Citation Nr: A21019108 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 210414-152406 DATE: December 1, 2021 ORDER An effective date of March 15, 2018, for the grant of service connection for median nerve damage associated with ulnar fracture, residual of left wrist surgery, is granted. REMANDED An initial rating higher than 40 percent for median nerve damage associated with ulnar fracture, residual of left wrist surgery, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDINGS OF FACT 1. The Veteran submitted a claim for increased rating involving his left wrist disability that was received on March 28, 2018. 2. On March 15, 2018 electromyograph and nerve conduction study showed electrophysiologic evidence consistent with left median nerve compromise at or near the wrist. CONCLUSION OF LAW The criteria for an effective date of March 15, 2018, for the grant of service connection for median nerve damage associated with ulnar fracture, residual of left wrist surgery, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service from March 1976 to March 1979 and from June 1980 to July 1997. These matters come before the Board of Veterans Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in March 2020, of which the Veteran was notified by an April 17, 2020 letter. In the April 14, 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with or within 90 days from receipt of the VA Form 10182. 38 C.F.R. § 20.303. 1. Entitlement to an effective date earlier than May 4, 2018, for the grant of service connection for median nerve damage associated with ulnar fracture, residual of left wrist surgery The Veteran filed a claim for increased rating involving his ulnar fracture, residual of left wrist surgery, that was received on March 23, 2018. He subsequently filed a claim seeking service connection for nerve damage involving his left hand secondary to his left wrist condition that was received on May 18, 2018. The claims were adjudicated in an October 2018 rating decision that denied the claim for service connection and continued the rating assigned for the left wrist disability. The Veteran appealed and in March 2020, the Board denied the claim for increased rating but granted service connection for an injury of the median nerve associated with the service-connected left wrist disability. The Board decision was effectuated in a March 2020 rating decision, which granted service connection for median nerve damage as secondary to the service-connected ulnar fracture, residual of left wrist surgery, and assigned an initial 40 percent rating effective May 4, 2018, the date the condition was found on examination. The Board notes that this is incorrect as the date of examination was May 2, 2018. The Veteran seeks an earlier effective date, essentially asserting that an effective date of March 15, 2018, is warranted pursuant to 38 C.F.R. § 3.400(o)(2) because a VA medical record confirms a diagnosis for median nerve damage and this supports a finding that the left wrist disability had worsened within a year of the increased rating claim. In general, unless specifically provided otherwise, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final adjudication, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Regarding claims for increase, VA laws and regulations provide that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore," unless specifically provided otherwise. 38 U.S.C. § 5110 (a). Section 5110(b)(2) provides otherwise by stating that the effective date of an increased rating "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Under 38 C.F.R. § 3.400(o)(1), except as provided in paragraph (o)(2), the effective date is "date of receipt of claim or date entitlement arose, whichever is later." Paragraph (o)(2) provides that the effective date is the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date otherwise, date of receipt of claim." While the Board acknowledges that the Veteran filed a claim for service connection for nerve damage as secondary to his left wrist disability and that the regulations for establishing an effective date based on an original grant of service connection may apply, since the RO assigned an effective date earlier than the May 18, 2018, date of claim for service connection, and specifically referenced a VA examination as the date on which the condition was found, the Board finds that the regulations pertaining to the assignment of effective dates for increased ratings should apply in this case. Given that determination, the Board resolves reasonable doubt in the Veteran's favor by finding that a March 15, 2018 effective date for the grant of service connection for median nerve damage associated with ulnar fracture, residual of left wrist surgery, is warranted, since that is the date on which the Veteran underwent electromyograph and nerve conduction study that showed electrophysiologic evidence consistent with a severe left median nerve compromise at or near the wrist involving both motor and sensory fibers which are characterized by axon loss. The Board also notes that the May 2018 VA examiner who examined the left wrist disability indicated that median nerve injury is a known complication of wrist fracture. REASONS FOR REMAND 1. Entitlement to an initial rating higher than 40 percent for median nerve damage associated with ulnar fracture, residual of left wrist surgery The RO assigned an initial 40 percent rating for median nerve damage associated with ulnar fracture, residual of left wrist surgery, based on the May 2018 VA examination of the Veteran's left wrist disability. Since the VA examiner specifically noted that although median nerve injury is a known complication of wrist fracture, nerve conditions are outside the scope of this examination such that no diagnosis would be rendered, the Board finds that there was a pre-decisional duty to assist error when the RO failed to schedule an appropriate VA examination to fully evaluate the disability. This must be rectified on remand to ascertain the current severity of the median nerve damage associated with ulnar fracture, residual of left wrist surgery. 2. Entitlement to a TDIU 3. Entitlement to SMC based on the need for aid and attendance The Veteran's attorney has raised the issue of entitlement to a TDIU and entitlement to SMC based on aid and attendance as part and parcel of the increased rating claim. Such matters are inextricably intertwined with the claim for increased rating. The matters are REMANDED for the following action: Schedule the Veteran for a VA peripheral nerves examination to determine the current severity of the median nerve damage associated with ulnar fracture, residual of left wrist surgery. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.