Citation Nr: 20044531 Decision Date: 07/02/20 Archive Date: 07/02/20 DOCKET NO. 20-24 697 DATE: July 2, 2020 ORDER Entitlement to an effective date earlier than April 24, 2018, for the award of service connection for peripheral neuropathy, left upper extremity is denied. Entitlement to an effective date earlier than April 24, 2018, for the award of service connection for peripheral neuropathy, right upper extremity is denied. REMANDED Entitlement to a rating in excess of 20 percent for service-connected peripheral neuropathy, left upper extremity is remanded. Entitlement to a rating in excess of 30 percent for service-connected peripheral neuropathy, right upper extremity is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT The Veteran’s initial claim for service connection for peripheral neuropathy of the bilateral upper extremities was received on May 2, 2018; and April 24, 2018, represents the earliest possible effective date for the award of service connection for those disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than April 24, 2018, for the award of service connection for peripheral neuropathy, left upper extremity are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.155, 3.400 (2019). 2. The criteria for an effective date earlier than January 7, 2016, for the award of service connection for peripheral neuropathy, right upper extremity are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to August 1968. Effective Dates Generally, the effective date for an award based on, inter alia, an original claim or a claim reopened after a final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400(o)(2). Under the former regulations, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2014). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under former 38 C.F.R. § 3.157(a) (which was in effect prior to March 24, 2015), a report of examination or hospitalization would be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157(b) (2014). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. By way of background, the Veteran’s initial claims for service connection for peripheral neuropathy of the bilateral upper extremities were received on May 2, 2018. In the June 2018 rating decision on appeal, the agency of original jurisdiction (AOJ) granted service connection for his peripheral neuropathy of the bilateral upper extremities, effective April 24, 2018, the date he received VA treatment for peripheral neuropathy of the bilateral upper extremities. In June 2019, the Veteran filed a notice of disagreement with the effective dates assigned to the award of service connection for peripheral neuropathy of the bilateral upper extremities, but he offered no argument as to why earlier effective dates were warranted, and he did not identify what date he was seeking. Significantly, there is no allegation that he filed claims for service connection for peripheral neuropathy of the bilateral upper extremities prior to April 24, 2018. In reviewing the claims file, there is no communication received by VA prior to his April 24, 2018, claim that can be interpreted as informal service-connection claims for peripheral neuropathy of the bilateral upper extremities. It is further noted that 38 C.F.R. § 3.157 is not applicable, as medical records cannot constitute an initial claim for service connection as no intent to file a claim was noted. See Criswell v. Nicholson, 20 Vet. App. 501 (2006); Brannon v. West, 12 Vet. App. 32, 35 (1998) (medical records cannot constitute an initial claim for service connection but rather there must be some intent by the claimant to apply for the benefit). In the absence of a pending formal or informal claim for service connection that has been left unadjudicated by VA, the Board is constrained by the laws and regulations governing the assignment of effective dates from awarding the Veteran effective dates earlier than April 24, 2018, for the award of service connection for his service-connected peripheral neuropathy of the bilateral upper extremities. The law and regulations governing effective dates preclude the assignment of effective dates earlier than April 24, 2018. As such, his claims must be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for service-connected peripheral neuropathy, left upper extremity; and entitlement to a rating in excess of 30 percent for service-connected peripheral neuropathy, right upper extremity are remanded. In June 2018, the Veteran underwent a VA examination that addressed the nature and severity of his peripheral neuropathy of the bilateral upper extremities. At that time, the Veteran reported symptoms of numbness, tingling, and reduced sensation. As to the functional impairment associated with the Veteran’s peripheral neuropathy of the bilateral upper extremities, the examiner indicated that such did not interfere with his ability to work. Subsequent VA treatment records reflect the Veteran’s report of worsening symptoms, including progressive numbness and dropping things. See, e.g., October 2019 VA Neurology Note. A February 2020 VA treatment record noted that the Veteran’s numbness had progressed from his hands to his elbows, and that he started to notice problems with his grip strength. The VA treatment provider noted that he lost his job as a school bus driver in October 2018 due to his symptoms. The Veteran underwent a VA examination in February 2020 in connection with his claims for higher ratings for his service-connected peripheral neuropathy of the bilateral lower extremities, and the nature and severity of the Veteran’s peripheral neuropathy of the bilateral upper extremities was also addressed in part. As will be explained, however, the examination report is insufficient to adjudicate the Veteran’s present claims on appeal. Significantly, in addressing the Veteran’s lay statements concerning his symptomatology, the examination report exclusively focuses on his reported lower extremity symptoms. Indeed, at the end of the examination report, the examiner noted that the Veteran’s symptoms in his bilateral upper extremities were beyond the scope of the examination, and that no diagnosis was rendered for his upper extremities. Furthermore, the examiner did not address the functional impairment associated with the Veteran’s service-connected peripheral neuropathy of the bilateral upper extremities. The claims file indicates that the AOJ initiated an examination request in March 2020 to address the current nature and severity of the Veteran’s service-connected peripheral neuropathy of the bilateral upper extremities, as well as the functional impact that his disabilities have on his ability to work; however, it does not appear that the examination request was fulfilled. Given the Veteran’ reports of worsening symptomatology since the June 2018 VA examination, as well as the inadequacies noted above in the February 2020 VA examination report, a new VA examination is needed to fully and fairly evaluate the current nature and severity of the Veteran’s service-connected peripheral neuropathy of the bilateral upper extremities. See Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through March 13, 2020, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. Here, as noted above, a February 2020 VA treatment record noted the Veteran’s report that he lost his job as a school bus driver in October 2018 due to his bilateral upper extremity symptoms. In March 2020, the Veteran’s attorney submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, alleging that the Veteran stopped working in November 2018 as a result of his service-connected peripheral neuropathy of the bilateral upper and bilateral lower extremities. Thus, the Board has jurisdiction over this issue as part and parcel of his claims for higher rating and has listed such on the title page. The Board notes that is some discrepancy in the record as to when the Veteran stopped working. In his March 2020 VA Form 21-8940, the Veteran indicated that he last worked full-time in November 2018. In a March 2020 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, the Veteran’s former employer indicated that he last worked on June 15, 2018, and that his employment ended on March 17, 2019. In April 2020, the Veteran’s attorney submitted a VA Form 21-4192 that indicated that the Veteran last worked on March 17, 2019. In his May 2020 substantive appeal, the Veteran’s attorney argued that TDIU was warranted beginning in April 2018. Therefore, on remand, the AOJ should request that he complete an updated VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, and then adjudicate this matter in the first instance. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated after March 13, 2020, with the Veteran’s claims file. 2. Send a letter to the Veteran requesting that he complete an updated VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Give the Veteran an additional opportunity to identify any outstanding pertinent evidence that has not already been associated with the claims file. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 4. The Veteran should be scheduled for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected peripheral neuropathy of the bilateral upper extremities. The entire record must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following inquiries: a) The examiner should describe all pertinent manifestations associated with the Veteran’s service-connected peripheral neuropathy of the bilateral upper extremities. The examiner should also ask him to provide a history as to the progression of his service-connected peripheral neuropathy of the bilateral upper extremities. b) The examiner should indicate which nerves of the bilateral upper extremities are involved, and whether there is complete or incomplete paralysis of the affected nerve(s). If there is incomplete paralysis, the examiner should describe the severity of the impairment as mild, moderate, or severe. c) The examiner should also address the functional effects that the Veteran’s service-connected peripheral neuropathy of the bilateral upper extremities have his activities of daily living, to include employment-related activities. A clearly-stated rationale for any opinion offered should be provided. 5. Thereafter, and after any further development deemed necessary, the issues on appeal, including entitlement to a TDIU, should be readjudicated. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board James R. Springer, 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.