Citation Nr: 18148641 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 16-46 280 DATE: November 8, 2018 ORDER Entitlement to an effective date prior to January 3, 2011, for the award of a 10 percent evaluation for right wrist strain, old trauma, is denied. REMANDED Entitlement to an evaluation in excess of 10 percent for right wrist strain, old trauma, is remanded. FINDINGS OF FACT VA received the Veteran’s initial claim of entitlement to service connection for right wrist strain, old trauma, on January 3, 2011. CONCLUSIONS OF LAW The criteria for entitlement to an effective date prior to January 3, 2011, for the award of a 10 percent evaluation for right wrist strain, old trauma, have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.159, 3.400(b)(2) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS 1. Entitlement to an effective date prior to January 3, 2011, for the award of a 10 percent evaluation for right wrist strain, old trauma In claims for VA benefits, VA 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. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In a September 2011 rating decision, the Regional Office (RO) awarded service connection for a right wrist strain with a noncompensable evaluation, effective January 3, 2011, the date VA received the Veteran’s claim for service connection of in injury of the right hand/wrist, characterized as right wrist strain, old trauma. The Veteran did not appeal the September 2011 determination by filing a Notice of Disagreement (NOD). On August 23, 2012, VA received a statement from the Veteran regarding his right wrist strain, and interpreted this as a claim for increase. In a September 2013 rating decision, the RO increased the evaluation of the right wrist strain, old trauma, to 10 percent disabling effective August 23, 2012, finding that this marked the date of VA’s receipt of the claim for increase. In his September 2014 NOD, the Veteran disagreed with those determinations, and sought an effective date of January 3, 2011, for the award of the increased evaluation, as well as a 30 percent disability evaluation. In an August 2016 rating decision, and concurrent Statement of the Case (SOC), the RO sua sponte found clear and unmistakable error (CUE) in the assignment of August 23, 2012, as the effective date of the increased evaluation in the September 2013 rating decision. In finding CUE, the RO assigned January 3, 2011, as the effective date of the increase. January 3, 2011, marks the date of the Veteran’s initial claim of service connection for the right wrist strain. Entitlement to an effective date for the award of the 10 percent evaluation is not warranted. VA law and regulation provides that, unless provided otherwise, the effective date of an initial award of disability compensation shall be fixed in accordance with the facts found, but not shall not be earlier than the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Because VA received the Veteran’s initial claim for service connection of a right wrist strain no earlier than January 3, 2011, an effective date prior thereto for the award of a 10 percent evaluation is denied. Gilbert, supra. In closing, the Board notes that the Veteran has specifically sought January 3, 2011, as the earliest effective date of the award. It thus appears that the maximum benefit sought on appeal had been granted as of the August 2016 SOC. In any event, an effective date prior to January 3, 2011, is not warranted. REASONS FOR REMAND Entitlement to an evaluation in excess of 10 percent for right wrist strain, old trauma. In the September 2013 rating decision forming the basis of the present appeal, the RO increased the evaluation of the right wrist strain to 10 percent disabling, with effective date of the grant later changed to January 3, 2011. The RO evaluated this disability under 38 C.F.R. § 4.71a, Diagnostic Code 5215, which provides for evaluation of limitation of motion of the wrist. The Veteran disagreed with that determination, and in the August 2016 SOC and concurrent rating decision the RO awarded entitlement to service connection for triangular fibrocartilage complex (TFCC), evaluated as right median neuropathy, with a 10 percent evaluation. The RO assigned this evaluation under 38 C.F.R. § 4.124a, Diagnostic Code 8176, which provides for evaluation of impairment of the ulnar nerve. The claim of entitlement to an evaluation in excess of 10 percent for right wrist strain, old trauma, is remanded for the issuance of a SOC. Here, the August 2016 SOC failed to address this issue, but rather addressed an issue not on appeal – entitlement to service connection for TFCC, evaluated as right median neuropathy. Accordingly, the claim is remanded for the issuance of a SOC. See Manlincon v. West, 12 Vet. App. 239, 240-41 (1999). The matter is REMANDED for the following action: Issue a Statement of the Case (SOC) addressing the claim of entitlement to an evaluation in excess of 10 percent for right wrist strain, old trauma, and advise the Veteran and his representative of the period of time afforded for submission of a Substantive Appeal. If one is timely received, the issue should be returned to the Board. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joseph R. Keselyak