Citation Nr: 18142451 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-23 139A DATE: October 15, 2018 ORDER A rating in excess of 10 percent for residuals of a left wrist disability is denied. An effective date earlier than March 23, 2004 for the award of service connection for left wrist disability is denied. An effective date from December 18, 2003 and no earlier for the grant of a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s left wrist disability is not more nearly manifested by ankylosis. 2. The Veteran’s claim for service connection for a left wrist disability was denied in an unappealed rating decision in May 1994; VA did not receive an appeal or new and material evidence prior to expiration of the appeal period; the May 1994 decision became final. 3. VA received the petition to reopen the previously denied claim for service connection for left wrist disability on March 23, 2004. 4. The lay and medical evidence show that the Veteran’s psychiatric disability precluded him from obtaining or retaining substantially gainful employment from the date of the grant of service connection for psychiatric disability on December 18, 2003; there was no informal or formal claim for TDIU prior to this date. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left wrist disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5214, 5215. 2. The criteria for an effective date earlier than March 23, 2004 for the award of service connection for left wrist disability are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. 3.1, 3.151, 3.155, 3.400. 3. The criteria for an effective date earlier of December 18, 2003 for the award of TDIU are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1955 to August 1957 and June 1962 to August 1966. 1. Entitlement to a rating in excess of 10 percent for left wrist disability. The Veteran contends that an evaluation in excess of 10 percent is warranted. The Board concludes that the preponderance of the evidence is against a rating in excess of 10 percent for left wrist disability. Neither the lay nor the medical evidence more nearly reflect the criteria for a higher rating. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.71a, Diagnostic Codes 5214, 5215. The Veteran’s residuals of a left wrist fracture, including degenerative joint disease, have been rated under the provisions of 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5215. The Veteran is right-hand dominant. Under DC 5215, a 10 percent rating is assigned for limitation of motion of the wrist when palmar flexion is limited in line with the forearm, or when dorsiflexion of the wrist is less than 15 degrees. A higher rating is available under DC 5214 for ankylosis of the wrist. A 20 percent rating is assigned for favorable ankylosis between 20 and 30 degrees dorsiflexion on the non-dominant hand; a 30 percent rating is assigned for ankylosis of the wrist on the non-dominant hand in any other position, except favorable; and, a 40 percent rating is assigned for ankylosis that is unfavorable, in any degree of palmar flexion, or with ulnar or radial deviation. The evidence demonstrates that the Veteran’s left wrist disability is characterized, at worst, by flexion to 55 degrees and full dorsiflexion. The Veteran underwent VA examinations in September 2012 and March 2016. The September 2012 examination did not record range of motion test results for left palmar flexion but indicated that there was no objective evidence of painful motion. The Veteran had full dorsiflexion and functional impairments included less movement than normal, weakened movement, and deformity. There was no ankylosis and the Veteran did not report experiencing flare-ups. At the March 2016 examination, the Veteran reported decreased flexibility and limited mobility such that he could not do much lifting, play musical instruments, or use a shovel. He noted that he was prescribed a device for his wrist that he wore occasionally. On range of motion testing, the Veteran’s palmar flexion was to 55 degrees and dorsiflexion was to 80 degrees. The Veteran performed repetitive use testing with at least three repetitions and with no additional loss of function or range of motion. The Veteran had decreased muscle strength on flexion and the examiner attributed the reduction in strength to arthritis. The Veteran did not report experiencing flare-ups and the examiner did not indicate that there was any ankylosis. Treatment records demonstrate similar symptomatology. The Veteran has complained of loss of dexterity and some pain with use. June 2012 Private Treatment Records, p. 1. On range of motion testing, he had extension to 80 degrees and flexion to 70 degrees. There was mild tenderness with palpation over the distal radial ulnar joint and radial carpal joint. The Board finds that the preponderates against a finding of entitlement to a rating in excess of 10 percent for a left wrist disability. To receive a higher evaluation the evidence must more nearly reflect the functional equivalent of ankylosis. Here, the evidence shows that the left wrist joint is not ankylosed and that he has retained range of motion that does not more nearly reflect ankylosis of the joint. . The findings for abnormal range of motion along with weakened and painful movement similarly do not more nearly reflect the criteria for a higher rating. The Board accepts that the Veteran is competent to report his symptoms. However, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran’s complaints coupled with the medical evidence. Both the lay and medical evidence are probative in this case. Although the Veteran may believe that he meets the criteria for the next higher disability rating, his complaints along with the medical findings do not meet the schedular requirements for a higher evaluation than assigned, as explained and discussed above. Accordingly, the claim is denied. Furthermore, there is no basis to further “stage” the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (2001); Hart v. Mansfield, 21 Vet. App. 505 (2007). There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert, supra. 