Citation Nr: A21020178 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 181212-1240 DATE: December 17, 2021 ORDER Entitlement to an effective date earlier than May 1, 2014 for an increased rating for a service-connected left arm disability is denied. FINDING OF FACT 1. The appellant's claim for service connection for a left arm disability related to an in-service surgery and subsequent infection was granted, with an initial noncompensable rating assigned in a February 1993 rating decision. The appellant was notified of this decision and his appellate rights in a March 1993 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence was not received. 2. The appellant's claim for an increased rating for the service-connected left arm disability was denied in a December 2008 rating decision. The appellant was notified of this decision and his appellate rights in a December 2008 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement, and new and material evidence was not received. 3. The appellant's informal claim for an increased rating, which was initiated after a sympathetic and broad reading of a much more specific claim, was received on May 5, 2014. The evidence submitted showed an ascertainable increase in the appellant's level of disability beginning in the 1-year period prior to the filing of the claim on May 1, 2014. 4. The preponderance of the evidence is against the appellant having submitted a claim for an increased rating, or anything which could be construed as a claim for an increased rating, for his service-connected left arm disability between the last final denial of his claim and May 5, 2014. CONCLUSION OF LAW 1. The February 1993 rating decision granting entitlement to service connection for a left upper arm disability and assigning a noncompensable initial rating is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. The December 2008 rating decision denying an increased rating for a left upper arm disability is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 3. The criteria for entitlement to an effective date earlier than May 1, 2014 for an increased rating for a left upper arm disability are not met. 38 U.S.C. § 5110, 5107; 38 C.F.R. §§ 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant served on active duty in the United States Air Force from April 1978 to July 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2018 higher-level review (HLR) rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which, in pertinent part, denied the appellant an earlier effective date for the grant of an increased rating for his service-connected left arm disability. An initial rating decision had been issued under the legacy system in November 2014. This decision was appealed in a notice of disagreement (NOD) received by VA in December 2014. A Statement of the Case (SOC) was issued by VA in October 2016. VA received the appellant's Substantive Appeal (Form 9) in October 2016, perfecting the appeal. In May 2018, the appellant opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the higher-level review (HLR) lane. The agency of original jurisdiction (AOJ) issued a RAMP HLR decision November 2018, which is the decision on appeal. The denial of the appellant's claim was appealed in December 2018, at which time the appellant elected to have his appeal heard on the Hearing docket. Therefore, the Board may only consider the evidence of record at the time of the RAMP opt-in, as well as any evidence submitted by the appellant at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). As an initial matter, the Board notes that the initial claim that had been appealed was a claim for entitlement to an earlier effective date for the grant of an increased rating for the service-connected left arm disability. See December 2015 NOD (appealing the November 18, 2014 rating decision which granted an increased rating for the service-connected left arm disability). The claim currently on appeal had been raised in the context of a separate claim, received by VA in May 2014. That claim asserted that there had been clear and unmistakable error (CUE) in a December 16, 2008 rating decision which had denied an increased rating for the left arm disability. This separate claim for CUE was denied in an October 2014 rating decision. Based on the evidence received in conjunction with the May 2014 claim for CUE though, the RO opened a separate claim for entitlement to an increased rating for the service-connected left arm disability. This informal claim, raised by the RO after a broad reading of the original claim, was granted in a November 2014 rating decision, with the effective date of the award being set as the date the original claim for CUE had been received on May 15, 2014. As noted above, the December 2014 specifically appealed the November 2014 rating decision and specifically appealed the effective date of the rating assigned. The October 2016 SOC had addressed entitlement to an earlier effective date for the increased rating, with the appellant asserting the increased rating should go back to his date of separation in July 1992. While the issue on appeal had been entitlement to an earlier effective date for an increased rating for this particular disability, the November 2018 HLR rating decision had discussed whether there had been a clear and unmistakable error in the original March 1993 rating decision. In the appellant's December 2018 appeal of the November 2018 HLR rating decision, neither he nor his representative indicated the grounds for the appeal of that decision. At the appellant's October 2020 hearing before the Board, his representative clarified that the appeal was for entitlement to an effective date earlier than May 5, 2014 for the increased rating for the service-connected left arm disability. The appellant's representative stated that they did not believe there was any CUE in either the 1992 or 2008 prior rating decisions and that they were not pursuing a claim under that theory of entitlement. Given all this, the Board has characterized this claim as one for entitlement to an earlier effective date for the grant of an increased rating for a service-connected left arm disability. 