Consequently the date of claim in this case is July 9, 2012. As to when entitlement to the 60 percent rating arose, although the earlier examiner found that the Veteran did not require the use of corticosteroid medication, the Veteran reported at the time that she did feel the need to use the inhalers of relatives, and that she could not afford such medication herself because of a lack of insurance. Importantly, once service connection was granted and she was able to seek treatment, she not only was prescribed inhalers, but also prednisone within a short time. Under these facts, the Board is persuaded that her disorder in fact did require the use of corticosteroids as of July 9, 2012. Accordingly, the Veteran is entitled to an effective date of July 9, 2012 for the award of a 60 percent rating. The Board points out that the Veteran never appealed the effective date assigned the award of service connection, and that it is not possible, even under 38 C.F.R. § 3.400(o)(2) to extend the effective date of an increased rating to before the recognized date of the award of service connection. Consequently, an effective date earlier than July 9, 2012 is not warranted. Accordingly, an effective date of July 9, 2012, but not earlier, for the award of a 60 percent rating for restrictive pulmonary disease is granted. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Mitchell, 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.