Citation Nr: 18141112 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-12 442A DATE: October 9, 2018 ORDER Entitlement to an effective date earlier than October 30, 2011, for the grant of service connection for coronary artery disease (CAD), including consideration under the Nehmer provisions, is denied. Entitlement to an effective date earlier than October 30, 2012, for the grant of service connection for right thumb metacarpal fracture residuals, including arthritis, is denied. Entitlement to initial rating in excess of 30 percent from October 30, 2011 to December 6, 2013 and from April 1, 2014, forward, for CAD, is denied. An initial 10 percent disability rating, but not higher, for a right thumb disability, is granted. The February 2016 substantive appeal for the issues of service connection for a right wrist condition and an acquired psychiatric disorder is accepted as timely. FINDINGS OF FACT 1. The Veteran is presumed to have been exposed to herbicide agents as a result of his service in the Republic of Vietnam. 2. The Veteran was first diagnosed with CAD approximately in 2000. 3. The Veteran never filed a claim for service connection for CAD or any other heart disability. 4. In an unappealed April 2003 rating decision, the RO denied service connection for a right thumb injury. 5. The Veteran’s petition to reopen a service connection claim for residuals of a right thumb injury was received on October 30, 2012, and by a February 2016 rating decision, the RO granted service connection for right thumb first metacarpal fracture residuals, including arthritis, effective October 30, 2012, the date of the Veteran’s petition to reopen. 6. There is no pending, unadjudicated petition to reopen the service connection claim for a right thumb injury prior to October 30, 2012. 7. For the entire initial period on appeal from October 30, 2011 to December 6, 2013 and from April 1, 2014, forward, the Veteran had left ventricular ejection fraction (LVEF) not worse than 55 percent; did not have acute congestive heart failure (CHF); or workloads of greater than 3 but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope. 8. Resolving all doubt in the Veteran’s favor, he has arthritis in his right thumb MP and IP joints which results in painful noncompensable limitation of motion, without ankylosis or a gap of more than two inches between the thumb pad and fingers. 9. On February 9, 2016, the RO issued a statement of the case (SOC), confirming the denial of service connection for an acquired psychiatric disorder and a right wrist condition. VA received a substantive appeal with regard to these issues within 60 days of issuance of the SOC. CONCLUSIONS OF LAW 1. The criteria for an assignment of an effective date prior to October 30, 2011, for the award of service connection for CAD are not met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.400, 3.816 (2017). 2. The criteria for the assignment of an effective date prior to October 30, 2012, for the award of service connection for residuals of a right thumb injury are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. For the entire initial period on appeal from October 30, 2011 to December 6, 2013 and from April 1, 2014, forward, the criteria for initial rating in excess of 30 percent for CAD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.104, DC 7005-7006 (2017). 4. The criteria for an initial 10 percent rating, but no higher, for arthritis of the right thumb are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5228 (2017). 5. The requirement of a timely-filed appeal is met, and the Veteran’s February 2016 substantive appeal is accepted. 38 U.S.C. 7105 (2012); 38 C.F.R. 20.302, 20.303, 20.305 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1969. Earlier Effective Date – Applicable Laws and Regulations Generally, the effective date of an award of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The same is true for an award based on a claim reopened after final adjudication, as VA laws and regulations stipulate that the effective date of such an award shall be fixed in accordance with the facts found, but shall not be earlier than the date the claim was received, or the date entitlement arose, whichever is later. See Id.; 38 C.F.R. § 3.400(r). The effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). An informal claim may be any communication or action, indicating intent to apply for one or more benefits under VA law. See Thomas v. Principi, 16 Vet. App. 197 (2002); see also 38 C.F.R. §§ 3.1(p), 3.155(a) (2017). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). VA has promulgated special rules for the effective dates for the award of presumptive service connection based on exposure to herbicides, pursuant to orders of a United States District Court in the class action of Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (If a Nehmer “class member” is entitled to a disability compensation for a “covered herbicide disease,” the effective date of the award will be the later of the date such claim was (originally) received by VA or the date the disability arose. 