Citation Nr: 21065889 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 19-08 599 DATE: October 27, 2021 ORDER Entitlement to an initial compensable rating for anterior left elbow scar is denied. Entitlement to an effective date earlier than December 18, 2015 for the award of service connection for an anterior left elbow scar is denied. REMANDED Entitlement to an increased rating for left forearm, limitation of flexion, rated as noncompensable prior to November 7, 2018 and in excess of 20 percent thereafter, is remanded. Entitlement to a rating in excess of 10 percent for left forearm, limitation of extension, is remanded. Entitlement to a rating excess of 10 percent for status post left elbow dislocation with arthritis is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the anterior left elbow scar has not manifested any residuals that are not already contemplated by the separate rating assigned for scarring of the left lower and upper forearm and ulnar aspect. 2. Service connection for an anterior left elbow scar was granted by the Regional Office (RO) in an April 2016 rating decision, effective December 18, 2015, the date the claim for entitlement to an increased rating for a left elbow disability was received by VA. 3. Prior to December 18, 2015, it was not factually ascertainable that an anterior left elbow scar manifested or more nearly approximated a painful scar so as to warrant a separate rating. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for an anterior left elbow scar are not met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.124a, Diagnostic Code 7802. 2. The criteria for the assignment of an effective date prior to December 18, 2015 for the grant of service connection for an anterior left elbow scar have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1966 to January 1970. These matters are before the Board of Veterans' Appeals (Board) on appeal of rating decisions dated in November 2015 and April 2016 of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran requested a Board hearing in the March 2019 substantive appeal; however, he cancelled the request in August 2021 and has not since requested any hearing. Thus, his hearing request is considered withdrawn. Increased Rating Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to an initial compensable rating for anterior left elbow scar is denied. The Veteran seeks a compensable rating for an anterior left elbow scar. Specific argument in support of this claim has not been provided. Initially, the Board notes that the Veteran is already service connected for scarring of the left lower and upper forearm and ulnar aspect. A February 2004 rating decision granted service connection under Diagnostic Code 7804 for painful scar of the left lower and upper forearm. This was based on the December 2003 VA examination findings of a left elbow scar 15 centimeter in length with tenderness to palpation over the midpoint of the left elbow scar. The examiner noted that the scar was located on the distal left upper arm across the left elbow to the middle of the left forearm. A May 2011 VA examination noted that there was a scar of the forearm through the elbow to the upper arm caused by surgery in 1968. The examiner noted that there was also a scar on the outside of the left wrist and a scar of the carpal area; however, only one scar involving the left elbow was noted. Nonetheless, in an April 2016 rating decision, the AOJ granted another separate noncompensable rating for an anterior left elbow scar under Diagnostic Code 7802 for other scars, not of the head, face or neck, without underlying soft tissue damage. This was based on the April 2016 VA examination findings of a left elbow scar 15 centimeter in length and nonpainful and located on the anterior left elbow. Only one scar on the left elbow was noted. In essence, the Veteran is currently assigned two separate ratings for a single left elbow scar. As the Veteran has already been assigned a separate 10 percent rating for the left elbow scar, to assign another compensable rating based on these symptoms would be impermissible pyramiding. 38 C.F.R. § 4.14; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). To the extent that the Veteran's attorney has generally challenged the qualification of the VA examiners, such contentions are not pertinent to the instant determination as there is no entitlement to a higher rating as a matter of law. Significantly, the Veteran has not alleged suffering from more than one scar on his left elbow. Accordingly, the Board finds that a preponderance of the evidence is against a compensable rating for an anterior left elbow scar. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Earlier Effective Date 2. Entitlement to an effective date earlier than December 18, 2015 for the award of service connection for an anterior left elbow scar is denied. The Veteran seeks an effective date earlier than December 18, 2015 for the award of service connection for an anterior left elbow scar. Specific argument in support of this claim has not been provided. Under the controlling statute, unless specifically provided otherwise, 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). Regulations also provide that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). The same rules for effective dates govern secondary claims. Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). Although a secondary condition may have onset before the effective date of the award for service connection for or diagnosis of the primary condition, the effective date of a secondarily service-connected disability is precluded from being before the effective date of the primary service-connected disability. See Frost v. Shulkin, 29 Vet. App. 131 (2017). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication indicating an 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). An informal claim must identify the benefits sought; and 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 the receipt of the informal claim. Id. Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), 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). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). By way of history, the Veteran filed an increased rating claim for the left elbow on December 18, 2015. An April 2016 rating decision awarded service connection for an anterior left elbow scar as related to the service connected disability of status post left elbow dislocation with arthritis and assigned a noncompensable rating. The Veteran subsequently filed a notice of disagreement as to the effective date in June 2016. Turning to the evidence, a review of the VA elbow examination dated in April 2016 showed an anterior left elbow scar measuring 15 centimeters long and zero centimeters wide. The examiner noted the scar was neither painful or unstable nor had have a total area equal to or greater than 39 square cm (6 square inches). Based on the foregoing, the Board finds that an effective date earlier than December 18, 2015 for the grant of service connection for an anterior left elbow scar. As noted above, a February 2004 rating decision had previously awarded a 10 percent rating for the identical left elbow scar. Here, there is nothing in the record that could be interpreted as a formal or informal claim for service connection for this scar or for an increased rating for the scar until the December 18, 2015 claim for an increased rating for the left elbow disorder. A claim is required to establish service connection. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The Veteran has not alleged submitting such a claim. The effective date of an award of compensation is the date of the claim or the date entitlement arose, whichever is later. Therefore, the date of receipt of the claim is the appropriate effective date as it is later than the date entitlement arose. See Lalonde v. West, 12 Vet. App. 377, 382-383. Regrettably, in this circumstance there is no authority under governing law for an effective date earlier than the December 18, 2015 date assigned. The Board is bound by the governing laws and VA regulations concerning assignment of effective dates. As the preponderance of the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt doctrine 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, supra. REASONS FOR REMAND The Veteran's representative generally challenged the competency of the VA examiners in a March 2019 substantive appeal and requested a copy of the examiner's credentials. Specific argument in support of this assertion was not submitted. The Board notes the Veteran underwent a VA examination for his hearing loss and tinnitus claims in November 2015, and for his left elbow claims in April 2016 and May 2018. As VA ordinarily may presume that its VA examiners are competent, in the absence of some challenge to "a VA medical expert's competence or qualifications before the Board,...VA need not affirmatively establish [the] expert's competency." Rizzo v. Shinseki, 580 F.3d 1288, 1291 (Fed. Cir. 2009). However, "once the veteran raises a challenge to the competency of the medical examiner, the presumption has no further effect, and, just as in typical litigation, the side presenting the expert (here the VA) must satisfy its burden of persuasion as to the examiner's qualifications." Francway v. Wilkie, 940 F.3d 1304,1308 (Fed. Cir. 2019). Once the veteran makes this challenge, "[t]he Board must then make factual findings regarding the qualifications and provide reasons and bases for concluding whether... the medical examiner was competent to provide the opinion." Id. A veteran's burden in challenging a VA examiner's credentials must be offset by the "ability to secure from the VA the information necessary to raise the competency challenge." Id. Once information about a VA examiner's credentials has been requested, the claimant "has the right, absent unusual circumstances, to the curriculum vitae and other information about qualifications of a medical examiner. This is mandated by the VA's duty to assist." Id. On remand, the requested information should be provided to the Veteran and his representative. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). (Continued on the next page) 2. The AOJ should secure the credentials, including but not limited to the curriculum vitae, of the VA examiner who conducted the November 2015, April 2016, and May 2018 VA examinations. (The examiners' information may be redacted as deemed warranted). Upon receipt, their credentials should be associated with the claims file, with a copy provided to the Veteran and his attorney. If the requested credentials are unattainable, then the Veteran and his representative should be notified, and this too should be documented in the claims file. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.