Citation Nr: 18141886 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 14-28 731A DATE: October 11, 2018 ORDER Entitlement to an effective date prior to July 18, 2011, for the grant of service connection for a right ankle fracture lateral malleolus is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for a right ankle fracture lateral malleolus is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In an unappealed rating decision dated March 2005, the Agency of Original Jurisdiction (AOJ) denied service connection for right ankle fracture lateral malleolus. 2. Since the March 2005 rating decision, a claim for service connection for a right ankle fracture lateral malleolus was not received until July 18, 2011. CONCLUSION OF LAW The criteria for an effective date prior to July 18, 2011, for the award of service connection for a right ankle fracture lateral malleolus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to an effective date prior to July 18, 2011, for the grant of service connection for right ankle fracture lateral malleolus. Legal Criteria Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. § 3.400(r), 3.400(q)(2); see Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003); Flash v. Brown, 8 Vet. App. 332, 340 (1995). The fact that a claimant had previously submitted a claim application which had been denied is not relevant to the assignment of an effective date based on his current application. The Court of Appeals for Veterans Claims (Court) has held that “[n]othing in the statute indicates that an effective date can be set based upon an application that resulted in a final disallowance of the claim.” Wright v. Gober, 10 Vet. App. 343, 347 (1997). The Court also held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show clear and unmistakable error (CUE) in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995); see also Rudd v. Nicholson, 20 Vet. App. 296, 299-00 (2006). Factual Background and Analysis VA received a claim for entitlement to service connection for a right ankle disability on November 8, 2004. This claim was denied in a March 2005 rating decision. The Veteran did not file a notice of disagreement with that decision. Further, no new and material evidence was submitted within the one year period following the issuance of that decision and no official relevant service records were have been associated with the record since the issuance of that decision. See 38 C.F.R. § 3.156(b), (c). Therefore, the March 2005 rating decision is final. An August 2014 Report of General Contact with the Veteran indicates he claims he never received the March 2005 rating decision notifying him of this denial and that he thought his claim was still pending. The Court has applied a presumption of regularity to all manner of VA processes and procedures. See Woods v. Gober, 14 Vet. App. 214, 220 (2000). In applying this legal principle to the present instance, the Court has held that there is a presumption of regularity that the Secretary properly discharged his official duties by mailing a copy of a VA decision to the last known address of the Veteran and the Veteran’s representative, if any, on the date that the decision was issued. The Veteran may rebut that presumption by submitting clear evidence to the effect that VA’s regular mailing practices are not regular or that they were not followed, and the burden then shifts to the Secretary to establish that the VA decision was mailed to the Veteran. Absent evidence that the Veteran notified VA of a change of address and absent evidence that any notice sent to him at his last known address has been returned as undeliverable, VA is entitled to rely on that address. In reviewing the evidence of record, the Board finds that the presumption of regularity has not been rebutted. The March 2005 rating decision was sent to the same address the Veteran put on his November 2004 claim for compensation. There is no evidence that the March 2005 rating decision was returned as undeliverable or that the Veteran notified VA of any change in address. The Veteran’s unsupported assertion that he did not receive a copy of this rating decision is not sufficient to rebut the presumption of regularity in the administrative process. Without evidence to the contrary, the Board must conclude that any mail sent by the Regional Office (RO) to the Veteran’s last known address was appropriately delivered to him. Here, the evidence clearly shows that the final disallowance, that is, the last disallowance that is determined to be a final decision by virtue of having not been appealed, is the March 2005 denial by the RO. The Veteran did not appeal that decision by filing a notice of disagreement. Additionally, no new and material evidence was associated with the claims file within one year of notification of that decision. See 38 C.F.R. § 3.156(b). Moreover, no relevant official service department records have been received since the March 2005 decision. See 38 C.F.R. § 3.156(c). Therefore, the March 2005 decision is final. The evidence also shows that the date of receipt of the claim to reopen was July 18, 2011, and that it is a claim re-opened after final disallowance. In light of the foregoing, the only effective date for award of service connection that may be assigned for the Veteran’s right ankle fracture lateral malleolus is the presently assigned date of July 18, 2011. While the Board recognizes the Veteran’s belief that the effective date for his grant of service connection for a right ankle fracture lateral malleolus should be earlier than July 18, 2011, because he filed a previous claim, the governing legal authority is clear and specific, and VA is bound by it. As the preponderance of the evidence is against the Veteran’s claim for an earlier effective date, it must be denied. 38 U.S.C. § 5107(b); see Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for a right ankle disability is remanded. The Veteran was last afforded a VA examination to assess the severity of his right ankle disability in June 2013. In a September 2018 brief, the Veteran’s representative argued that this examination was too old for rating purposes and requested a new one. Moreover, the Court recently determined that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158 (2016). The June 2013 VA examination report does not contain all the required range of motion testing. Accordingly, the Board finds that a remand for a new examination is required. The examination report which includes this required testing, or an explanation for why the required testing cannot be performed, must be completed on remand. While this case is in remand status, all outstanding VA treatment records must be obtained and associated with the evidence of record. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that VA medical records are in constructive possession of the agency and must be obtained if the material could be determinative of the claim). 2. Entitlement to TDIU is remanded. Given that the Veteran is claiming entitlement to TDIU due to his right ankle fracture lateral malleolus, these issues are inextricably intertwined and must be remanded and decided together. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered) Moreover, the Board notes that in March 2014 the AOJ sent the Veteran a letter asking him to fill out and return VA Form 21-8940 in connection with his claim for entitlement to TDIU. However, the Veteran failed to complete and return that form. The Veteran is informed that the duty to assist is not a one-way street; if the Veteran wishes help he cannot passively wait for it in circumstances where his own actions are essential in obtaining putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). On remand, the AOJ must again send the Veteran the appropriate letter asking him to complete and return this form. The Board emphasizes that the Veteran’s cooperation is essential. The matter is REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the evidence of record. 2. Send the Veteran a letter asking him to complete and return VA Form 21-8940, the Application for Entitlement to TDIU. 3. Afford the Veteran the appropriate VA examination to assess the current severity of his right ankle fracture lateral malleolus. The examination results should be recorded using the most recent version of the VA Ankle Conditions Disability Benefits Questionnaire. All pertinent evidence of record should be made available to and reviewed by the examiner. All required testing should be performed. Both passive and active range of motion testing should be performed, in weight-bearing and nonweight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct any of the required testing, he or she must explain why this is so. The examiner must provide a rationale for all opinions requested, to include all those listed on the most recent Disability Benefits Questionnaire. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. 4. The Veteran is informed that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claim and that the consequences for failure to report for any VA examination without good cause may include denial of a claim. See 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation showing that he was properly notified of the examination must be associated with the record. (CONTINUED ON NEXT PAGE) 5. Then, the Veteran’s claims must be readjudicated. If any benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and his representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. Kristy L. Zadora Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jessica O'Connell, Associate Counsel