Citation Nr: 21004847 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 20-01 475 DATE: January 28, 2021 ORDER An effective date prior to July 17, 2017, for the award of service connection for a low back disability is denied. An effective date prior to July 17, 2017, for the award of service connection for a right knee disability is denied. An effective date prior to July 17, 2017, for the award of service connection for a left knee disability is denied. An effective date prior to July 17, 2017, for the award of service connection for a right fifth finger disability is denied. An effective date prior to July 17, 2017, for the award of a separate 10 percent rating for a painful scar of the right elbow is denied. An effective date prior to July 17, 2017, for the award of a separate noncompensable rating for a scar of the right elbow is denied. An effective date prior to July 17, 2017, for the award of a separate noncompensable rating for a superficial and nonlinear scar of the right fourth finger is denied. REMANDED Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection headaches is remanded. Entitlement to service connection for a right upper extremity disability is remanded. Entitlement to an initial rating in excess of 10 percent for a painful scar of the right elbow, ulnar side, is remanded. Entitlement to a compensable rating for a scar of the right elbow is remanded. Entitlement to a compensable rating for a superficial and nonlinear scar of the right fourth finger is remanded. Entitlement to an initial compensable rating for a right fifth finger disability is remanded. Entitlement to an initial rating in excess of 20 percent for a low back disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right knee disability is remanded. Entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed his initial claims for service connection for a low back disability, a right fifth finger disability, and right and left knee disabilities on July 17, 2017. Prior to such date, there is no evidence of formal or informal claims of service connection for a low back disability, a right fifth finger disability or right and left knee disabilities. 2. In an unappealed May 2006 rating decision, the Veteran was granted service connection for right elbow and right fourth finger scars, and assigned a noncompensable disability rating effective February 22, 2006. 3. On July 17, 2017, the Veteran submitted a claim for “right ring and middle fingers,” “right hand,” and “right elbow and arm,” which was construed, in pertinent part, as a claim for an increased rating for the right elbow and right fourth finger scars. 4. Entitlement to increased ratings for the right elbow and right fourth finger scars did not arise during the one year prior to the July 17, 2017, increased rating claim. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 17, 2017, for the award of service connection for a low back disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to July 17, 2017, for the award of service connection for a right knee disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to July 17, 2017, for the award of service connection for a left knee disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date prior to July 17, 2017, for the award of service connection for a right fifth finger disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date prior to July 17, 2017, for the award of a separate 10 percent rating for a painful scar of the right elbow, ulnar side, have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.104, Diagnostic Code (DC) 7804. 6. The criteria for an effective date prior to July 17, 2017, for the award of a separate noncompensable rating for a scar of the right elbow have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.104, DC 7805. 7. The criteria for an effective date prior to July 17, 2017, for the award of a separate noncompensable rating for a superficial and nonlinear scar of the right fourth finger have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 4.104, DC 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served on active duty from June 1992 to August 1994. He also served in the Arkansas Army National Guard from February 1986 to July 1990, including periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board on appeal from December 2017 and March 2018 decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board has recharacterized the claims on appeal as reflected herein. The issues on appeal were developed as separate claims for service connection for PTSD and anxiety; however, the Board has combined these claims and expanded the matter to include all acquired psychiatric disorders pursuant to Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Earlier Effective Date Claims The effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, and for reopened claims, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The terms claim and application mean 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). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a). Regulations defining a "claim" were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Prior to March 24, 2015, a claim was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, for the period prior to March 24, 2015, 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). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to an effective date prior to July 17, 2017, for the awards of service connection for a low back disability, a right fifth finger disability, and right and left knee disabilities. In this case, the RO assigned an effective date of July 17, 2017, for the awards of service connection for a low back disability, a right fifth finger disability, and right and left knee disabilities; this date corresponds with the date the RO received the Veteran’s initial claim seeking service connection for the low back disability, the right fifth finger disability, and the bilateral knee disabilities. The Board has reviewed all relevant evidence and finds no basis under the law to award an effective date earlier than July 17, 2017, for the grants of service connection for the low back disability, the right fifth finger disability, and the bilateral knee disabilities. There is nothing in the record prior to that date which could be construed as a claim for service connection for a low back disability, a right fifth finger disability, or bilateral knee disabilities, even under the broadest definition of a claim. As such, the RO has already assigned the earliest possible effective date for its grants of the original claims, which was determined to be July 17, 2017. Consequently, there is no legal basis upon which to grant an effective date prior to July 17, 2017, for the grants of service connection for a low back disability, a right fifth finger disability, and the bilateral knee disabilities. The Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). The claim of entitlement to an effective date earlier than July 17, 2017, for the awards of service connection for the low back disability, the right fifth finger disabilities, and the bilateral knee disabilities must be denied. 