1. Entitlement to an effective date earlier than May 1, 2014 for an increased rating for a service-connected left arm disability is denied. The appellant contends that an effective date earlier than May 5, 2014 is warranted for his increased rating for a service-connected left arm disability. He contends that the functional impairment of the limb due to his in-service surgery has been consistent since his separation from service, and as such, that the increased 30 percent rating that was awarded in the November 2014 rating decision should go back to the day he separated from service. Alternatively, he has contended that his initial claim for a left arm condition, filed around the time of his separation from active service, was not adjudicated by the February 1993 rating decision and had been pending since that time. He asserts that the November 2014 rating decision then was an initial grant of benefits, and as such, that the effective date should be the date he separated from service, as the claim had been filed within a year of his separation from active service. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final disallowance, or a claim for increase 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); see also 38 C.F.R. § 3.400(b)(ii). If a claim is received within one year of separation from service, the effective date is generally the day following separation from service. 38 C.F.R. § 3.400. Otherwise, the effective date of the award is the date of the receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In the context of increased rating claims, the effective date may also be set as the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date. 38 C.F.R. § 3.400(o)(2). Otherwise, the effective date is the date of receipt of the claim. When medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. Id. A claim is 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), 3.151. Any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. Such an informal claim must identify the benefit sought. Id. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Considering all this, and after a review of the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than May 1, 2014 for the grant of an increased rating. This would constitute assigning an effective date 4 days earlier than that assigned by the RO. As the preponderance of the evidence is against assigning a rating earlier than May 1, 2014, the Board concludes that benefit of the doubt rule is not applicable and that the legal criteria for an earlier effective date are not met. 38 C.F.R. §§ 3.102, 3.400. In adjudicating this type of claim, the Board has first considered the procedural history related to the appellant's claims for a left arm disability related to an in-service surgery and infection. To that end, the appellant's initial claim for service connection was received by VA on July 6, 1992, 4 days after his separation from active service. The original application for service connection listed "coagulase positive staph infection" on the portion of the form for "Nature of Sickness, Disease, or Injury." From a review of the rating decision and VA examination, it appears VA construed this claim broadly as one for a disability of the left upper arm, with the examiner addressing both the residual scar from the surgery and the functional capacity of the limb. The appellant reported at the September 1992 VA examination that his arm "has been tired," the examiner noted that the source of the original infection had been removed, the infection itself had long resolved, and that there were "no significant residual abnormalities" other than a well-healed, nontender scar. In a February 1993 rating decision, the appellant was granted "[s]ervice connection for left upper arm condition as a result of the injury he had in service." The decision went on to say that "[a] 0 percent evaluation is awarded since there are no residuals except as to a well-healed, nontender scar." The rating was assigned under diagnostic code 7805. See 38 C.F.R. § 4.118, Diagnostic Code (DC) 7805 (1992) (indicating that the residual scar should be rated based on any underlying limitation of function caused by the scar and not otherwise covered in the ratings for scars. The appellant was notified of this decision, to award service connection and assign a noncompensable rating due to the examiner finding no functional limitation or impairment, and his appellate rights in a March 15, 1992 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement with respect to this particular issue, although he did file a notice of disagreement with the RO's decision to rate his service-connected sinusitis and headaches under a single diagnostic code, and new and material evidence relevant to this claim was not received within a year of the mailing of the March 15, 1992 notification letter. As such, the Board finds that this decision is final. In July 2008, the appellant submitted a Statement in Support of Claim seeking service connection for "neck problems" he had for years. He indicated in that statement that his medical treatment records showed that he had a degenerative condition at the C5-C7 vertebrae and that this was causing him to lose feeling in his left arm. The RO treated this claim broadly, as a claim for service connection for a cervical spine disability and as a claim for an increased rating for the left arm condition previously granted service connection in February 1993. Private treatment records received by VA in July 2008 noted that the appellant had a sudden onset of left arm numbness and radiating pain that the appellant's treating physician attributed to this degenerative disease in his cervical spine. In relation to this claimed increase, the appellant was afforded a VA examination in November 2008. The appellant stated at the examination that the left scar on his arm was not bothersome and that he had no difficulties with the activities of daily living due to limitation of