Citation Nr: 21007106 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 19-31 816 DATE: February 8, 2021 ORDER An effective date earlier than January 15, 2017, for the award of service connection for chronic bronchitis with chronic obstructive pulmonary disease (COPD), status post with pneumothorax (collapsed lung), to include an earlier effective date for the 30 percent rating, is denied. FINDINGS OF FACT 1. In January 1998, the Veteran filed a claim for an increased rating for chronic bronchitis with COPD, and filed a “claim for a lung condition.” In an October 1998 rating decision, a 10 percent rating for bronchitis was continued and compensation under 38 U.S.C. § 1151 for a collapsed lung was denied. The Veteran did not appeal the decision. 2. The Veteran filed a claim for an increased rating for the bronchitis with COPD in November 2012, which was increased to 30 percent effective September 3, 2010. The Veteran did not perfect an appeal. 3. The Veteran requested to reopen the claim for service connection for a collapsed lung on January 15, 2017. 4. In an October 2018 rating decision, service connection for the pneumothorax was granted, effective January 15, 2017. Due to regulations prohibiting pyramiding, the service-connected bronchitis with COPD was recharacterized to “chronic bronchitis with COPD, status post pneumothorax” and the single 30 percent rating was continued. 5. No formal or informal claim for service connection for a collapsed lung was received prior to January 2017 claim that was not adjudicated in October 1998 rating decision. CONCLUSION OF LAW The criteria effective date earlier than January 15, 2017, for the award of service connection for chronic bronchitis with COPD, status post with pneumothorax, to include an earlier effective date for the 30 percent rating, have not been met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. § 3.102, 3.155, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Navy from August 1976 to June 1977. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. 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). Earlier Effective Date Unless specifically provided otherwise, the effective date of an evaluation and grant of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110(a) (2018); 38 C.F.R. § 3.400 (2020). The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from active service; otherwise date of receipt of claim, or date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2018); 38 C.F.R. § 3.400(b)(2)(i) (2020). Prior to March 24, 2015, a “claim” was either a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2014). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b) (2014). 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). Effective March 24, 2015, all claims must be submitted on a form prescribed by the Secretary of VA. Here, the Veteran was granted service connection for chronic bronchitis with chronic obstructive pulmonary disease (COPD) in an October 1977 rating decision. A 10 percent rating was granted under Diagnostic Code 6600 effective from June 25, 1977. In January 1998, the Veteran filed a claim for an increased rating for the chronic bronchitis and for a claim for a lung condition that he thought was caused by a mistake made while at a naval hospital in San Diego. In an October 1998 rating decision, the 10 percent rating for bronchitis was continued and compensation under 38 U.S.C. § 1151 for a collapsed lung was denied. The Veteran did not submit a Notice of Disagreement or submit new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the October 1998 rating decision became final. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.160(d), 20.200, 20.302, 20.1103 (2020). In November 2001, the Veteran submitted a claim for an increased rating for his service-connected chronic bronchitis with COPD. In a July 2002 rating decision, the 10 percent rating was continued. The Veteran did not appeal the decision and it is final. In November 2012, the Veteran submitted a claim for an increased rating for the service-connected chronic bronchitis with COPD. In a May 2014 rating decision, the 10 percent rating was continued. The Veteran submitted a notice of disagreement in March 2015. In July 2016, during the pendency of the appeal, the rating for chronic bronchitis with COPD was increased to 30 percent, effective September 3, 2010, under Diagnostic Code 6604-6602. A Statement of the Case (SOC) was issued in July 2016; however, the Veteran did not perfect an appeal of the issue by filing a substantive appeal (VA Form 9). As such, the July 2016 rating decision is final. On January 15, 2017, the Veteran filed a claim to reopen service connection for a collapsed lung. In an October 2018 rating decision, the Regional Office (RO) recharacterized the service-connected bronchitis disability to “chronic bronchitis with COPD, status post pneumothorax” (collapsed lung) and continued the 30 percent rating under Diagnostic Code 6604-6602. The rating decision explained that service connection was granted for the pneumothorax effective January 15, 2017, the date of the Veteran’s claim, but due to regulations prohibiting pyramiding of symptoms, the pneumothorax was being included under the same rating as the service-connected bronchitis with COPD. Specifically, because the respiratory disabilities shared the same symptomatology and rating criteria, they were being evaluated together. The Veteran appealed the effective date for the award, asserting that the effective date should be in 1998. See the February 2019 notice of disagreement, October 2019 VA Form 9. The Board finds that the earliest effective date for the award of service connection for the pneumothorax is January 15, 2017. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q) and (r). The Board has reviewed the record to determine whether an informal claim of service connection for a pneumothorax was filed subsequent to the October 1998 rating decision and prior to the January 15, 2017, claim for compensation that can be construed as an informal or formal claim for service connection for a collapsed, but finds that there is no such document in the claims file. See 38 C.F.R. §§ 3.151, 3.155; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for effective date earlier than the date on which the claim was received, impermissibly attempts to vitiate the rule of finality). In this regard, the Board acknowledges that the Veteran submitted a statement that in March 2015 as a notice of disagreement to the May 2014 denial of an increased rating for bronchitis in which he mentions a collapsed left lung. However, the Board finds this statement cannot be construed as an informal claim. The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). The Veteran’s March 2015 statement is not an intent to apply for benefits but instead is a request for increased rating for his chronic bronchitis. While the statement mentions his collapsed lung, it is done so to provide evidence of his worsening symptoms. Consequently, the Board finds this statement does not qualify as an informal claim for benefits. Furthermore, while the Veteran was service-connected for a collapsed lung in the October 2018 rating decision, his disability rating was not changed. The Board notes that for respiratory disabilities rated under Diagnostic Codes 6600 through 6817, “a single rating will be assigned under the diagnostic code which reflect the predominate disability with elevation to the next higher elevation where the severity of the overall disability warrants such elevation.” 38 C.F.R. § 4.86 (2020). In this case, the Veteran’s chronic bronchitis with COPD, status post pneumothorax disability is rated under the criteria for asthma, and he was afforded a 30 percent rating based on use of his inhaler. See 38 C.F.R. § 4.87 (2020). His predominate disability was not changed by the service connection of his collapsed lung. Accordingly, though he was service connected for an additional disability, his symptoms were already considered in his 30 percent disability rating. Therefore, the Board concludes that the Veteran is not entitled to an earlier effective date for the award of service connection for the collapsed lung, or an earlier effective date for the 30 percent rating. N. NELSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.