Citation Nr: 1410117 Decision Date: 03/12/14 Archive Date: 03/20/14 DOCKET NO. 10-33 488 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than April 11, 2006, for the grant of service connection for radiculopathy of the right upper extremity. 2. Entitlement to an effective date earlier than April 16, 2009, for the grant of service connection for radiculopathy of the left upper extremity. 3. Entitlement to service connection for a left hand disability, other than radiculopathy. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. P. Simpson, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to June 1977 and from July 1978 to August 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2009 and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In March 2013, the Veteran testified before the undersigned at a hearing conducted at the RO. A transcript (Tr.) of this hearing is of record. The Board has included a third issue of entitlement to service connection for a left hand disability, other than radiculopathy, as being part of the appeal. In the October 2009 rating decision on appeal, the RO granted service connection for radiculopathy of the left upper extremity. In granting this benefit, the RO wrote the following, in part: The Board had asked for a VA[Medical Center (MC)] examination of your left hand condition. At recent VAMC examination conducted April 19, 2009, the examiner diagnosed cervical radiculopathy with radiation and numbness and pain into the left hand and also left hand degenerative joint disease. The issue on appeal of the left hand of degenerative joint disease will be addressed at a later date. See October 2009 rating decision, at p. 2 (emphasis added). However, this particular issue has not been addressed since the October 2009 rating decision, and the Veteran had perfected an appeal for entitlement to service connection for a left upper extremity disability, which includes degenerative joint disease. Thus, this issue is still part of the current appeal and is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ) via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In a June 2006 rating decision, the RO granted service connection for radiculopathy of the right upper extremity and assigned an effective date of April 11, 2006. The Veteran was informed of his appellate rights, and he did not appeal this decision, to include the effective date that was assigned at that time. 2. In February 2010, VA received a claim from the Veteran indicating he was seeking an earlier effective date for the award of service connection for radiculopathy of the right upper extremity. 3. In the absence of a timely appeal of the June 2006 rating decision, this decision is final, and an effective date prior to April 11, 2006, for the grant of service connection for radiculopathy of the right upper extremity is legally precluded. 4. The claim for entitlement to service connection for a left upper extremity disability as secondary to the service-connected traumatic degenerative disc disease of cervical spine (cervical spine disability) was received on August 31, 2004. 5. On July 19, 2005, the evidence establishes that the Veteran has cervical radiculopathy in the left upper extremity manifested. 6. Prior to July 19, 2005, the preponderance of the evidence is against a finding that the Veteran had radiculopathy of the left upper extremity due to the service-connected cervical spine disability. CONCLUSIONS OF LAW 1. The claim for an effective date prior to April 11, 2006, for the grant of service connection for radiculopathy of the right upper extremity is dismissed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. The criteria for an effective date of July 19, 2005, but no earlier, for the award of service connection for radiculopathy of the left upper extremity is met. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1, 3.155, 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify & Assist The Veterans Claims Assistance Act of 2000 (VCAA) defines obligation for VA in terms of its duty to notify and assist claimants. When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. With respect to the issue of entitlement to an effective date earlier than April 11, 2006, for radiculopathy of the right upper extremity, the claim rests on the interpretation and application of the relevant law. The VCAA does not affect matters on appeal when the issue is limited to statutory interpretation. See Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also VAOPGCPREC 2-2004 (2004) (holding that VCAA notice was not required where evidence could not establish entitlement to the benefit claimed). There is no possibility that any additional notice or development would aid the Veteran in substantiating this claim at this time. 38 U.S.C.A. §§ 5103, 5103A (West 2002). Thus, any possible deficiency of notice or of the duty to assist constitutes merely harmless error. As to the claim for entitlement to an earlier effective date for the award of service connection for radiculopathy of the left upper extremity, this claim stems from the Veteran's initial claim for entitlement to service connection for a left upper extremity disability. This means that the notice requirements of 38 U.S.C.A. § 5103(a) have been met since the Veteran's claim for entitlement to service connection was successfully granted. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Following the Veteran's notice of disagreement as to the effective date, the RO properly provided him with a July 2010 statement of the case addressing the effective-date issue. VA has not obtained any additional records in connection with the Veteran's claim for an earlier effective date for the grant of service connection for the left upper extremity, as it is based upon evidence already in the claims file. The Veteran has not submitted additional evidence except his own statements and testimony at a March 2013 hearing before the undersigned. Importantly, the undersigned explained the issues on appeal and suggested the submission of additional evidence, as noted below. The Veteran expressed his belief as to why he was entitled to earlier effective dates than the ones the RO had assigned for each upper extremity. The Veteran had testified that he felt there was evidence prior to the current effective dates assigned that showed he had radiculopathy going as far back as 2002. The undersigned left the file open for 60 days to allow the Veteran to submit additional evidence. Thus, the undersigned therefore satisfied all duties as presently directed by 38 C.F.R. § 3.103(c). Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010); see Procopio v. Shinseki, 26 Vet. App. 76, 80 (2012). Notably, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. VA also did not provide the Veteran with an examination in connection with the claim for an earlier effective date involving the left upper extremity, as it does not meet the statutory requirements for entitlement to a VA examination or medical opinion. See 38 U.S.C.A. § 5103A(d)(2); see also 38 C.F.R. § 3.159(c)(4). [Note: VA provided the Veteran with an examination in connection with his claim involving entitlement to service connection for a left upper extremity disability.] To reiterate, the determination of whether the Veteran is entitled to an earlier effective date for the award of service connection is based upon evidence already in the claims file as identified by the Veteran at the 2013 Board hearing. The Board finds that general due process concerns have been satisfied in connection with this appeal. The Veteran was provided with ample opportunity to submit evidence and argument in support of his claims and was given the opportunity to present testimony regarding his claims. The Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the claims. No further assistance with the development of evidence is required. II. March 2013 hearing testimony At the March 2013 hearing, the Veteran testified he had been in a helicopter crash while in service and fractured his C5 vertebrae. The Veteran's representative noted that a claim for increase had been submitted in August 2004 but that the RO did not address radiculopathy in the Veteran's upper extremities. The Veteran's representative noted that prior to the current effective dates assigned, the Veteran had complained of upper extremity problems. The Veteran testified that he felt he should be granted service connection for both upper extremities going back to 2002 because he was being treated by the VA in Dallas for these symptoms. He stated that he believed that in 2002, the evidence showed he had radiculopathy in the upper extremities. The Veteran was asked if someone had told him he had radiculopathy, and the Veteran was unable to recall such information. He stated that while he did not submit a claim for "radiculopathy" per se, he had submitted a claim for loss of strength in his upper extremities as early as 2002. III. Radiculopathy of the right upper extremity The Veteran is seeking an effective date earlier than April 11, 2006, for the grant of service connection for radiculopathy of the right upper extremity. Service connection for radiculopathy of the right upper extremity was granted in a June 2006 rating decision and assigned an effective date of April 11, 2006. The Veteran received notification of such grant of benefits in a June 2006 letter. This notice letter was sent to the same address shown on the Veteran's VA Form 9, received in August 2005, and was not returned as undeliverable. Thus, the Veteran is presumed to have received this notice. Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Alaska Airlines, Inc. v. Johnson, 8 F.3d 791, 795 (Fed. Cir. 1993)) ("There is a presumption of regularity that public officers perform their duties 'correctly, fairly, in good faith, and in accordance with law and governing regulations.'"). He did not submit a notice of disagreement as to the assigned effective date within one year of the rating decision, nor did he submit new and material evidence within that one-year period. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.156(b). Thus, the decision became final as to the effective date assigned. 38 C.F.R. § 20.1103 (2013). The Court has held once a decision assigning an effective date has become final, as is the case here, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier-effective-date claim in an attempt to overcome the finality of an unappealed RO decision. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). The Court reasoned that to allow such claims would vitiate the rule of finality. Id. In this case, the June 2006 rating determination is final. Additionally, in October 2008, when the Veteran provided testimony before the Board in connection with other claims, including one for service connection for radiculopathy of the left upper extremity, he agreed that the issue of entitlement to service connection for radiculopathy of the right upper extremity was no longer part of the appeal. See October 2008 Board Tr. at 3 (Chairman: "The certified issues are entitlement to service connection for a bilateral hand disorder which we clarified is actually just the left hand because the RO has granted service connection for radiculopathy of the right hand so that would leave only the left hand remaining. Is that correct?" Veteran: "Yes, sir."). Following the January 2010 rating decision, which granted an increased rating for the service-connected radiculopathy of the right upper extremity (from 10 to 30 percent), the Veteran then alleged in a statement, received in February 2010, that he wanted an earlier effective date going back to 2002 for the award of service connection for radiculopathy of the right upper extremity. The Board cannot accept this freestanding claim for an earlier effective date in an attempt to overcome the finality of the June 2006 rating decision. A claimant can attempt to overcome the finality of a decision, which assigns an effective date, in one of two ways: (1) by a request for revision of the RO decision based upon clear and unmistakable error ("CUE") or (2) by a claim to reopen based upon new and material evidence. See Rudd, 20 Vet. App. at 299; see also Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc). The Board notes that in the Veteran's February 2010 submission, wherein he stated he warranted an earlier effective date going back to May 2002, he stated there was CUE in the January 2010 rating decision. The Board does not find that such allegation is a motion for CUE in the June 2006 rating decision, as the Veteran's statement (and subsequent statement received in May 2012) addresses only the January 2010 rating decision and contains no allegations of error in fact or law regarding the June 2006 rating decision. Rather, the Veteran's allegation of CUE involves the January 2010 rating decision, wherein the RO granted the Veteran an increased rating for radiculopathy of the right upper extremity, effective November 24, 2009. The Veteran cannot attack the January 2010 rating decision based upon an effective date that was assigned in the June 2006 rating decision that award service connection for this disability. The Board does not find that this conclusion prejudices the Veteran, as he can still submit a motion for CUE in the June 2006 rating decision. As for his allegation that there was CUE in the January 2010 decision, this is not a valid claim for CUE, as the January 2010 rating decision is not final, as it is one of the rating decisions on appeal, and such rating decision must be final in order to attack it as having CUE. 38 C.F.R. § 3.105(a); Disabled Am. Veterans v. Gober, 234 F.3d 682, 698 (Fed. Cir. 2000) (finding that a motion to revise based on CUE is a collateral attack on a final decision by an RO). In summary, under the undisputed facts of this case, there is no legal entitlement to an effective date earlier than April 11, 2006, for the grant of service connection for radiculopathy of the right upper extremity. Based on the procedural history of this claim, the Board has no alternative but to dismiss this issue without prejudice to the appellant filing a subsequent CUE claim. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (finding that where the law is dispositive, the claim must be denied due to an absence of legal entitlement). The Board in no way disputes the Veteran's belief that he warrants an earlier effective date for the award of service connection for radiculopathy of the right upper extremity. As noted in the Rudd decision, the Veteran is not without recourse, "as he remains free to file a motion to revise based upon clear and unmistakable error" with respect to the June 2006 RO rating decision that assigned him the effective date of April 11, 2006, for the award of service connection for radiculopathy of the right upper extremity. Rudd, 20 Vet. App. at 300. IV. Radiculopathy of left upper extremity In the October 2009 rating decision, the RO granted service connection for radiculopathy of the left upper extremity and assigned an effective date of April 16, 2009, the date of a VA examination, wherein the examiner made a finding that the Veteran had radiculopathy in the left upper extremity due to the service-connected cervical spine disability. The Veteran states he warrants an earlier effective date going back to 2002 because he has had symptoms since that time involving his left upper extremity. The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a) (West 2002). The implementing regulation states that the effective date of a service connection claim will be, the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2013). Additionally, the claimant or a representative of the claimant can file an informal claim by communicating an intent to apply for one or more VA benefits. 38 C.F.R. §§ 3.1(p), 3.155(a) (2013). The benefit sought must be identified, but need not be specific. Stewart v. Brown, 10 Vet. App. 15 (1997); Servello v. Derwinski, 3 Vet. App. 196 (1992). Under 38 C.F.R. § 3.157(b) (2013), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. The date on the VA outpatient or hospital examination will be accepted as the date of claim. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). After having carefully reviewed the evidence of record, the Board finds that the evidence supports the award of an earlier effective date of July 19, 2005, but no earlier, for the grant of service connection for radiculopathy of the left upper extremity. The reasons follow. Initially, the Board finds that the Veteran first showed an intent to file a claim for service connection for a left upper extremity disability on August 31, 2004. On that date, he submitted an informal claim for service connection for a bilateral hand disability secondary to his service-connected cervical spine disability. See VA Form 21-4138, Statement in Support of Claim. Prior to this date, the preponderance of the evidence is against a finding that the Veteran expressed an intent to file a claim for service connection for radiculopathy of the left upper extremity. Before addressing why the Board finds that the evidence establishes that the correct effective date is July 13, 2005, it will address why it finds that the preponderance of the evidence is against a finding that the Veteran did not submit a claim for service connection for radiculopathy of the left upper extremity prior to August 31, 2004. At the March 2013 hearing, the Veteran and his representative noted that the Veteran first filed a claim for service connection for his left upper extremity as of August 2004. See Tr. at 3. There, the Veteran's representative stated that a claim for increase for the neck was made on August 1, 2004. (The date stamp on the VA Form 21-4138, Statement in Support of Claim, shows August 31, 2004.) The Veteran stated he felt he warranted an earlier effective date because he began complaining of issues with his left hand back in 2002. The VA treatment records show that beginning in 2003, the Veteran complained of symptoms involving his upper extremities. However, these complaints by the Veteran to a VA medical professional are not deemed to be informal claims for service connection. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006) (noting that the mere mention of a condition in a medical record alone cannot be construed as a claim for service connection). The Board is aware of the provisions of 38 C.F.R. § 3.157(b), which explains when a VA treatment record constitutes an informal claim for increase; however, the Board does not find that the Veteran's complaint regarding his left upper extremity is a claim for increase. At the time the Veteran was seeking treatment for his left upper extremity, he was service connected for residuals of a fracture to the cervical spine-not degenerative disc disease/intervertebral disc syndrome, which signals involvement of neurological symptoms. Regardless, even if the Board were to find that the 2003 VA treatment records were informal claims for an increased rating under 38 C.F.R. § 3.157(b), it finds that the preponderance of the evidence is against a finding that prior to July 13, 2005, the symptoms the Veteran was experiencing in his left upper extremity were due to the service-connected cervical spine disability. This will be explained next. Beginning in March 2003, the Veteran complained of having problems with the left hand (he complained of problems with both hands, but the Board will address the left hand only, as that is the disability in question). Neurological examination revealed negative Tinel's, no atrophy and grip strength slightly decreased in the left upper extremity. The examiner recommended that the Veteran undergo electromyography testing. See March 2003 VA treatment record. In April 2003, the Veteran underwent nerve conduction studies and an electromyography. The examiner concluded that there was "No electrodiagnostic evidence of neuropathy in the nerves/muscles tested." See April 2003 VA treatment record. In a separate record on that same day, the examiner noted the normal study and that the history and examination were consistent with DeQuervain's tenosynovitis. An October 2003 MRI of the cervical spine revealed that C2-C3, C3-C4, and C4-C5 were all normal. At C5-C6 and C6-C7, there was evidence of disc bulge narrowing the spinal canal, but there was no significant neural foraminal encroachment. In April 2004, the Veteran was seen with complaints of discomfort in the left hand and wrist for several years. The examiner noted that there was hypesthesia in the left arm to shoulder level but made no finding that it was related to the cervical spine. Rather, the examiner entered diagnoses of DeQuervain's tenosynovitis and to rule out synovitis of multiple joints. The examiner noted that the Veteran had a left wrist fracture when he was 13 or 14 years old. See April 2004 VA treatment record. That same physician saw the Veteran again in May 2004 and entered the same diagnosis and noted that there were subjective versus objective discrepancies. The Veteran was examined in December 2004 by a VA physician's assistant, and the examiner found that the motor strength in the left upper extremity was 5/5 in all muscle groups. The examiner noted that sensation was decreased but in no dermatomal fashion, and did not diagnose a neurological disorder. The Veteran underwent another VA examination in June 2005, this time by a medical doctor. Following examination, the examiner determined that the Veteran had degenerative joint disease of the hand, which he stated had been symptomatic for three years and concluded that the Veteran's hand condition was less likely than not secondary to the service-connected cervical spine disability. Thus, between March 2003 and June 2005, the preponderance of the evidence is against a finding that the Veteran had neurological symptoms in the left upper extremity. Rather, the evidence shows that the Veteran had some sort of symptoms associated in his left upper extremity, but that such did not involve neurological symptoms. To reiterate, the Veteran underwent objective testing in April 2004, which test results were normal. Additionally, no medical professional was attributing the symptoms to the service-connected cervical spine disability. A July, 2005, private medical record shows that the Veteran was seen with hand weakness. There, the examiner noted that the Veteran was neurologically intact. However, a July 19, 2005, MRI of the cervical spine shows that the examiner concluded there was "moderate left neural foraminal stenosis." The Board finds that such establishes a basis to find that as of that date, there was evidence of neurological symptoms associated with the left upper extremity in connection with the cervical spine. Accordingly, this is the basis for the award of an effective date of July 19, 2005, for the grant of symptoms for radiculopathy of the left upper extremity. This date falls after the date of claim, August 31, 2004. The provisions of 38 U.S.C.A. § 5110 specifically provide that the effective date for an award of service connection will be based upon the facts found, but will not be earlier than the date of claim. The Board has explained above why it finds that prior to July 19, 2005, the preponderance of the evidence is against a finding that the Veteran had left upper extremity radiculopathy. This conclusion is not based upon silence in the record, but rather clinical findings and tests (nerve conduction study/electromyography) during the contemporaneous time period that showed no neurological disability in the left upper extremity. Thus, the Board has determined that the effective date is based upon the facts found. Id; see also Massie v. Shinseki, 724 F.3d 1325, 1329 n1 (Fed. Cir. 2013) (noting that that for a medical record to qualify as a "report of examination" under § 3.157(b)(1) it needs to references one or more actual examinations and indicate that a veteran's disability has worsened). Accordingly, the Board finds that an effective date of July 19, 2005, for the award of service connection for radiculopathy of the left upper extremity is warranted. As explained above, the Board finds that the preponderance of the evidence is against a finding that an effective date earlier than July 19, 2005, is warranted for the reasons described above. As the preponderance of the evidence is against the claim prior to July 2005, that portion of the claim for an earlier effective date must be denied. 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 57. ORDER Entitlement to an effective date earlier than April 11, 2006, for the grant of service connection for radiculopathy of the right upper extremity is dismissed. An effective date of July 13, 2005, but no earlier, for the award of service connection for radiculopathy of the left upper extremity is granted, subject to the provisions governing the award of monetary benefits. REMAND The issue of entitlement to service connection for a left hand disability, other than radiculopathy, has not been addressed by the AOJ since the October 2009 rating decision. In November 2011, the Veteran submitted an article entitled, "Osteoarthritis results from inflammatory processes, not just wear and tear," which article has not been reviewed by the AOJ in connection with this claim. In December 2013, the Board sent the Veteran, with a copy to his representative, a letter informing him that he could waive initial consideration of this evidence by the AOJ and gave him 45 days to respond. The Board wrote that if it did not hear back from him by 45 days from the date of the letter (Dec. 27, 2013), it would assume he did not wish to have the Board decide his claim at this time and would remand the issue to AOJ for its review of this evidence. The 45-day period has passed; the Board has not received a response from the Veteran. Thus, the Board will remand the issue of entitlement to service connection for a left hand disability, other than radiculopathy, for AOJ consideration in the first instance. Bernard v. Brown, 4 Vet. App. 384, 392-93 (1993) (noting that when the Board addresses a question that has not been addressed by the RO, it raises the possibility that the Veteran will be prejudiced by not having been afforded the full benefits of those procedural safeguards). Accordingly, the case is REMANDED for the following action: Readjudicate the claim of entitlement to service connection for a left hand disability, other than radiculopathy, including consideration of the internet article received in November 2011. If the benefit sought on appeal remains denied, furnish to the Veteran and his representative, if any, an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations. The Veteran should be afforded the appropriate time period to respond. Thereafter, the case should be returned to the Board for further appellate disposition. The appellant has the right to submit additional evidence and argument on the matter 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 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. 2013). ______________________________________________ PAUL SORISIO Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs