Citation Nr: 21067140 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-30 775 DATE: November 3, 2021 ORDER Entitlement to an earlier effective date earlier than October 21, 2014, for the award of a 100 percent rating for service-connected hepatitis C with stage II-III liver disease is denied. REMANDED Entitlement to an effective date earlier than December 28, 2006, for the award of a 10 percent rating for service-connected hepatitis C with stage II-III liver disease is remanded. FINDING OF FACT The increase in severity of the Veteran's hepatitis C with stage II-III liver disease which warranted a 100 percent rating was not factually ascertainable prior to October 21, 2014. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date earlier than October 21, 2014, for the award of 100 percent rating for service-connected hepatitis C with stage II-III liver disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1969 to March 1971. This matter is before the Board of Veterans' Appeals (Board) on appeal of a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In July 2021, the Board remanded this matter for further development. The Board finds that the Regional Office (RO) substantially complied with the Board's remand instructions and an additional remand to comply with the Board's directives is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues considered in this decision. See 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). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to an earlier effective date earlier than October 21, 2014, for the award of a 100 percent rating for service-connected hepatitis C with stage II-III liver disease The Veteran seeks entitlement to an earlier effective date for the award of 100 percent rating for his service-connected hepatitis C with stage II-II liver disease. The Veteran contends that he has had hepatitis C since 1974. The Veteran contends that the medical evidence supports a 100 percent rating effective date back to October 2001. See November 2015 Notice of disagreement. The Veteran was initially granted service connection in a September 2005 rating decision, effective December 10, 2001. The Veteran did not file a notice of disagreement with this rating decision, nor did he submit any evidence relevant to this claim within a year of the rating decision. As such, this rating decision became final. 38 C.F.R. § 20.1103. The current appeal arose from a claim which the Veteran filed in September 2013. He filed a claim for a stage 2 liver condition and in May 2014 he filed a claim for an increased rating for his service-connected hepatitis C disability. The Board notes that these two conditions were combined in the November 2015 rating decision and the Veteran was awarded a 20 percent rating disability effective September 26, 2013, and a 100 percent rating effective October 21, 2014. In his notice of disagreement dated in November 2015, the Veteran specified that he disagreed with the effective date of the 100 percent rating. Generally, the effective date for an award of an increased rating is 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(o). However, if the increase in disability is factually ascertainable within one year prior to the receipt of the claim for an increased rating, the rating will be effective as of the date of increase in disability. 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). The Board acknowledges the Veteran's contentions that he had hepatitis C since 1974 and seeks an earlier effective date for his 10 percent rating. However, the Veteran did not file a notice of disagreement with the September 2005 rating decision, nor did he submit any evidence relevant to this claim within a year of this rating decision. Therefore, the Veteran's effective date for hepatitis C cannot be earlier than the dates of the claim, or within one year prior, if factually ascertainable. The Board notes that in September 2007 the RO issued a rating decision increasing the Veteran's rating for his hepatitis C disability to 10 percent, effective December 28, 2006. Later in September 2007 the Veteran submitted a request for an earlier effective date. This will be discussed in greater length in the remand section below. The Board examined the time period from September 26, 2012 to October 21, 2014 and determined that in this case, it is not factually ascertainable that the Veteran's disability increased in severity within one year prior to the receipt of the September 2013 claim or at any time prior to October 21, 2014. The Veteran's treatment records reflect that in May 2014 that the Veteran was cleared to participate in VTR, or community-based employment and he would be able to perform medium work without restrictions. The Veteran denied nausea, vomiting, diarrhea, constipation or blood in his stool. He also denied abdominal pain, fever chills, night sweats or weight loss. See November 2013 March 2014, April 2014, May 2014 treatment records. Accordingly, the record does not contain any medical evidence to indicate an increase in severity of the Veteran's service-connected hepatitis C with stage II-III liver disease within a year prior to the Veteran's September 2013 claim. The Veteran then filed a supplemental claim for an increased rating on October 21, 2014. He was then afforded a VA exam in January 2015. The report of examination in January 2015 and subsequently obtained treatment records contain information used to support the assignment of a 100 percent rating. Such a level of severity is not shown to have existed prior to October 21, 2014. Therefore, the Veteran is not entitlement to an earlier effective date earlier than October 21, 2014 for his 100 percent disability rating for hepatitis C with stage II-III liver disease. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to an earlier effective date earlier than December 28, 2006, for the award of a 10 percent rating for service-connected hepatitis C with stage II-III liver disease is remanded. The Veteran seeks entitlement to an earlier effective date for the award of 10 percent rating for his service-connected hepatitis C with stage II-II liver disease. The Veteran contends that he has had hepatitis C since 1974. The Veteran seeks an earlier effective date on his 10 percent rating for hepatitis C. See September 2007 Statement in Support of Claim. As stated above, in September 2007 the Agency of Original Jurisdiction (AOJ) issued a rating decision increasing the Veteran's rating for his hepatitis C disability to 10 percent, effective December 28, 2006. Later in September 2007 the Veteran submitted a request for an earlier effective date. The Agency of Original Jurisdiction (AOJ) interpreted this request for an earlier effective date as a new claim. However, resolving doubt in the Veteran's favor the Board finds that the Veteran was appealing the September 2007 rating decision. The Board notes that a rating decision may be appealed based on the effective date of the rating or the disability rating itself. However, in this case, the Veteran appealed the rating decision based on the effective date. The Agency of Original Jurisdiction has not yet issued a Statement of the Case (SOC) on the effective date issue. As the NOD (request for an earlier effective date) placed that issue in appellate status, the Board must remand it for the AOJ to do so. Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). The matter is REMANDED for the following action: Issue an SSOC addressing the pending claim for an earlier than December 28, 2006, for the award of a 10 percent rating for service-connected hepatitis C with stage II-III liver disease. If the Veteran perfects an appeal by submitting a timely VA Form 9, then return such issue to the Board for further appellate consideration, if otherwise in order. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.