Citation Nr: 21023756 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 17-31 431 DATE: April 21, 2021 ORDER Entitlement to service connection for hiatal hernia/GERD is dismissed. Entitlement to service connection for a lower back condition is dismissed. An earlier effective date, prior to December 11, 2012, for the grant of service connection for recurrent partial small bowel obstruction is denied. FINDINGS OF FACT 1. On October 28, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, that a withdrawal of the appeal for service connection for hiatal hernia/GERD was requested. 2. On October 28, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, that a withdrawal of the appeal for service connection for a lower back condition was requested. 3. The Veteran filed an informal claim to “reopen” his service connected right inguinal hernia claim on December 11, 2012. 4. In a May 2013 correspondence, the Veteran modified that claim to one of secondary service connection for a small bowel obstruction. 5. The secondary claim, received in December 2012 and as updated via the May 2013 correspondence, is not part of the claim for the primary disability–right inguinal hernia. CONCLUSIONS OF LAW 1. The criteria for dismissal of service connection for hiatal hernia/GERD are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for dismissal of service connection for lower back condition are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for an earlier effective date, prior to December 11, 2012, for service connection for recurrent small bowel obstruction are not met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.310, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1976 to November 1978. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2014 and March 2016 rating decisions from a Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. A transcript of the hearing has been associated with the electronic file. Service Connection 1. Service connection for hiatal hernia/GERD is dismissed. 2. Service connection for a lower back condition is dismissed. In October 2020, the Veteran signed a written correspondence that expressed his desire to withdraw two issues on appeal before the Board, service connection for stomach hernia (hiatal hernia/GERD) and lumbosacral or cervical strain (lower back condition). See Correspondence received 10/28/2020. A withdrawal of claims is effective when it is in writing, and includes the name of the veteran, his file number, and a statement that the appeal is withdrawn such as in the October 2020 statement. 38 C.F.R. § 19.55(b); Hembree v. Wilkie, 33 Vet. App. 1 (2020). Since the Veteran’s correspondence was in writing, included his file number, was signed by him, and clearly expressed his desire to withdraw the aforementioned two issues, the withdrawal was effective; and therefore, these issue on appeal are dismissed. 3. An earlier effective date, prior to December 11, 2012, for the grant of service connection for recurrent partial small bowel obstruction is denied. The Veteran contends that his service-connected small bowel obstruction should date back to at least 2008 when he made multiple trips to a VA emergency room for treatment related to his small bowel obstruction. See Hearing Transcript received 2/09/2021 at pages 4-6. Relatedly, the Veteran claims that he did not know that he could file for benefits related to his small bowel obstruction. Id. at page 5. Generally, the effective date for the grant of a benefit will be the day following separation from active service or the date entitlement arose if the claim is received within one year after discharge from service. 38 C.F.R. § 3.400. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In the context of Veteran's law, except under few exceptions, e.g., CUE or new and material evidence, when a case or an issue has been decided and a timely appeal was not filed, the case is closed and no further review is afforded, and the decision is final. In this case, however there is no CUE motion before the Board nor is there new and material evidence per 38 C.F.R. § 3.156(b), during either of the appellate periods. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57, 660 (Sept. 25, 2014). This case involves dates prior to March 24, 2015, so the regulations in place prior to that date are applicable. Background The Veteran separated from service in November 1978 and that same month filed for service connection for an inguinal hernia. See VA 21-526 Veterans Application for Compensation and Pension received 11/29/1978. An April 1979 rating decision granted service connection for recurrent right inguinal hernia at 10 percent with an effective date of November 3, 1978. See Rating Decision received 4/17/1979. In a June 1979 correspondence, the Veteran disagreed with the rating and requested a re-evaluation due to a hospitalization for a surgical procedure related to his inguinal hernia. Subsequently, an October 1979 rating decision granted a 100 percent rating from April 18, 1979 and a 10 percent rating from June 1, 1979, and a noncompensable rating from January 1, 1980. The Veteran submitted a Notice of Disagreement (NOD) in June 1980 appealing the reduction. See NOD received 6/02/1980. The claim was eventually the subject of a May 1981 Board decision that denied an increased rating for residuals of inguinal hernia. See BVA Decision received 5/07/1981. The Veteran received a copy of the decision in September 1981, after it was first sent to the wrong address in May 1981. See Notification received 9/18/1981. The Board’s decision was final in 1981 as there were no appeal options beyond it—the U.S. Court of Appeals for Veterans Claims (Court) was not created until 1988 and was not functional until approximately 1990. It was not until December 2012 that the Veteran filed to reopen the claim. See Statement in Support of Claim received 12/11/2012. In a statement, the Veteran claimed that he started having intestinal problems in 2005, which he believes was the result of his service connected right inguinal hernia. See VA 21-4138 Statement in Support of Claim received 5/30/2013. In November 2013, a VA examiner diagnosed the Veteran with recurrent partial small bowel obstruction as of 2011. See Capri received 11/25/2013 at page 4. In the accompanying medical opinion, the VA examiner opined that the Veteran’s small bowel obstruction was at least as likely than not the result of his adhesions from the intra-abdominal surgeries in 1979 and 1980. See Capri received 12/19/2013 at page 2. In a March 2014 rating decision, the Veteran’s small bowel obstruction was service connected as related to the service-connected right inguinal hernia from the date VA received of his claim, or December 11, 2012. This appeal for an earlier effective date followed. Analysis First, the Board finds that the Veteran’s correspondence seeking to “reopen” a claim was in fact a request for secondary service connection. See VA 21-4138 Statement in Support of Claim received 12/11/2012. Because through later correspondence, it became clear that the Veteran was in fact seeking secondary service connection for a bowel blockage. See VA 21-4138 Statement in Support of Claim received 5/30/2013. Indeed, secondary service connection is what was award via the March 2014 rating decision. In either event, the earliest effective date for the award of service connection could only be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o); see also 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Here, the record establishes that the Veteran’s appeal related to his inguinal hernia was subject to a final May 1981 Board decision that denied his appeal for a compensable rating. As discussed above, this Board decision is final unless collaterally attacked via CUE and such a motion has not been filed. Additionally, the record is clear that not until December 2012 did the Veteran file a claim to reopen or to service connect his small bowel obstruction. The Board has reviewed the documents of record from May 1981 until December 2012 and there is no communication in the record, to include with a liberal construction, that can be construed as a filing for service connection and/or increased rating prior to this date. See Sellers v. Wilkie, 965 F.3d 1328, 1338 (Fed. Cir. 2020) (holding that a veteran's claim must identify, "at least at a high level of generality," the sickness, disease, or injuries for which compensation is sought). The Board acknowledges the Veteran’s hearing testimony that he has had symptoms since 2005 of small bowel obstruction and recognizes his frustration that he was unaware that he could file for a benefit related to it. See Hearing Transcript received 2/09/2021 at page 5-6. However, here, the Board finds that the pertinent date of claim is December 11, 2012 and even if entitlement arose in the year prior to this date, the applicable law indicates that an effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Also, if this December 2012 claim, later modified by the May 2013 statement in a claim for secondary service connection, an earlier effective date would not be warranted because a claim for secondary service connection is not part of every claim for service connection for the primary disability or for an increase in the primary disability, nor is it a claim for increased compensation. See Manzanares v. Shulkin, 863 F.3d 1374, 1379 (Fed. Cir. 2017); see also Gudinas v. McDonough, No. 19-2640, 2021 U.S. App. Vet. Claims LEXIS 659 (Vet. App. Apr. 16, 2021). Here, the secondarily service connection small bowel obstruction is a separate, additional disability and is not the same as a claim for an increased rating due to the worsening of the underlying primary disability—the right inguinal hernia. Accordingly, an earlier effective date prior to December 11, 2012 for service connection for small bowel obstruction is denied. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.