Citation Nr: 21070932 Decision Date: 11/27/21 Archive Date: 11/27/21 DOCKET NO. 20-18 310 DATE: November 27, 2021 ORDER Entitlement to an effective date prior to October 10, 2014, for the grant of service connection for a right wrist strain with arthritis is denied. Entitlement to an earlier effective date of July 12, 2012, for the grant of service connection for scars of the upper and lower extremity and trunk, status post multiple fragment wounds, is granted. REMANDED Entitlement to an evaluation in excess of 10 percent for service-connected right wrist strain with arthritis is remanded. Entitlement to a compensable evaluation for service-connected scars of the upper and lower extremity and trunk, status post multiple fragment wounds, is remanded. FINDINGS OF FACT 1. On July 12, 2012, the Veteran submitted a new claim for increased ratings related to his service-connected right leg, left shoulder, and right wrist disabilities. The claims file contains no unresolved, related claims prior to July 12, 2012. 2. The claims file contains medical evidence of scars of the upper and lower extremity and trunk, status post multiple fragment wounds at the time of the July 12, 2012, claim. 3. The claims file does not contain medical evidence of a right wrist strain or arthritis prior October 10, 2014. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 10, 2014, for the grant of service connection for a right wrist strain with arthritis have not been met. See 38 U.S.C. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2020). 2. The criteria for an effective date of July 12, 2012, and no earlier, for the grant of service connection for scars of the upper and lower extremity and trunk, status post multiple fragment wounds, have been met. See 38 U.S.C. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1964 to December 1968. In an October 2021 determination, the Board remanded claims for increased ratings for service-connected multiple fragment wounds of the right leg, left shoulder residuals, gunshot fragment wounds of the right wrist, left elbow residuals, multiple fragment wounds of the chest, and bilateral hearing loss, as well as the issue of entitlement to service connection for degenerative disc disease of the thoracolumbar spine. The Board notes that these issues are still currently on remand and will be returned to the Board for further adjudication after the requested development has been completed, assuming all issues are not granted in full. They will not, however, be considered in this determination. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any issues with the duty to notify or the duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. The Board notes that additional medical evidence has been associated with the claims file since the statement of the case (SOC) was issued. However, as this evidence is not relevant to the Veteran's effective date claims on appeal, the Board will proceed to adjudicate those claims as done below with no prejudice to the Veteran. Effective Date The Veteran is seeking entitlement to earlier effective dates for the grants of service connection for a right wrist strain with arthritis and for scars of the upper and lower extremity and trunk, status post multiple fragment wounds. The effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (West 2002); 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1) (West 2002); 38 C.F.R. § 3.400 (b)(2)(i). The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a) (West 2002); 38 C.F.R. § 3.400 (q)(ii), (r). In this case, the Board notes that the Regional Office (RO) issued a rating decision in April 2001 evaluating the disability ratings assigned to the Veteran's service-connected gunshot fragment wounds. The Veteran did not appeal this rating decision, nor was any pertinent evidence associated with the file within 1 year of this rating decision. On July 12, 2012, the Veteran submitted a new claim for increased ratings related to his service-connected right leg, left shoulder, and right wrist disabilities. These claims were addressed in a September 2013 rating decision, which the Veteran appealed. Throughout the processing of this appeal, the RO granted service connection separately in an April 2017 rating decision for a right wrist strain associated with his service-connected gunshot fragment wounds of the right wrist and assigned a 10 percent evaluation, effective October 10, 2014, under Diagnostic Code 5215. The RO also granted service connection separately in that decision for scars of the upper and lower extremity and trunk, status post multiple fragment wounds, associated with his service-connected left shoulder residuals and assigned a noncompensable evaluation, effective October 10, 2014, under Diagnostic Code 7802. In an October 2020 rating decision, the RO granted service connection for arthritis of the right wrist, effective December 10, 2019. The RO determined that this disability did not warrant a separate compensable evaluation and would be included with the 10 percent evaluation assigned for his service-connected right wrist strain, recharacterizing the service-connected disability accordingly. Notably, the RO granted service connection for the disabilities on appeal effective October 10, 2014, as this was the date of a pertinent VA examination. Specifically, the October 10, 2014, VA examination report demonstrated that the Veteran's right wrist manifested with painful and limited motion and that the Veteran had scars as results of various multiple fragment wounds. As noted above, an award of service connection is the "date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (b)(2)(i). In this instance, the Veteran's initial claim for the disabilities on appeal stem from the date he filed his claim for an increased rating related to his service-connected right leg, left shoulder, and right wrist disabilities, which is July 12, 2012. With regard to the Veteran's claim for an earlier effective date for the grant of service connection for scars of the upper and lower extremity and trunk, status post multiple fragment wounds, the Board acknowledges that the Veteran's scars were noted in an April 8, 2013, DBQ, as well as in a February 22, 2001, VA examination report. Therefore, as medical evidence documenting the Veteran's scars were of record prior to October 10, 2014, and at the time of the July 2012 claim, the Board finds that an earlier effective date of July 12, 2012, is warranted for the grant of service connection for scars of the upper and lower extremity and trunk, status post multiple fragment wounds. The Board has considered whether an effective date prior to July 12, 2012, is warranted for this disability. However, there is no basis under the governing legal criteria to establish that the Veteran is legally entitled to an earlier effective date prior to July 12, 2012 for the grant of service connection for scars of the upper and lower extremity and trunk, status post multiple fragment wounds. The Veteran submitted the pertinent claim on July 12, 2012, and there is no evidence of an unresolved, pertinent claim being submitted prior this date. He did not appeal the 2001 rating decision, nor has he filed a motion that the decision was clearly and unmistakably erroneous in any respect. As such, the Board finds that an effective date of July 12, 2012, and no earlier, is warranted for the grant of service connection for scars of the upper and lower extremity and trunk, status post multiple fragment wounds. With regard to the Veteran's claim for an earlier effective date for the grant of service connection for a right wrist strain with arthritis, the Board finds there is no medical evidence of record documenting a right wrist strain or right wrist arthritis prior to October 10, 2014. Pertinent medical evidence reflects that the Veteran underwent a VA examination on April 8, 2013. The April 8, 2013, x-ray report revealed a negative right wrist except for a small piece of shrapnel being noted in the soft tissues. The Veteran was diagnosed with gunshot fragment wounds of the right wrist, and the examiner noted that there was no change in the diagnosis. Additionally, the Board has reviewed pertinent VA treatment records and all other medical evidence of record. These records also do not document a right wrist strain or arthritis of the right wrist prior to October 10, 2014. The Board acknowledges the representative's argument in an April 2018 statement that October 10, 2014, is not the appropriate effective date to be assigned for this disability, as the Veteran filed his claim indicating the increase in severity leading up to the grant related to this disability, on July 12, 2012. The representative argued that the Veteran should not be penalized for the fact that he was not scheduled for a VA examination until October 2014, and it is not reasonable to suggest that his symptoms/separate condition suddenly began on the date of the VA examination. The Board is deeply sympathetic to this argument. However, the controlling regulation clearly and specifically provides that the effective date for service connection shall be the date entitlement arose or the date of receipt of the claim, whichever is later. 38 C.F.R. § 3.400 (o). Here, the medical evidence of record does not document a diagnosis of a right wrist strain or arthritis reflecting that entitlement arose until the October 10, 2014, VA examination. As such, the Board finds that an effective date prior to October 10, 2014, is not warranted for the grant of service connection for this disability. REASONS FOR REMAND With regard to the increased rating claims on appeal, the Board notes that the Veteran was issued a SOC addressing these issues most recently in February 2020. Subsequently, after certification of these issues to the Board, additional medical evidence was associated with the claims file, to specifically include VA treatment records and Addendum/Clarification Disability Benefits Questionnaires (DBQs). Notably, the October 2020 VA Addendum/Clarification DBQ specifically addressed symptoms associated with Muscle Group VII on the right side. (Muscle Group VII includes the wrist and fingers.) The September 2020 Addendum/Clarification DBQ discussed the Veteran's scars. In light of this new evidence of record and the development currently being undertaken in accordance with the October 27, 2021, Board remand in the form of obtaining a new VA examination related to the Veteran's service-connected gunshot fragment wounds of the right wrist, the Board finds that these issues should be remanded. Information obtained from the examination ordered in that remand will likely be relevant to rating the right wrist condition. The matters are REMANDED for the following action: 1. Associate with the claims file all available treatment record from the Hunter Holmes McGuire VA Medical Center (VAMC) and associated outpatient clinics from July 2020 to the present. 2. Schedule the Veteran for an appropriate VA examination to ascertain the current severity and manifestations of his service-connected right wrist strain with arthritis. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Durham, 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.