Citation Nr: 21076970 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-59 438 DATE: December 28, 2021 ORDER Entitlement to an effective date earlier than July 21, 2015, for the assignment of a 20 percent evaluation for a painful/unstable scar from an appendectomy is denied. FINDINGS OF FACT 1. A July 2007 rating decision that denied a compensable rating for residuals of an appendectomy became final because the Veteran did not perfect her appeal. 2. Following the final July 2007 rating decision, the earliest claim for an increased disability rating for residuals of an appendectomy was received by the Department of Veterans Affairs (VA) on July 21, 2015. 3. In the year leading up to VA's receipt of the July 2015 claim for an increased disability rating for residuals of an appendectomy, the evidence does not demonstrate that this disability underwent a factually ascertainable increase in its severity. CONCLUSION OF LAW The criteria for an effective date earlier than July 21, 2015, for the assignment of a 20 percent evaluation for a painful/unstable scar from an appendectomy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from March 1990 to May 1990. This matter comes before the Board of Veterans' Appeals (Board) from an October 2015 rating decision from a VA Regional Office. The Veteran presented sworn testimony at a hearing before the undersigned Veterans Law Judge (VLJ) in January 2021. A transcript of the hearing has been included in the claims file. As the Veteran raised the issue of clear and unmistakable error in a July 2007 rating decision that denied an increase in the rating for the residuals of her appendectomy on the basis of clear and unmistakable error (CUE), the Board remanded this matter in January 2021. At that time, the Board explained that VA had yet to make a determination regarding the issue of CUE in that July 2007 and therefore the Board was not in a position to make a final determination regarding the issue of whether an earlier effective date was warranted for the 20 percent rating that has been assigned to the Veteran's appendectomy residuals, to include a painful scar. Pursuant to the Veteran's hearing testimony, VA solicited a more detailed explanation of her theory regarding the nature of the alleged CUE in the July 2007 rating decision. A VA RO ultimately issued a decision in March 2021 regarding this theory and found no CUE in that July 2007 decision. The Veteran has not yet appealed this decision and may consult her appeal rights regarding that decision that were included in her notification of that decision. However, as VA has now addressed the issue of whether there was CUE in the July 2007 rating decision, the Board may now proceed to evaluate the merits of her appeal for an earlier effective date for her 20 percent disability rating. Entitlement to an effective date earlier than July 21, 2015, for the assignment of a 20 percent evaluation for a painful/unstable scar from an appendectomy The Veteran seeks an earlier effective date for the current rating she has been assigned for the scar associated with her service-connected residuals of an appendectomy. For the reasons explained below, the Board ultimately finds that the criteria for such an effective date are not met. In analyzing her claim, the Board finds it useful to outline VA's most recent decisions regarding her claims for an increase in the evaluation assigned to this disability and the procedural history leading up to her current disability rating. This disability was first granted service connection in an April 1993 rating decision. At that time, the Veteran was assigned a noncompensable disability rating. The Veteran did not seek an increase in the rating assigned to this disability until she submitted an informal claim for this condition in March 2007. This claim was ultimately denied in a July 2007 rating decision, and the Veteran submitted a notice of disagreement to this decision in November 2007. In response, a VA RO issued a statement of the case with respect to the issue of whether a compensable rating was warranted for residuals of an appendectomy in September 2008. After this statement of the case, the claims file does not include any written claim, whether formal or informal, that was received by VA until July 21, 2015. This claim was eventually granted, and a VA RO issued the October 2015 rating decision on appeal that assigned a 20 percent disability rating to the residuals of the Veteran's appendectomy due to one painful and unstable scar. The Veteran's arguments for an earlier effective date at the hearing largely center on her contentions regarding whether she perfected her appeal in 2008 to the September 2008 statement of the case that continued to find that only a noncompensable rating was warranted. In her notice of disagreement to the October 2015 decision, she contended that the 20 percent rating should go back to January 2007 because it was then that she opened a claim. In her December 2016 substantive appeal to the Board, the Veteran contended that she believed her scarring was incorrectly diagnosed in 2007 and that she should have received a 20 percent rating at that time. At the January 2021 hearing, the Veteran explained that she had submitted all required documentation in 2007 to complete her appeals process. In correspondence received in February 2021, the Veteran provided further detail regarding the specific location at which she completed the paperwork to complete her appeal after the 2008 statement of the case. She stated that after receiving the statement of the case, she took her notification letter to the Houston County Veterans Administration office located in Dothan, Alabama. The Veteran indicated she worked with her VA representative who had an acting power of attorney on file for her and who had the Veteran sign and date the VA Form 9. She stated that this representative told her that he would submit the form on the same day in September 2008 and that she assumed that he followed through with submitting the VA Form 9 on her behalf. The Veteran acknowledged that somehow it appears that this representative did not actually submit the VA Form 9, but she contends that any such error is VA's and not her own. In essence, the Veteran appears to be contending that her symptoms relating to her appendectomy scar were the same as they were at the time of the prior adjudication regarding this issue and that she did, in fact, provide the necessary paperwork to continue her appeal in that claim. The Board will therefore consider whether the prior adjudication resulting in the September 2008 statement of the case can be considered "final" pursuant to VA's statutes and regulations. As noted above, the Veteran did initiate the appeals process in the prior adjudication when she submitted a notice of disagreement to the July 2007. For claims under the legacy system such as the Veteran's prior claim for an increased rating, that is the first step to initiate an appeal to the Board of Veterans' Appeals. 38 U.S.C. § 7105(a); 38 C.F.R. § 19.21. Once a notice of disagreement is submitted and an agency of original jurisdiction issues a statement of the case, a substantive appeal is required to perfect the appeal to the Board. 38 C.F.R. §§ 19.20, 19.22, 19.30. The time limit to file the substantive appeal is the later of one year after the notice of the initial unfavorable rating decision or 60 days after the furnishing of the statement of the case. 38 C.F.R. § 19.52(b)(1). As the statement of the case was issued more than a year after the applicable rating decision, the Veteran therefore had until 60 days after the September 2008 statement of the case to submit her substantive appeal. Here, the record does not contain any substantive appeal or written communication that could be construed as such that was received by VA within 60 days of the September 2008 statement of the case. In this respect, the Board notes that this is not a scenario where timeliness is an issue. The record simply does not contain any substantive appeal or VA Form 9 that addresses the September 2008 statement of the case. As such, at first blush, it does not appear that the Veteran satisfied the criteria to perfect her appeal to the Board and the July 2007 rating decision therefore became final. 38 C.F.R. § 3.160(d). Nonetheless, the Board must consider the Veteran's contentions regarding her attempts to complete her paperwork in filing her appeal in a timely manner. Although the Veteran states she submitted her VA Form 9 to a VA representative at an office in Dothan, Alabama, it appears that this representative was not a VA employee but was instead an employee of a State or County organization. The office she identified is an office of a county in Alabama and not an office of the United States Department of Veterans Affairs. Similarly, while she stated she submitted this substantive appeal ot her representative who had a power of attorney on record, the claims file includes no evidence that the Veteran submitted any appointment of representative form (VA Form 21-22) at any point prior to her current representation that dates back only to December 2015. While the Veteran contends that the error on the part of this representative in Alabama is VA's own error for which she should not be penalized, there is no competent evidence that the person to whom she submitted this Form 9 was actually a VA employee. If this non-VA representative failed to file or assist the Veteran in filing a timely substantive appeal, while this situation is extremely unfortunate, the fact remains that no such substantive appeal was submitted. Ineffective representation does not serve as a basis upon which to grant the benefit sought here. The record on appeal shows that Veteran was duly notified of the September 2008 statement of the case. In any event, ineffective representation would not create a legal right to benefits which are precluded by law. Shields v. Brown, 8 Vet. App. 346, 351 (1995) (holding that inaccurate advice does not create any legal right to benefits where such benefits are otherwise precluded). Rather, the Board is bound by the applicable law and regulations and is without authority to grant benefits on an equitable basis. 38 U.S.C. §§ 503, 7104(c); see also OPM v. Richmond, 496 U.S. 414, 434 (1990). Ultimately, the Board finds that there was no submission of a substantive appeal after the September 2008 statement of the case that was received by VA. As such, the underlying July 2007 rating decision became final. Considering this finding, the Board will turn to the question of whether an earlier effective date for the 20 percent rating for an appendectomy scar is warranted on any other basis. An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). "[A]n increase in a Veteran's service-connected 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, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2)). If the increase in disability is shown to have occurred after the date of claim, the effective date is the date of increase. See 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1); VAOPGCPREC 12-98 (1998). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). As the Board has found that the prior adjudication became final, the central question remaining before the Board is when the Veteran submitted a new claim for an increase in her disability rating for her appendectomy scar and whether that disability underwent a factually ascertainable increase in its severity in the year prior to VA's receipt of that claim. Effective March 24, 2015, VA included a requirement that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Prior to the March 24, 2015 amendments, VA accepted both formal and informal claims. An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). There is no set form that an informal written claim must take, but it must have been in writing. 38 C.F.R. § 3.1(p). All that is required is that the written communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). The record does not include any written communication from the Veteran that could be construed as a request for a higher rating for her residuals of an appendectomy until VA received a claim for this benefit on July 21, 2015. The Veteran does not contend that any formal or informal prior claim for this benefit was submitted between the September 2008 statement of the case and this July 2015 date. As such, the date of the receipt of the claim will be the effective date of the increase in rating that was granted in her current claim unless it is factually ascertainable that the increase occurred in the year leading up to July 21, 2015. To this end, the Board's careful review of the claims file does not uncover any medical evidence from that period documenting an increase in severity of the Veteran's appendectomy scar. The Board also finds it highly probative that the Veteran now contends that her symptoms during the current adjudication were present at the time of the prior adjudication. Indeed, that appears to have been part of the basis of her current disagreement with the outcome of the July 2007 rating decision. Accordingly, the Board finds that the preponderance of the probative, credible, and competent evidence of record does not show that the residuals of the Veteran's appendectomy underwent a factually ascertainable increase in severity in the one-year period prior to July 2015. The Board is sympathetic to the Veteran's position and has no reason to question the sincerity of her current statements that she attempted to work with a representative to submit a VA Form 9 back in September 2008 or that VA erred back at that time in assigning a correct disability rating to her appendectomy-related disability. However, the Board finds that VA's rules and regulations direct a finding that the prior adjudication of the evaluation of this disability is final and no subsequent claim for an increase was received until the current effective date of the 20 percent disability rating. The Board must therefore find that the criteria for an earlier effective date have not been met. The preponderance of the evidence is against the claim and the appeal must be denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Whitelaw, 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.