38 C.F.R. § 3.816(c)(1)-(2). Specifically, a Nehmer “class member” is defined as a Vietnam Veteran who has a “covered herbicide disease.” Id. The regulation as currently written defines a “covered herbicide disease” to include the diseases for which the Secretary of Veterans Affairs has established a presumption of service connection before October 1, 2002 pursuant to the Agent Orange Act of 1991. The new diseases added to the list of presumptive disabilities in August 31, 2010, which includes ischemic heart disease, are not technically part of 38 C.F.R. § 3.816(b)(2). Id.; but see 75 Fed. Reg. 53, 202 (August 31, 2010). Notwithstanding the language of 38 C.F.R. § 3.816, however, notice accompanying the issuance of the final August 31, 2010 rule specifically notes the Nehmer provisions apply to the newly covered diseases. Id. If a Nehmer class member is entitled to disability compensation for a covered herbicide disease, the effective date of the award will be as follows: (1) If VA denied compensation for the same covered herbicide disease in a decision issued between September 25, 1985 and May 3, 1989, the effective date of the award will be the later of the date VA received the claim on which the prior denial was based or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A prior decision will be construed as having denied compensation for the same disease if the prior decision denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. Minor differences in the terminology used in the prior decision will not preclude a finding, based on the record at the time of the prior decision, that the prior decision denied compensation for the same covered herbicide disease. (2) If the class member’s claim for disability compensation for the covered herbicide disease was either pending before VA on May 3, 1989, or was received by VA between that date and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, the effective date of the award will be the later of the date such claim was received by VA or the date the disability arose, except as otherwise provided in paragraph (c)(3) of this section. A claim will be considered a claim for compensation for a particular covered herbicide disease if: (i) The claimant’s application and other supporting statements and submissions may reasonably be viewed, under the standards ordinarily governing compensation claims, as indicating an intent to apply for compensation for the covered herbicide disability; or (ii) VA issued a decision on the claim, between May 3, 1989 and the effective date of the statute or regulation establishing a presumption of service connection for the covered disease, in which VA denied compensation for a disease that reasonably may be construed as the same covered herbicide disease for which compensation has been awarded. (3) If the class member’s claim referred to in paragraph (c)(1) or (c)(2) of this section was received within one year from the date of the class member’s separation from service, the effective date of the award shall be the day following the date of the class member’s separation from active service. (4) If the requirements of paragraph (c)(1) or (c)(2) of this section are not met, the effective date of the award shall be determined in accordance with §§ 3.114 and 3.400. Earlier Effective Date – CAD Prior to March 24, 2015, in some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). However, treatment records do not constitute informal claims when service connection has not yet been established for the condition. Sears v. Principi, 16 Vet. App. 244 (2002). While VA should broadly interpret submissions from a veteran, it is not required to conjure up claims not specifically raised. Brannon, 12 Vet. App. 32 (the mere existence of medical records cannot be construed as an informal claim); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Importantly, the mere presence of a disability does not establish intent on the part of a veteran to seek service connection for that condition. See KL v. Brown, 5 Vet. App. 205, 208 (1993); Crawford v. Brown, 5 Vet. App. 33, 35 (1995). With respect to earlier effective date claims for diseases presumed to be caused by exposure to herbicide agents, VA has issued special regulations based upon a liberalizing law. In general, if such a claim is received within one year from the effective date of a liberalizing law or VA issue, benefits may be authorized from the effective date of the liberalizing law or VA issue. 38 U.S.C. § 5110(g); 38 C.F.R. §§ 3.114, 3.400(p). Ischemic heart disease was added to the list of diseases associated with exposure to certain herbicide agents effective August 31, 2010. See 75 Fed. Reg. 53202 (Aug. 31, 2010). With that said, effective dates for certain awards of service connection, including for ischemic heart disease, are governed pursuant to Nehmer v. United States Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal. May 17, 1991); 38 C.F.R. § 3.816; see also 75 Fed. Reg. at 53203. For such diseases, if a claim was either pending before VA on May 3, 1989, or received by VA between that date and the effective date of the statute or regulation that established a presumption of service connection for the covered disease, the effective date of the award will be the later of the date the claim was received by VA or the date the disability arose except as otherwise provided in paragraph (c)(3) of this section, which pertains to claims filed within one year from the date of separation from service. See 38 C.F.R. § 3.816(c)(2). The effective date of the liberalizing law in this case is August 31, 2010. Following Nehmer, in an October 2013 rating decision, the Veteran was granted service connection for CAD. He was assigned an effective date of October 30, 2011, a year prior to the day that VA received a claim for service connection despite it not being a claim for any heart disability. The Veteran now asserts that he is entitled to an earlier effective date of at least March 2002, when records show his diagnosis. The record does not show and the Veteran does not assert that he brought a claim for a heart condition between May 3, 1989 and August 31, 2010, or prior to October 30, 2011. The Board has considered whether any evidence of record prior to October 2011 could serve as an informal claim that would entitle the Veteran to an earlier effective date under 38 C.F.R. § 3.155. However, there is absolutely no evidence from which any such intent can be construed. The Board emphasizes that to this date, the Veteran never explicitly filed a claim for any heart disability. Although the evidence indicates that the Veteran’s heart condition arose prior to October 2011, as discussed above, the mere existence of medical records cannot be construed as an informal claim. Brannon, 12 Vet. App. 32. Moreover, as stated above, the presence of a disability is not enough to establish intent on the part of the Veteran to seek service connection for that condition. See KL, 5 Vet. App. 208; Crawford, 5 Vet. App. 35. Since the effective date of an award will be the later of the date the claim was received by VA or the date the disability arose, the effective date for the Veteran’s award of service connection for ischemic heart disease must be October 2011, a year prior to his October 2012 claim for benefits that was construed to include a claim for a heart disability. See 38 C.F.R. § 3.816(c)(2). Furthermore, the Board notes that the Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), held in the context of new and material evidence that VA treatment records may be constructively received and actual receipt was not necessary. However, the Court specified that to establish constructive receipt, VA adjudicators must have sufficient knowledge of the existence of the records within the one-year appeal period. In this regard, it was noted that the claimant must furnish information sufficient to identify and locate the records under 38 U.S.C. § 5103A(c)(1)(B) and 38 C.F.R. § 3.159(c). Here, aside from the fact that the Veteran never filed any claim for a heart disability, in his September 2002 claim for compensation (for a disability that is not related to his heart disability) he left the boxes inquiring of any treatment he received empty and did not identify any treatment for any condition. He was provided with a notice letter in December 2002 giving him the opportunity to identify relevant evidence, but failed to respond to it. He was notified of the April 2003 rating decision that denied his claim for benefits, but never appealed this decision. In fact, between April 2003 and October 2012, the Veteran had not communicated with VA and submitted absolutely no evidence. For these reasons, the Board finds that an effective date prior to October 30, 2011, is not warranted. Earlier Effective Date – Right Thumb The Veteran asserts that he is entitled to an effective date earlier than October 30, 2012 for the grant of service connection for residuals of a right thumb injury. Here, in September 2002, the Veteran filed a claim for service connection for a right thumb injury. Thereafter, in an April 2003 rating decision, the RO denied the Veteran’s claim. The Veteran did not appeal this decision within the one-year appellate period, and the April 2003 rating decision became final. Thus, while recognizing that the Veteran filed his original claim for service connection for a right thumb injury in September 2002, the corresponding rating decision dated in April 2003 denied the claim, and the Veteran did not timely appeal the decision within the one-year appellate period. An unappealed decision of the RO or the Board becomes final and binding and is not subject to revision on the same factual basis in the absence of clear and unmistakable error (CUE). Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 3.105, 20.1400 (2017). The Veteran has not asserted CUE in this case. There is no additional evidence on record that makes any reference to the Veteran’s right thumb injury between the issuance of the April 2003 rating decision and the Veteran’s petition to reopen on October 30, 2012. In fact, no correspondence from the Veteran or other evidence of any kind was received by VA during this time. Subsequently, the RO granted service connection for residuals of a right thumb injury, and assigned an effective date of October 30, 2012, the date VA received the Veteran’s petition to reopen. The Veteran filed a notice of disagreement (NOD) in March 2016 for the assigned effective date for the grant of service connection. The RO issued an SOC in June 2017 and the Veteran perfected his appeal (via a VA Form 9) in July 2017. As a result, this appeal ensued. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1100. The Board reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than October 30, 2012, the date of his petition to reopen. Significantly, the relevant regulation provides that any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application, in this case, October 30, 2012. As indicated, finality determinations contained within the prior final decisions that denied service connection for a right thumb injury can only be addressed through a claim of CUE as to those decisions. See 38 U.S.C. §§ 5109A, 7111 (2012); 38 C.F.R. §§ 3.104, 3.105, 20.1400 (2017). The Veteran has not claimed CUE in the prior decision. In summary, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As such, the RO has already assigned the earliest possible effective date for its grant of the reopened right thumb claim, which was determined to be October 30, 2012. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Consequently, there is no legal basis upon which to award an effective date prior to October 30, 2012, for the grant of service connection for a right thumb injury or residuals thereof. The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). The claim of entitlement to an effective date earlier than October 30, 2012, for the award of service connection for residuals of a right thumb injury must be denied. Increased Rating Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2017). Where a veteran appeals the initial rating assigned for a disability at the time that service connection for that disability is granted, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Criteria – CAD The RO rated the Veteran’s CAD with myocardial infarction (MI) under 38 C.F.R. §4.104, DC 7005-7006. DC 7005 pertains to CAD, and DC 7006 pertains to MI. Both disabilities are rated using the same criteria, except that DC 7006 allows for a total rating for three months following myocardial infraction. Pursuant to the rating criteria, a 30 percent rating is warranted where there is evidence that CAD resulted in a workload of greater than 5 METs but not greater than 7 METs, with dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent rating is warranted where there is evidence of more than one episode of acute congestive heart failure in the past year; workload greater than three METs but not greater than five METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or LVEF of 30 to 50 percent. 38 C.F.R. § 4.104. A 100 percent rating requires evidence of chronic congestive heart failure; workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope; or LVEF of less than 30 percent. Id. The provisions of 38 C.F.R. § 4.104 define one MET as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. Analysis The Veteran’s CAD is assigned a 30 percent disability rating from October 30, 2011 to December 6, 2013 and from April 1, 2014, forward. He was assigned a temporary total (100 percent disability rating) from December 7, 2013 to March 31, 2014. He asserts that his disability is worse than the currently assigned 30 percent throughout these initial periods on appeal. After a careful review of all the evidence both lay and medical, the Board finds that a rating in excess of 30 percent is not warranted for any period on appeal. Turning to the evidence, VA treatment records dated in August 2013 indicate that the Veteran had no history of heart failure. In an e-mail correspondence dated in October 2013, a medical professional was asked to review the Veteran’s treatment records and indicate whether there was enough information to estimate the Veteran’s METs based on the Veteran’s heart condition alone. It also inquired whether it would be possible to determine whether a medical contradiction exists for conducting METs testing. The medical professional responded that, by looking at the Veteran’s records, it would not be recommended for him to undergo stress EKG and METs testing given his hip pain and weakness secondary to his cerebrovascular accident and being in rehabilitation hospital. It further indicated that the Veteran was not using nitrate for angina pain and there was no history of it. The medical professional noted that the medical records contain an echocardiogram with EF of 60 percent and normal left ventricle and normal results. The medical professional concluded that based on this evidence, the Veteran’s METs was estimated to be 7 or greater. VA treatment records dated in July 2015 indicate that the Veteran was hospitalized after a Non-ST-elevation myocardial infarction (NSTEMI), at which time EF was 55 percent with inferior akinesis and normal LV systolic function. In January 2016, the Veteran underwent a VA examination to determine the severity of his heart disability. The examiner confirmed a diagnosis of CAD since 2000. The Veteran reported that he drove to the appointment himself for about 30 minutes and indicated that he did not work since 1989 after he fell and hurt himself. He further stated that he had more than one stroke with the last