Citation Nr: 21072005 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 18-47 341 DATE: December 2, 2021 ORDER Entitlement to an effective date prior to November 19, 2013, for the award of service connection for a right hand strain is denied. Reopening of the claim for service connection for a left knee disability is granted; the appeal is granted to this extent only. Reopening of the claim for service connection for a right ankle disability is granted; the appeal is granted to this extent only. Entitlement to an increased rating in excess of 40 percent for a lumbar strain has been withdrawn. Entitlement to an increased rating in excess of 10 percent for a right wrist sprain has been withdrawn. Reopening of the claim of service connection for a right hip disability has been withdrawn. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) has been withdrawn. REMANDED Entitlement to a compensable rating prior to August 11, 2017 and in excess of 10 percent thereafter for a right hand strain is remanded. Entitlement to an increased rating in excess of 10 percent for right knee chondromalacia is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. The Veteran filed an informal claim to reopen a previously denied claim for service connection for a right hand disability on November 19, 2013, and in a February 2015 rating decision the RO reopened the claim and granted service connection for a right hand disability, effective November 19, 2013. 2. Prior to the November 19, 2013 informal claim, there were no pending requests for to reopen a claim for service connection for a right hand disability that remained unadjudicated. 3. A November 2011 rating decision denied service connection for a left knee disability and a right ankle disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 4. The evidence associated with the claims file subsequent to the November 2011 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for a left knee disability. 5. The evidence associated with the claims file subsequent to the November 2011 rating decision was not previously of record and relates to a previously unestablished fact necessary to substantiate the claim of service connection for a right ankle disability. 6. During his April 2021 hearing and prior to the promulgation of a Board decision, the Veteran and his representative stated the Veteran wished to withdraw his appeals of entitlement to increased ratings for a lumbar strain and a right wrist sprain, reopening of a claim for service connection for a right hip disability, and entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to November 19, 2013 for the award of service connection for a right hand disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400. 2. The November 2011 rating decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. New and material evidence sufficient to reopen the claim of service connection for a left knee disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. New and material evidence sufficient to reopen the claim of service connection for a right ankle disability has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for withdrawal of entitlement to an increased rating in excess of 40 percent for a lumbar strain by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; see Acree v. O'Rourke, 891 F.3d 1009, 101314 (Fed. Cir. 2018). 6. The criteria for withdrawal of entitlement to an increased rating in excess of 10 percent for a right wrist sprain by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; see Acree, 891 F.3d at 101314. 7. The criteria for withdrawal of a claim to reopen service connection for a right hip disability by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; see Acree v. O'Rourke, 891 F.3d at 101314. 8. The criteria for withdrawal of a claim for a TDIU by the Veteran have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55; see Acree v. O'Rourke, 891 F.3d at 101314. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1994 to January 1998 and from March 2009 to March 2010. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in February 2015 and January 2017 by a Department of Veterans Affairs (VA) Regional Office (RO). By way of background, in February 2015 the RO issued a rating decision reopening and granted service connection for a right hand disability, assigning a noncompensable rating effective November 19, 2013, and granting reopening of the claims for service connection for a left knee disability and a right ankle disability. The decision also denied increased ratings for a right wrist disability and a right knee disability, service connection for left knee and right ankle disabilities, reopening of a claim for service connection for a right hip disability, and entitlement to a TDIU. Finally, the decision proposed to reduce the rating for the Veteran's lumbar strain from 40 percent to 10 percent. In March 2015 the Veteran filed a notice of disagreement with the effective date and rating assigned for the right hand disability, the denials of increased ratings for the right wrist and right knee disabilities, the denials of service connection for left knee and right ankle disabilities, the denial of reopening of service connection for a right hip disability, and the denial of entitlement to a TDIU. The Board notes that in his March 2015 notice of disagreement the Veteran further attempted to disagree with the effective dates assigned for the right wrist, right knee, and low back disabilities. However, it is axiomatic that in order for the question of an appropriate effective date to be adjudicated by the RO, a benefit must be awarded, whether in the form of service connection or an increased rating. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Here, increased ratings were not awarded for any of the three disabilities, and therefore the RO did not address the question of an appropriate effective date. As such, the attempted appeal as to the effective dates assigned for these three disabilities is not valid. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). In December 2016, the RO issued a rating decision implementing a final reduction of the rating for the Veteran's lumbar strain from 40 percent to 10 percent, effective February 1, 2017. In January 2017 the RO then sent out another rating decision again implementing the proposed reduction, but this time effective March 1, 2017. In January 2017, the Veteran submitted a notice of disagreement with the reduction, and further argued that an increased rating for the lumbar strain was in fact warranted. All of the issues contained in both notices of disagreement were adjudicated in a September 2018 statement of the case, and the Veteran perfected an appeal in October 2018. The Board notes that in the September 2018 statement of the case, the RO reinstated the Veteran's 40 percent rating for his lumbar strain, effective March 1, 2017. This award was then effectuated in a rating decision issued in August 2020. As this constitutes a full grant of the benefits sought as to the question of the propriety of the reduction, that issue is no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to an increased rating for a low back disability remains on appeal as a separate issue. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) in April 2021. A transcript of the hearing is of record. Earlier Effective Dates 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 shall be fixed in accordance with the facts found, but not earlier than the date the claim was received. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400(r) (2018). Effective March 24, 2015, VA amended its regulations to require that in order to be considered a valid claim, a claim for benefits must be submitted on a standardized form. 79 Fed. Reg. 57,660 (Sept. 25, 2014) (eff. Mar. 24, 2015). However, this amendment only applies to claims or appeals filed on or after March 24, 2015. Id. at 57,686. Under the law prior to the amendment, a claim was defined as 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) (2014) (amended 2015). An informal claim was any communication or action indicating an intent to apply for one or more benefits that identifies the benefit sought. 38 C.F.R. § 3.155(a) (2014) (repealed 2015). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claimsformal and informalfor benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In addition, in cases involving previously denied claims reports of examination or hospitalization from VA or a uniformed service or private medical records may constitute informal claims to reopen. 38 C.F.R. § 3.157(b). Upon receipt of an informal claim for benefits, if a formal claim for benefits had not been filed, VA was required to provide the Veteran with a formal claim form for the Veteran to complete and return. 38 C.F.R. § 3.155(a) (2014). If a formal claim for benefits was then filed within one year of the date the formal claim form was sent to the Veteran, the formal claim was considered to have been filed as of the date of receipt of the informal claim. Id. Following the March 2015 amendment, a claim for benefits must be filed on the standardized claim form prescribed by the Secretary. 38 C.F.R. §§ 3.150, 3.151 (2017). A veteran may also indicate their intent to file a claim for compensation by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b) (2017). Upon receipt of the intent to file a claim, VA must provide the claimant with the appropriate claims form. Id. If a complete application for benefits on the form prescribed by the Secretary is received by VA within one year of receipt of the intent to file, VA will consider the formal claim to have been filed as of the date the intent to file a claim was received. Id. An intent to file a claim must be submitted using one of three approved methods and must identify the general benefit and the claimant. Id. 1. Earlier effective date for service connection for a right hand sprain. In this case, the Veteran filed an original claim for service connection for a right hand disability on February 18, 2011. In a November 2011 rating decision, the RO denied entitlement to service connection for the right hand disability, stating that there was no evidence of a currently diagnosed disability that was casually related to an in-service injury or disease. The Veteran was notified of the decision, but did not file a notice of disagreement. 38 C.F.R. §§ 20.200, 20.201, 20.302. The Board notes that during the appellate period following the November 2011 rating decision, VA treatment records were both physically and constructively associated with the file. 38 C.F.R. § 3.156(b); see Lang, 971 F.3d at 135355. However, none of the records associated with the file and dated between November 2011 and November 2012 reflect a diagnosis of a right hand disability, nor do any of the records link a right hand disability to an in-service injury or disease. While some records note complaints of right hand pain, these reports were also contained in treatment records associated with the file at the time of the November 2011 decision. As such, these complaints of right hand symptoms are cumulative and redundant of records considered in the November 2011 rating decision, and cannot be considered new and material evidence. 38 C.F.R. § 3.156(a). VA examination reports were also associated with the file during the appellate period, but these records also do no contain any diagnoses of a right hand disability, or in any way link a right hand disability to the Veteran's period of service. As such, new and material evidence was not received during the one year appellate period following the November 2011 rating decision, and therefore the February 2011 claim did not remain pending. 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362, 136768 (Fed. Cir. 2011). On November 19, 2013, the Veteran filed a statement in support of an informal claim for entitlement to a TDIU, in which he discussed sustaining an injury to his right hand in service. The RO accepted this statement as an informal claim to reopen service connection for a right hand disability, and eventually reopened and granted the claim for service connection for a right hand strain in a February 2015 rating decision. 38 C.F.R. § 3.155(a) (2014). Between the November 2011 rating decision and the November 19, 2013 informal claim to reopen, there is no evidence of any other requests to reopen the previously denied claim for service connection for a right hand disability or any claims for service connection for a right hand disability. While the Veteran filed a supplemental claim in February 2012, this filing only requested increased ratings for a right wrist disability and a low back disability, and in no way expressed an intent to file for service connection for a right hand disability or identified a right hand disability as a claimed disability. Sellers, 965 F.3d 1328. During this period no VA reports of examination or hospitalization concerning the right hand disability were associated with the file, nor were any private treatment records submitted indicating it was reasonably probable that the Veteran was entitled to benefits for a right hand disability. 38 C.F.R. § 3.157(b). Finally, the Board notes that the statement accepted as an informal claim to reopen service connection for a right hand disability is dated as having been signed on June 29, 2011, but is not date stamped with a receipt date. However, a cover letter included with the statement is date stamped as received on November 19, 2013 and specifically notes that the Veteran's June 29, 2011, statement was enclosed with the letter. As such, it is clear from the evidence of record that the Veteran's statement, while signed on June 29, 2011, was not received until November 19, 2013. As such, the appropriate date of claim in this case is November 19, 2013, the date of receipt of the Veteran's informal claim to reopen service connection for a right hand disability. No new service records relevant to the claim for service connection for a right hand disability were associated with the file following the November 2011 denial, and therefore an earlier effective date based on the receipt of such records is not possible. 38 C.F.R. § 3.156(c). Based on the above, an effective date prior to November 19, 2013 for the award of service connection for a right hand sprain is not warranted. The November 2011 rating decision denying the original claim for service connection became final, and no new, relevant service department records were associated with the file following its issuance. Further, between the November 2011 rating decision and the November 19, 2013 informal claim to reopen, no other formal or informal claims expressing any intent to apply for service connection for a right hand disability, even at a high level of generality, were received. As such, an effective date prior to November 19, 2013, for the award of service connection for a right hand disability is denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(r). New and Material Evidence In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence is evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be either cumulative or redundant of the evidence of record at the time of the last prior final denial and must raise a reasonable possibility of substantiating the claim. Id. New and material evidence received prior to the expiration of the appeal period following a decision, will be considered as having been filled in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The definitions of the terms "new" and "material" for the purposes of this provision are the same as those discussed above. Voracek v. Nicholson, 421 F.3d 1299, 1304 (Fed. Cir. 2005). If evidence received during the appellate period following a decision is new and material, the claim will remain pending until VA issues another decision re-adjudicating the claim and addressing the new and material evidence. Bond, 659 F.3d at 136768. New and material evidence is not required to reopen a claim when, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c). "Relevant" means service records that speak to a matter in issue or in dispute. Kisor v. Wilkie, 969 F.3d 1333, 134143 (Fed. Cir. 2020). In other words, to be relevant the new service department records must pertain to the basis of the prior final denial. Id. For the purposes of reopening a claim, newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). New and material evidence is not required as to each previously unproven element of a claim in order to reopen. Shade v. Shinseki, 24 Vet. App. 110, 120 (2010). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Id. at 11718. 2. Reopening of the claims of service connection for a left knee disability and a right ankle disability. As the facts and analysis for the claims to reopen service connection for a left knee disability and a right ankle disability are essentially identical, the Board will address both claims together for the purposes of brevity. The RO last denied service connection for the left knee and right ankle disabilities in November 2011, stating that there was no evidence of a current left knee or right ankle disability that was causally related to an in-service injury or disease. The Veteran was notified of the decision but did not file a notice of disagreement with the denials. None of the records either physically or constructively associated with the claims file during the one year appellate period following the November 2011 rating decision reflect diagnoses of left knee or right ankle disabilities, or in any way link the claimed disabilities to an in-service injury or disease. While some of these records reflect complaints of left knee and right ankle pain, these notations are cumulative and redundant of the medical records considered by the November 2011 rating decision, and therefore cannot be considered new and material evidence with respect to the presence of left knee and right ankle disabilities. As such, the November 2011 denial was not prevented from becoming final. 38 C.F.R. § 3.156(b); see Lang v. Wilkie, 971 F.3d 1348, 135355 (Fed. Cir. 2020). Based on the foregoing, November 2011 decision is final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The evidence of record in November 2011 consisted of the Veteran service treatment and personnel records, VA treatment records, private treatment records, VA examination reports, and lay statements from the Veteran. As noted, the evidence did not reflect that the Veteran had a left knee or right ankle disability that was causally related to an in-service injury or disease. Evidence received since the rating decision includes February 2015 VA examinations diagnosing the Veteran with right ankle tendinitis and left knee chondromalacia. There is no evidence that the examiner was not competent, and the evidence is presumed credible for the purposes of reopening. Justus, 3 Vet. App. at 513. The evidence provided by the Veteran is new as it was not previously submitted to agency decision makers and is material as it addresses the previously unestablished fact of current left knee and right ankle disabilities. It is not redundant and raises a reasonable possibility of substantiating the claim. Therefore, reopening of the claims for service connection for a left knee disability and a right ankle disability is warranted. Withdrawal A substantive appeal may be withdrawn on the record at a hearing. Acree, 891 F.3d at 1013-14. A withdrawal on the record at a hearing must be explicit, unambiguous, and done with full knowledge of the consequences. Id.; see also DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). 3. Entitlement to increased ratings for a low back sprain and a right wrist sprain, reopening of service connection for a right hip disability, and a TDIU. In this case, at the April 2021 hearing the presiding VLJ stated that the Veteran and his representative wished to withdrawal the issues of entitlement to increased ratings for a low back sprain and a right wrist sprain, reopening of a claim for service connection for a right hip disability, and entitlement to a TDIU. 38 C.F.R. § 19.55. The presiding VLJ explained that the withdrawn issues would no longer be on appeal and would not be adjudicated by the Board, thus informing the Veteran that his withdrawal would end his appeal as to the identified issues. The Veteran, with his attorney present, then affirmatively stated on the record that he understood the consequences of his withdrawal. Acree, 891 F.3d at 1013-14. As the Veteran has withdrawn his appeal of the issues of entitlement to increased ratings for a low back sprain and a right wrist sprain, reopening of a claim for service connection for a right hip disability, and entitlement to a TDIU prior to the issuance of a decision, the Board no longer has appellate jurisdiction and can take no further action on these issues. 38 C.F.R. §§ 20.204, 20.1100(b). REASONS FOR REMAND 1. Entitlement to increased ratings for a right hand strain and right knee chondromalacia. The Veteran was last provided with examinations concerning his right hand and right knee disabilities in August 2017. During his April 2021 examination, the Veteran reported worsening right knee and right hand symptoms. As to the right knee, the Veteran reported increased pain, difficulty walking, and flare-ups of the disability resulting in additional limitation of motion. Concerning the right hand, the Veteran reported increased pain, as well as feelings of weakness and a lack of coordination. As there is an indication that the right hand and right knee disabilities have worsened since the most recent examinations, a remand is necessary for new examinations. 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for a left knee disability and a right ankle disability. VA obtained opinions concerning the etiology of the claimed left knee and right ankle disabilities in February 2015. The examiner stated that it was less likely than not that either disability was causally related to either of the Veteran's periods of service, stating that instead the disabilities were more likely due to heavy physical labor as a mechanic as well as other factors such as again, physical deconditioning, and weight gain. However, the examiner did not address as part of the opinion the Veteran's lay statements concerning consistent symptoms since his second period of service. Dalton v. Peake, 21 Vet. App. 23 (2007). As such, a remand for new medical opinions is warranted. Further, as to the left knee the Veteran has asserted that his left knee disability is caused or aggravated by the service-connected right knee disability, stating that compensating for his right knee results in increased pain in the left knee. 38 C.F.R. § 3.310. As such, remand is further warranted for an opinion to determine whether the left knee disability is caused or aggravated by the right knee disability. The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records. 2. Request that the Veteran submit or authorize for release any further private treatment records relevant to the issues currently on appeal. For all records authorized for release, if the search for these records is negative the Veteran must be informed of this in writing in accordance with 38 C.F.R. § 3.159(e). 3. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right hand disability. The examiner is asked to provide the following: (a) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (b) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms. Based on this information, the examiner should then provide an estimate concerning the average additional loss of motion during a flare-up. (c) Identify any neurologic symptoms or abnormalities associated with the service connected right hand disability. 4. Schedule the Veteran for a VA examination with an appropriate medical professional to determine the current severity of his right knee disability. The examiner is asked to provide the following: (a) Test for pain on active motion, passive motion, weightbearing, and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, an explanation must be provided. (b) State whether the examination is taking place during a flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, severity, and/or extent of functional impairment he experiences during a flare-up of his symptoms. Based on this information, the examiner should then provide an estimate concerning the average additional loss of motion during a flare-up. 5. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's left knee disability. The examiner should answer the following: a) Is it at least as likely as not (a fifty percent probability or greater) that the left knee disability is causally related to the Veteran's active service from January 1994 to January 1998 or from March 2009 to March 2010? In answering question (a), attention is invited to the Veteran's April 2021 hearing testimony concerning persistent symptoms since his second period of service. b) If not, is it at least as likely as not (a fifty percent probability or greater) that the left knee disability was caused by the service-connected right knee disability? c) If not, is it at least as likely as not (a fifty percent probability or greater) that the left knee disability was aggravated (worsened) by the right knee disability? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. 6. Schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's right ankle disability. The examiner should answer the following: Is it at least as likely as not (a fifty percent probability or greater) that the right ankle disability is causally related to the Veteran's active service from January 1994 to January 1998 or from March 2009 to March 2010? A detailed rationale for the opinion must be provided. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as against it. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wendell, 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.