Citation Nr: 21014471 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 20-23 716 DATE: March 12, 2021 ORDER Entitlement to an effective date earlier than March 12, 2018 for the grant of service connection for cervical strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis is denied. The appeal as to entitlement to a rating in excess of 30 percent for cervical strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis is dismissed. The appeal as to entitlement to a compensable rating for myositis of the left upper extremity is dismissed. The appeal as to entitlement to a compensable rating for myositis of the right upper extremity is dismissed. The appeal as to entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is dismissed. FINDINGS OF FACT 1. Prior to March 12, 2018, there was no formal claim, informal claim, or written intent to claim to reopen a claim of entitlement to service connection for a cervical spine condition, which had been denied by a final rating decision of September 2010. 2. In a filing of May 2020, prior to the promulgation of a decision in the appeal, the Veteran stated that he agreed with the current rating for his service-connected disability of cervical strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis, and that he considered his appeal seeking an increased rating to be a closed matter. 3. In a filing May 2020, prior to the promulgation of a decision in the appeal, the Veteran stated that he agreed with the current rating for his service-connected disability of myositis of the left upper extremity, and that he considered his appeal seeking an increased rating to be a closed matter. 4. In a filing May 2020, prior to the promulgation of a decision in the appeal, the Veteran stated that he agreed with the current rating for his service-connected disability of myositis of the right upper extremity, and that he considered his appeal seeking an increased rating to be a closed matter. 5. Because the current Board order dismisses all appeals made under the regulatory framework that preceded the Appeals Modernization Act (AMA), there remains no question of law or fact to be decided as a pre-AMA or “legacy” appeal with respect to entitlement to a TDIU. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than March 12, 2018 for the grant of service connection for cervical strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis are not met. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 2. The criteria for withdrawal of the appeal as to entitlement to a rating in excess of 30 percent for cervical strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.104(c), 20.205. 3. The criteria for withdrawal of the appeal as to entitlement to a compensable rating for myositis of the left upper extremity are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.104(c), 20.205. 4. The criteria for withdrawal of the appeal as to entitlement to a compensable rating for myositis of the right upper extremity are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.104(c), 20.205. 5. The criteria for dismissal of the appeal as to entitlement to a TDIU are met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.104(c), 20.104(c). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2001 to November 2001, and from May 2005 to August 2006. This matter comes before the Board of Veterans’ Appeals on appeal from a rating decision of October 2018. In October 2019, the Veteran filed VA Form 20-0995, Decision Review Request: Supplemental Claim, with respect to the ratings assigned for service-connected disabilities of the cervical spine and myositis of the bilateral upper extremities, and the effective date for the grant of service connection for cervical spine disability. He was notified by VA in November 2019 that a supplemental claim under the Appeals Modernization Act (AMA) could not be accepted as to those issues, which were already on appeal, under the pre-AMA “legacy” system, following the January 2019 NOD. Earlier Effective Date In general, unless Chapter 38 of the United States Code specifically provides otherwise, 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. A “claim” is 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). “Date of receipt” of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(b). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). 1. Entitlement to an effective date earlier than March 12, 2018 for the grant of service connection for cervical strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis. In February 2010, the Veteran filed a service-connection claim for “back/neck pain.” A rating decision of September 2010 denied service connection for a cervical spine condition. The Veteran did not submit a notice of disagreement (NOD), and new and material evidence was not received, within one year of the mailing of notice of the rating decision, which became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On May 11, 2018, VA received from the Veteran a service-connection claim, dated May 11, 2018, for “cervical spine condition (related to Environmental Hazard in Gulf War).” A VA letter of May 14, 2018 notified the Veteran that his application for VA benefits had been received on May 11, 2018. A rating decision of October 2018 granted service connection for strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis, cervical spine (claimed as cervical spine condition). A 20-percent rating, effective March 12, 2018, was established. In January 2019, the Veteran filed a NOD as to the effective date of service connection. A statement of the case (SOC) was issued in April 2020, and the Veteran filed VA Form 9 in May 2020. The Veteran argues in this NOD of January 2019 that the effective date of the award should be the date of the service connection claim that resulted in the denial of the claim in September 2010, because his symptoms have allegedly remained consistent, or worsened, since the time of the original filing. There is no record evidence of a claim, informal claim, or expressed written intent to file a claim for to reopen a