Citation Nr: 1642499 Decision Date: 11/03/16 Archive Date: 11/18/16 DOCKET NO. 14-30 280 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an effective date prior to March 19, 2010, for service connection for ulnar neuropathy of the left upper extremity. 2. Entitlement to an effective date prior to March 19, 2010, for service connection for ulnar neuropathy of the right upper extremity. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Adamson, Counsel INTRODUCTION The Veteran had active service from July 1981 to June 1985 and from June 1985 to June 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2010 rating decision of the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA). The decision granted service connection for neuropathy of each upper extremity, effective March 19, 2010. The Veteran testified before the undersigned at a hearing held at the RO in April 2015. In January 2016, the Veteran filed claims for increase as to service-connected disabilities, as well as a claim for a Total Disability Rating Based Upon Individual Unemployability (TDIU). A June 2016 rating decision addressed the increased rating issues, and deferred the TDIU issue. In July 2016, the Veteran submitted a statement indicating he did not wish to pursue the increased rating issues filed in January 2016. He did not make mention of the TDIU claim. As the matter of whether a TDIU is warranted remains outstanding, it is REFERRED to the RO for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDING OF FACT On March 19, 2010, more than one year following his discharge from service, the Veteran filed his original claim seeking service connection for bilateral carpal tunnel syndrome, which was later characterized as left and right upper extremity ulnar neuropathy. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 19, 2010, for the award of service connection for left upper extremity ulnar neuropathy have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 2. The criteria for an effective date prior to March 19, 2010, for the award of service connection for right upper extremity ulnar neuropathy have not been met. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2015), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. As explained below, the determinative factor in this case is when the Veteran's claim was received. Any notice sent or evidence received after the receipt of the claim would not establish the Veteran's entitlement to an earlier effective date for service connection. Therefore, no further development is required before the Board decides this appeal. General Legal Criteria: Effective Date In general, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. § 3.151(a) (2015). A "claim" is defined broadly to include 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) (2015); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. 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. 38 C.F.R. § 3.155(a) (2015). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as a claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. At 54. Factual Background and Analysis The Veteran does not contend that he filed a claim within one year of his separation from service, but maintains that the effective date for his service-connected upper extremity ulnar neuropathy should be the same as the effective date for the grant of service-connection for posttraumatic osteoarthritis, left elbow, due to chip fracture of the left radial head. He argues that because the ulnar neuropathy is related to that disability, the effective date for service connection should be the same. The Veteran has stated the appropriate date to be in 1999, however, the Veteran's posttraumatic osteoarthritis, left elbow, due to chip fracture of the left radial head was awarded service connection effective April 12, 1996. The United States Court of Appeals for the Federal Circuit considered, and rejected a similar argument in Ellington v. Peake, 541 F.3d 1364 No. 2008-7012 (Fed. Cir. 2008). The Federal Circuit held that the effective date for secondary service connection is controlled by the date of claim for the secondary benefit and when the disability arose; not by the effective date of the primary condition to which the new condition was secondary. Following its review of the record, the Board finds that March 19, 2010, is the correct effective date for the award of service connection for the Veteran's left and right upper extremity ulnar neuropathy, because that is the date of receipt of his initial claim for service connection for those disabilities. There is no indication between the Veteran's date of separation from active duty service on June 27, 1989, and the date of receipt of his claim for bilateral carpel tunnel syndrome, which was later confirmed to be ulnar neuropathy, on March 19, 2010, that he intended to file a claim for service connection. The Veteran did not make mention of carpal tunnel syndrome, ulnar neuropathy or any other similar symptom at the time of his 1996 claim for service connection related to the left elbow. While there may be medical evidence and lay reports of symptoms, prior to March 19, 2010, to include in the late 1990s and again in 2004, there is no indication of an intent to claim service connection for either carpal tunnel syndrome, or ulnar neuropathy prior to that date. See Ellington v. Nicholson, 22 Vet. App. 141 (2007) (finding that in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information in and of itself is not an informal claim for VA benefits); Brannon v. West, 12 Vet. App. 32 (1998) (noting that the mere presence of medical evidence does not establish an intent to seek service connection for a psychiatric disorder). In reaching this decision, the Board has considered the Veteran's written statements and hearing testimony. Despite his contentions, however, it is clear that he did not file a formal or informal claim for service connection prior to March 19, 2010. The effective date for service connection for a secondary disability is no different than any other claim for service connection. Thus, the date of the claim controls, not the date of the claim for service connection for the primary disability. The Board has also considered the doctrine of reasonable doubt, but has determined that it is not applicable to these claims because the preponderance of the evidence is against both claims. This appeal must be denied. ORDER An effective date earlier than March 19, 2010, for the award of service connection for left upper extremity ulnar neuropathy is denied. An effective date earlier than March 19, 2010, for the award of service connection for right upper extremity ulnar neuropathy is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs