Citation Nr: 20047075 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 19-00 404A DATE: July 14, 2020 ORDER Entitlement to an effective date earlier than April 21, 2010, for the award of a 40 percent disability rating for service-connected prostatitis is denied. FINDINGS OF FACT 1. The Veteran did not initiate an appeal of the February 1987 rating decision that denied his claim for a compensable rating for his service-connected prostatitis. 2. Following the February 1987 rating decision, on April 21, 2010, the agency of original jurisdiction (AOJ) received the Veteran’s claim for a total disability rating based on individual unemployability (TDIU) due to his service-connected disabilities, and this was accepted by the AOJ as a claim for increased ratings for his service-connected disabilities, to include prostatitis. 3. In the February 2018 Board decision, the issue of entitlement to a compensable rating for prostatitis was granted and a 40 percent disability rating was assigned prior to September 21, 2011; and the AOJ assigned the effective date of April 21, 2020 for the award of the 40 percent disability rating in the March 2018 VA rating decision. 4. It was not factually ascertainable that an increase in prostatitis took place within one year of April 21, 2010. CONCLUSION OF LAW The criteria for an effective date prior to April 21, 2010, for the award of a 40 percent rating for service-connected prostatitis are not met. 38 U.S.C. §§ 5110, 5103, 5103A, 7105; 38 C.F.R. §§ 3.155, 3.157 (in effect prior to March 24, 2015); 38 C.F.R. §§ 3.155, 3.103, 3.159, 3.400, 4.115A, 4.115B, Diagnostic Code 7527 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from April 1977 to May 1978. A private attorney revoked his representation and withdrew as the Veteran’s representative for the issue on appeal in October 2016 prior to the certification of this appeal. As of this date, the Veteran has not indicated that he desires another representative, thus the Board will proceed under the assumption that he wishes to represent himself. See 38 C.F.R. § 20.6 (2019). In a February 2018 decision, the Board granted a 20 percent disability rating to the Veteran’s service-connected prostatitis, effective September 21, 2011. The AOJ implemented that decision in a March 2018 rating decision. In June 2018, the Veteran filed a notice of disagreement (NOD), in pertinent part, disagreeing with the assigned effective date for this increase. An appellant cannot challenge the merits of a Board decision by expressing disagreement with an AOJ decision implementing the Board’s decision. Harris v. Nicholson, 19 Vet. App. 345, 348 (2005); see also Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (construction of regulation to permit review by RO of a Board decision to be avoided); Donovan v. Gober, 10 Vet. App. 404, 409 (1997) (“an RO must not be placed in the anomalous position of reviewing the decision of the [Board], a superior tribunal”). Rather, the Board decision must be challenged via a motion for reconsideration or an appeal to United States Court of Appeals for Veterans Claims (Court). Harris, 19 Vet. App. at 348; 38 U.S.C. §§ 7252(a), 7266(a). The Board accepts the Veteran’s disagreement in June 2018 as a timely motion for reconsideration regarding the 20 percent disability rating, and that will be addressed in a separate matter. The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. VA’s duty to notify was satisfied by a June 2010 letter. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2019). Next, VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include where warranted by law, and affording the claimant a VA examination and hearing before the Board. 38 U.S.C. §§ 5103, 5103A. There is no evidence that additional records have yet to be requested. With regard to the March 2020 hearing, the Acting Veterans Law Judge (AVLJ) and the Veteran identified the issue on appeal and engaged in a discussion as to substantiation of the case. Specifically, the AVLJ gave the Veteran the opportunity to discuss his complaints regarding the effective date assigned for the 40 percent disability rating for prostatitis. The actions of the AVLJ supplemented the duty to notify and assist and complied with any related duties owed during a hearing. Overall, the hearing was legally sufficient, and there has been no allegation to the contrary. See 38 C.F.R. § 3.103. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Entitlement to an effective date earlier than April 21, 2010, for the award of a 40 percent disability rating for service-connected prostatitis At the outset, the Veteran filed a timely NOD with the effective date assigned for the 40 percent disability rating in the February 2018 Board decision and perfected this appeal by submission of a timely substantive appeal in January 2019. Thus, the Board has proper jurisdiction over this claim on appeal for an earlier effective date for the award of a 40 percent disability rating. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no such thing as a freestanding claim for an earlier effective date). In general, except as otherwise provided, the effective date of an evaluation based on an original claim 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. Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400(o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57,686. Under the former regulations applicable in this case, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under former 38 C.F.R. § 3.157(a) (which was in effect prior to March 24, 2015), a report of examination or hospitalization would be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b) (2014). This claim is subject to the more specific criteria under 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2). “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.” 38 U.S.C. § 5110(b)(2). The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the “[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim.” 38 C.F.R. § 3.400(o)(2). 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. See 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. In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the Court held that the applicable statutory and regulatory provisions, fairly construed, require the Board to look at all communications in the file that might be interpreted as applications or claims, formal or informal, for increased benefits and, then, to all other evidence of record to determine the “earliest date as of which,” within the one-year prior to the claim, the increase in disability was ascertainable. 38 U.S.C. § 5110(b)(2); 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles, supra. In a February 2018 decision, the Board assigned a 40 percent disability rating to the Veteran’s service-connected prostatitis for the period prior to September 21, 2011, but it did not assign an effective date for the award. In the March 2018 rating decision on appeal, the AOJ assigned an effective date of April 21, 2010, for the award of the 40 percent rating. The AOJ noted that April 21, 2010, represented the date of the Veteran’s claim for an increased rating was received. During his March 2020 hearing, the Veteran argued that a compensable rating should have been assigned for the period prior to September 21, 2010 because the problems associated with his prostatitis began during the 1980s, and because he never received the appropriate support for his claims prior to 2008 when he received help from an attorney. See March 2020 Hearing Transcript, pp. 10-13. By way of background, in a February 1979 rating decision, the AOJ granted service connection for prostatitis, and assigned an initial noncompensable (0 percent) disability rating under Diagnostic Code 7527. The AOJ denied a compensable rating in an October 1979 rating decision. Thereafter, the Veteran did not enter a timely NOD with the assigned noncompensable disability rating. In July 1982, the Veteran filed a claim for an increased rating for his service-connected disabilities. In December 1982, the AOJ denied his claim for a compensable rating for his service-connected prostatitis. Once again, after he was notified of the decision and his appellate rights, he did not enter a NOD with the December 1982 rating decision. In June 1986, the Veteran filed another claim for an increased rating for his service-connected prostatitis. In February 1987, the AOJ denied his claim for a compensable rating for his service-connected prostatitis. Once again, after he was notified of the decision and his appellate rights, he did not enter a NOD with the February 1987 rating decision. The Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, no additional evidence was received prior to the expiration of the appeal periods stemming from the October 1979, December 1982, and February 1987 rating decisions. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). As such, the October 1979, December 1982, and February 1987 rating decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 19.52, 20.1103. The Board acknowledges that finality in the October 1979, December 1982, and February 1987 rating decisions could be vitiated by a finding of clear and unmistakable error (CUE). See Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998) (listing CUE as one of the three exceptions to the rules regarding finality and effective dates). However, no such claim has been raised here. A CUE claim requires some degree of specificity not only as to what the alleged error is, but—unless it is the kind of error that, if true, would constitute CUE on its face—persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. See Phillips v. Brown, 10 Vet. App. 25, 31 (1997). Following the February 1987 rating decision, on April 21, 2010, the AOJ received the Veteran’s claim for a TDIU due to his service-connected disabilities, and this was accepted by the AOJ as a claim for increased ratings for his service-connected disabilities, including his service-connected prostatitis. Based on the evidence of record, the Board finds that an effective date prior to April 21, 2010, is not warranted for assignment of the 40 percent disability rating for the Veteran’s service-connected prostatitis. In making this determination, the Board has considered whether any communication dated prior to April 21, 2010 may be considered an informal claim; however, the Board finds that the no document associated with the record following the February 1987 rating decision, but dated before the April 21, 2010, indicates an intent to file a claim for an increased rating for his service-connected prostatitis. Indeed, although the Veteran pursued other claims, no mention was made of his service-connected prostatitis. The Board has reviewed the evidence of record within the one-year period prior to the receipt of the Veteran’s claim on April 21, 2010, to determine whether it is factually ascertainable that the Veteran’s service-connected prostatitis increased in severity during that time period to warrant an earlier effective date for the award of the 40 percent disability rating within that year. The Veteran’s prostatitis is rated under 38 C.F.R. § 4.115b, Diagnostic Code 7527, which contemplates prostate infections, and provides that an individual’s disability is to be rated as a voiding dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115B. The only evidence dated during the one-year period prior to April 21, 2010, are the Veteran’s VA treatment records. While these VA treatment records note his history of prostatitis and urinary dysfunction, there are no objective findings that address the nature and severity of the Veteran’s service-connected prostatitis or indicate that the criteria for the 40 percent disability rating under Diagnostic Code 7527 were met. See 38 C.F.R. § 4.115B. To the contrary, a May 2009 VA treatment record indicated that the Veteran’s urinary frequency problems had resolved. Although a December 2009 VA treatment record noted the Veteran’s report of increased urinary frequency at night as a result of a new medication, his voiding frequency was not reported. As such, the Board finds that it was not factually not ascertainable that the Veteran’s prostatitis increased in severity, warranting an earlier effective date for the award of a 40 percent disability rating within a year prior to April 21, 2010, under 38 C.F.R. § 3.400(o)(2). As such, the Board finds that it was not factually ascertainable that the Veteran’s service-connected prostatitis increased in severity within one year prior to when his April 21, 2010, claim was received, such that an effective date prior to April 21, 2010, for the award of a 40 percent disability rating under Diagnostic Code 7527 is warranted. The Board is constrained by the laws and regulations governing the assignment of effective dates from awarding the Veteran an effective date earlier than April 21, 2010, for the assignment of a 40 percent disability rating for his service-connected prostatitis. Thus, the benefit sought on appeal is denied. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.