one a year earlier. The examiner noted that the Veteran’s last hospitalization was in July 2015 for with NSTEMI, and had his last MI in December 2013. The examiner indicated that the Veteran had no history of congestive heart failure; arrhythmia; heart valve condition; infectious heart conditions; or, pericardial adhesions. It was noted that he underwent a percutaneous coronary intervention (angioplasty) in December 2013. There was evidence of cardiac hypertrophy in an echocardiogram in July 2015, which also showed LVEF of 55 percent with inferior akinesis, but normal wall thickness. The examiner conducted an interview-based METs test and concluded that the Veteran’s METs level was 1-3 METs due to fatigue; history of strokes; right sided weakness; anemia; and back, neck, and shoulder conditions. The examiner then indicated that this METs level was not due to the Veteran’s heart condition alone, and his estimated METs level due to the heart alone was 5-7 METs. The examiner explained that EF was 55 percent and when considering the Veteran’s heart function alone, METs were better estimated at 5-7. Lastly, the examiner indicated that the Veteran’s heart function alone impacted his ability to work, but indicated that he should be able to perform activities such as walking one flight of stairs, golfing without a car, and mowing the lawn with a push-mower and heavy yardwork. The examiner further noted that the Veteran had a history of stroke with right side weakness as well as back, neck, and shoulder conditions that prevent him from performing a lot of these activities. Based on the foregoing, the Board finds that a rating in excess of 30 percent is not warranted during any period on appeal. Notably, two medical examiners indicated that the Veteran’s METs level due to his heart disability alone were between 5-7. Furthermore, the objective medical evidence shows that his LVEF levels was not lower than 55 percent throughout the initial rating period on appeal. Additionally, the Veteran’s CAD has not resulted in acute or chronic congestive heart failure. In sum, the preponderance of the evidence is against the claim for initial rating in excess of 30 percent for CAD and the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Rating Criteria – Residuals of a Right Thumb Injury The RO rated the Veteran’s right thumb first metacarpal fracture residuals with arthritis as noncompensable for the entire initial period on appeal beginning October 30, 2012 pursuant to DC 5010-5228. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, Diagnostic Code 5010 refers to arthritis due to trauma, substantiated by x-ray findings, while the more specific Diagnostic Code 5228 refers to limitation of motion of the thumb. Diagnostic Code 5010, which governs ratings of traumatic arthritis, provides that, if substantiated by x-rays, such arthritis should be rated as degenerative under Diagnostic Code 5003. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion under the appropriate Diagnostic Code(s) for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint or specific joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is assignable to for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Diagnostic Code 5003. Diagnostic Code 5228 contemplates limitation of motion of the thumb. It provides a noncompensable rating for a gap of less than one inch (2.5 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 10 percent rating is afforded for a gap of one to two inches (2.5 to 5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. A 20 percent rating is assigned for a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers, with the thumb attempting to oppose the fingers. 38 C.F.R. § 4.71a, Diagnostic Code 5228. See Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for an increased rating to be assigned). The Board has also considered Diagnostic Code 5224. Under Diagnostic Code 5224, a 10 percent rating is warranted where there is favorable ankylosis of the thumb. A maximum 20 percent rating is warranted where there is unfavorable ankylosis of the thumb. Analysis The Veteran asserts that his right thumb first metacarpal fracture residuals with arthritis should be assigned a compensable rating. After a careful review of all the evidence both lay and medical, the Board finds that an initial 10 percent disability rating is warranted for the entire period on appeal. Turning to the evidence, VA treatment records dated in January 2016 contain a MRI which revealed mild to moderate first carpometacarpal joint and mild IP joint osteoarthritis; mild arthrosis of the second digit and minimal of the third and fourth digits; minimal osteoarthritis of the wrist along the radial/thumb base aspect; and minimal chronic deformity of the first metacarpal base. In January 2016, the Veteran underwent a VA examination, at which time the examiner confirmed a diagnosis of fractured base of right first metacarpal. It was noted that the Veteran is right hand dominant. The Veteran reported that his thumb ached on and off, but denied having flare-ups or having any functional loss or functional impairment including after repeated use over time. Upon physical examination, range of motion of the right hand was all normal. Range of motion of the thumb revealed max extension to 0 degrees MCP and IP, and max flexion to 100 degrees MCP and 90 degrees IP. There was no gap between the pad of the thumb and the fingers or between the fingers and proximal transverse crease of the hand on maximal finger flexion. The examiner indicated that no pain was noted during the examination. There was also no evidence of pain with the use of the hand or any objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with at least three repetitions, which did not result in any additional functional loss or range of motion. Muscle strength testing was normal with no evidence of muscle atrophy. There was no evidence of ankylosis. The examiner indicated that x-rays documented traumatic arthritis in multiple joints of the right hand, including the thumb and fingers. The examiner further noted that the x-rays showed mild chronic deformity of the first metacarpal base. Based on the foregoing, the Board finds that the medical evidence does not show that the limitation of motion of the Veteran’s thumb warrants a compensable rating under Diagnostic Code 5228. However, applying the criteria of Diagnostic Code 5003, the Veteran is entitled to a 10 percent rating as there is x-ray evidence of degenerative arthritis of the right thumb. Although the examiner did not specify if arthritis was shown in both the MP and IP joints, the MRI shows arthritis in both joints of the thumb. This is sufficient to establish a group of minor joints affected by the limitation of motion. Therefore, an initial 10 percent disability rating is warranted. As the right thumb MP and IP joints result in painful noncompensable limitation of motion, but not ankylosis, 10 percent is the maximum rating assignable. In the absence of evidence of a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers when attempting to oppose such fingers, or of ankylosis, a rating in excess of 10 percent may not be assigned the thumb under Diagnostic Code 5228 or any other Diagnostic Code. Timeliness of the Veteran’s Appeal An appeal to the Board is initiated by an NOD and completed by a substantive appeal after an SOC is furnished. See 38 U.S.C. 7105 (2012); 38 C.F.R. 20.200, 20.201, 20.202, 20.203 (2017). A substantive appeal must be filed within 60 days from the date that that agency of original jurisdiction (AOJ) mails the SOC to the appellant, or within the remainder of the 1-year period from the date of mailing of the notification of the determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC for purposes of determining whether an appeal has been timely filed. 38 C.F.R. 20.302 (2017). Extensions of time for filing a substantive appeal may be granted for good cause. 38 C.F.R. 20.303 (2017). When these rules require that any written document be filed within a specified period of time, a response postmarked prior to expiration of the applicable time limit will be accepted as having been timely filed. If the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by the Department of Veterans Affairs. In calculating this 5-day period, Saturdays, Sundays, and legal holidays will be excluded. 38 C.F.R. 20.305 (a) (2017). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. Where the time limit would expire on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. 38 C.F.R. 20.305(b) (2017). Here, an October 2013 rating decision denied service connection for an acquired psychiatric disorder and a right wrist condition. The Veteran appealed the denials by a timely September 2014 NOD. On February 9, 2016, the RO issued an SOC, confirming the previous denial of service connection for an acquired psychiatric disorder and a right wrist condition. Thereafter, the Veteran’s attorney faxed numerous correspondences to VA. Notably, the attorney provided as evidence the signed VA Form 9 dated on February 22, 2016 and a fax confirmation sheet showing it was successfully sent on February 23, 2016. There is a presumption of administrative regularity under which it is presumed that government officials have properly discharged their official duties, including in receiving evidence. Ashley v. Derwinski, 2 Vet. App. 307, 308 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15, 47 S.Ct. 1, 71 L.Ed. 131 (1926)). The presumption of regularity dictates that, if the RO had received the letter, the RO would have associated it with the claims file and acted on it in some manner. Fithian v. Shinseki, 24 Vet. App. 146, 151 (2010). Accordingly, the Veteran’s statements alone are usually insufficient to rebut the presumption of regularity. Nevertheless, under the facts of this case, specifically the evidence showing that the RO received multiple correspondences and the fact that the attorney provided a confirmation of the sent fax showing successful transmission, the Board resolves all doubt in the Veteran’s favor in finding that his February 2016 substantive appeal was timely. Therefore, the Veteran’s substantive appeal is accepted as timely for the issues of entitlement ot service connection for an acquired psychiatric disorder and a right wrist condition. LAURA E. COLLINS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel