Citation Nr: 19192572 Decision Date: 12/10/19 Archive Date: 12/10/19 DOCKET NO. 19-26 682 DATE: December 10, 2019 ORDER Entitlement to an effective date earlier than March 24, 2016 for the award of service connection for right elbow supination is denied. REMANDED Entitlement to a rating in excess of 10 percent for residuals of the right elbow status post lateral epicondylitis release is remanded. Entitlement to an initial rating in excess of 10 percent for right elbow supination is remanded. Entitlement to an earlier effective date for the grant of service connection for residuals of the right elbow status post lateral epicondylitis release is remanded. FINDING OF FACT The Veteran’s right elbow supination was first documented on March 24, 2016, the date of the VA examination. CONCLUSION OF LAW The criteria for an effective date earlier than March 24, 2016, for the award of service connection for right elbow supination have not been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. §§ 3.155(d), 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from December 1976 to December 1999. 1. Entitlement to an effective date prior to March 24, 2016 for the establishment of service connection of right elbow supination. The Veteran has asserted that he is entitled to an earlier effective date for his grant of service connection for right elbow supination. An intent to file a claim was received by VA on June 25, 2015. In February 2016, VA requested an examination be schedule for a new claim related to the elbow. On March 24, 2016 the Veteran was provided an elbow and forearm VA examination. In April 2016, the regional office (RO) granted entitlement to service connection for right elbow supination and assigned an effective date of March 24, 2016, the date of the VA examination. The Veteran initiated an appeal. In general, the effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service, or a claim reopened after final disallowance. Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b). VA regulation provides that, in the event the Veteran files an intent to file a claim for benefit, a complete claim must be filed within one year of the receipt of the intent to file a claim to establish an effective date of the intent to file a claim. 38 C.F.R. § 3.155(d). The Board concludes that assignment of an effective date prior to March 24, 2016 for the grant of service connection for the Veteran’s right elbow supination is not warranted. Here, VA sent a June 2015 correspondence to the Veteran acknowledging receipt of an informal claim from the Veteran on June 25, 2015. VA then scheduled the Veteran for a VA examination for the elbow. On the February 2016 request for physical examination for the elbow, VA indicated the status of the request was for a new claim. However, the record does not show that the Veteran filed a completed claim within one year of VA’s receipt of the intent to file a claim or informal claim, or that any clarification of the June 2015 intent to file was ever submitted by the Veteran or received by VA. Specifically, the Board points out that the June 2015 intent to file did not identify the claim the Veteran intended to file, nor was any clarification ever received by VA between the June 2015 submission and the March 2016 VA examination. Accordingly, the Board finds that pursuant to 38 C.F.R. § 3.155(d), there is no claim to be associated with the Veteran’s June 2015 intent to file. During the March 2016 VA examination, the Veteran was first observed to have right elbow supination. According to applicable regulation, the effective date of the grant of service connection for right elbow supination can be no earlier than the date entitlement arose—which, in this case, is the date of the March 24, 2016 VA examination that first documented the Veteran’s right elbow supination. Accordingly, the earliest possible effective date for the grant of service connection for right elbow supination is March 24, 2016. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by that authority. The Board finds that the preponderance of the evidence is against the assignment of effective dates for the grant of service connection for right elbow supination earlier than March 24, 2016. Therefore, the benefit-of-the-doubt rule is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for residuals of the right elbow status post lateral epicondylitis release is remanded. 2. Entitlement to an initial rating in excess of 10 percent for right elbow supination is remanded. In Correia v. McDonald, 28 Vet. App. 158, 170 (2016), the United States Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The Court specified that VA examination reports should record the results of range of motion testing for pain on both active and passive motion and in weight-bearing and non-weight-bearing. If a test is not conducted, the examination should explain why such test was not necessary. The Veteran underwent a VA examination for his right elbow in March 2016. While the examination tested range of motion, it did not test for passive range of motion measurements, pain with active or passive motion, pain in weightbearing and non-weightbearing, or range of motion testing of the undamaged opposite joint, nor explain why such testing was not necessary. Therefore, the Board finds that the VA examination is inadequate under the standards set forth in Correia, and that remand is warranted for a new VA examination that tests the ranges of motion in active motion, passive motion, weight-bearing, and non-weightbearing motions, of the right and left elbow. 3. Entitlement to an effective date prior to March 24, 2016 for the grant of service connection for residuals of the right elbow status post lateral epicondylitis release is remanded. Further, regarding the claim of entitlement to an earlier effective date for the grant of service connection for residuals of the right elbow status post lateral epicondylitis release, the Veteran submitted a timely notice of disagreement with the effective date for the grant of service connection assigned in the April 2016 rating decision, but a statement of the case has not yet been issued. A remand is required for the agency of original jurisidiction (AOJ) to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current nature and severity of his service-connected residuals of the right elbow status post lateral epicondylitis release and right elbow supination. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Also, the examiner must attempt to elicit information regarding the severity, frequency, duration, and degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner must provide an estimate of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an effective date prior to March 24, 2016 for the grant of service connection for residuals of the right elbow status post lateral epicondylitis release. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issues remaining on appeal, including the issue of entitlement to an earlier effective date for the grant of service connection for residuals of the right elbow status post lateral epicondylitis release. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Caroline B. Fleming Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thompson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.