Citation Nr: 18159100 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 15-11 656 DATE: December 18, 2018 ORDER Entitlement to an effective date earlier than December 10, 2012, for the grant of service connection for left carpal tunnel syndrome is denied. REMANDED Entitlement to service connection for left shoulder osteoarthritis is remanded. Entitlement to service connection for right shoulder osteoarthritis is remanded. Entitlement to service connection for degenerative changes of the right wrist is remanded. Entitlement to service connection for De Quervain's Syndrome of the left wrist is remanded. Entitlement to service connection for lumbar paravertebral myositis is remanded. Entitlement to service connection for upper trapezius myositis is remanded. Entitlement to service connection for headaches is remanded. Entitlement to service connection for anxiety with sleep problems is remanded. Entitlement to a compensable evaluation for bilateral pinguecula is remanded. FINDINGS OF FACT 1. Entitlement to service connection for a left wrist disability was denied in an unappealed June 2009 rating decision and new and material evidence relating to that claim was not received within a year of the Veteran’s notification of that decision. 2. After the June 2009 denial, a petition to reopen the claim for service connection for carpal tunnel syndrome of the left wrist was not received by VA until December 10, 2012. CONCLUSION OF LAW The criteria for an effective date earlier than December 10, 2012, for the grant of service connection for carpal tunnel syndrome of the left wrist have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.156; 3.160(d), 3.400, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from January 2006 to March 2007. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions issued by a Regional Office (RO) of the Department of Veterans Affairs (VA) in February 2014, August 2017, and September 2017. Entitlement to an effective date earlier than December 10, 2012, for the grant of service connection for carpal tunnel syndrome of the left wrist The Veteran seeks an effective date earlier than December 10, 2012, for the grant of service connection for carpal tunnel syndrome of the left wrist. For claims of service connection not received within a year from separation from active duty service, the law is clear that “the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). The regulation implementing this section similarly states that the effective date of service connection “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400. In the context of claims for service connection that have previously been denied, the United States Court of Appeals for Veterans Claims (Court) 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.” See also Cook v. Principi, 258 F.3d 1311, 1314 (Fed. Cir. 2001) (affirming assignment of an effective date for a service-connection award based upon the reopened claim as the date on which the Veteran first sought to reopen his claim). As indicated above, the Veteran was most recently denied service connection for a left wrist disability in a June 2009 rating decision. The record does not indicate that the Veteran appealed that decision within a year or that VA received new and material evidence with respect to the claim within a year of the Veteran’s notification of that denial. As such, the Board finds that that rating decision is final. See 38 C.F.R. §§ 3.156(b), 3.160(d), 20.302(a). The record also contains no evidence that the Veteran has made a specific contention of clear and unmistakable error (CUE) in that June 2009 rating decision. Given the holding of the Court in Sears, the Board is therefore precluded as a matter of law from granting the Veteran’s numerous requests that his initial claim for service connection in 2002 be the effective date for the grant of service connection for left carpal tunnel syndrome. The Board also finds no basis to assign an effective date earlier than December 10, 2012, for the grant of service connection for carpal tunnel syndrome of the left wrist. As explained above, the earliest date that the Board may grant such an effective date is the latter of the first petition to reopen the claim received after the June 2009 rating decision denying service connection for left carpal tunnel syndrome or the date that entitlement to service connection for that disability arose. Subsequent to the June 2009 rating decision denying service connection, there is no evidence that VA received either a formal or an informal petition to reopen the claim of service connection for carpal tunnel syndrome in the left wrist until the Veteran submitted the petition currently on appeal on December 10, 2012. The Board is bound by the regulations and statutes establishing the determination of effective dates for the grant of service connection. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994) (“no equities, no matter how compelling, can create a right to payment out of the United States Treasury that has not been provided for by Congress.”). By setting the December 2012 date of receipt of the petition to reopen as the effective date of service connection for left carpal tunnel syndrome, VA has already set the earliest effective date authorized by law. The Veteran’s claim for an earlier effective date must therefore be denied. REASONS FOR REMAND Entitlement to a compensable evaluation for bilateral pinguecula and entitlement to service connection for left shoulder osteoarthritis, right shoulder osteoarthritis, degenerative changes of the right wrist, De Quervain's Syndrome of the left wrist, lumbar paravertebral myositis, upper trapezius myositis, and anxiety with sleep problems are remanded. In correspondence received in January 2018, the Veteran disagreed with rating decisions from August and September 2017 that denied entitlement to a compensable evaluation for bilateral pinguecula and denied entitlement to service connection for left and right shoulder osteoarthritis, degenerative changes of the right wrist, De Quervain’s Syndrome of the left wrist, lumbar paravertebral and upper trapezius myositis, and anxiety with sleep problems. The claims file does not include a Statement of the Case with respect to these issues and they must be remanded for further adjudicative action. 38 C.F.R. 19.9(c); see also Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). The matters are REMANDED for the following action: 1. Send the Veteran a statement of the case that addresses the issues of entitlement to a compensable evaluation for bilateral pinguecula and entitlement to service connection for left shoulder osteoarthritis, right shoulder osteoarthritis, degenerative changes of the right wrist, De Quervain's Syndrome of the left wrist, lumbar paravertebral myositis, upper trapezius myositis, and anxiety with sleep problems. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. Matthew Tenner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Whitelaw, Associate Counsel