Citation Nr: A21020503 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 200522-88756 DATE: December 23, 2021 ORDER Entitlement to an effective date prior to July 31, 2017, for the award of service connection for a left elbow strain is denied. Entitlement to an evaluation of 10 percent, but no higher, for service-connected left elbow strain is granted. Entitlement to service connection for a right shoulder condition is granted. Entitlement to service connection for a right elbow condition is granted. REMANDED Entitlement to service connection for traumatic brain injury (TBI) is remanded. Entitlement to service connection for left upper extremity condition is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hearing loss is remanded. FINDINGS OF FACT 1. VA received a VA Form 21-0996, Intent to File, on July 31, 2017, and within a year of that filing, VA received a VA Form 21-526b, Veteran's Supplemental Claim for Compensation, which included, inter alia, a claim of service connection for a left elbow condition. Service connection for a left elbow strain was eventually awarded and assigned an effective date of July 31, 2017, the date of receipt of the intent to file. There is no earlier formal or informal claim of record for this disability. 2. Throughout the appellate period, the Veteran's left elbow disability was characterized by pain and loss of functional ability. 3. The Veteran's right shoulder strain had its onset in service and has continued since. 4. The Veteran's right elbow strain had its onset in service and has continued since. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to July 31, 2017, for the award of service connection for left elbow strain have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an initial 10 percent rating for the left elbow have been met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5206. 3. The criteria for service connection for right shoulder strain are met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 4. The criteria for service connection for right elbow strain are met. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marines from December 1979 to October 1989. The appeal stems from a June 2018 rating decision issued under the legacy review system. The Veteran appealed this decision and in March 2020 the agency of original jurisdiction (AOJ) issued a statement of the case (SOC). In May 2020, the Veteran opted the appeal into the modernized review system (AMA) by filing a VA Form 10182, Decision Review Request: Board Appeal (NOD), and elected the Direct Review docket. As this appeal proceeds under the Direct Review docket, the Board is limited to considering the evidence of record of the date of issuance of the March 2020 SOC. The Boards notes that evidence was added to the claims file during a period of time when new evidence was not allowed. This includes VA medical center treatment records. The Veteran may file a Supplemental Claim and submit or identify this evidence. See 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Specific instructions for filing a Supplemental Claim are included with this decision. Effective Date Generally, the effective date of a claim for benefits is the date VA received the claim or the date on which entitlement arose, whichever is later. 38 US.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i) (2020). Claimants may also file an intent to file a claim. 38 C.F.R. § 3.155(b). If VA receives a complete application form for the benefit sought within one year of receipt of an intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. Id. Before 2015, 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) (effective to Mar. 24, 2015). Under 38 C.F.R. § 3.155(a) (1999), "[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant. . . may be considered an informal claim." The regulation further provided that "[s]uch informal claim must identify the benefit sought." Id. To qualify as an informal claim, a written document must evince an intent to apply for benefits and identify the benefits sought. MacPhee v. Nicholson, 459 F.3d 1323, 1325 (Fed. Cir. 2006); Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). 1. Entitlement to an effective date prior to July 31, 2017, for the award of service connection for left elbow strain is denied. The Veteran seeks an effective date prior to July 31, 2017, for the award of service connection for left elbow strain. For the reasons that follow, the Board finds that an earlier effective date is not warranted. Review of the claims file shows VA received a VA Form 21-0996, Intent to File, on July 31, 2017. On January 11, 2018, VA received a VA Form 21-526b, Veteran's Supplemental Claim for Compensation, which included, inter alia, a claim of service connection for a left elbow condition. Following development of this claim, the AOJ issued a June 2018 rating decision that granted service connection for a left elbow strain effective July 31, 2017, the date of receipt of the intent to file. Under the applicable statutes and regulations, an effective date shall be the later of the date of the claim or the date entitlement arose. 38 U.S.C. § 5110(a). The effective date cannot be earlier than the date of receipt of the claim. Id. However, if VA receives an intent to file and a complete application within the following year, then VA will consider the complete claim as having been filed as of the date of receipt of the intent to file. 38 C.F.R. §3.155. Here, VA received an intent to file on July 31, 2017, and a complete application for service connection for a left elbow condition was received within the following year. As the award of service connection for left elbow strain followed from this claim, VA will consider the complete claim as having been filed on July 31, 2017. This is the exact action the AOJ took in assigning an effective date for the award of service connection for a left elbow strain. The AOJ assigned an effective date of service connection of July 31, 2017, the date of receipt of the intent to file. An even