Citation Nr: 1318229	
Decision Date: 06/05/13    Archive Date: 06/11/13

DOCKET NO.  10-39 807	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to an effective date prior to May 6, 2009, for the assignment of a 10 percent evaluation for service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve.

2. Entitlement to an increased disability rating in excess of 10 percent for service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve.


REPRESENTATION

Appellant represented by:	Puerto Rico Public Advocate for Veterans Affairs




ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran had active military service from September 1950 to August 1952. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Commonwealth of Puerto Rico.

The Board notes that after the issue of entitlement to an increased disability rating in excess of 10 percent for service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, was denied in the July 2009 rating decision, the Veteran stated in his November 2009 Notice of Disagreement that the effective date must be considered retroactively.  Subsequently, the RO issued a Statement of the Case in August 2010 denying the issues of entitlement to an increased rating and an earlier effective date.  As such, the Veteran's claim has been recharacterized by the Board as reflected above.

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The issue of entitlement to an increased disability rating in excess of 10 percent for service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1. In February 1978, the Veteran filed a claim for entitlement to an increased evaluation for a service-connected left hand condition at a noncompensable rating and this rating was continued in an April 1978 decision.  The Veteran did not appeal and this decision is final.

2. The Veteran submitted a claim for entitlement to an increased evaluation for paralysis of the ulnar nerve (of the left hand) on May 6, 2009.  No other earlier formal or informal claim for an increased evaluation was filed.

3. In a July 2009 rating decision, the RO assigned a 10 percent evaluation for evaluation for service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, effective May 6, 2009. 


CONCLUSION OF LAW

The criteria for an effective date prior to May 6, 2009, for the assignment of a 10 percent disability evaluation for old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.155, 3.157, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Veterans Claims Assistance Act of 2000 (VCAA)

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). 

The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing.  38 C.F.R. § 3.159(b) (2012).  The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Pelegrini, 18 Vet. App. at 121. 

In this case, in a June 2009 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an earlier effective date, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA.  The June 2009 letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the types of evidence which impacts those determinations.  

In August 2010, the RO issued an SOC regarding the earlier effective date claim.  Accordingly, the Board finds that the duty to notify has been satisfied in this case.

All the law requires is that the duty to notify is satisfied and that claimants are given the opportunity to submit information and evidence in support of their claims.  Once this has been accomplished, all due process concerns have been satisfied.  See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (2012) (harmless error).  In view of the foregoing, the Board finds that the Veteran was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and of the allocation of responsibilities between himself and VA in obtaining such evidence.  Accordingly, there is no further duty to notify. 

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The VA has obtained copies of the Veteran's service treatment and personnel records, and has reviewed the evidence in the Virtual VA system.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The Veteran's service treatment records and VA medical records are in the file.  Private medical records identified by the Veteran have been obtained, to the extent possible.  In addition, the Veteran has not stated he was in receipt of Social Security Administration (SSA) Disability benefits that warranted obtaining additional records.  Furthermore, the Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claims.

The record indicates that the Veteran was also afforded a VA examinations in June 2009 and November 2009, and the results of which have been included in the claims file for review.  These examinations involved review of the claims file and thorough examinations of the Veteran.  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted argument and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected.

II. Merits of the Claim

The Veteran claims that an earlier effective date is warranted for the 10 percent rating assigned for his service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, effective May 6, 2009.

Historically, the Veteran was originally service-connected for residuals of injuries to the left hand and assigned a 20 percent disability rating, effective August 16, 1952, in an April 1953 rating decision.  In a December 1957 rating decision, the RO decreased the Veteran's rating to a noncompensable rating, effective February 4, 1958, and was confirmed and continued in a May 1958 rating decision.  In February 1978, the Veteran filed a claim for entitlement to an increased evaluation for a service-connected left hand condition at a noncompensable rating and this rating was continued in an April 1978 decision.  The Veteran did not appeal and this decision is therefore final.  See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012).

The Veteran submitted a claim for entitlement to an increased evaluation for paralysis of the ulnar nerve (of the left hand) in May 6, 2009.  No other earlier formal or informal claim for an increased evaluation was filed.  In a July 2009 rating decision, the RO assigned a 10 percent evaluation for evaluation for service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, effective May 6, 2009. 

