Citation Nr: 21068367 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 99-03 531 DATE: November 10, 2021 ORDER Entitlement to an effective date of May 26, 2009, but no earlier, for the assignment of a separate disability rating for radiation proctitis with fecal urgency, is granted. REMANDED Entitlement to a disability rating higher than 30 percent for the service-connected right knee disability is remanded. Entitlement to a disability rating higher than 10 percent for the service-connected radiation proctitis with fecal urgency is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDING OF FACT It is factually ascertainable that the onset of symptoms of radiation proctitis with fecal urgency is within one year of an increased rating claim. CONCLUSION OF LAW The criteria for assignment of an effective date of May 26, 2009, for the grant of service connection for radiation proctitis with fecal urgency are met; the criteria for an effective date earlier than May 26, 2009, are not met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a veteran (the Veteran) who had active duty service from June 1966 to April 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2020 Order of the United States Court of Appeals for Veterans' Claims (Veterans Court). The appeal originated from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO) dated in March 1998 (knees), July 2010, (radiation proctitis), and June 2012 (right thigh). In January 2006, the Veteran presented testimony at a Board hearing chaired by a Veterans Law Judge who is no longer employed at the Board. A transcript of the hearing is associated with the claims file. The Veteran was offered an opportunity to testify before the person who would decide his appeal and he declined. In an April 2018 decision, the Board reopened and remanded the issue of service connection for a right thigh hematoma. The Board denied increased ratings for the right knee and radiation proctitis, as well as the effective date for radiation proctitis. The Veteran appealed that decision to the Veterans Court. In a December 2019 memorandum decision, which was later withdrawn in favor of a November 2020 panel decision, the Veterans Court vacated the Board's April 2018 decision in part, and remanded the rating and effective date issues to the Board for additional development. In his pleading to the Veterans Court, the Veteran had raised the issue of entitlement to service connection for a right thigh hematoma. Service connection was subsequently granted for that disability; however, the Veterans Court addressed the issue in both the December 2019 memorandum decision and in the November 2020 panel decision. The Veteran's argument was essentially centered on the effective date. The Veteran cited a finding of the Board in an April 2018 decision that a December 1999 rating decision, which also denied the claim, was final. The Veterans Court held that the finding of finality was not a decision of the Board and therefore, the Veterans Court did not have jurisdiction. The appeal was dismissed. As the rating issue dates to a claim of August 1, 1997, the issue of TDIU entitlement is a component of the increased rating claim in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). Effective DatesLaw and Regulations The applicable effective date statute and regulations provide that the proper effective date for increased rating claims is the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of claim for increased rating. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim for increase. Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12-98. The Federal Circuit has reaffirmed that "the plain language of [section] 5110(b)(2)[...] only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Entitlement to an effective date earlier than May 26, 2010, for an award of a separate rating for radiation proctitis with fecal urgency. In the April 2018 decision on appeal, the Board characterized the issue as an effective date for the grant of service connection for radiation proctitis with fecal urgency. The effective date for fecal incontinence as a residual of prostate cancer and radiation treatment received therefor was based on the first evidence in the record that this specific residual was present. A May 2010 VA examination was the first record of the presence of this residual, and it cited onset in "the past year." The Veterans Court in the December 2019 memorandum decision agreed with the Veteran that he filed an increased rating for his service-connected prostate in October 2009, and instead of treating the grant for fecal urgency as an award of service connection, the Board should have interpreted the October 2009 claim as a claim for prostate cancer residuals, and should have addressed the provisions of 38 C.F.R. § 3.400(o)(2), which allow for establishing an effective date for an increased rating within one year prior to the date at which it became factually ascertainable that an increase in the disability had occurred. The Veterans Court found that an October 2009 increased rating claim, in which the Veteran simply listed "prostate" was a claim for residuals of prostate cancer. Therefore, the May 2010 VA examination fell within one year of the receipt of an increased rating claim for an already service-connected disability, i.e. residuals of prostate cancer. As the examiner reported that symptoms of fecal