service-connection claim for a neck disorder prior to March 12, 2018. Because service connection had previously been denied for a neck disorder by a final rating decision of September 2010, the Veteran’s filing of May 11, 2018 was a claim to reopen. In this case, the law is clear that the effective date for the award of compensation based on a claim reopened after final disallowance is the date that the claim was received, which is later than the date that entitlement arose. The Veteran was diagnosed with cervical strain in 2005, and the opinion of the May 2018 VA examiner for the neck was that the Veteran’s degenerative arthritis of the cervical spine is at least as likely as not proximately due to a cervical spine condition. Because the date of receipt of the Veteran’s claim seeking to reopen the service- connection claim is later that the date upon which entitlement arose, the criteria for the assignment of an effective date of service connection earlier than March 12, 2018 are not met. There is no evidence in support of an effective date earlier than March 12, 2018 under the applicable standard of 38 U.S.C. § 5110 (a) and 38 C.F.R. § 3.400. Increased Rating 2. Entitlement to a rating in excess of 30 percent from May 12, 2018 for cervical strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis. In May 2018, the Veteran filed a service-connection claim for “cervical spine condition.” A rating decision of October 2018 granted service connection for strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis, cervical spine (claimed as cervical spine condition). A 20-percent rating, effective March 12, 2018, was established. In January 2019, the Veteran filed a NOD as to the assigned rating. A statement of the case was issued in April 2020, and the Veteran filed VA Form 9 in May 2020. A rating decision of April 2020 increased the rating from 20 percent to 30 percent, effective March 12, 2018. In a filing of May 2020, the Veteran stated that he accepted the increased rating of 30 percent, and that he considered his appeal seeking a higher rating to be a “closed” matter. Subsequently, a rating decision of December 2020 decreased the evaluation for cervical strain with degenerative arthritis, intervertebral disc syndrome and spinal stenosis from 30 percent to 20 percent, effective November 2, 2020. The withdrawal of an appeal is effective upon receipt by VA. An appeal may be withdrawn as to any issue involved in the appeal at any time before the Board promulgates a decision. Withdrawal may be made by the appellant or an authorized representative. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.104(c), 20.205. Because the Veteran has withdrawn his appeal seeking a higher rating for his service-connected disability of the cervical spine, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal as to this issue, and it will be dismissed. 3. Entitlement to a compensable rating for myositis, left upper extremity. 4. Entitlement to a compensable rating for myositis, right upper extremity. In May 2018, the Veteran filed a service-connection claim for “muscle pain (secondary to cervical spine condition).” A rating decision of October 2018 granted service connection for myositis of the left upper extremity and the right upper extremity. As to each disability, a noncompensable (0 percent) rating was established, effective March 12, 2018. In January 2019, the Veteran filed a notice of disagreement as to the assigned rating. A statement of the case was issued in April 2020, and the Veteran filed VA Form 9 in May 2020. In a filing of May 2020, the Veteran stated that he accepted the continuation of noncompensable ratings for his service-connected myositis of the bilateral upper extremities, and that he considered his appeal seeking higher ratings to be a “closed” matter. A withdrawal of an appeal is effective upon receipt. Because the Veteran has withdrawn the appeal seeking higher ratings for his service-connected myositis of the left and right upper extremities, there remain no allegations of errors of fact or law for appellate consideration. The Board does not have jurisdiction to review the appeal as to these issues, and they will be dismissed. 38 U.S.C. § 7105; 38 C.F.R. §§ 104(c), 20.205. 5. Entitlement to a TDIU. In July 2018, the Veteran filed VA Form 21-8940, Veterans Application for Increased Compensation based on Unemployability. Entitlement to a TDIU was denied by a rating decision of October 2018. The Veteran filed a NOD in January 2019. A statement of the case was issued in April 2020, and the Veteran filed VA Form 9 in May 2020. In January 2021, the Veteran filed VA Form 10182 to appeal to the Board the issues of entitlement to increased ratings for radiculopathy of the right upper extremity and carpal tunnel syndrome, entitlement to service connection for obstructive sleep apnea, entitlement to service connection for respiratory condition/pulmonary condition, and entitlement to service connection for disability of the lumbar spine. A March 2021 letter from the Board notified the Veteran that the appeal had been received and placed on the Board’s Evidence Submission docket. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105; 38 C.F.R. § 20.104(c). A claim for a TDIU is not a freestanding, separate claim for benefits; rather, it is an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or as part of a claim for increased compensation. See Rice v. Shinseki, 22 Vet. App. 447, 453–54 (2009). In this case, the issue of TDIU entitlement must be dismissed, because it is sought in conjunction with legacy appeals that are being dismissed. With today’s order, there are no longer any service-connection or increased-rating issues on appeal before the Board as legacy appeals. Accordingly, the legacy appeal as to entitlement to a TDIU must also be dismissed. The issue of TDIU entitlement may be considered, as appropriate, in the adjudication of the AMA appeals that are pending before the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Steven D. Najarian, 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.