Citation Nr: 18161327 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 17-05 552A DATE: December 31, 2018 ORDER An effective date of February 6, 2013, but no earlier, for the award of a 30 percent evaluation for right tibia fracture is granted. FINDING OF FACT The Veteran filed a claim for an increased evaluation for his right tibia fracture disability on June 27, 2013, but it is factually ascertainable that an increase in disability occurred on February 6, 2013. CONCLUSION OF LAW The criteria for an effective date of February 6, 2013, but no earlier, for the award of a 30 percent evaluation for right tibia fracture are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the U.S. Marine Corps from July 1981 to July 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision. The Veteran filed a claim for an increased evaluation for his right tibia fracture on June 27, 2013. In a February 2015 rating decision, he was granted a higher 30 percent rating effective from the date of his claim. Section 5110(a), Title 38, United States Code, provides that “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation, 38 C.F.R. § 3.400, 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.” Because the Veteran’s claim for an increase was received in June 27, 2013, the Regional Office assigned that as the effective date for his higher 30 percent evaluation. In correspondence dated April 2015, the Veteran asserted that he had been pursuing his claim for an increase for over 5 years. In August 2015, he stated that August 20, 2009, was the appropriate effective date for his increase. A review of the record shows that a previous claim for an increased rating for the right tibia fracture was denied in an April 2012 rating decision. The Veteran did not file a notice of disagreement with that decision, and therefore it is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.160(d). As a result, the August 2009 effective date sought by the Veteran cannot be granted because his previous claim for an increased rating was denied and not appealed. In addition, a review of the record does not show that the Veteran filed another claim for an increased rating after the April 2012 rating decision and prior to his June 2013 claim. Finally, with respect to higher ratings, 38 C.F.R. § 3.400(o)(2) provides that where the evidence of record dated within the one-year period preceding the date of receipt of the claim demonstrates a factually ascertainable increase in disability, the effective date of the award is the earliest date at which the increase was factually ascertainable. In other words, if there is evidence that the Veteran’s right tibia fracture met the criteria for the 30 percent rating between June 27, 2012, and June 27, 2013, then an effective date consistent with that evidence could be granted. The Veteran’s right tibia fracture is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5262. The higher 30 percent is assigned when malunion of the tibia and fibula results in a marked knee or ankle disability. The term “marked” is not defined in the rating schedule, but additional diagnostic codes within 38 C.F.R. § 4.71a address knee and ankle disabilities based on limitation of motion, instability, ankylosis, and other criteria. Ultimately, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. Private treatment records dated January 2013 show the Veteran reported severe pain and received a knee injection. VA records from February 2013 noted protruding hardware in the right shin area. Additional VA records from March 2013 noted that right ankle repair screws were starting to protrude over the past 5 months. The treating physician noted that this represented possible failure of the joint, though she was unable to ascertain whether this was the Veteran’s baseline level or whether it was a worsening of the condition. Based on this evidence, the Board finds that an effective date of February 6, 2013, is warranted in this case, as that date is consistent with the VA records documenting protrusion of the Veteran’s right leg hardware, which was subsequently identified as representing “possible failure of the joint.” When viewed in conjunction with the Veteran’s subsequent claim for an increase and May 2014 VA examination findings documenting findings consistent with a “marked” level of disability, and when resolving reasonable doubt in the Veteran’s favor, the Board finds that an overall level of disability consistent with the 30 percent evaluation under Diagnostic Code 5262, namely possible failure of the joint, was factually ascertainable as of February 6, 2013. An even earlier effective date is not warranted, as the January 2013 private records only documented pain with no additional findings or comment, which does not indicate a “marked” disability under the relevant diagnostic code. Accordingly, the Board finds that an effective date of February 6, 2013, but no earlier, is warranted in this case, as that is the date on which it is factually ascertainable that an increase in symptomatology occurred within the one year prior to the receipt of the June 2013 claim for increased evaluation; in all other aspects, the claim is denied. See 38 C.F.R. §§ 3.400. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARTIN B. PETERS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Shamil Patel, Counsel