2. Entitlement to an effective date prior to July 17, 2017 for the awards of a separate 10 percent rating for a painful scar of the right elbow, a separate noncompensable rating for a scar of the right elbow, and a separate noncompensable rating for a superficial and nonlinear scar of the right fourth finger. The Veteran contends that an effective date prior to July 17, 2017 is warranted for the awards of a separate 10 percent rating for a painful scar of the right elbow, a separate noncompensable rating for a scar of the right fourth finger, and a separate noncompensable rating for a superficial and nonlinear scar of the right elbow. The Veteran filed an original claim for service connection for residuals of paralysis of the median nerve of the right arm in February 2006. In a May 2006 rating decision, the RO, in pertinent part, granted service connection for right elbow and right fourth finger scars with a noncompensable rating under DC 7805, effective from February 22, 2006. After being provided with notice of the decision and appellate rights, the Veteran did not initiate an appeal of the decision or submit any new and material evidence with respect to the effective date within the applicable one-year appeal period. See 38 C.F.R. § 3.156(b). As such, the February 2006 rating decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. § 3.104. Because the February 2006 rating decision became final, the effective date for an increased rating in this case is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In general, "date of receipt" means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). 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); see also Hazan v. Gober, 10 Vet. App. 511 (1997). As noted above, for claims received after March 24, 2015, claims are required to be on specific forms. See 38 C.F.R. § 3.151; 79 Fed. Reg. 57,660 (Sept. 25, 2014). The Court has held that the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In order to obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one year period prior to the date of the increased rating claim. If the evidence showed that the increase occurred earlier than one year prior to the date of the claim, then, under the analysis in Gaston, 605 F.3d at 984, the effective date is no earlier than the date of the increased rating claim. The Federal Circuit explained that the legislative intent in enacting 38 U.S.C. § 5110(b) was to allow for a grace period of up to one year for a veteran to file the claim once he or she was aware of the increase in disability. Id. The Federal Circuit held that "consistent with the plain language of the statute and this legislative history, the only reasonable construction of 38 U.S.C. § 5110(b)(2) is that a veteran's claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim." After review of all the lay and medical evidence, the Board finds that the Veteran's July 17, 2017 VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, constituted the earliest claim for an increased disability rating for the service-connected right elbow and right fourth finger scars. This was the earliest communication received after the final May 2006 rating decision that could be construed as a new claim for an increased disability rating for the service-connected scars. As explained above, in order to obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one-year period prior to the date of claim. If the evidence showed that the increase occurred earlier than one year prior to the date of the claim, then the effective date is no earlier than the date of the claim. An April 2006 VA examination report indicated that the Veteran had a level scar at the right medial elbow measuring 14 cm by 0.6 cm with abnormal texture of less than six square inches, and no tenderness or instability. The Veteran also had a right fourth finger scar which was level and measuring about 3 cm by 0.1 cm, with no tenderness or instability An October 2017 VA examination report indicated that the Veteran had a painful scar of the right elbow and a superficial and nonlinear scar of the right fourth finger. Neither scar resulted in limitation of function. The Veteran has appealed the effective dates assigned for the ratings assigned for scars of his right elbow and right fourth finger. He has not specifically stated why he believes earlier effective dates are warranted or identified what he believes to be the proper effective dates. Based on a review of the evidence of record, the weight of the evidence does not demonstrate the increase in the Veteran's scar disabilities of the right elbow and right fourth finger occurred within one year prior to the date of the present claim. The October 2017 VA examination report is the earliest evidence indicating that the Veteran’s right elbow scar is painful and the right fourth finger scar is nonlinear and superficial. The Board notes that the nonlinear and superficial nature of the right fourth finger scar is not likely to have changed between the two VA examinations, and does not result in a compensable rating. In addition, the Board notes that the October 2017 VA examination report does not indicate when the right elbow scar pain began. For these reasons, therefore, the appropriate effective date for the disability ratings currently assigned for the Veteran’s right elbow and right fourth finger scars is July 17, 2017, the date of the increased rating claim. For the foregoing reasons, the Board finds that the claim for effective dates prior to July 17, 2017, for the awards of a separate 10 percent rating for a painful scar of the right elbow, a separate noncompensable rating for a scar of the right fourth finger, and a separate noncompensable rating for a superficial and nonlinear scar of the right elbow must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a left shoulder disability. The Veteran has reported experiencing left shoulder pain, which he contends is caused by overuse related to his service-connected right hand and right ulnar nerve disabilities. While record does not reflect that the Veteran has a current diagnosis of a left shoulder disability, the Veteran has reported shoulder pain, which is a symptom indicative of disability. The Veteran contends that his current left shoulder disability is related to his service-connected right hand, right finger, and right ulnar nerve disabilities. To date, VA has not obtained a competent medical examination and opinion addressing this claim. Accordingly, a VA examination is necessary prior to further adjudication. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that he has nightmares and PTSD associated with the parachute jump during service in which he incurred his right ulnar nerve disability. See March 2017 statement. To date, VA has not obtained a competent medical examination and opinion addressing this claim. Accordingly, a VA examination is necessary prior to further adjudication. Id. 3. Entitlement to service connection for a right elbow/arm disability. The Veteran has consistently reported experiencing right elbow/arm pain since service. While the record does not reflect that the Veteran has a current diagnosis of a right elbow/arm disability that is separate from his already service-connected right ulnar nerve disability, pain is a symptom indicative of the presence of a disability. The Veteran contends that his current right elbow/arm disability is related to the same injury that caused his service-connected right ulnar nerve disability, or that the right elbow/arm disability is secondary to the right ulnar nerve disability. To date, VA has not obtained a competent medical examination and opinion addressing this claim. Accordingly, a VA examination is necessary prior to further adjudication. Id. 4. Entitlement to service connection headaches. In a March 2017 statement, the Veteran stated that he has constant headaches associated with the parachute jump during service in which he incurred his right ulnar nerve disability. To date, VA has not obtained a competent medical examination and opinion addressing this claim. Accordingly, a VA examination is necessary prior to further adjudication. Id. 5. Entitlement to increased ratings for a painful right elbow scar, a right elbow ulnar side scar, a right fourth finger scar, and a right fifth finger scar. An October 2017 VA Mental Health Domiciliary Note indicated that the Veteran was receiving disability benefits from the Social Security Administration (SSA). To date, VA has not obtained the SSA determination or any other medical records on which the determination was made. Because the SSA’s decision and the records upon which the agency based its determination are potentially relevant to VA's adjudication of his claims, VA is obliged to attempt to obtain and consider those records in adjudicating this appeal. As such, the Board has no discretion and must remand this appeal to obtain those SSA records. 7. Entitlement to increased ratings for low back, left knee and right knee disabilities. The Veteran's most recent VA compensation examination for the low back and left and right knee disabilities occurred in December 2017. More recently, in a November 2018 statement, which was received by VA in April 2020, he indicated that his low back and knee disabilities had worsened since that examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Therefore, a new VA examination is needed to assist in determining the current severity of the low back and knee disabilities. 8. Entitlement to a TDIU. Concerning entitlement to a TDIU, the Board finds that any determinations with respect to the remanded claims would materially affect a determination concerning entitlement to a TDIU. As such, it is inextricably intertwined with the service connection and increased rating claims being remanded and must therefore be remanded as well. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Obtain from SSA all records pertaining to the Veteran's claim for disability benefits, if any, including copies of all medical records considered in deciding any claim. If the records are not available, that should be documented in the record. 2. Schedule the Veteran for VA examinations to determine the current severity of his service-connected low back disability and bilateral knee disabilities. The entire claims file, including a copy of the Remand, should be made available to, and be reviewed by, the VA examiner(s). All appropriate tests, studies, and consultation should be accomplished, and all clinical findings should be reported in detail. **IF an in-person examination is not feasible given the circumstances surrounding the recent pandemic, attempt to obtain the necessary medical information and opinions through other means, such as scheduling the Veteran for a virtual interview with a VA examiner or referring the case to the appropriate VA medical professional for a thorough review of the record and medical opinion. The examiner is asked to: a) indicate all signs and symptoms associated with the Veteran's low back disability and bilateral knee disabilities and b) ascertain the severity of each. 3. Provide the Veteran with a VA examination(s) to determine the nature and etiology of any current acquired psychiatric disorder, including PTSD. After examination of the Veteran and review of the claims file, the examiner(s) should: a. Indicate all currently diagnosed acquired psychiatric disorders, including PTSD, b. For each psychiatric disorder, provide an opinion as to whether the disorder had its onset in service or is otherwise related to it, to include the in-service parachute jump during which he incurred his right ulnar nerve disability. c. For each psychiatric disorder, provide an opinion as to whether the disorder is proximately due to, or aggravated by a service-connected disability, including the right ulnar nerve, and right third, fourth, and fifth finger disabilities. 4. Provide the Veteran with a VA examination(s) to determine the nature and etiology of any current acquired right elbow/arm and left shoulder disabilities. After examination of the Veteran and review of the claims file, the examiner(s) should: a. Indicate all currently diagnosed right elbow/arm and left shoulder disabilities. b. For EACH current claimed disability, provide an opinion: 1. as to whether it at least as likely as not (i.e., 50 percent or greater probability) had its onset during military service or is otherwise related to service, or 2. is proximately due to, or aggravated by, the Veteran's service-connected right upper extremity disabilities, to include a right ulnar nerve disability and right third, fourth, and fifth finger disabilities. Note: The Veteran is in receipt of a Parachutist Badge. A detailed rationale should be provided for the opinions rendered. 5. Provide the Veteran with a VA examination to determine the nature and etiology of any current headache disability. After examination of the Veteran and review of the claims file, the examiner(s) should: a. Indicate any currently diagnosed headache disabilities. b. For EACH currently diagnosed disability, provide an opinion: (a) as to whether it at least as likely as not (i.e., 50 percent or greater probability) had its onset during military service or is otherwise related to service, or (b) proximately due to, or aggravated by, the Veteran's service-connected right upper extremity disabilities, to include a right ulnar nerve disability and right third, fourth, and fifth finger disabilities. Note: The Veteran is in receipt of a Parachutist Badge. A detailed rationale should be provided for the opinions rendered. 6. Then, readjudicate the remaining issues on appeal. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Thomas, 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.