Citation Nr: 20021752 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-22 262 DATE: March 26, 2020 ORDER Entitlement to an effective date of June 17, 2007, but no earlier, for grant of entitlement to service connection for impairment of sphincter control is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, it is factually ascertainable that the Veteran’s impairment of sphincter control symptoms warranted a 30 percent disability rating as of June 17, 2007. CONCLUSION OF LAW The criteria for an effective date of June 17, 2007, for the assignment of a 30 percent initial disability rating for impairment of sphincter control have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1980 to May 1992. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes there are additional issues on appeal that the Veteran has perfected but are not yet ripe for Board review. Specifically, the issues of entitlement to increased ratings for deviated nasal septum and impairment of sphincter control are on appeal. It appears that the development requested in the May 2019 Board remand is in process, however, a Supplemental Statement of the Case (SSOC) has not been issued, nor have they been recertified to the Board; therefore, these issues are not ripe for adjudication by the Board. The issue of entitlement to TDIU is also on appeal but is not ripe for review at this time, as it is inextricably intertwined with the issues of entitlement to increased evaluations for deviated nasal septum and impairment of sphincter control. Entitlement to an effective date earlier than August 28, 2007, for the grant of a separate rating for impairment in sphincter control. Preliminarily, the Board acknowledges the representative’s argument that the June 17, 2008, correspondence should have been construed as a notice of disagreement with the April 2008 rating decision. A notice of disagreement is a written communication from a claimant expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result. 38 C.F.R. § 20.201(b) (2018). The June 17, 2008 correspondence states “[A]s the accredited representative for the above referenced claimant, we are submitting the attached material as a claim for benefits administered by the Department of Veterans Affairs (VA). Please take action to consider the following: [I]increase evaluation for ulcerative colitis with postoperative colectomy. The veteran has medical evidence at the VAMC, Denver, CO.” While this statement was within one year of the April 2008 rating decision, the June 2008 statement merely requested an increase in rating, and did not express disagreement with the initially assigned ratings. Id. Therefore, the June 2008 claim did not constitute a notice of disagreement with the ratings assigned in April 2008. The Veteran seeks an effective date earlier than August 28, 2007, for the grant of a separate evaluation for impairment of sphincter control. Historically, as noted above, on June 17, 2008, the Veteran submitted an increased rating claim for his service-connected ulcerative colitis. Following a timely appeal of the claim, in July 2014, the Board in deciding the ulcerative increased rating claim, granted a separate rating for impairment of sphincter control. The Veteran appealed the Board’s July 2014 decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2015, the Court granted a Joint Motion for Partial Remand (JMPR). The July 2014 Board decision was vacated with respect to the assignment of a rating no higher than 10 percent for impairment of sphincter control and remanded to the Board for additional consideration. Pursuant to the July 2014 Board decision, a subsequent rating decision in July 2015 granted service connection for impairment of sphincter control, effective June 17, 2008, the date of receipt for the increased rating claim for ulcerative colitis. The Board remanded the issue for an initial increased rating for impairment of sphincter control in August 2015 for further development. An October 2016 rating decision granted an increased rating of 30 percent for impairment of sphincter control, effective December 9, 2015. A subsequent Board decision in May 2017 granted a 30 percent rating prior to December 9, 2015, for impairment of sphincter control. A January 2018 rating decision effectuated the award of the 30 percent initial rating for impairment of sphincter control, effective from June 17, 2008. In a March 2018 notice of disagreement, the Veteran, through his attorney, in pertinent part, asserted entitlement to an earlier effective date for the grant of service connection for impairment of sphincter control. See March 2018 Third Party Correspondence and March 2018 NOD. A July 2019 rating decision granted entitlement to an earlier effective date for impairment of sphincter control, effective August 28, 2007. The Veteran timely appealed the issue of entitlement to an earlier effective date for impairment of sphincter control in July 2019. See July 2019 Form 9. The effective date for an award of service connection based on an original claim generally “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation for disability compensation is the “date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400. In contrast, where the effective date of an increased rating is at issue, the general rule is that an increase may date back one year prior to the date the claim for increase was filed, “if it is ascertainable that an increase in disability had occurred” within that one-year period. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010) (to obtain an effective date earlier than the date of the claim for an increase, the increase must have occurred during the one year period prior to the date of the claim); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (“When a claim for an increased rating is granted, the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe.”). In this regard, the evidence must show that the increase occurred during the prior one-year period; evidence showing an increase before that period does not suffice. Gaston, 605 F.3d at 983-84. During the pendency of the appeal, the definition of what constitutes a valid claim has changed. For the purposes of this case, 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). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). Further, under 38 C.F.R. § 3.157, a report of examination or hospitalization may be accepted as an informal claim for benefits if it communicates an intent to file a claim. Here, the separate rating for impairment of sphincter control was awarded as part and parcel and secondary to the ulcerative colitis increased rating claim, thus, the rules under 38 C.F.R. § 3.400(o)(2) apply. The Court in Ross v. Peake addressed the question of whether a grant of secondary service connection is an award of “increased compensation” within the meaning of section § 5110(b)(2) and § 3.400(o)(2). 21 Vet. App. 528, 531-34 (2008). There, the Court held that the exception to the general rule for effective dates is not applicable to the awards of secondary service connection, as they are not awards of “increased compensation” within the meaning of the statute. Id. However, the facts of that case are distinguishable from this case; specifically, in Ross, the Veteran had obtained secondary service connection for a psychiatric disorder based on his service-connected heart condition. The Diagnostic Code for a heart condition, unlike the Diagnostic Codes for the digestive system, does not compel VA to assign or evaluate whether a separate rating for a psychiatric condition is warranted. See 21 Vet. App. at 533 (stating that the Veteran’s secondarily service-connected depression was under a Diagnostic Code separate and distinct from the one under which he was directly service-connected for his heart condition). Here, the separate rating for impairment of sphincter control was granted on the basis of the rating criteria for ulcerative colitis under 38 C.F.R. § 4.114, for the digestive system, and thus, the Board reiterates that the rules under 38 C.F.R. § 3.400(o)(2) apply in this case. Beginning with the claim date, as noted above, the Veteran submitted a claim for an increased rating for ulcerative colitis on June 17, 2008. The Board will construe this statement as the claim date for effective date purposes for the Veteran’s 30 percent evaluation for impairment of sphincter control. The Board notes that the mere presence of a disability does not establish an intent on the part of the Veteran to seek service connection for that condition. See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). Therefore, the crux of this case is determining whether it was factually ascertainable that the Veteran’s impairment of sphincter control symptoms warranted a separate rating within a year of June 17, 2008. Considering the RO has since assigned an effective date of August 28, 2007, for the grant of impairment of sphincter control, the period at issue is from June 17, 2007 to August 28, 2007. Resolving reasonable doubt in the Veteran’s favor, the Board finds it is factually ascertainable that the severity increase occurred within one-year as required under Gaston. In a November 2008 VA examination, the examiner noted that following a second surgery where a J pouch was formed and anastomosed to the anal verge in April 2006, the Veteran began to have a significant increase in diarrhea. See November 2008 VA Examination. The examiner noted that over the course of the next two and a half years, the Veteran continued to have at least six to ten loose stools a day, two to three stools at night, and continued to have periods of urgency where he would need to get to a restroom within a minute or two; or otherwise risked having an episode of fecal incontinence where he would soil his underwear. VA treatment records also show that in August 2007, the provider noted the Veteran’s stool incontinence, urgency and loose stools. See October 2007 Medical Treatment Record – Government Facility. As it is factually ascertainable that the severity increase occurred within one-year as required under Gaston, the Board finds the criteria for an earlier effective date of June 17, 2007, but no earlier, for a 30 percent disability rating for impairment of sphincter control is warranted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. D. Smart Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.