earlier effective date could be warranted if there was a prior formal or informal claim. Review of the claims file shows prior formal claims were filed in March 2000 and July 2013; however, these claims do not relate to a left elbow condition. Rather, they were for disabilities of the back, ankles, shin splints, and posttraumatic stress disorder. Moreover, the evidence associated with the file in development of those claims did not suggest that they could include a claim for a left elbow condition. There is also no filing prior to July 31, 2017, that could be interpreted as a formal or informal claim for a left elbow condition. In sum, the Veteran's current effective date of July 31, 2017, for the award of service connection for a left elbow strain is the earliest date allowed by law and regulation. There is no earlier formal or informal claim for this condition contained in the record that could warrant an earlier effective date. The evidence persuasively weighs against the claim. Accordingly, an effective date prior to July 31, 2017, for the award of service connection for left elbow strain is denied. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the reports into a consistent picture so that the current rating may accurately reflect the elements of disability. See 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. See 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. See 38 C.F.R. § 4.7. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is a balance of positive and negative evidence regarding any material issue, the benefit of the doubt shall be given to the claimant. See 38 U.S.C. § 5107(b). Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. See 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert, 1 Vet. App. at 54. 2. Entitlement to an initial 10 percent rating for left elbow strain is granted. The Veteran seeks a compensable rating for his left elbow strain. The Veteran and his representative argue that a 10 percent rating is warranted. The Board agrees. For the reasons that follow, the Board finds that a 10 percent rating, but no higher, is warranted. The Veteran's left elbow disability is presently rated at noncompensable (0 percent) under DC 5206, limitation of flexion. DC 5206 provides different ratings for the major and minor extremity. As the Veteran is right-hand dominant, his left elbow is considered the minor extremity. Under DC 5206, a noncompensable rating is warranted for limitation of flexion to 110 degrees. A 10 percent rating is warranted for limitation of flexion to 100 degrees. A 20 percent rating is warranted for limitation of flexion to 90 degrees. Higher ratings are also available for further limitation of flexion. The Board acknowledges that the criteria for musculoskeletal disabilities in 38 C.F.R. § 4.71a were amended, effective February 7, 2021, and the "new" schedular criteria are applicable as of that date. See 85 Fed. Reg. 76453 (Nov. 30, 2020). However, the Board notes that none of the diagnostic codes pertaining to the elbow and forearm was amended. The Board has also considered whether a rating in excess of 10 percent is warranted under another diagnostic code for the elbow and forearm, and finds that no other diagnostic code is applicable to the Veteran's presentation and symptomatology because he has no ankylosis, joint fracture or deformity, no loss in supination and pronation, and no nonunion or malunion of the radius or ulna. However, important to this case, in rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. See 38 C.F.R. § 4.59. The Board has considered all relevant evidence of record. The Board has also considered the Veteran and representatives arguments with respect to this claim, to include assertions that a 10 percent rating should have been assigned because of objective evidence of localized tenderness and pain on palpation of the left elbow on examination. The representative also highlighted that the left elbow impacts the Veteran's ability to work and that pain, in and of itself, is a disabling condition that in this case warrants a compensable rating. The Veteran underwent a VA examination in 2018. The examiner diagnosed a left elbow strain. Range of motion (ROM) testing revealed a full ROM in all planes. A full ROM was also found on repetitive testing. There was no pain on passive ROM testing or on weight-bearing. While the examiner marked a box indicating that no pain was noted on examination, a box was also checked evidencing localized tenderness or pain on palpation of the lateral epicondyle. There was no objective evidence of crepitus. The examiner noted that the flare ups of the left elbow were "described as a big knot" of fluid. The examiner indicated that flare-ups and repeated use over time could affect the functioning of the elbow and that the degree of limitation would depend on the activity being performed and the duration. Therefore, the Board finds that in giving the benefit of the doubt in favor of the Veteran, a disability rating of 10 percent for left lateral epicondylitis is warranted. This evaluation is consistent with painful motion. See 38 C.F.R. § 4.59. This is also consistent with the medical evidence of record for his reports of painful motion and the functional impact of that pain. Mitchell, 25 Vet. App. 32, 43; Burton, 25 Vet. App. 1. However, the Board concludes that a rating in excess of 10 percent for the Veteran's left elbow is not warranted. The Board notes the 10 percent rating being granted is based on symptoms causing functional loss of the elbow, without meeting the objective criteria for the minimal compensable rating. See 38 C.F.R. § 4.59 ("actually painful joints due to healed injury [are] entitled to at least the minimum compensable rating for the joint."). To that end, the Veteran showed a full ROM in all planes on testing. Furthermore, the criteria for a 20 percent rating are not met. The VA examination of record does not document left elbow flexion limited to 90 degrees, extension limited to 75 degrees, or a limitation of pronation, or the functional equivalent thereof. Thus, the Veteran's documented subjective reports of symptoms and limitations have been considered and can be interpreted such that the limitations do not more nearly approximate flexion limited to 90 degrees, extension limited to 75 degrees, or a limitation in pronation with motion lost beyond last quarter of arc. Moreover, the Veteran has never reported that there was any circumstance or condition that would limit his range of motion beyond what was documented. Therefore, the Board finds that there is not sufficient evidence to warrant a higher rating than as the 10 percent being granted herein. In conclusion, the Board finds that the benefit-of-the-doubt rule applies, and the Veteran's claim for an initial rating of 10 percent, but no higher, for limitation of movement associated with left elbow disability is warranted, and the claim is granted. Gilbert, 1 Vet. App. 49, 55. To the extent that the Veteran and his representative have asserted that the Veteran's left elbow strain affects his ability to work, the Board notes that the Veteran is in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the entire period on appeal. Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 3. Service connection for Right Shoulder Strain is granted. The Veteran argues that he injured his right shoulder during service, and that he has continued to have pain since. As an initial matter, the Veteran has a current diagnosis of right shoulder strain as noted in the May 2018 VA examination. Moreover, the Board notes that the Veteran's service treatment records clearly show treatment in June 1986 for right shoulder pain after reported assault. Turning to the nexus requirement, the Board notes that the May 2018 VA examiner provided a positive opinion. Specifically, the examiner noted the June 1986 service record, and noted that "orthopedic evidence shows that posttraumatic arthritis is caused by the wearing out of a joint that has had any kind of physical injury and can occur even when bones heal normally. The cartilage lining the joint surfaces can be damaged, leading to pain and stiffness over time. Posttraumatic arthritis can occur shortly after the injury or can take years to develop." As such, the examiner opined that the current right shoulder strain at least as likely as not was caused by service, specifically, "the injury, along with the physical demands of the job contribute to this condition." The Board observes that the May 2018 VA examiner provided a nexus opinion regarding the Veteran's right shoulder strain that is based on the current medical history, his service medical history, and contained a rationale sufficient to support the conclusions; thus, the opinion is adequate and probative for adjudication purposes. It is not clear why the RO ignored the 2018 positive opinion in the rating decision. That notwithstanding, as the claim has been continuously appealed since the initial rating decision, there is no prejudice as to effective date by virtue of the grant of service connection in the current Board decision. Accordingly, as the probative evidence of record shows that the Veteran's right shoulder strain began in service and has continued since, service connection is warranted, and the claim is granted. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. § 3.303. 3.307, 3.309. 4. Service Connection for Right Elbow Strain is granted. Similarly, the Veteran argues that he injured his right elbow during service, and that he has continued to have pain since. As an initial matter, the Veteran has a current diagnosis of right elbow strain as noted in the May 2018 VA examination. Moreover, the Board notes that the Veteran's service treatment records clearly show treatment in June 1986 for right elbow pain after reported assault. The 2018 examination report also noted that the date of onset of the bilateral elbow symptoms is early 1980s and noted that the Veteran reported his elbow conditions began in military. Turning to the nexus requirement, the Board notes that the May 2018 VA examiner provided a positive opinion. Specifically, the examiner noted the June 1986 service record, and noted that "orthopedic evidence shows that posttraumatic arthritis is caused by the wearing out of a joint that has had any kind of physical injury and can occur even when bones heal normally. The cartilage lining the joint surfaces can be damaged, leading to pain and stiffness over time. Posttraumatic arthritis can occur shortly after the injury or can take years to develop." As such, the examiner opined that the current right elbow strain at least as likely as not was caused by service, specifically, "the injury, along with the physical demands of the job contribute to this condition." The Board observes that the May 2018 VA examiner provided a nexus opinion regarding the Veteran's right elbow strain that is based on current medical history, service medical history, and contained a rationale sufficient to support the conclusion offered; thus, the opinion is adequate and probative for adjudication purposes. It is not clear why the RO ignored the 2018 positive opinion in the rating decision. That notwithstanding, as the claim has been continuously appealed since the initial rating decision, there is no prejudice as to effective date by virtue of the grant of service connection in the current Board decision. Accordingly, as the probative evidence of record shows that the Veteran's right elbow strain began in service and has continued since, service connection is warranted, and the claim is granted. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); 38 C.F.R. § 3.303. 3.307, 3.309. REASONS FOR REMAND 1. Entitlement to service connection for TBI As for the claim for service connection for a head injury/TBI, the Board finds a pre-decisional duty to assist error requires a remand. Specifically, though the 2018 VA examiner opined there is no diagnosis for a TBI or head injury, this conclusion contradicts the evidence in the file. For example, a May 2018 TBI DBQ found objective evidence on testing of TBI symptoms. Further, the Veteran's STR's indicate there were incidents of head trauma in service; first, the March 1980 he was brought in from the field and needed mouth to mouth respiration. Then, in July 1980 after he fell out of a chair. In June 1986, he was beaten up by military police with the July 1986 report of this incident. Finally, it was noted in July 1986 that the Veteran also boxed while in service, and he had a laceration on his eye from boxing. It is also important to note that the 2018 examination report for migraines provided a positive nexus opinion for the Veteran's migraine headaches as due to head trauma from service. As such, this is a pre-decisional duty-to-assist error, requiring remand for a new VA examination and addendum medical opinion clarifying the diagnosis. 2. Entitlement to service connection for left upper extremity Here, the 2018 VA examination confirmed the Veteran has bilateral radiculopathy secondary to his cervical spine disability. Specifically, the examination for the cervical spine noted that the Veteran has moderate constant pain, moderate intermittent pain, and moderate paresthesias and/or dysesthesias in the left upper extremity. However, the examiner only noted involvement as to the right nerve roots and stated the left was not affected which is contradictory to the aforementioned findings. As such, this is a pre-decisional duty-to-assist error, requiring remand for an addendum medical opinion and/or examination to clarify the above and whether the Veteran does, in fact, have left upper extremity radiculopathy secondary to the service-connected cervical spine disability. 3. Entitlement to service connection for tinnitus 4. Entitlement to service connection for hearing loss Finally, as for the Veteran's claims for service connection for tinnitus and hearing loss, the Board finds that the AOJ committed a pre-decisional error in that it did not provide the Veteran with an adequate VA examination for his claimed bilateral hearing loss and tinnitus. The examiner report noted they could not test the Veteran's hearing, and therefore was unable to provide an opinion. Specifically, the examiner noted that "the use of the word recognition score is not appropriate for this Veteran because of language difficulties, cognitive problems, inconsistent word recognition scores, etc., that make combined use of puretone average and word recognition scores inappropriate." Therefore, as the only examination of record is inadequate and the AOJ did not attempt to schedule the Veteran for an additional one, this constitutes a pre-decisional duty to assist error under the AMA and remand is required. Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes to provide a medical examination or opinion, it must ensure that the examination or opinion is adequate); See also 38 C.F.R. § 3.159 (c)(4)(i). The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination to determine the nature and etiology of any TBI or head trauma disabilities. The claims file, including a copy of this remand, must be provided to the examiner. Any indicated evaluations, studies, and tests should be conducted. Then, the examiner must opine as to the following, with full supporting rationales: (a.) whether it is at least as likely as not (50 percent or greater) that the Veteran has a diagnosed TBI, or any residuals of a TBI? (b.) If yes, whether any such diagnosis is at least as likely as not related to his active service, to include the in-service head traumas, to include 1) March 1980 he was brought in from the field and needed mouth to mouth respiration; 2) July 1980 after he fell out of a chair; 3) June 1986, he was beaten up by military police with the July 1986 report of this incident. 4) July 1986 it was noted the Veteran boxed while in service, and he had a laceration on his eye from boxing. The examiner is asked to consider the 2018 migraine examination report, which noted the Veteran has had migraine headaches since service due to head trauma. Rationale must be provided for opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 2. Schedule the Veteran for an examination to determine the nature and etiology of any left upper extremity radiculopathy as secondary to his service-connected cervical spine disability. The claims file, including a copy of this remand, must be provided to the examiner. Then, the examiner must opine as to the following, with full supporting rationales: (a.) whether the Veteran has a diagnosis for left upper extremity radiculopathy? Consideration of the 2018 examination report is requested. (b.) If yes, is it at least as likely as not (50 percent or greater) that the Veteran's left upper extremity radiculopathy was caused OR aggravated by his service-connected cervical spine disability? Rationale must be provided for opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. 3. Schedule the Veteran for an examination to determine the nature and etiology of the claimed bilateral hearing loss and tinnitus. Then, the examiner must opine whether is it at least as likely as not that any hearing loss and/or tinnitus was incurred in service, including from noise trauma, or is otherwise related or attributable to service? The examiner is asked to discuss the possibility of delayed-onset hearing loss and may not rely solely on normal audiometric findings at separation to support the opinion. The examiner should also consider the Veteran's reports of hearing loss since service. If any hearing loss disability is determined to be unrelated to the Veteran's service, please identify the etiology for the hearing loss considered more likely, if medically possible to do so. Rationale must be provided for opinions proffered. If the examiner determines that a requested opinion is not possible without resort to mere speculation, then the examiner must explain why. Mike Sobiecki Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G.Hoy, 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.