urgency had begun in the year prior to the examination, and as a claim for increase had been received within one year of the date it became factually ascertainable that the increase occurred, an effective date of May 26, 2009, is warranted. As there is no basis in the record or under VA law to establish any earlier date, and as the parties to the appeal have not asserted such bases, the Board finds that no earlier effective date is warranted. REASONS FOR REMAND All Claims VA has added a substantial number of medical records to the claims file since the most recent adjudication of the claims in 2017. The Veteran has a right to have all evidence considered by the agency of original jurisdiction in the first instance 38 C.F.R. § 19.31. The Veteran can waive that right. The Board notified him by letter in July 2021 that he could waive initial consideration by the agency of original jurisdiction and informed him that, if he did not respond within 45 days, the appeal would be returned to the agency of original jurisdiction. He did not respond. Entitlement to a disability rating higher than 10 percent for radiation proctitis with fecal urgency. The Veteran asserted in July 2016 that he is entitled to a 60 percent disability rating for his radiation proctitis under Diagnostic Code 7332 and he argued that the Board erroneously declined to assess this theory of entitlement in the decision on appeal. The Veterans Court held that, because the Board must address all theories of entitlement raised by the Veteran, and because it failed to do so in this instance, the Veterans Court remanded the matter for the Board to address the matter in the first instance. The Veteran is currently rated on the basis of irritable bowel syndrome. The diagnostic code cited by the Veteran relates to impairment of sphincter control. At the level suggested by the Veteran, there must be extensive leakage and frequent involuntary bowel movements. The evidence of record at the time of the April 2018 Board decision did not indicate such symptoms. In an April 2014 examination, the Veteran denied losing control. In an April 2017 examination, the Veteran reported "few accidents." However, based on the Veteran's recommendation of this code, there is a possibility that the disability has worsened over the past four years, and the Board finds that new examination is necessary. Entitlement to a disability rating higher than 30 percent for a right knee disability. In the November 2020 panel decision, the Veterans Court find that the Board clearly erred when it determined that the medical examinations of record were adequate. Neither the 2010 or 2013 examinations considered the impact of weight-bearing on the Veteran's right knee, and thus do not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) or 38 C.F.R. § 4.59. Accordingly, the Veterans Court remanded the matter for a new medical examination. The matters are REMANDED for the following action: 1. Schedule an appropriate VA examination to determine the manifestations and functional impairment caused by the service-connected right knee disability. The relevant documents in the claims file should be made available to the VA examiner. All indicated tests and studies should be accomplished Range of motion should be reported with active and passive motion, and with weight-bearing and non-weight-bearing. If pain is found, elicit from the Veteran when this symptomatology began. Comparison should be made to equivalent joints on the nonservice-connected joint. Symptomatology, including range of motion during flares should be documented. If the examination is not conducted during a flare, an estimate of range of motion should be provided. The Veteran's description of his range of motion during flares should be considered and recorded. Symptomatology, including range of motion after repeated use over a period of time should be documented. If the examination is not conducted after repeated use over a period of time, an estimate of range of motion should be provided. The Veteran's description of his range of motion after repeated use over a period of time should be considered and recorded. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, the examiner is asked to please provide complete explanations stating why this is so. In so doing, the examiner is asked to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 2. Schedule an appropriate VA examination to determine the manifestations and functional impairment caused by the service-connected radiation proctitis with fecal urgency. The relevant documents in the claims file should be made available to the VA examiner. All indicated tests and studies should be accomplished Based on examination of the Veteran and review of the record, the examiner should comment on whether there is evidence of extensive leakage and frequent involuntary bowel movements. All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, the examiner is asked to please provide complete explanations stating why this is so. In so doing, the examiner is asked to explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that the examiner has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Readjudicate the remanded claims. If either benefit sought on appeal is not granted, the Veteran and his representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Cramp 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.