Citation Nr: 21012458 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 10-18 503A DATE: March 4, 2021 ORDER Entitlement to an effective date of September 30, 1992, for the award of service connection for a large intestine disorder is granted. Entitlement to revision of a January 29, 1994, rating decision on the basis of clear and unmistakable error (CUE) pursuant to 38 C.F.R. § 3.105 is dismissed. Entitlement to revision of a January 8, 1996, rating decision that denied entitlement to service connection for a large intestine disorder, on the basis of CUE pursuant to 38 C.F.R. § 3.105, is dismissed. Entitlement to revision of a July 18, 2007, rating decision that denied an application to reopen the claim of service connection for large intestine disorder, on the basis of CUE pursuant to 38 C.F.R. § 3.105, is dismissed. FINDINGS OF FACT 1. The Veteran’s November 19, 1992, application for benefits included a claim of service connection for a large intestine disorder.  There were no prior unadjudicated claims. 2. Entitlement arose for service connection for a large intestine disorder by September 30, 1992, the day following the Veteran’s separation from active service. 3. The grant of an effective date of September 30, 1992, for the award of service connection for a large intestine disorder render the separate motions of revision of the January 29, 1994, January 8, 1996, and July 18, 2007, rating decisions moot. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 30, 1992, for the award of service connection for a large intestine disorder are met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.400. 2. The Board does not have appellate jurisdiction to consider the motion for revision of the January 29, 1994, rating decision. 38 U.S.C. §§ 5109A, 7104, 7105; 38 C.F.R. § 3.105(a). 3. The Board does not have appellate jurisdiction to consider the motion for revision of the January 8, 1996, rating decision. 38 U.S.C. §§ 5109A, 7104, 7105; 38 C.F.R. § 3.105(a). 4. The Board does not have appellate jurisdiction to consider the motion for revision of the July 18, 2007, rating decision. 38 U.S.C. §§ 5109A, 7104, 7105; 38 C.F.R. § 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from September 1983 to September 1992. These matters come to the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA).  In August 2014, May 2016, June 2017, and March 2019, the Board remanded these matters for further evidentiary development. The directives have been substantially complied with and the matters again are before the Board. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at a March 11, 2014, videoconference hearing before a Veterans Law Judge (VLJ) who has since retired from the Board. The Veteran was notified of such in May 2020. In July 2020, the Veteran requested the opportunity for a new hearing before the Board. Thereafter, the Veteran testified at a November 18, 2020, hearing before the undersigned. Transcripts of those hearings have been associated with the claims file. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Regarding the Veteran’s large intestine disorder, this appeal arises from the Veteran’s disagreement with the assigned effective date following the grant of service connection. Where an underlying claim for service connection has been granted and there is disagreement as to “downstream” questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). As to the consideration of whether there was CUE in January 29, 1994, January 8, 1996, and July 18, 2007, rating decisions, in Livesay v. Principi, 15 Vet. App. 165 (2001), the United States Court of Appeals for Veterans Claims (Court) noted that although the notice was potentially applicable to all pending claims, the Court held that the notice regulations did not apply to matters of CUE. No additional discussion of the duty to notify is therefore required. The RO associated the Veteran’s service and VA and private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor her 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 duty to assist argument). Earlier Effective Date The Veteran contends that she is entitled to an effective date earlier than January 24, 2006, for the award of service connection for a large intestine disorder. The Veteran asserts that her prior November 1992 application for benefits encompassed a claim for the disability for which she was ultimately granted in a March 24, 2008, rating decision. She contends that the operative reports for the claimed surgical procedures and cited dates of treatment identified bowel involvement and that the RO should have been interpreted them as an inferred claim of service connection for a large intestine disorder. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  See 38 U.S.C. § 5110(a).  If the claim is filed within one year of separation of service, the effective date may be the day following separation from service if entitlement arose. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.304(b)(2). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form.  79 Fed. Reg. 57660 (Sept. 25, 2014).  As the claim in question was received prior to this time, the amended provisions do not apply.   Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.  38 C.F.R. § 3.1(p).  An informal claim was any communication or action indicating an intent to apply for one or more benefits.  38 C.F.R. § 3.155(a).  Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims—formal and informal—for benefits and was required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).   The evidence of record reflects that the Veteran submitted claims of service connection for a “hysterectomy, removal of ovaries & appendix & uterus” and for “female problems (endometriosis),” to include six operations, in an application for compensation (VA Form 21-526), received by the RO on November 19, 1992. She also listed specific dates of treatment during service and general periods of treatment during service for the disabilities. Service treatment records reflect that the Veteran underwent a diagnostic laparoscopy in August 1987. The procedure showed dense and flimsy adhesions to the posterior cul de sac, sigmoid colon, and omentum. Subsequent laparoscopies in November 1989 and January 1991 continued to identify adhesions, and the Veteran was diagnosed with pelvic adhesive disease. In March 1991, the Veteran underwent exploratory laparotomy, bilateral microsurgical tuboplasty, lysis of adhesions, insufflation of fallopian tubes, and a left ovarian cystectomy. Operative notes from this date indicated that the large bowel was adhered across a large endometrioma. A subsequent total abdominal hysterectomy, bilateral salpingo-oophorectomy, and appendectomy performed in May 1992 yielded diagnoses of chronic pelvic pain, primary infertility, severe endometriosis, and extensive pelvic adhesive disease. The Board notes that at a December 1992 VA gynecological examination, the Veteran endorsed chronic pelvic pain with an onset around 1985. Service connection for total abdominal hysterectomy, including removal of both ovaries with bilateral salpingo-oophorectomy, was granted by the RO in a January 29, 1994 rating decision, with a 50 percent rating, effective September 30, 1992. Service connection for an appendectomy was also granted by the RO in the January 1994 rating decision, and assigned a noncompensable rating, effective September 30, 1992. The Veteran did not file a timely appeal to the January 1994 rating decision. It is clear that the January 1994 rating decision focused solely upon the Veteran’s gynecological problems resulting in surgical procedures for the Veteran’s November 1992 claim. The decision cannot reasonably read to constitute an express or implicit denial of a large intestine disorder. Thus, if the November 1992 claim was also one for a large intestine disorder, it remained pending. The Veteran subsequently filed an informal claim of service connection for a large intestine disorder that was received on August 7, 1995. In support of her claim, the Veteran submitted treatment records dated in April and June 1995 that document complaints of constipation, rectal bleeding, and lower abdominal pain, and a June 1995 colonoscopy that yielded a diagnosis of lesion of the colon. The RO, in a January 1996 rating decision, denied entitlement to service connection for a large intestine disorder. The Veteran did not appeal the January 1996 rating decision. Thereafter, the Veteran submitted an informal application to reopen the claim of service connection for a “digestive system” disability, that was received by the RO on April 24, 2006. In support of her application to reopen, the Veteran submitted treatment records, including an admission on January 24, 2006, for a left hemicolectomy that yielded a diagnosis of chronic volvulus with intermittent partial obstruction. The RO, in a July 2007 rating decision, denied reopening of the claim of service connection for a large intestine disorder. The Veteran submitted a notice of disagreement in July 2007 and new and material evidence within a year of the rating decision. In a subsequent March 2008 rating decision, the RO awarded service connection for a large intestine condition, with a temporary total evaluation, effective January 24, 2006, and a 10 percent rating, effective May 1, 2006. The United States Court of Appeal for the Federal Circuit (Federal Circuit) held in Sellers v. Wilkie, 965 F.3d 1328 (2020), that a claim must identify the sickness, disease, or injury for which compensation is sought, with at least at a high level of generality, before VA’s duty to assist in the development of the claim is triggered. The Federal Circuit also held in Shea v. Wilkie that, “where a claimant’s filings refer to specific medical records, and those records contain a reasonably ascertainable diagnosis of a disability, the claim has raised an informal claim for that disability under 38 C.F.R. § 3.155(a).” 926 F.3d 1362, 1363 (Fed. Cir. 2019). Thus, in addressing whether a claim included a specific disability, the analysis is not a stringent one. Here, the analysis essentially turns on whether the claims for “hysterectomy, removal of ovaries & appendix & uterus” and for “female problems (endometriosis),” to include six operations, were limited solely to the in-service surgical procedures or whether it can be interpreted as one to include a large intestine disorder for which the Veteran was ultimately granted service connection. The current contentions and statements as to what she meant the claim to be did not accompany the claim at that time in November 1992. Upon the Board’s review of the Veteran’s service treatment records, adhesions were routinely observed in operative notes, and a diagnosis of pelvic adhesive disease was documented. The Board further acknowledges that the Veteran has remained consistent regarding her abdominal pain symptoms. In her original November 1992 application, the Veteran specifically referenced the May 1992 surgical procedure and the five other procedures she underwent in active service. The Veteran’s service treatment records corroborate her reported surgical history. Thus, the RO had notice of the Veteran’s in-service operations and diagnosis of extensive pelvic adhesive disease. See Shea, 926 F.3d at 1363. Accordingly, the Board finds that the November 19, 1992, service connection claims implicitly encompassed an informal service connection claim for a large intestine disorder under 38 C.F.R. § 3.155(a). See Shea, 926 F.3d at 1363. Thus, the Board will liberally construe the November 1992 service connection claims as expressing the Veteran’s implicit intent to claim benefits for a large intestine disorder, of which a reasonably ascertainable diagnosis of adhesions involving the bowels were found in her service treatment records. The Board also finds that entitlement arose by September 30, 1992. Positive medical nexus opinions were not obtained until April 2006 and March 2008 in the course of the more recent claim. Nevertheless, the April 2006 private physician and the March 2008 VA examiner noted that the Veteran had long-standing scarring within the abdominal cavity and that the development of intestinal adhesions are common following surgery. Determining the date upon which entitlement arose does not turn on when the evidence is created but when the disability first manifested. Thus, in conjunction with the service treatment records, the April 2006 and March 2008 medical opinions show that entitlement arose no later than September 30, 1992, the day following the Veteran’s separation from active service. As such, the Board finds that, with resolution of reasonable doubt in the Veteran’s favor, the evidence supports the Veteran’s claim for an earlier effective date of September 30, 1992, for the award of service connection for a large intestine disorder. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The grant of an effective date of September 30, 1992, for the award of service connection for a large intestine disorder renders moot the Veteran’s motion for revision of the January 1994 rating decision because it was not a final decision for this claimed disability. The Veteran’s CUE motions regarding the January 1996 and July 2007 rating decisions are also moot. M. C. WILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.