his left arm injury. He was found to have normal muscle strength, grip strength, and reflexes in both upper extremities. There was some decreased sensation to soft touch in the left upper arm in the region of his scar. There was no pain or limitation with any range of motion in the left elbow. In a December 2008 rating decision, the RO denied entitlement to service connection for "a neck condition with numbness in left arm and right shoulder , to include cervical spine degenerative disk disease with bilateral upper extremity radiculopathy." The RO also denied an increased rating for the "residual scar, status post coagulase positive staphylococcus aureus, cellulitis, left arm" which had previously been assigned a noncompensable rating. The RO explained that, with regards to the claimed neck condition and accompanying radiculopathy and numbness in the left arm, that these were not secondary to a service-connected lumbar spine disability. The RO also explained that an increased rating for the service-connected left arm disability was not warranted because, again, VA examination and private medical records did not show any symptomatic residuals related to his in-service left arm injury. The appellant was notified of this decision to deny an increased rating for his service-connected left arm disability and his appellate rights in a December 2008 letter. Within a year of the mailing of that letter, the appellant did not file a notice of disagreement with respect to this particular issue, and new and material evidence relevant to this claim was not received within a year of the mailing of the December 2008 notification letter. As such, the Board finds that this decision is final. In May 2014, the appellant submitted a private medical examination which the RO construed as an informal claim for an increased rating for his service-connected left arm condition, then assigned a noncompensable rating. The private medical examination was dated May 1, 2014 and it was received by VA on May 5, 2014. This examination showed that there was significant residual injury related to the appellant's in-service surgery on his left upper arm, with impairment of the muscle function and a scar that had adhered to the underlying tissue. In response to this, the RO granted an increased 30 percent rating for the disability in a November 2014 rating decision. This grant of an increased benefit is what triggered an appeal from the appellant, with him filing a NOD with the assigned effective date of the increased rating, which was May 5, 2014, in a December 2014 NOD. As noted above, the appellant has contended that the effective date assigned in the November 2014 rating decision as incorrect. In cases such as these, it is most efficient to work backwards from the most recent possible effective date to the most remote possible effective date. Additionally, for purposes of entitlement to an earlier effective date for an increased rating, it is important to note the last prior final decision assigning a rating to that disability being discussed, as this will establish the window in which a claim for an increase may have been filed. The RO determined that the claim for an increased rating was an informal claim, received on May 5, 2014 in the form of a private medical examination, dated May 1, 2014, which showed an increase in the appellant's service-connected disability. As this report showed an increased in the severity of the appellant's disability in the 1-year period prior to his having filed the claim, the Board finds that it warrants the assignment of an effective date of May 1, 2014. VA treatment records in the 1-year period prior to the informal claim being submitted in May 2014 do not show any particular increase in the severity of the appellant's disability. In particular, the Board has reviewed notes from the appellant's May 2013 physical. At that time, he reported several disabilities impacting his functional capacity and causing symptoms; however, he did not report any symptoms of functional limitations related to his left arm disability. Between the final December 2008 rating decision and the May 5, 2014 submission of the appellant's informal claim, which itself was only opened after a broad reading of a different type of claim, nothing was received by VA from the appellant indicating a desire to file a claim for an increased rating. Most of what was received from the appellant during that period had to do with a notice of an overpayment having been made to the appellant and his attempts to have that overpayment waived or forgiven. Nothing in that period, to include the appellant's medical treatment records, indicates an intent to file a claim for benefits related to this disability. Under 38 C.F.R. § 3.157(b)(1), a report of examination or hospitalization may constitute an informal claim. However, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit." Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); but see Sellers v. Wilkie, 30 Vet. App. 157 (2018) (a general statement of intent to seek benefits, combined with a reasonably identifiable in-service medical diagnosis reflected in service treatment records in VA's possession prior to the RO decision on the claim, may be sufficient to constitute a claim for benefits). Considering all this, the Board finds that the preponderance of the evidence is against the assignment of an effective date earlier than May 1, 2014 for the appellant's service-connected left arm disability. As the preponderance of the evidence is against assigning an effective date earlier than May 1, 2014, the benefit of the doubt rule is inapplicable. In reaching this determination, the Board has considered the appellant's argument that the claim for a left arm condition was not properly addressed in the original February 1993 rating decision. Under this contention, the claim for a distinct rating under the Muscle Injury diagnostic codes was properly before the Board at the time the appellant filed his original claim in July 1992, but was not actually denied in the February 1993 or December 2008 rating