Citation Nr: 21013676 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 19-13 550 DATE: March 10, 2021 ORDER An effective date earlier than June 2, 2018, for the award of service connection for radiculopathy of the left lower extremity is denied. An effective date earlier than June 2, 2018, for the award of service connection for radiculopathy of the right lower extremity is denied. An effective date earlier than June 2, 2018, for the award of a 30 percent rating for service-connected stomach ulcer with irritable bowel syndrome is denied. An effective date earlier than June 2, 2018, for the award of a 50 percent rating for service-connected postural thoracolumbar kyphosis is denied. An effective date earlier than June 2, 2018, for the award of a 70 percent rating for service-connected generalized anxiety disorder is denied. FINDINGS OF FACT 1. The Veteran was initially awarded service connection for stomach ulcer with irritable bowel condition, a thoracolumbar spine disability, and generalized anxiety by way of a November 2001 rating decision; those disabilities were evaluated as 10, 20, and 10 percent disabling, respectively, effective from January 1, 2001 2. The Veteran disagreed only with the initial rating assigned his stomach condition; in a January 2003 decision, the Board denied an initial rating greater than 10 percent for the Veteran’s stomach ulcer and irritable bowel condition. 3. On June 2, 2018, the RO received a claim for increased evaluations for the Veteran’s service-connected stomach ulcer with irritable bowel condition, a thoracolumbar spine disability, and generalized anxiety disorder; it is not factually ascertainable that an increase in disability for any of those three conditions occurred in the one-year period prior to June 2, 2018. 4. The Veteran did not file a claim of service connection for right or left lower extremity radiculopathy prior to June 2, 2018 but October 2, 2013 was the date it was factually ascertainable the Veteran’s disability warranted a rating. 5. The Veteran did not file a claim of service connection for right or left lower extremity radiculopathy; entitlement to such arose as part of the Veteran’s thoracolumbar spine increased rating claim. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than June 2, 2018, for the grant of service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than June 2, 2018, for the grant of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The assignment of an effective date earlier than June 2, 2018, for the award of a 30 percent rating for service-connected stomach ulcer with irritable bowel syndrome is not warranted. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.157, 3.400. 4. The assignment of an effective date earlier than June 2, 2018, for the award of a 50 percent rating for service-connected postural thoracolumbar kyphosis is not warranted. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.157, 3.400. 5. The assignment of an effective date earlier than June 2, 2018, for the award of a 70 percent rating for service-connected generalized anxiety disorder is not warranted. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1971 to December 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a an October 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO, inter alia, increased the rating for the Veteran’s stomach ulcer with irritable bowel syndrome to 30 percent, increased the rating for the Veteran’s thoracolumbar spine disability to 50 percent, and increased the Veteran’s generalized anxiety disorder rating to 70 percent; the rating increased were all made effective June 2, 2018. The RO also awarded service connection for radiculopathy of the right and left lower extremities, each evaluated as 10 percent disabling, effective June 2, 2018. The Veteran filed a timely notice of disagreement (NOD) with the effective dates assigned in connection with those awards and subsequently perfected an appeal to the Board. On January 19, 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge; a transcript of that hearing is of record. Effective Date Appeals Relevant to the issues on appeal, the record reveals that service connection for stomach ulcer with irritable bowel condition, a thoracolumbar spine disability, and generalized anxiety disorder was granted by way of a November 2001 rating decision. Those disabilities were evaluated as 10, 20, and 10 percent disabling, respectively, effective from January 1, 2001 (the day after the Veteran’s discharge from service). In January 2002, the Veteran filed an NOD in which he disagreed only with the initial rating assigned for his stomach ulcer and irritable bowel condition. As such, the November 2001 rating decision became final as to the grants of service connection for a thoracolumbar spine disability and generalized anxiety disorder, to include the ratings assigned therein. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1103. The Veteran subsequently perfected an appeal of that issue to the Board and in a January 2003 decision, the Board denied an initial rating greater than 10 percent for the Veteran’s stomach ulcer and irritable bowel condition. The Veteran did not appeal that denial to the United States Court of Appeals for Veterans Claims, and it therefore constituted a final appellate determination as to the issue addressed therein. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1100. The record then shows that on November 29, 2017, VA received from the Veteran a VA Form 21-526EZ (Application for Disability Compensation and Related Compensation Benefits) on which stated that he was claiming service connection for two brain tumors, multiple thyroid nodules, osteoma tumor, hiatal hernia, gastroesophageal reflux disease, an enlarged prostate, hearing loss, and carpal tunnel syndrome. The November 2017 VA Form 21-526EZ contains no reference to the Veteran’s stomach ulcer with irritable bowel condition, thoracolumbar spine disability, and/or generalized anxiety disorder. On March 2, 2018, VA received from the Veteran a VA Form 21-4138 (Statement in Support of Claim) on which the Veteran noted that in January 2002, he was awarded service connection for a thoracolumbar spine disability, generalized anxiety disorder, and stomach ulcer with irritable bowel syndrome. The Veteran asserted that since that time, his service-connected conditions had worsened. He also stated that he had previously filed “a VA Form 21-526EZ with supporting documentation and requested reconsideration/increase of the awarded disability rating plus a request for review/disability rating for the new medical conditions.” Along with his statement, the Veteran submitted medical records showing that he was admitted to the hospital in June 2005 for weakness and pallor. He underwent an esophagogastroduodenoscopy, the results of which revealed an actively bleeding duodenal ulcer. He also submitted the report of a 2015 magnetic resonance imaging (MRI) scan of his lumbar spine. In response, the agency of original jurisdiction informed the Veteran that claims must be filed on specific forms and stated that in order for VA to begin processing claims for his stomach, thoracolumbar spine, and psychiatric conditions, he needed to complete and return the enclosed VA Form 21-526EZ. On June 2, 2018, VA received the Veteran’s VA Form 21-526EZ on which he stated that he was filing for increased ratings for his service-connected stomach, thoracolumbar spine, and psychiatric conditions disabilities. In October 2018, the Veteran was afforded VA stomach, back, and psychiatric examinations. Based on the information included in those VA examination reports, to include a notation of radiculopathy of the lower extremities associated with the Veteran’s thoracolumbar spine disability, the RO, in an October 2018 rating decision, awarded increased ratings of 30, 50 , and 70 percent for the Veteran’s stomach, thoracolumbar spine, and psychiatric disabilities, respectively; the RO also granted service connection for radiculopathy of the right and left lower extremities. All awards were made effective June 2, 2018, the date of the Veteran’s claim for increase. In disagreeing with the assigned effective date of June 2, 2018, the Veteran asserted that in 2017, he spoke with a VA benefits counselor at the VA Medical Center in Las Vegas, Nevada, who assisted him in filing his November 2017 VA Form 21-526EZ. The Veteran reported that this counselor instructed him to write “new” when listing new conditions for which he was seeking service connection and “resubmit” for disabilities that were previously denied in 2002. The Veteran stated that the counselor then “specifically told [him] not to list the 2002 approved disabilities, stating that they would be ‘automatically reviewed’ upon receipt of the VA Form 21-526EZ.” Generally, the effective date of an award shall be the date of receipt of the claim or the date entitlement arose, whichever is later, unless the claim is received within one year after separation from service. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to this general rule occurs in “an award of increased compensation.” 38 U.S.C. § 5110(b)(3); see 38 C.F.R. § 3.400(o)(2). An effective date for such an award may date back as much as one year before the date of the formal application for increase, if it is factually “ascertainable that an increase in disability had occurred” within that timeframe. 38 U.S.C.. § 5110(b)(2); see Harper v. Brown, 10 Vet. App. 125, 126 (1997); 38 C.F.R. § 3.400(o)(2). “[T]he entire claimed increase need not occur within the one-year period, but at least some part of the increase must occur during that period.” Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Nonetheless, “a veteran’s claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim.” Id. at 985. In the instant case, as discussed above, the Board finds that the November 2001 RO decision is final with respect to the assignment of 10 and 20 percent ratings for the Veteran’s generalized anxiety and thoracolumbar spine disabilities; additionally, the January 2003 Board decision is final with respect to the assignment of a 10 percent rating for stomach ulcer with irritable bowel condition. See 38 U.S.C. § 7105; 38 C.F.R. §§ 19.52, 20.1100, 20.1103. Given the finality of the November 2001 RO decision and January 2003 Board decision, the effective date question presently before the Board with regard to the Veteran’s stomach, thoracolumbar spine, and psychiatric disabilities turns on whether there exists any document thereafter, and before June 2, 2018, that can be construed as a formal or informal claim for increase, or whether it is factually “ascertainable that an increase in disability had occurred” within one year before any claim for increase. 38 U.S.C. § 5110(b)(2); see Harper, supra; 38 C.F.R. § 3.400(o)(2). In this regard, the Board notes that prior to March 2015, a claim for VA benefits could be either a formal or an informal written communication requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p) (2014). In September 2014, VA amended the definition of “claim.” Section 3.1(p) now defines a “claim” as “a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by the Department of Veterans Affairs submitted on an application form prescribed by the Secretary.” 38 C.F.R. § 3.1(p) (emphasis added). This amended definition became effective March 24, 2015. 79 Fed. Reg. 57,660 (Sept. 25, 2014). Unfortunately, in this case, VA did not receive a formal claim for increased ratings for the Veteran’s service-connected stomach, thoracolumbar spine, and psychiatric disabilities until June 2, 2018. Upon review of the record, the Board finds no communication from the Veteran dated after November 2001/January 2003 and before June 2, 2018, that can be construed as a formal or informal claim for increase. The Board acknowledges that the Veteran did submit a VA Form 21-526EZ in November 2017; however, that form is silent for any mention of the Veteran’s stomach, thoracolumbar spine, and psychiatric disabilities. As such, it cannot be read as “requesting a determination of entitlement or evidencing a belief in entitlement, to increased ratings” for those disabilities. Thus, there is not basis upon which to establish an effective date earlier than June 2, 2018, for the Veteran’s awarded increased ratings based on his filing of the November 2017 VA Form 21-526EZ. See 38 C.F.R. §§ 3.1(p), 3.400. The Board has also considered whether any document dated prior to June 2018, other than the November 2017 VA Form 21-526EZ, can be considered a claim for increased ratings for the Veteran’s service-connected stomach, thoracolumbar spine, and/or psychiatric disabilities, but finds that none can. In this regard, the Board notes that prior to its removal, effective March 24, 2015, 38 C.F.R. § 3.157(b)(1) provided that an informal claim for benefits “will” be initiated by a report of examination or hospitalization for previously established service-connected disabilities. See 38 C.F.R. § 3.157(b)(1) (2014); see MacPhee v. Nicholson, 459 F.3d 1323, 1327-28 (Fed. Cir. 2006). The regulation specifically provided that “[o]nce a formal claim for pension or compensation has been allowed . . . [t]he date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim.” Id. Here, however, as the record is devoid of any medical records pertinent to the Veteran’s thoracolumbar spine and/or psychiatric disability from 2001 to March 24, 2015, and/or to the Veteran’s stomach disorder from 2003 to March 24, 2015, 38 C.F.R. § 3.157(b)(1) is not applicable in this case. Thus, there is no basis upon which to assign an effective date prior to June 2, 208, in accordance with the provisions of 38 C.F.R. § 3.157(b), pertaining to informal claims, in effect prior to March 24, 2015. Additionally, the record is devoid of any communication from the Veteran dated between 2001/2003 and March 2015 that can be construed as an informal claim for increase. In this regard, the Board points out that the Veteran has not argued that he filed or attempted to file for increased ratings for his service-connected disabilities prior to November 2017. Again, the Board points out that it is the Veteran contention that he intended to file for increased ratings for his service-connected disabilities at the time that he filed his November 2017 VA Form 21-526EZ. As discussed above, however, the November 2017 VA Form 21-526EZ cannot be read as “requesting a determination of entitlement or evidencing a belief in entitlement, to increased ratings” for the Veteran’s service-connected stomach, low back, and psychiatric disabilities. The Board has also considered the Veteran’s argument regarding what he was told by a VA benefits counselor Las Vegas VAMC. The Board understands that the Veteran may have been misinformed or given erroneous advice. Regrettably, however, such misinformation cannot provide a basis for an earlier effective date. This is so because the statutory and regularity authority is clear regarding assignment of effective dates. The Board is bound by statute and regulation and, even if a VA official makes a misrepresentation that gives rise to a theory of equitable estoppel, such a misrepresentation cannot provide a basis to grant a monetary payment where Congress has not authorized such a payment or the recipient does not qualify for such a payment under applicable law. See McCay v. Brown, 106 F.3d 1577, 1581 (Fed. Cir. 1997); see also Rodriguez v. West, 189 F.3d 1351, 1354-55 (determining that a failure of VA to fulfill its duty to assist does not “justif[y] ignoring the unequivocal command in 38 U.S.C. § 5110(a) that the effective date of benefits cannot be earlier than the filing of an application therefor”); Owings v. Brown, 8 Vet. App. 17, 23 (1995) (where VA misinforms a veteran regarding eligibility for benefits, the doctrine of equitable estoppel cannot be used to grant monetary benefits not authorized by statute), aff’d 86 F.3d 1178 (Fed. Cir. 1996) (table). Lastly, the Board has reviewed the record to determine whether it is factually “ascertainable that an increase in disability had occurred” within one year before the Veteran filed his June 2, 2018, increased ratings claim. Notably, the Veteran submitted evidence in March 2018 showing prior treatment for stomach/bowel problems, to include the report of a June 2005 hospital admission for treatment of a bleeding duodenal ulcer; also include was a 2015 MRI report pertinent to the low back. Those records, however, fall outside the relevant period and do not report on that one-year period preceding that June 2018 claim. Therefore, they cannot be used to determine whether there was an increase in stomach, irritable bowel, or low back symptoms within the relevant time period. See Gaston, 605 F.3d at 983-84 (to obtain an effective date earlier than the date of the claim for an increase, the increase must have occurred during the 1-year period prior to the date of the claim). In this regard, the Board points out the United States Court of Appeals for the Federal Circuit expressly rejected the argument that an effective date as early as one year before the date of the increased evaluation claim is authorized if evidence showed that an increase occurred more than one year before his filing the claim and the increased level of disability continued into that one-year period. Id. at 982. Similarly, the Veteran’s VA treatment records dated during the relevant time period fail to show a worsening of the Veteran’s stomach, thoracolumbar spine, and/or psychiatric disabilities during the one-year period prior to June 2018. Given the absence of evidence relevant to the severity of the Veteran’s stomach, thoracolumbar spine, and psychiatric disabilities in the one-year period prior to receipt of his claim for increased compensation for those service-connected disabilities, it cannot be said that it is factually “ascertainable that an increase in disability had occurred” within the one-year period prior to June 2, 2018, such that effective date earlier than the date of his claim may be assigned. 38 U.S.C. § 5110(b)(3). Therefore, the assignment of an effective date earlier than June 2, 2018, for the assignment of a 30 percent rating for service-connected stomach ulcer with irritable bowel syndrome, a 50 percent rating for service-connected postural thoracolumbar kyphosis, and/or a 70 percent rating for service-connected generalized anxiety disorder is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.. § 5107(b); 38 C.F.R. § 3.102. Regarding whether an effective date earlier than June 2, 2018, is warranted for the Veteran’s award of service connection for right or left lower extremity radiculopathy, the Board notes that the Veteran did not file a specific claim for such. Rather, bilateral lower extremity radiculopathy associated with the Veteran’s service-connected thoracolumbar spine disability was identified at the time of a VA examination afforded to the Veteran in connection with his thoracolumbar spine increased rating claim. As additional ratings were granted based upon a finding that the Veteran’s thoracolumbar spine disability led to this right and left lower extremity radiculopathy, the effective date is tied to the Veteran’s thoracolumbar spine increased rating claim, which, as discussed above, was filed on June 2, 2018. As such, the Board finds no basis upon which to assign an effective date earlier than June 2, 2018, for the award of service connection/assignment of separate ratings for right and left lower extremity radiculopathy. Indeed, radiculopathy of the right or left lower extremity was not diagnosed until the Veteran was examined in October 2018. Further, to the extent that the Veteran’s complaints of intermittent radicular symptoms as far back as 2012 could serve to establish a diagnosis of radiculopathy, the Veteran never filed a claim for service connection for radiculopathy. Accordingly, as the Veteran’s award of service connection/separate 10 percent ratings for right and left lower extremity radiculopathy was part of parcel of his June 2018 thoracolumbar spine increased rating claim, and because radiculopathy was not diagnosed until October 2018, the Board finds no basis for the assignment of an effective date earlier than June 2, 2018, for the grants of service connection for right and left lower extremity radiculopathy. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Neilson, 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.