Citation Nr: 18112294 Decision Date: 06/19/18 Archive Date: 06/19/18 DOCKET NO. 16-04 914 DATE: June 19, 2018 ORDER Entitlement to an effective date earlier than August 20, 2013 for the award of a 10 percent rating for residuals of open fracture, right middle finger is denied. REMANDED Entitlement to a rating in excess of 10 percent for residuals of open fracture, right middle finger is remanded. FINDINGS OF FACT 1. The Veteran’s formal claim for an increased rating for residuals of open fracture, right middle finger, was received on August 20, 2013. 2. The evidence of record does not indicate it was factually ascertainable that an increase in disability of the right middle finger had occurred within in one year prior to the August 20, 2013 claim for a higher rating for this service-connected disability. CONCLUSION OF LAW The criteria for an effective date earlier than August 20, 2013, for the award of a 10 percent rating for residuals of open fracture, right middle finger, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty from October 1978 to October 1982. This matter is on appeal from a March 2014 rating decision. The Board notes that in a November 2017 rating decision, the RO granted service connection for tinnitus and bilateral hearing loss. The highest schedular evaluation of 10 percent was assigned for tinnitus, effective August 18, 2017, and a noncompensable rating assigned for bilateral hearing loss, effective August 18, 2017. The Board finds the RO’s decision constitutes a full award of the benefits sought on appeal. Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Thus, the service connection claims are no longer in appellate status. Earlier Effective Date The Veteran asserts entitlement to an effective date earlier than August 20, 2013 for the award of a 10 percent rating for residuals of open fracture, right middle finger. He filed a claim for increased evaluation on August 20, 2013. Thereafter, in a March 2014 rating decision, the RO granted an increased rating of 10 percent, effective August 20, 2013 (the date of receipt of the claim). For an increased rating claim, the effective date shall be the “date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400 (o)(1). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 C.F.R. §§ 3.400 (o)(2); 38 U.S.C. § 5110(b)(2). If the increase in severity occurred more than one year prior to the date of the claim, the increase is effective as of the date of the claim. Harper v. Brown, 10 Vet. App. 125 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). In the present case, despite the Veteran’s contentions, the objective medical evidence does not support or indicate that an increase in symptomatology occurred on an earlier occasion. Specifically, a review of VA treatment records prior to August 20, 2013 fail to show any reports or treatment for a hand or finger condition. There is simply no medical evidence that the Veteran’s service-connected right middle finger increased in severity or that any symptoms manifested during the year immediately preceding receipt of the August 20, 2013 claim for a higher rating. See San Juan VAMC records from January 2000 through November 2017. Further, the Board observes that the RO’s award of an increased evaluation was based on the results of a March 2014 VA examination. The Veteran’s treatment records during the one year prior to August 20, 2013 fail to show symptomatology warranting a higher rating. As entitlement to a 10 percent rating was not shown prior to the established date of claim, the appropriate effective date for the grant of a 10 percent rating is August 20, 2013, the date of receipt of the claim received by VA. 38 C.F.R. § 3.400 (o). In sum, absent evidence that an increase in disability occurred for the Veteran’s right middle finger, within one year from the date of claim, an earlier effective date is not warranted. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. As the preponderance of the evidence is against the assignment of an effective date earlier than August 20, 2013 for the award of a 10 percent rating for residuals of open fracture, right middle finger, the Board finds that the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for residuals of open fracture, right middle finger is remanded. The Veteran was afforded a VA examination in March 2014 to assess the current severity of this condition. However, the Veteran’s attorney challenges the adequacy of the March 2014 VA examination because it was not based on imaging studies, including X-rays and MRI scans, of the right hand. Specifically, she points out that the VA examiner failed to address an April 1999 X-ray report of a “solid hard mass approximately.5 cm x.5 cm in the medical aspect of the right middle finger,” which is one fact to support obtaining current imaging studies. See Statements included in VA Form 9 dated February 2016. Additionally, the Veteran’s attorney argues that a separate rating based on reduced grip strength is warranted, or seeks a referral for extraschedular consideration as the currently assigned 10 percent rating fails to compensate the Veteran for “all manifestations” of his disability. Id. In view of the above, and to ensure that the Veteran is accorded full compliance with the statutory duty to assist, the Board finds that remand is warranted to afford the Veteran a new VA examination which addresses the arguments raised by the record. The matter is REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the current severity of his service-connected right middle finger disability. The examiner is to be provided access to the Veteran’s file and must specify in the report that these records have been reviewed. In accordance with the latest worksheets for rating hand and ankle disabilities, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of his service-connected disability. The examination report must include all findings necessary to rate the disabilities including any imaging studies of the right hand deemed necessary. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A complete rationale for any opinions expressed must be provided. (Continued on the next page)   2. After completing the above actions and any other development deemed necessary, readjudicate the issue on appeal. If any benefit sought is not granted, the Veteran and his representative must be furnished a Supplemental Statement of the Case and afforded a reasonable opportunity to respond before the file is returned to the Board for further review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. An, Associate Counsel