decisions. The appellant argues that the November 2014 rating decision constituted an "initial grant" of service connection of a claim that had been pending since July 1992. As such, the appellant asserts that the effective date assigned should have been the day after her separated from service, since the claim had been part of his original claim in July 1992 and had never been disposed of. The appellant's contentions also rest on his assertions that his level of disability has been consistent since the time of his surgery, and that there was no increase in the severity of his condition in May 2014. He argues, rather, that the criteria that warranted an increase in May 2014 were present in February 1993 and that, as such, he should have been assigned a 30 percent rating for the disability at that point. To that end, the Board observes that the appellant's initial claim was fairly broad, with the language in his original claim for benefits being for the staph infection he experienced while in service. At the time, he did not have any active infection and the infection itself had long since resolved, so the RO construed the claim as one for residual disability related to the in-service surgical procedure and subsequent infection. In the original February 1993 rating decision, the RO specifically noted that it was granting service connection for a "left upper arm condition" which was considered based on residual levels of disability, terms broad enough that a reasonable veteran would know that the grant encompassed all residual disability related to the in-service surgery and infection. Both the in-service surgery and infection were mentioned in the rating decision and it was clearly explained that the noncompensable rating was being assigned based on there being "no residuals except was to a well-healed, nontender scar." The rating decision itself and the March 1993 notification letter share the same language, with the March 1993 notification letter also including language that there were "no significant residual abnormalities on current examination." The March 1993 letter explains both that "[e]vidence may be submitted at any time to show that a service-connected condition is more disabling than our [VA's] records currently show," and that enclosed with the letter was a VA Form 4107 which explained the appellant's procedural and appeal rights. Any reasonable veteran in the appellant's position at that time would have been aware that they were being assigned a noncompensable rating for residual disability related to an in-service surgery and infection due to there being no observable, residual symptoms on examination. Of note, the appellant did appeal the February 1993 rating decision, specifically on the grounds that he should have been assigned separate ratings for his claimed headache disability and his claimed sinusitis. The appellant has raised that the initial examination in September 1992 was inadequate, as it did not include any measurements beyond those describing the size and shape of the residual scar. He noted that the examiner recorded a report from him, the appellant, that his arm would get tired. However, as clearly laid out in the rating decision, examination of the arm showed no significant residual symptoms upon which to rate a disability, and this was the basis for the rating assigned. The appellant did not appeal the decision despite the opportunity at the time to do so. Regarding the December 2008 rating decision, this similarly addresses there being no significant functional impairment related to the left arm at the time the decision was issued. At that time, the decision specifically noted that symptoms related to upper arm pain were more likely than not related to a nonservice-connected cervical spine issue, as noted by the appellant's own treating clinician, and that there was, otherwise, no residual disability related to the in-service surgery on the upper left arm. Measurements of range of motion, reflexes, and muscle strength were all normal. Some decreased sensation and intermittent pain was noted in the extremity; however, this was determined by the examining VA clinician and the appellant's own private clinician, to be caused by degenerative changes in the cervical spine and associated radiculopathy rather than the in-service surgery and infection of the left upper arm. Again, this is laid out clearly, and in a way understandable to a reasonable claimant in both the body of the rating decision and in the separate notification letter. The notification letter also includes information on how the claimant can initiate an appeal. Viewing the totality of the evidence of record, this is not a case where the appellant filed a claim that just went unaddressed by the RO or was "implicitly denied." A higher rating for residual disability related to the in-service surgery and subsequent infection was expressly denied both in February 1993 and December 2008. In both instances this was due to examinations finding no residual functional limitation which was at least as likely as not related to the in-service event. (Continued on the next page) While the RO did not specifically deny a rating under the appropriate diagnostic code for a muscle group injury, as was later assigned, the RO expressly considered ratings beyond the one assigned for the residual scar, as they used the diagnostic code for scars which encompasses other disabling effects and functional impairments due to the scar itself. The appellant's overall functional limitation was considered, and a rating was expressly denied. As such, the Board finds the preponderance of the evidence is against the appellant's assertions that there had been a pending, but otherwise unadjudicated claim for a left arm disability related to an in-service surgery and subsequent staph infection at the time of the November 2014 rating decision and subsequent grant of a rating under the diagnostic code for an injury to a muscle group. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Kleponis, 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.