2. Entitlement to an effective date earlier than March 23, 2004 for the award of service connection for left wrist disability. The Veteran contends that an effective date earlier than March 23, 2004 for the award of service connection for left wrist disability is warranted. The Board concludes that the preponderance of the evidence is against an effective date earlier than March 23, 2004 for the award of service connection for left wrist disability. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). The effective date for a reopened claim, after a final disallowance, shall be the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). VA shall construe any communication or action from a Veteran indicating intent to apply for one or more benefits as an informal claim. For any informal claim received prior to March 24, 2015, VA is required to identify and act on such claims, provided such a claim identifies the benefit sought. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it). Medical evidence alone cannot be an informal claim; there must be intent to apply for a benefit. Brannon, 12 Vet. App. at 35. VA’s possession of medical evidence showing a particular diagnosis or causal connection may not provide a basis for the assignment of an earlier effective date. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the filing date of the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999); see McGrath v. Gober, 14 Vet. App. 28 (2000). Here, VA denied a claim of entitlement to service connection for a left wrist disability in an unappealed May 1994 rating decision. VA did not receive an appeal or new and material evidence prior to expiration of the appeal period. As such, the May 1994 rating decision became final. 38 U.S.C. §§ 5103, 5103A, 5108, 7105(c); 38 C.F.R. §§ 3.102, 3.156(a), 20.1103. Thereafter, on March 23, 2004, VA received a petition to reopen the previously denied claim. A July 2013 rating decision that granted service connection for left wrist disability and assigned an effective date of March 23, 2004—the date the Veteran submitted his request to reopen the claim for service connection. The effective date of an award of service connection based on an application to reopen a claim is assigned based on the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2); Lalonde, 12 Vet. App. at 382. While sympathetic to the Veteran’s belief that an earlier effective date is warranted; for the reasons outlined above, the Board is precluded by law from assigning an effective date prior to March 23, 2004 because this is the later of the two dates used to determine effective dates. Therefore, the preponderance of the evidence is against the claim for an effective date earlier than March 23, 2004. Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). 3. Entitlement to an effective date earlier than October 21, 2013 for the grant of TDIU. Having carefully reviewed the record, the Board finds that the criteria for an effective date of December 18, 2003 for the award of TDIU are met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.16, 4.18, 4.19. VA received a claim for TDIU on October 21, 2013. In a March 2016 rating decision, the RO granted service connection for psychiatric disability, assigning a 70 percent evaluation from December 18, 2003. From this date, the Veteran met the numeric standards for schedular TDIU. In an October 2016 rating decision, the RO granted TDIU, effective from October 21, 2013, because the evidence showed that the Veteran’s psychiatric disability precluded him from obtaining or retaining substantially gainful employment. In this regard, it is noted that an April 2016 VA medical opinion indicated that that the Veteran’s psychiatric symptoms made him unemployable; another April 2016 VA audiological opinion indicated that the Veteran’s hearing impairment would cause him significant difficulty with working that required verbal communication in noisy areas, or in a job which requires communication over a telephone, radio, or intercom system for large portions of the day. There is no indication that the level of psychiatric impairment precluding the Veteran’s ability to work did not exist from the date of the award of service-connection for psychiatric disability. Therefore, affording the Veteran the benefit of any doubt, the criteria for an effective date from December 18, 2003 are met. However, the Veteran did not meet the criteria for TDIU prior to December 18, 2003. See 38 C.F.R. § 4.16(a). Also, the record shows that, prior to this date, VA had received no informal or formal claim for TDIU. Notably, the Veteran’s attorney argued that TDIU benefits are sought only back to December 18, 2003, thus acknowledging no earlier entitlement to the benefit. Therefore, an effective date prior to December 18, 2003, is not warranted. Accordingly, an effective date of December 18, 2003, for the award of TDIU is granted subject to the laws and regulations governing monetary awards. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel