Citation Nr: 21075308 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 17-42 252 DATE: December 20, 2021 ORDER An effective date prior to April 1, 2004, for the grant of service connection for bone deformity of the IP joint of the right thumb (right thumb disability) is denied. An effective date prior to April 1, 2004, for the grant of service connection for osteoarthritis of the left first rib, anterior sternal joint (left rib disability) is denied. REMANDED Service connection for gout is remanded. A compensable rating for a right thumb disability is remanded. A compensable rating for a left rib disability is remanded. The request to reopen the claim for service connection for a right foot injury is remanded. FINDING OF FACT The Veteran's first day following separation from service was April 1, 2004. CONCLUSION OF LAW The criteria for an effective date prior to April 1, 2004, for the grant of service connection for thumb and rib disabilities are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in active duty from August 1983 until October 1994 and from May 1995 until March 2004. At the outset, the Board notes that the Veteran sought service connection for hemorrhoids in his April 2015 claim. In July 2017, a rating decision granted service connection for hemorrhoids with an evaluation of 10 percent effective April 2015. A concurrent Statement of the Case (SOC) also denied, in part, an earlier effective date for the grant of service connection for hemorrhoids pending from the Veteran's appeal of an August 2015 denial of service connection. In this matter, the Board does not find that the Veteran has a valid claim for an effective date prior to April 2015 for the grant of service connection for hemorrhoids pending before the Board. The August 2015 rating decision, from which the appeal stream currently before the Board originates, did not grant service connection or assign an effective date of a grant. Thus, there was no assigned effective date for the Veteran to appeal. The July 2017 rating decision which granted the Veteran's claim and assigned the April 2015 effective date was the proper rating decision to appeal the assigned effective date. As there is no appeal pending before the Board regarding the July 2017 rating decision, the Board finds that this issue is not properly before it. In that same vein, the Board notes that the Veteran has clarified that in his October 2015 NOD, he sought to appeal the effective date of any higher ratings that were assigned regarding his right thumb and rib disabilities. See July 2017 Form 9. As the Veteran has yet to be assigned a higher rating and an effective date for such a rating for his thumb or rib disabilities has yet to be determined, there is no date which the Veteran can appeal. His October 2015 Notice of Disagreement as to this issue, then, is preemptive and untimely. Should such a rating decision be issued, and the Veteran disagree with the effective date assigned in that rating decision, the correct course of action would be to file an appeal from that rating decision. Thus, the Board finds that appeal regarding the effective date of higher ratings for a right thumb and/or rib disability is not properly before it. Earlier Effective Date Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be the day following separation from active service or the date of entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the effective date will 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 (b)(2)(i). As noted above, an August 2015 rating decision denied the Veteran's claims for increased ratings for his thumb and rib disabilities. In October 2015, the Veteran filed a Notice of Disagreement (NOD) which appealed not just the denial of the higher ratings, but also the effective date. The agency of original jurisdiction (AOJ) interpreted this to be an appeal of the effective date of the Veteran's grant of service connection for his thumb and rib disabilities and subsequently denied those claims in a July 2017 SOC. Insofar as the SOC raised these issues and the Veteran filed a Form 9 appealing all of the issues on the SOC, the Board finds that an effective date prior to April 1, 2004, for the grant of service connection for the Veteran's thumb and rib disabilities is not allowed by law, as April 1, 2004, is the first day following his separation from service. Thus, earlier effective dates for the grants of service connection for his thumb and rib disabilities are denied. The Board specifically notes that the Veteran clarified in his July 2017 Form 9 that he was not appealing the date of his grant of service connection for his thumb and rib disabilities, but seeking an earlier effective date for any increase rating that was granted due to his April 2014 claim for higher ratings. However, as discussed above, an appeal of these issues is untimely and not properly before the Board. REASONS FOR REMAND Gout In May 2017, the Veteran stated that his joint pain was partially related to gout, specifically mentioning his fingers and foot. While in service the Veteran complained of joint problems. In October 2003, the Veteran was diagnosed with arthralgia pain in multiple joint areas. He was scheduled to be tested for a variety of factors including uric acid testing and autoimmune disorders. The results of said testing are not found in the service treatment records. As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a). In the present case, a concerted effort needs to be made to obtain the Veteran's service records. Moreover, VA's duty to assist includes providing a medical examination and obtaining a medical opinion when, as here, there is a current disability, a disease or injury during service, and an indication that the claimed disability may be associated with the disease or injury in service or with another service-connected disability. 38 C.F.R. § 3.159 (c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Because the AOJ did not secure a medical examination or nexus opinion, the issue will be remanded to correct a duty-to-assist error that occurred prior to the rating decision on appeal. 38 C.F.R. § 20.802(a). Right Thumb Left Rib As already mentioned, the Veteran claims his joint pain is related to gout. The Veteran's claims regarding his thumb and rib relate to the Veteran's joints. If service connection for gout is granted, then the increased ratings that the Veteran seeks as they relate to pain may be partially related to gout and not the present claims. Thus, these issues are intertwined, and remand is necessary. In addition, the Veteran's prior VA examinations for his thumb are inadequate. The August 2015 and June 2017 VA examiners did not render an opinion on the Veteran's range of motion after repeated use of motion or during a flare up, nor did they explain why an opinion was not rendered. Current examinations are warranted. Right Foot Lastly, the Veteran seeks to reopen his claim for service connection for a right foot injury. The Veteran initially applied for a right foot injury in December 2003 and the claim was denied in April 2004. The Veteran did not appeal the decision. However, as the Veteran has indicated that his file is missing service treatment records (STRs). As such, remand is necessary to obtain clarification of the Veteran's terms of active duty service and to obtain any STRs or personnel records regarding those terms of service. The matters are REMANDED for the following action: 1. Contact the NPRC or any other appropriate facility and obtain the Veteran's complete service treatment records and military personnel file for the dates of the Veteran's service verified by his DD Form 214. Document all requests for information as well as all responses in the claims file. 2. After completion of directive 1, above, schedule the Veteran for a VA examination to determine the etiology of his gout and the severity of his right thumb and left rib disabilities. The claims file should be made available to the examiner for review. As to the Veteran's gout, the VA examiner must opine on whether it is at least as likely not (50 percent or greater probability) that the Veteran's gout had its onset in service or is otherwise related to service. If possible, the examiner should state which joints the gout affects and to what extent the gout affects said joints, with particular focus on the joints for which the Veteran is seeking benefits, the left first rib, right thumb, and right foot. If the examiner cannot render such an opinion, the examiner should state why such an opinion cannot be rendered. As to the Veteran's right thumb and left rib, the examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner is also asked to determine, if possible, what if any portion of the Veteran's pain and or limitations in his thumb and/or rib are caused by gout versus osteoarthritis. If that cannot be determined, the examiner should state why. The Veteran's lay statements regarding onset and continuity of symptomology should be recorded and considered. A rationale for all opinions must be provided. 3. Once service treatment records are obtained, the RO should determine if any of the obtained service records warrant reopening the claim for the right foot injury. The RO should schedule the Veteran for a VA examination if, and only if, the claim is reopened and only after the gout examination has occurred. The VA examiner should determine what if any portion of the Veteran's pain and/or limitations in his ribs is/are caused by gout versus his right foot injury. If that cannot be determined, the examiner should state why. After the appropriate action is taken, the RO should readjudicate the claim on appeal. ALEXIS M. PARRISH Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Chalker, Associate 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.