Citation Nr: 0003985 Decision Date: 02/15/00 Archive Date: 02/23/00 DOCKET NO. 98-08 785A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an effective date, prior to August 6, 1994, for an increased evaluation for erythema nodosum. REPRESENTATION Appellant represented by: AMVETS ATTORNEY FOR THE BOARD M. Taylor, Associate Counsel INTRODUCTION The veteran had active service from November 1975 to December 1978. This appeal is before the Board of Veterans' Appeals (Board) from a determination of the Seattle, Washington, Department of Veterans Affairs (VA) Regional Office (RO), wherein the RO, in a rating decision dated January 1998, granted an increased rating to 20 percent from March 16, 1995. The RO, in a subsequent rating decision, dated May 1998, granted an earlier effective date of August 6, 1994. The record shows that the veteran was granted service connection for recurrent abscess of the lower extremities in November 1979 and assigned a zero percent rating. The Board, in a decision dated August 1981, denied the veteran's claim for an increased rating. That decision is final. See 38 C.F.R. § 20.1100 (1999). FINDINGS OF FACT 1. The Board denied an increased rating for the veteran's skin disability in August 1981. 2. The RO received a claim establishing the veteran's intent to seek an increased rating for erythema nodosum in March 1995. 3. VA outpatient treatment records show that the veteran was evaluated for erythema nodosum on May 6, 1994. It appears that the RO misread the month of the date as being "8" rather than "5" as shown in a date stamp, thereby assigning August 6, 1994 as the effective date for the increase. 4. The record does not show that the veteran filed a claim for an increased rating prior to March 1995, nor does the medical evidence show that it was factually ascertainable that an increase in disability had occurred prior to May 6, 1994. CONCLUSION OF LAW The criteria for an effective date of May 6, 1994, but nxcot earlier, for a rating of 20 percent for erythema nodosum have been met. 38 U.S.C.A. § 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.157, 3.400(o)(2) (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The record shows that the RO granted service connection for recurrent abscess of the lower extremities in November 1979 and assigned a zero percent rating. The Board, in a decision dated August 1981, denied the veteran's claim for an increased rating. That decision is final. See 38 C.F.R. § 20.1100. The record shows that the veteran filed a claim for an increased rating for recurrent abscess of the lower extremities, diagnosed as erythema nodosum, in March 1995. The veteran identified having been treated at a VA medical facility for his service-connected skin disorder. The RO obtained VA outpatient treatment records, which are dated in May 1994 and March 1995. VA outpatient treatment records show that on May 6, 1994, the veteran was evaluated for erythema nodosum and eczema. Physical examination revealed very little induration or inflammation. The assessment was a questionable diagnosis of erythema nodosum. The examiner noted that the veteran declined a full skin examination. The VA treatment reports, dated March 1995, show that the veteran sustained a blunt injury to his left leg. The treatment reports indicate that the area was red, swollen, and warm to the touch. The veteran reported that he was prone to cellulitis and that his leg had been drained in the past as a result of similar trauma. The diagnostic impression was cellulitis. In a VA skin (other than scars) examination in July 1995, the veteran reported a long history of episodes in which the lower extremities became red and swollen from the bone to the skin, brought on by blunt trauma and necessitating incision and drainage. The veteran was treated with antibiotics. The veteran claimed that, at one time, the condition was erroneously diagnosed as eczema. Physical examination revealed no specific findings, other than the sites of previous incision and drainage. The diagnosis was recurrent sterile abscesses, presumably due to a pathergic process, with a questionable diagnosis of pyoderma gangrenosum. The physician stated that there was no evidence of eczema or psoriasis or any other chronic skin condition at that time. In the veteran's substantive appeal, VA Form 9, received in April 1996, the veteran contended that no proper diagnosis had been rendered regarding the condition of his legs. He stated that following trauma to his legs, he develops a muscle to bone reaction, rather than a skin problem, which causes lesions and abscesses resulting in scars. The veteran presented for a VA skin (other than scars) examination in June 1997. The examiner reviewed the claims file. The veteran reported that the condition with his lower extremities began in 1977 following a parachute jump. He reported numerous recurrences of developing redness on the skin which became hot, warm and painful to palpation, and developed into a red nodular area which drained either sero or serosanguineous fluid. Cultures of the drainage revealed no infection. The examiner stated that a biopsy in 1979 revealed septal panniculitis and a biopsy in 1980 revealed erythema induration. Physical examination disclosed rubor from the toes up to the knees. Healed lesions were noted on the lower extremities. The impression was erythema nodosum or erythema induration. In January 1998, the RO awarded a 20 percent disability rating. The RO assigned an effective date of March 16, 1995, which was the date of receipt of the claim to reopen. Later that month the veteran's representative responded in writing that the veteran considered the 20 percent disability rating acceptable. In February 1998, the veteran's representative filed a Notice of Disagreement as to the effective date of the 20 percent disability rating. The representative asserted that the disability evaluation should be retroactive to December 13, 1978, the day after separation from service, because the veteran's skin condition had been misdiagnosed for many years. In May 1998, the RO assigned an earlier effective date to August 6, 1994 for the 20 percent rating. The RO noted that the VA outpatient treatment records confirmed treatment for the veteran's skin disorder as early as August 6, 1994, which was identified as the date of the VA treatment record. The handwritten date on the record appears to be "5/6/94." The date stamped on that record is "050694." The RO accepted this treatment record as a claim for increase and determined that it supported a 20 percent rating in accordance with 38 C.F.R. § 3.105(b) (1999), effective August 6, 1994. The veteran expressed continued disagreement and again argued that the proper date for an increased rating should be the date of separation from service in 1978. Criteria A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151(a) (1999). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement to a benefit. 38 C.F.R. § 3.1(p) (1999). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r) (1999). The regulations also provide that a veteran may receive benefits by filing an informal claim, which is defined by "[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant ... may be considered an informal claim." 38 C.F.R. § 3.155 (1999). Such an informal claim must identify the benefit sought; and, upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. The date of outpatient or hospital examination will be accepted as the date of receipt of a claim for increased benefits when such reports relate to examination or treatment of a disability for which service connection has previously been established. 38 C.F.R. § 3.157 (1999). According to the applicable law and regulation, except as otherwise provided, the effective date of an award of compensation based on 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.A. § 5110(a) (West 1991); 38 C.F.R. § 3.400 (1999). In the case of claims for increased evaluations, the effective date is the date of receipt of claim or date entitlement arose, whichever is later, except as provided in paragraph two. 38 C.F.R. § 3.400(o)(1) (1999). Paragraph two provides that for disability compensation, the effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2) (1999). Analysis The record shows that the veteran requested an increased evaluation for recurrent abscesses of the lower extremities in March 1995, stating that his condition had "worsened over the years." In this regard, cases where the increase in disability precedes the date of claim, section 3.400(o)(2) applies rather than paragraph one of that section. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). The Court found that 38 U.S.C. A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where the increase precedes the claim provided also that the claim is received within one year after the increase. Id. The veteran's March 1995 application for an increased rating shows that he had been evaluated for his service-connected lower extremities. Accordingly, the controlling law with respect to the case at hand provides that the effective date is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date; otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). The RO assigned an effective date of August 6, 1994, based upon a VA treatment record that reflects examination and treatment for the veteran's skin disorder. However, the Board notes that the month of the handwritten date could be read as an "8" or a "5." However, the date stamp on that record is "050694." Thus, it appears that the RO inadvertently misread date of the medical record. The Board finds that the proper date of that treatment record is May 6, 1994. This treatment record is dated within one year of receipt of the veteran's March 1995 claim for increase. Therefore, the Board finds that May 6, 1994 is the earliest date on which it was factually ascertainable that an increase in disability occurred. The veteran and his representative argue that the disability evaluation should be retroactive to December 13, 1978, the day after separation from service, because the veteran's skin condition had been misdiagnosed for many years. The veteran and his representative have provided no support for this contention. The Board denied entitlement to a compensable rating in the August 1980 decision. That decision is final. 38 C.F.R. § 20.1100. The first time that the veteran filed a claim for increase after the August 1980 Board decision was in March 1995. The Board finds that a schedular evaluation of 20 percent is not warranted prior to May 6, 1994, based upon the probative medical evidence of record which does not establish an increase in disability during the remainder of the one year period preceding the March 1995 claim. The record does not contain medical evidence that shows that it was factually ascertainable that an increase in disability had occurred prior to May 6, 1994. Thus, an effective date prior to May 6, 1994 for a 20 percent evaluation for erythema nodosum is not warranted. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.157, 3.400(o). ORDER Entitlement to an effective date of May 6, 1994, for a 20 percent evaluation for erythema nodosum is granted, subject to regulations that control the payment of monetary benefits. Entitlement to an effective date, prior to May 6, 1994, for a 20 percent evaluation for erythema nodosum is denied. JANE E. SHARP Member, Board of Veterans' Appeals