Citation Nr: 20021749 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-53 174 DATE: March 26, 2020 ORDER Entitlement to an effective date prior to May 14, 2014 for an increased rating for residuals of through and through gunshot wound right buttock is denied. REMAND 1. Entitlement to a rating in excess of 10 percent for meralgia paresthetica of the right lower extremity is remanded. 2. Entitlement to a rating in excess of 50 percent for residuals of through and through gunshot wound right buttock is remanded. FINDING OF FACT The record contains no statement or communication from the Veteran, after April 6, 1999 and prior to May 14, 2014, that manifests intent to seek an increased rating for residuals of through and through gunshot wound right buttock. CONCLUSION OF LAW The criteria for an effective date prior to May 14, 2014, for the grant of an increased rating for residuals of through and through gunshot wound right buttock, have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from March 1969 to March 1971 including service in the Republic of Vietnam. The Veteran was awarded the Purple Heart Medal and Combat Infantryman’s Badge. These matters come before the Board of Veteran’s Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a January 2020 Board Hearing, and a transcript of this hearing is of record. Effective Dates Generally, “the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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 effective date for an award based on an original claim of compensation shall be the “[d]ay following separation from active service or date entitlement arose if [the] claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (b)(2)(i). Effective on March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; such now requires that claims be made on a specific claim form prescribed by the Secretary, which is available online or at the local Regional Office. These amendments, however, are only applicable with respect to claims filed on or after March 24, 2015, and thus are not applicable in the present case. Prior to March 24, 2015, VA recognized formal and informal claims. A claim is defined 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 any communication or action indicating intent to apply for one or more benefits and 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. Although a claimant need not identify the benefit sought “with specificity,” see Servello v. Derwinski, 3 Vet. App. 196, 199-200, some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). VA must perform a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373. In the present case, the earliest indication of the Veteran seeking an earlier effective date comes in his August 2015 Notice of Disagreement. There, the Veteran indicated that the area of disagreement was the effective date of his claim for residuals of through and through gunshot wound, right buttock. See August 2015 NOD. The Board notes that the Veteran was rated at 50 percent for residuals of through and through gunshot wound, right buttock, as of February 2015 with an effective date of May 14, 2014. See February 2015 Rating Decision – Narrative. The effective date granted to the Veteran corresponds with the Veteran’s May 14, 2014 submission of a fully developed claim using VA Form 21-526-EZ, in which the Veteran claimed a rating in excess of 40 percent. The Board has reviewed the record and has found the Veteran was granted a 40 percent rating in April 1999. See April 1999 Rating Decision – Narrative. The Veteran did not appeal the decision until May 2014. As this appeal did not come within one year of the decision, the decision became final. As the effective date is predicated upon the receipt of claim, or the date entitlement arose, whichever is later, the proper effective date is May 14, 2014, as that was the date of the receipt of the Veteran’s claim. See 38 C.F.R. § 3.400 (b)(2)(i). The legal authority governing effective dates is clear and specific, and the Board is bound by such authority. Hence, the Board finds that the law mandates an effective date no earlier than May 14, 2014 for an increased rating for residuals of through and through gunshot wound, right buttock. The Veteran’s claim must be denied as a matter of law. See 38 C.F.R. § 3.31 (a); 3.400(b); Sabonis v. Brown, 6 Vet. App. 426, 430. REASONS FOR REMAND Although the Board regrets the additional delay, an additional remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159. The Veteran seeks entitlement to a rating in excess of 10 percent for meralgia paresthetica of his right lower extremity. He asserts his disability is more severe than what is represented by his 10 percent evaluation under DC 8529. The Veteran further contends that he is entitled to a rating in excess of 50 percent for residuals of a gunshot wound to the right buttock. The Veteran was rated under DC 5315 and DC 5317. In the present case, it is unclear which muscle and nerve groups were affected by the through-and-through gunshot wound, and as such a remand is required. Specifically, the Board notes that the Veteran was provided a VA examination in December 2005. There, the VA examiner listed muscle groups XIII and XV. See December 2005 VA Examination. The Veteran was subsequently rated by a VA RO, who cited muscle group XIII, but awarded using muscle group XVII. The Board notes that the January 2015 VA examination did not include findings of which muscle groups were affected. Thus, clarification as to which muscle groups are affected is necessary, and a remand is required. Furthermore, a remand is required regarding the Veteran’s neuropathic disability. In January 2015, the Veteran was provided a VA examination. There, the VA examiner found all of the Veteran’s nerves to be normal by EMG. However, the VA examiner then stated, in reference to the Veteran’s pain: “post op irritation of local cutaneous nerves compounded by guarding and disuse.” As the Board finds that the record does not clearly establish which nerves are affected by the Veteran’s service-connected disability, additional development is necessary to clarify which nerves are affected and to determine whether separate ratings are warranted. Accordingly, the case is REMANDED for the following action: (1) Schedule the Veteran for VA medical examination(s) to evaluate the nature and severity of his residuals of through and through gunshot wound of the right buttock. (a.) The examiner should specifically identify any muscle group injury associated with the Veteran’s service-connected injury. (b.) For each muscle group which is deemed affected/injured, the examiner should state whether the injury is considered to be slight, moderate, moderately severe, and whether or not any muscle injuries identified could be classified as “through-and-through” injuries as described in 38 C.F.R. § 4.56 (b). The examiner should also discuss/note any loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement that would allow for a rating under the rating codes pertaining to any muscle injuries identified. (2) Schedule the Veteran for an examination by an appropriate clinician for his claims relating to neurological impairment of the lower extremities. All appropriate testing should be conducted. The examiner is asked to provide opinions (based on a review of the record) that address the following: (a.) Identify all impaired nerves in the Veteran’s right lower extremity. If no impairment is found in the sciatic or anterior crural nerve for either lower extremity, provide a rationale for such a finding. (b.) For each nerve identified in (a.), describe the severity of the symptoms caused by the functional impairment, to include any complete or incomplete paralysis or atrophy. The examiner is to be provided access to the claims folder, the VBMS file, the Virtual VA file and a copy of this remand. The examiner must specify in the report that these records have been reviewed. The examiner is to provide a detailed review of the Veteran’s pertinent medical history current complaints and the nature and extent of any disability. A complete rationale for any opinions expressed must be provided. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (continued next page) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B , 7112. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.