Citation Nr: 18152978 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-50 347 DATE: November 27, 2018 ORDER Entitlement to an effective date prior to May 21, 2010, for the grant of service connection for right ulnar nerve neuritis is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for right ulnar nerve neuritis is remanded. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU) is remanded. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a rating in excess of 50 percent for migraines is remanded. FINDINGS OF FACT 1. A claim of entitlement to service connection for right ulnar nerve neuritis was denied by a rating decision dated in February 2007. The Veteran did not perfect an appeal of the decision. 2. On May 21, 2010, the Veteran sought to reopen the claim of service connection for right ulnar nerve neuritis. CONCLUSION OF LAW Criteria for an effective date prior to March 22, 2012, for the grant of service connection for right ulnar nerve neuritis have not been met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1981 to December 1986 and from February 2005 to January 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the claims for increased rating for right and left knee disabilities and migraines have been included in the appeal pursuant to Manlincon v. West, 12 Vet. App. 238 (1998), and will be addressed in the remand below. The claim for entitlement to a TDIU was adjudicated by the RO in a June 2016 rating decision. Although the Veteran submitted a Notice of Disagreement (NOD), the Agency of Original Jurisdiction (AOJ) has not responded with a Statement of the Case (SOC). However, as the issue of entitlement to an increased rating for right ulnar nerve neuritis is currently on appeal, the Board will take jurisdiction of the claim for entitlement to a TDIU in light of the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). Earlier Effective Date - Right Ulnar Nerve Neuritis The Veteran contends that the service-connected right ulnar nerve neuritis warrants an effective date in 2006, the date the Veteran initially filed a claim for service connection for right ulnar nerve neuritis. The Veteran submitted his original claim of entitlement to service connection for right ulnar nerve neuritis in February 2006. The Veteran’s claim was denied in February 2007. The basis for the denial was that right ulnar neuritis pre-existed the Veteran’s second period of service and was not permanently worsened as a result of service. He submitted a notice of disagreement in as to the denial in July 2007 and a Statement of the Case was issued by the RO in January 2008. However, he did not perfect an appeal by filing a substantive appeal or submit new and material evidence within a year of the rating decision and the rating decision became final. On May 21, 2010, the Veteran submitted a claim of entitlement to service connection for right ulnar nerve neuritis. The claim for right ulnar nerve neuritis was granted in a July 2013 rating decision and an effective date of May 21, 2010, was assigned. The Veteran submitted a Notice of Disagreement with the effective date for service connection in July 2013. The Veteran indicated that the effective date should be the date of the original claim in January 2006. The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, 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)(1)(ii); Nelson v. Principi, 18 Vet. App. 407 (2004); Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 245 (2002); Lapier v. Brown, 5 Vet. App. 215 (1993). The Veteran was originally denied service connection for right ulnar nerve neuritis in February 2007. He did not perfect an appeal of that decision and it became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302, 20.1103. Therefore, new and material evidence was required to reopen the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Applicable regulations provide that a claim may be either a formal or informal written communication requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). A claim, whether formal or informal, must be in writing to be considered a claim or application for benefits. Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). Any claim for VA benefits must be submitted in the form prescribed by the Secretary. 38 U.S.C. § 5101(a). The statute mandates that a claim must be filed in order for any type of benefit to accrue or be paid. 38 U.S.C. § 5101(a); Jones v. West, 136 F.3d 1296 (Fed. Cir. 1998). An informal claim is any communication indicating an intent to apply for one or more benefits, and must identify the benefit sought. 38 C.F.R. § 3.155(a). The mere presence of a diagnosis of a specific disorder in a VA medical report does not establish an intent on the part of a veteran to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32 (1998). 38 C.F.R. § 3.156(c)(1) provides, in part, that “notwithstanding any other section in this part, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of this section.” In addition, 38 C.F.R. § 3.156(c)(2) states, in part, “paragraph (c)(1) of this section does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other source.” Finally, 38 C.F.R. § 3.156(c)(3) states that “[a]n award made based all or in part on the records identified by paragraph (c)(1) of this section is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the previously decided claim.” In this case, the evidence of record shows that the Veteran was denied service connection for right ulnar nerve neuritis in February 2007, and he did not perfect an appeal of that decision. As noted, he submitted a notice of disagreement with the denial of his claim and the RO issued a Statement of the Case. However, the Veteran did not perfect an appeal by filing a timely Form 9. 