Citation Nr: 18158335 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 16-55 018 DATE: December 14, 2018 ORDER Entitlement to an effective date earlier than September 9, 2013, for the assignment of a 10 percent evaluation for right hand middle finger distal interphalangeal joint injury is denied. Entitlement to an effective date earlier than September 9, 2013, for the assignment of a 10 percent evaluation for right knee strain is denied. Entitlement to an effective date earlier than September 9, 2013, for the assignment of a 10 percent evaluation for left knee strain is denied. FINDINGS OF FACT 1. In an May 2006 rating decision, the RO granted service connection for a right hand middle finger distal interphalangeal joint injury, right knee strain, and left knee strain. The RO assigned a noncompensable disability rating, effective March 26, 2005. 2. The Veteran filed a claim for increase in July 2012, and the RO continued the noncompensable disability rating in a January 2013 rating decision. The Veteran did not file a notice of disagreement, and that decision became final. 3. On September 9, 2013, the RO received the Veteran’s claim for, amongst other things, an increased rating for a right hand middle finger distal interphalangeal joint injury, right knee strain, and left knee strain. A September 2014 rating decision awarded a 10 percent evaluation, effective September 9, 2013 (date of receipt of the Veteran’s claim). Although his September 2013 claim referenced VA treatment records from 2005 to the present that were not solicited by the RO until February 2014, the records obtained in February 2014 did not relate to additional treatment of the subject disabilities, and therefore there is no basis to find that the July 2012 claim remained in pending status. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 9, 2013, for the assignment of a 10 percent disability evaluation for right hand middle finger distal interphalangeal joint injury have not been met. 38 U.S.C. §§ 5108, 5110, 7104 (2012); 38 U.S.C. §§ 3.400, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for an effective date prior to September 9, 2013, for the assignment of a 10 percent disability evaluation for right knee strain have not been met. 38 U.S.C. §§ 5108, 5110, 7104 (2012); 38 U.S.C. §§ 3.400, 4.71a, Diagnostic Code 5242 (2017). 3. The criteria for an effective date prior to September 9, 2013, for the assignment of a 10 percent disability evaluation for left knee strain have not been met. 38 U.S.C. §§ 5108, 5110, 7104 (2012); 38 U.S.C. §§ 3.400, 4.71a, Diagnostic Code 5242 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 2001 to March 2005. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Effective Date The Veteran maintains that he is entitled to an effective date prior to September 9, 2013, for the assignment of a 10 percent rating for a right hand middle finger distal interphalangeal joint injury and a bilateral knee strain. The provisions governing the assignment of the effective date for an increased rating are set forth in 38 C.F.R. § 5110(a) and (b)(2), and 38 C.F.R. § 3.400(o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of award “shall not be earlier than the date of receipt of the application thereof.” See 38 U.S.C. § 5110(a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(o)(1). An exception to that rule regarding increased ratings applies, however, under circumstances where the evidence demonstrates that a factually-ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. See 38 U.S.C. § 5110(b)(2); Dalton v. Nicholson, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). A “claim” is defined in the VA regulations as “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In this matter, the Board must determine the date of the claim, and the date that entitlement to a compensable disability rating arose. Here, a May 2006 rating decision granted service connection for a right hand middle finger distal interphalangeal joint injury and a bilateral knee strain, and the RO assigned an initial disability rating of zero percent. The Veteran filed a claim for increase in July 2012, and the RO continued the noncompensable evaluation in a January 2013 rating decision. The Veteran did not appeal that decision and it became final. No further communication was received from the Veteran, which could be construed as an increased rating claim until September 2013. On September 9, 2013, the RO received the Veteran’s claim for an increased rating for a right hand middle finger distal interphalangeal joint injury and a bilateral knee strain. A September 2014 rating decision awarded a 10 percent evaluation for each condition, effective September 9, 2013 (date of receipt of the Veteran’s claim). Following a review of the record, no document was received by VA that may be construed as an increased rating claim since the January 2013 rating decision became final. The Board further notes that although the Veteran’s September 2013 claim referenced VA treatment records from 2005 to the present that were not solicited by the RO until February 2014, the records obtained in February 2014 did not relate to additional treatment of the subject disabilities, and therefore there is no basis to find that the July 2012 claim remained in pending status. See Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014) (stating that because VA failed to readjudicate a claim in light of new and material evidence received during the appeal period, the claim remained pending despite an intervening adjudication). Further, there is no medical evidence of record to demonstrate that an increase in disability was factually ascertainable within one year prior to the September 2013 claim for an effective date prior to September 9, 2013, for the 10 percent evaluation. As such, the RO correctly assigned an effective date of September 9, 2013, when awarding his 10 percent rating. As no claim was received prior to September 2013, and because there was no factually attainable increase in musculoskeletal symptomatology demonstrated by the evidence of record within one year prior to that date, there is no basis for assignment of an earlier effective date for the evaluation. The Veteran has also not claimed the May 2006 rating decision contained clear and unmistakable error with respect to its failure to assign a compensable rating. Therefore, such a claim is not currently a subject for current appellate review. Since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel