Citation Nr: 21004190
Decision Date: 01/26/21	Archive Date: 01/26/21

DOCKET NO. 17-13 164
DATE: January 26, 2021

ORDER

Entitlement to an effective date earlier than August 25, 2010, for the grant of service connection for muscle damage, left lower leg residuals of a crush injury, muscle group XI and XII is denied.

FINDING OF FACT

There is no earlier relevant claim for increase.

CONCLUSION OF LAW

The claim for an effective date earlier than August 25, 2010, for the grant of service connection for muscle damage, left lower leg residuals of a crush injury, muscle group XI and XII is denied. 38 U.S.C. § 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran had active duty service from August 1988 to November 1995.

This matter comes to the Board of Veterans’ Appeals (Board) from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).

In December 2019, the Veteran had a hearing before the undersigned; a transcript is of record

Entitlement to an effective date earlier than August 25, 2010, for the grant of service connection for muscle damage, left lower leg residuals of a crush injury, muscle group XI and XII 

In February 1996 the RO granted service connection for postoperative residuals of crushing injury to the left ankle and residuals of injury with resulting impairment of the left knee. The RO assigned 30 percent and 10 percent ratings, respectively, effective November 9, 1995.

On August 25, 2010, the Veteran filed a claim for service connection for muscle injury due to the crush injury. In May 2012, the RO granted service connection for muscle damage left lower leg, residuals of crush injury, muscle group XI and XII. The RO assigned a 30 percent, effective August 25, 2010.

In May 2013, the Veteran filed a notice of disagreement (NOD), to the assignment of August 25, 2010, as the effective date for the grant of service connection for muscle damage left lower leg, residuals of crush injury, muscle group XI and XII.

At the hearing, the Veteran contended that the effective date for the grant of service connection for muscle damage left lower leg, residuals of crush injury, muscle groups XI and XII should be in 1995. He felt that the examiner at his original VA examination in 1996 failed to properly document or diagnose all residuals from his left lower extremity injury. 

The February 1996 rating decision is final as new and material evidence was not submitted which a year of this rating decision.

The Board acknowledges that the Veteran contends that this rating decision contains clear and unmistakable error (CUE). The Board acknowledges that these contentions were raised at the Board hearing, but the issue of CUE was not addressed by the AOJ. The issue before the Board is an earlier effective date. The Board does not have jurisdiction of a CUE claim under 38 C.F.R. § 3.105. See Phillips v. Brown, 10 Vet. App. 25 (1997).

The separate rating for residual of a crush injury was based on the recent of the August 25, 2010 claim. The Board finds no basis for an earlier claim.

Separately, in a July 2020 decision, the Board determined that the severance of service connection for this separate 30 percent rating for muscle damage, left lower leg, residuals of crush injury was proper; severance was effective October 1, 2019.

 

 

Nathaniel Doan

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A.D. Jackson, 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.