38 C.F.R. § 20.302. The Veteran’s current claim was submitted on May 21, 2010, and service connection was granted as of that date. In regard to this claim, the Veteran was afforded the earliest possible effective date. His initial claim was denied in February 2007 and he failed to perfect an appeal. The Veteran submitted his current claim on May 21, 2010, and that May 21, 2010, communication is the earliest written communication of record subsequent to the final February 2007 denial which could constitute a claim to reopen the previously disallowed claim. Therefore, the Board finds that there is no legal basis to establish an earlier effective date. The effective date can be no earlier than the date of the claim to reopen. The Board points out that the claim to reopen was dated May 21, 2010, the effective date of service connection. The preponderance of the evidence is against the claim for an earlier effective date, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2018). REASONS FOR REMAND A review of the claims file reveals that a remand is necessary before a decision on the merits of the remaining claims can be reached. Right Ulnar Nerve Neuropathy and TDIU The Veteran maintains that his service-connected right ulnar neuropathy warrants a rating in excess of 10 percent. The Veteran was last afforded a VA examination to assess the severity of the right ulnar nerve neuropathy in April 2013, more than five years ago. Additionally, the Veteran submitted various statements during the course of the appeal, as well as an operative report, which indicates that he underwent surgery for his right ulnar nerve neuritis in December 2015. In light of the fact that the Veteran has undergone a surgical procedure during the course of the appeal, he should be afforded a VA examination to assess the current severity of the disability. The Board observes that the development and readjudication of the Veteran’s appeal for an increased rating may affect his combined evaluation during the appeal period under consideration for the TDIU appeal. As such, the increased rating issue is inextricably intertwined, and adjudication of the Veteran’s TDIU appeal must be deferred at this time. Harris v. Derwinski, 1 Vet. App. 180 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). Right and Left Knee Disabilities and Migraines With regard to the claims for increased rating for the right and left knee disabilities and migraines, the Board notes that in a June 2016 rating decision, the Veteran was granted a temporary total rating for a period of convalescence for the right knee disability and a 10 percent rating was assigned thereafter. The ratings for the left knee (10 percent) and migraines (50 percent) were continued. The Veteran expressed disagreement with the ratings assigned for the right and left knee disabilities and migraines in a VA Form 21-0958 received in June 2016. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a SOC. See 38 C.F.R. § 19.26 (2018). Thus, remand for issuance of a SOC on these issues is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). The matters are REMANDED for the following action: 1. A Statement of the Case, containing all applicable laws and regulations, on the issue of entitlement to increased ratings for the right and left knee disabilities and migraines must be issued, and the Veteran should be advised of the time period in which to perfect his appeal. Only if the Veteran’s appeal as to these issues is perfected within the applicable time period should these issues be returned to the Board for appellate review. 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the severity of the right ulnar nerve neuropathy. All indicated tests and studies shall be conducted. All relevant electronic records, including a copy of this remand must be sent to the examiner for review. The examiner should report the nature and severity of the Veteran’s right ulnar nerve neuritis considered with reference to all relevant diagnostic codes. The examiner is advised that the Veteran is competent to report his symptoms and history, and such statements by the Veteran must be specifically acknowledged and considered in formulating any opinions concerning the severity of his disability. The examiner should also discuss any findings pertinent to any functional or occupational limitation and offer an opinion as to the extent of such limitations. The examiner must provide a rationale for any opinion given. 3. Then, readjudicate the Veteran’s claim for an increased rating for right ulnar nerve neuritis and a TDIU. If the benefits sought on appeal remain denied, the Veteran should be furnished an appropriate supplemental statement of the case and be provided an opportunity to respond. The case should be returned to the Board for further appellate consideration, as appropriate. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Cryan, Counsel