Citation Nr: 21041635 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 20-26 002 DATE: July 9, 2021 ORDER Entitlement to an effective date earlier than September 24, 2004 for the assignment of a 100 percent rating for a gunshot wound/shrapnel to low back, with Hepatitis C and abdominal exploration and sub-total gastrectomy is denied. FINDINGS OF FACT 1. On September 24, 2004, VA received the Veteran's claim seeking service connection for hepatitis C. 2. An October 2005 rating decision granted service connection for hepatitis C (as part and parcel of an already service-connected gunshot/shrapnel wound to low back with abdominal exploration and sub-total gastrectomy), assigning a single 60 percent rating for the overall disability, effective September 24, 2004. CONCLUSION OF LAW An effective date earlier than September 24, 2004 for the assignment of a 100 percent rating for a gunshot/shrapnel wound to low back, with Hepatitis C and abdominal exploration and sub-total gastrectomy, is not warranted. 38 U.S.C. §§ 501, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1964 to November 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2017 Department of Veterans Affairs (VA) rating decision that denied entitlement to an earlier effective date for service connection of gunshot wound/shrapnel to low back, with Hepatitis C and abdominal exploration and sub-total gastrectomy. Entitlement to an effective date earlier than September 24, 2004 for the assignment of a 100 percent rating for the service-connected condition of gunshot wound/shrapnel to low back, with Hepatitis C and abdominal exploration and sub-total gastrectomy is denied. The Veteran is requesting an effective date earlier than September 24, 2004 for the award of the 100 percent rating for his gunshot wound/shrapnel to low back, with Hepatitis C and abdominal exploration and sub-total gastrectomy. He asserts that he should be entitled to an earlier effective date of February 2, 1989, the date he was reportedly diagnosed with post transfusion hepatitis by a VA doctor. Except as otherwise provided, the effective date of a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (requiring VA to consider the evidence of disability during the period one year prior to the application in order to determine when a factually ascertainable increase in disability occurred). The U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) has explained that the one year rule for increased rating claims requires that the claim for increased compensation 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. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). Thus, if it is established the increase occurred more than one year prior to the date an increased rating claim is received by VA, the effective date shall be the date that the claim for increase was received, and no earlier. See 38 U.S.C. § 5110(b)(2); Gaston v. Shinseki, 605 F.3d at 984. Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). The Veteran was originally granted service connection for residuals of shrapnel wound to the low back with abdominal exploration and subtotal gastrectomy in a March 1975 rating decision. At that time, this disability was assigned an initial 40 percent rating effective October 4, 1974. Notice of this decision and of his appellate rights was mailed to him in July 1975. He did not appeal that rating or effective date or submit new and material evidence within one year of its issuance and the March 1975 rating decision consequently became final. See 38 U.S.C. § 7105(c). The "finality" (res judicata) of that earlier rating decision now prevents assigning an effective date prior to the current appeal period. On September 24, 2004 VA received the Veteran's claim of service for hepatitis C. Pursuant to that claim, an October 2005 rating decision granted service connection for hepatitis C (as part and parcel of, and rated together with, residuals of shrapnel wound to the low back with abdominal exploration and subtotal gastrectomy, which had been rated 40 percent). A 60 percent rating was assigned for the overall disability effective September 24, 2004. The Veteran filed a timely notice of disagreement with the 60 percent rating (in essence transforming the matter to a claim for increase). Ultimately (following a Board remand) an April 2015 rating decision increased the rating to 100 percent, also effective September 24, 2004. The Veteran disagreed with effective date assigned. The April 2017 rating decision that is on appeal denied the earlier effective date sought. The record does not contain evidence of a worsening of symptoms related to the Veteran's gunshot wound/shrapnel to low back, with Hepatitis C and abdominal exploration and sub-total gastrectomy in the year prior to September 24, 2004. It is not factually ascertainable from the record, that during that immediately preceding year, the gunshot/shrapnel wound to low back residuals with complications had increased in severity to a degree warranting a 100 percent rating. He did not seek VA treatment for the condition during that period and has not submitted private treatment records from that period showing an increase in symptoms and a greater level of occupational and social impairment. Likewise, he did not submit any lay evidence to VA during this time period describing his then current gunshot wound/shrapnel to low back, with Hepatitis C and abdominal exploration and sub-total gastrectomy symptoms and consequent functional impairment (occupationally and socially). The Board also observes that notably the Veteran's initial notice of disagreement (NOD) with the October 2005 rating decision (seeking a higher rating for the overall disability) specified that any increased rating award should be from September 2004; and his later NOD with the award of a total rating based on unemployability also sought an effective date of September 24, 2004. To the extent that the Veteran may now be seeking an earlier effective date for the award of service connection of hepatitis C (for inclusion with the rating for the back shrapnel wound residuals with abdominal exploration and sub-total gastrectomy), the Board notes that he did not timely (within a year following notice) disagree with the effective date of the service connection award by the October 2005 rating decision, and the decision became final as to the effective date of the award of service connection for hepatitis C. Consequently a claim for an earlier effective date for the award of service connection is now a "free-standing" earlier effective date claim, which in the absence of an allegation of clear and unmistakable error (CUE) in the determination is not a valid claim (because untimely). Here, CUE has not been specifically alleged. [For information purposes, the Board observes that generally, under governing law, unless the claim for service connection is filed within a year an award following discharge from active duty, an award of service connection may not be earlier than the date the claim for service connection is received. See 38 U.S.C. § 5110; 38 C.F.R. §3.400. Given the undisputed facts in this matter (regarding when the claim was received, and what the record showed), the effective date for the 100 percent assigned for the disability in question can be no earlier than September 24, 2004, the date the claim of service connection for hepatitis C (with resulting increase in rating for the back shrapnel wound injury with complications that now include hepatitis C) was received by VA. There is no reasonable doubt regarding a factual question to be resolved in the Veteran's favor. The appeal in this matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.