Generally, the effective date of an evaluation and award of compensation for an increased evaluation is the later of the date of receipt of the claim or the date entitlement arose.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1).  A claim is "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) (2012).  An informal claim is a "communication or action indicating intent to apply for one or more benefits."  38 C.F.R. § 3.155(a).  VA must look to all communications from a claimant that may be interpreted as applications or claims- formal and informal- for benefits and is required to identify and act on informal claims for benefits.  Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 

An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997).  The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder.  Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).  In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2 (2012). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  Id. 

Here, the date of receipt of the claim as determined by the RO was May 6, 2009.  A review of the evidence of record indicates that no other documents or communications of record may be interpreted as a formal or informal claim for an increased evaluation.  See 38 C.F.R. § 3.1(p), 3.155(a); see also Servello, 3 Vet. App. at 198.  A review of the claims file also indicates that there are no VA reports of examination or hospitalization that may be accepted as an earlier claim for an increased evaluation.  See 38 C.F.R. § 3.157(b).  Thus, under the general rule, the earliest possible effective date would be the date of the claim for an increased rating, May 6, 2009.  38 C.F.R. § 3.400(o)(1).

Under the exception, however, an earlier effective date may be granted on the date of a factually ascertainable increase in paralysis of the ulnar nerve, if such increase occurred within the one-year period preceding the date of the claim. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  For the purposes of this appeal, the Board must determine whether the entire evidence of record, to specifically include evidence dated within one year preceding the December 16, 2003 claim, indicates a factually ascertainable increase the Veteran's service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, that warrants a 10 percent evaluation.  See Hazan v. Gober, 10 Vet. App. 511  (1997) (finding that when considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application.); see also, 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.400(o), 4.1, 4.2.

The RO has rated the Veteran's old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, at a 10 percent disability rating under Diagnostic Code 8516.  DC 8516 provides that mild incomplete paralysis is rated 10 percent disabling on the major side and 10 percent on the minor side; moderate incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side; and severe incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side.  Complete paralysis of the ulnar nerve, the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers, cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened, is rated 60 percent disabling on the major side and 50 percent on the minor side. 

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor.  38 C.F.R. § 4.124a.

In this case, there is no medical evidence of record pertaining to the Veteran's service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve during the period in question.  

The Board finds that at no time prior to May 6, 2009 were any increases in disability commensurate with the currently assigned disability ratings factually ascertainable.  While it appears the Veteran has submitted medical records along with his May 2009 claim, these records are pertain to past treatment from 1952.  As such, these do not reflect the symptomatology or treatment for the Veteran's disability one year prior to May 6, 2009.  Accordingly, the Board finds that the evidence does not establish that prior to May 6, 2009, the Veteran would be entitled to a 10 percent rating for his service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve. As the preponderance of the evidence is against the claim, the claim must be denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

ORDER

Entitlement to an effective date prior to May 6, 2009, for the assignment of a 10 percent evaluation for service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve, is denied.


REMAND

Unfortunately, a remand is required in this case.  Although the Board regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration.  VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  38 U.S.C.A. §§ 5107(a) 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012).

VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4) (2012). 

The Veteran is currently rated at 10 percent for his service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve.  He contends his current ratings do not reflect his current disability.

The Board notes that the Veteran was afforded a VA examination for his disability in November 2009; over three years ago.  Therefore, the Veteran should be afforded a new VA examination to determine the current severity of his service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve.  38 C.F.R. § 3.159(c)(4) (2012); Green v. Derwinski, 1 Vet. App. 121 (1991).  Where the record does not adequately reveal the current state of disability, the fulfillment of the duty to assist includes providing a thorough and contemporaneous medical examination that considers the claimant's prior medical examinations and treatment.  See Floyd v. Brown, 9 Vet. App. 88, 93 (1996); Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2.  Schedule the Veteran for a VA examination to        determine the current level of impairment due to the service-connected old healed fractures of the 3rd, 4th, and 5th fingers of the left hand and non conversion features, claimed as paralysis of the ulnar nerve.  The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report or in an addendum.

All manifestations of the disability at issue should be set forth, and the examiner should report examination findings to allow for application of Diagnostic Code 8516, and discuss the current level of severity of the disabilities, including whether symptoms are mild, moderate or severe.

All appropriate testing must be conducted and these results must be included in the examination report. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report

A complete rationale should be given for all opinions and conclusions expressed.

3.  Then, after ensuring any other necessary development has been completed, readjudicate the Veteran's claim. If action remains adverse to the Veteran, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond.  Thereafter, the case should be returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
WAYNE M. BRAEUER
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs