Citation Nr: 21013431 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 19-23 414 DATE: March 9, 2021 ORDER Entitlement to an effective date prior to June 2, 2017 for the grant of an increased rating of 20 percent for left lower extremity peripheral neuropathy is denied. Entitlement to an effective date prior to June 2, 2017 for the grant of an increased rating of 20 percent for right lower extremity peripheral neuropathy is denied. REMANDED Entitlement to a rating in excess of 10 percent for left upper extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 10 percent for right upper extremity peripheral neuropathy is remanded. Entitlement to an effective date prior to June 2, 2017 for an increased rating of 70 percent for post-traumatic stress disorder (PTSD) to include whether there was clear and unmistakable error (CUE) in a September 1983 rating decision is remanded. Entitlement to an effective date prior to June 2, 2017 for the grant of entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Entitlement to an effective date prior to June 2, 2017 for the grant of entitlement to Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38, of the United States Code is remanded. FINDINGS OF FACT 1. Following an unappealed August 2010 rating decision which granted service connection and a 10 percent rating for left lower extremity peripheral neuropathy, the Veteran did not submit a claim for an increased rating until June 2, 2017. It is not ascertainable that entitlement to an increased rating arose in the year prior to June 2, 2017. 2. Following an unappealed August 2010 rating decision which granted service connection and a 10 percent rating for right lower extremity peripheral neuropathy, the Veteran did not submit a claim for an increased rating until June 2, 2017. It is not ascertainable that entitlement to an increased rating arose in the year prior to June 2, 2017. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 2, 2017, for the grant of a 20 percent rating for left lower extremity peripheral neuropathy are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to June 2, 2017, for the grant of a 20 percent rating for right lower extremity peripheral neuropathy are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to July 1969. Effective Date 1. Entitlement to an effective date prior to June 2, 2017 for a 20 percent for left lower extremity peripheral neuropathy. 2. Entitlement to an effective date prior to June 2, 2017 for a 20 percent for right lower extremity peripheral neuropathy. The Veteran’s current claim for increased ratings for his service-connected left and right lower extremity peripheral neuropathy disabilities was received by VA on June 2, 2017. The September 2017 rating decision on appeal granted the Veteran increased ratings of 20 percent for his left and right lower extremity peripheral neuropathy disabilities, effective from June 2, 2017. The Veteran has appealed the June 2, 2017effective date of the 20 percent ratings. He and his attorney have not provided any argument as to why earlier dates are warranted. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to that rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In such an instance, the law provides that the effective date of the award “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.” 38 U.S.C. § 5110(b)(2). An August 2010 rating decision granted the Veteran service connection and a 10 percent rating for left lower extremity peripheral neuropathy disability. The decision also granted the Veteran service connection and a 10 percent rating for right lower extremity peripheral neuropathy disability. Subsequent to that decision no correspondence or other communication was received from the Veteran which could be considered a claim for an increased rating for left or right lower extremity peripheral neuropathy prior to June 2, 2017. On June 2, 2017, VA received the Veteran’s claim for TDIU which was deemed to include a claim for an increased rating for left or right lower extremity peripheral neuropathy. Accordingly, June 2, 2017 is the date of receipt of the Veteran’s claims for increased ratings. The Board has reviewed the medical evidence dated in the year prior to June 2, 2017. It is not factually ascertainable the that Veteran met the criteria for a higher rating in the year prior to June 2, 2017. During that time period the Veteran did not receive any treatment for left or right lower extremity neuropathy and a September 2016 VA treatment record notes that the Veteran denied tingling or numbness in the feet. Consequently, there is no basis for the assignment of a 20 percent rating for either lower extremity peripheral neuropathy disability prior to the receipt of the Veteran’s claim for an increase on June 2, 2017. 38 C.F.R. § 3.400(o). Accordingly, these appeals are denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left upper extremity peripheral neuropathy is remanded. 2. Entitlement to a rating in excess of 10 percent for right upper extremity peripheral neuropathy is remanded. The September 2017 rating decision on appeal denied the Veteran ratings in excess of 10 percent for his left and right upper extremity neuropathy disabilities. In January 2021, the Veteran’s attorney wrote to VA reporting that the Veteran’s left and right upper extremity neuropathy disabilities had increased in severity since the Veteran’s most recent VA examination of these disabilities in (September) 2017. Accordingly, these claims must be remanded in order to provide the Veteran a new VA examination to determine the current severity of his left and right upper extremity neuropathy disabilities. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 3. Entitlement to an effective date prior to June 2, 2017 for an increased rating of 70 percent for PTSD, to include whether there was CUE in a September 1983 rating decision, is remanded. Subsequent to the January 2020 statement of the case (SOC), the Veteran’s attorney submitted extensive argument that the Veteran is entitled to an earlier effective date for a 70 percent rating for PTSD based on CUE in a September 1983 rating decision. The Board observes that this argument has not been considered by the agency of original jurisdiction (AOJ) in the first instance. Accordingly, this matter must be remanded to the AOJ to address the claim for CUE in the first instance. Entitlement to an effective date prior to June 2, 2017 for the grant of entitlement to TDIU is remanded. 4. Entitlement to an effective date prior to June 2, 2017 for the grant of entitlement to DEA benefits is remanded. As a decision with respect to the claim for an earlier effective date for the award of a 70 percent rating for PTSD is being remanded and this may affect the Veteran’s claims for TDIU and DEA, the Board finds that the claims for TDIU and DEA are inextricably intertwined with the PTSD effective date claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, adjudication of the TDIU and DEA claims are deferred until adjudication of the PTSD effective date issue being remanded. The matters are REMANDED for the following action: 1. Provide the Veteran a VA examination to determine the current severity of his service-connected left and right upper extremity peripheral neuropathy disabilities. 2. The AOJ should address the Veteran’s claim that there is CUE in the September 1983 rating decision that granted a noncompensable (zero percent) rating for PTSD. The contention is that a 70 percent rating for PTSD was clearly and unmistakably warranted at that time. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.