Citation Nr: 21014505 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 17-51 114 DATE: March 12, 2021 ORDER A 10 percent rating, but no higher, for the residuals of a fractured styloid process of the right ulna is granted from April 2, 2014. FINDING OF FACT 1. A December 1990 rating decision awarded service connection for residuals of a fractured styloid process of the right ulna and assigned a 0 percent rating, effective January 12, 1990. The Veteran initiated, but did not perfect, an appeal of the rating assigned, and formally withdrew his appeal of this matter on the record during a December 1991 Regional Office hearing. 2. The Veteran did not appeal the effective date assigned to residuals of a fractured styloid process of the right ulna within one year of the initial award of service connection in December 1990. 3. The Veteran filed a claim for an increased rating for residuals of a fractured styloid process of the right ulna on July 9, 2014, which was denied in a December 2014 rating decision. 4. The November 11, 2015 Notice of Disagreement (NOD) requesting an “earlier effective” date for the continuance of a 0 percent rating for the residuals of a fractured styloid process of the right ulna is a freestanding effective date claim that is barred as a matter of law. 5. From April 2, 2014, the Veteran’s residuals of a fractured styloid process of the right ulna has been manifested by painful motion. 6. The Veteran’s residuals of a fractured styloid process of the right ulna does not produce ankylosis. CONCLUSIONS OF LAW 1. There is no legal entitlement to an effective date earlier than January 12, 1990, for the award of service connection for the residuals of a fractured styloid process of the right ulna. 38 U.S.C. § 5110; 38 C.F.R. § 3.400, 20.201; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. The criteria for a 10 percent rating for the residuals of a fractured styloid process of the right ulna are met from April 2, 2014, but no earlier. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.400(o)(2), 4.3, 4.40, 4.59, 4.71a, DC 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from April 1988 to January 1990. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the RO increased the Veteran’s the residuals of a fractured styloid process of the right ulna rating from noncompensable to 10 percent and made effective July 9, 2014, the date of the receipt of the Veteran’s claim for an increase. See July 2014 VA Form 21-526EZ. In the September 2017 Statement of the Case (SOC), the RO confirmed the 10 percent rating effective July 9, 2014 and advanced the matter for Board consideration. See October 2, 2017 Form 9. In July 2019, the Board issued a decision that confirmed the assigned 10 percent rating for the residuals of a fractured styloid process of the right ulna but failed to address whether the assigned rating was applicable for the entire appeal period, including the one-year look back period. 38 C.F.R. § 3.400(o)(2). The Veteran, through counsel, appealed the July 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In the Appellant’s Brief, he argued that the Board failed to consider the one-year look back period pursuant to 38 C.F.R. § 3.400 (o)(2) and that an effective date of July 9, 2014 was warranted as opposed to July 19, 2014. The Board notes the Veteran was already in receipt of an effective date of July 9, 2014 for the 10 percent rating and accordingly will not address whether the asserted date of July 19, 2014 was appropriate, as it was never assigned. In January 2020, the Court granted a Joint Motion for Partial Remand (JMPR) submitted by the Veteran and the Secretary of VA (Parties), wherein the parties agreed that the Board failed to provide an adequate statement of reasons and bases regarding whether an effective date (or an increased rating) was warranted prior to the date of the receipt of claim. The JMPR also asked the Board to consider whether entitlement to an earlier effective date for the award of a 10 percent rating assigned in a July 2017 rating decision was raised by a November 2015 NOD. Accordingly, the grant of a 10 percent rating for the Veteran’s residuals of a fractured styloid process of the right ulna effective July 9, 2014 will not be disturbed and the Board will consider whether an increased rating was warranted prior to July 9, 2014. As noted above, the Veteran asserts that he is entitled to a 10 percent rating prior to the date of the receipt of his claim, specifically, during the one-year look back period. 38 C.F.R. § 3.400(o)(2). See July 2014 VA Form 21-526EZ; October 2020 Appellant’s Brief. To the extent the Veteran asserts that his November 2015 NOD allows for an earlier effective date for the award of service connection for residuals of a fractured styloid process of the right ulna, the Board finds this argument holds no merit. Generally, 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 later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to that rule regarding increased ratings applies, however, under circumstances where the 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. If an increase in disability occurred within one-year prior to the claim, the increase is effective as of the date the increase was factually ascertainable. If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). Here, by way of history, a December 1990 rating decision awarded service connection for the Veteran’s right wrist disability and assigned a noncompensable rating, effective January 12, 1990. The Veteran filed a timely June 1991 NOD but failed to perfect his appeal and withdrew it on the record during an October 1991 Decision Review Officer hearing. See August 1991 VA Form 9; October 1991 Hearing Officer’s Decision. Accordingly, the December 1990 rating decision is final. See 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.156(b), 20.1103. As the December 1990 rating decision is the most recent final decision of record, the proper inquiry before the Board is whether a claim for an increased rating was filed between the final December 1990 rating decision and the filing of the July 2014 VA Form 21-526EZ seeking an increased rating. In this regard, the Board notes the Veteran submitted a VA Form 21-526 in May 1996; however, the Veteran failed to ever specify what he was claiming, and the matter was deemed to be abandoned by the Veteran. See August 1996 and October 1996 Development Letters. No other communication was received from the Veteran between his May 1996 VA Form 21-526 and his July 2014 VA Form 21-526EZ that could reasonably be construed as a claim for an increased rating for his right wrist disability. Here, the record does not show any formal or informal claim for an increase in rating for the Veteran’s right wrist disability, there are no VA treatment records constructively in possession that reflect a worsening of the condition and could be construed as an increased rating claim, and the Veteran’s attorney does not assert otherwise. 38 C.F.R. § 3.157(b) (as in effect prior to March 24, 2015). The Board emphasizes that VA treatment records merely showing treatment are insufficient to constitute an informal claim for increased benefits under former 38 C.F.R. § 3.157(b). As the Court stated in Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), such an interpretation of 38 C.F.R. § 3.157(b) would produce an absurd result by unnecessarily burdening VA by requiring it to treat every such medical record as an informal claim for an increased disability rating. Hence, VA treatment records dated between 2011 and September 2014 (the date 3.157(b) was removed from the Code of Federal Regulations) do not constitute informal claims for an increased right wrist disability rating. Additionally, as a claim for an earlier effective date for the award of service connection for the Veteran’s right wrist disability was not filed within one year of the December 1990 rating decision, it is considered a freestanding claim, which is precluded by law except in cases of clear and unmistakable error, which is not asserted here. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). Thus, the only period for consideration in terms of an earlier effective date for the Veteran’s increased rating claim is the one year look back period prior to July 9, 2014, the date the VA received the Veteran’s claim for increase. See October 2020 JMPR; see also 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran’s residuals of a fractured styloid process of the right ulna (right wrist disability) are currently rated under DC 5215 for limitation of wrist motion at 0 percent from January 12, 1990 and 10 percent from July 9, 2014. This DC provides for maximum 10 percent ratings for limited palmar flexion (palmar flexion limited in line with forearm) and limited dorsiflexion (dorsiflexion less than 15 degrees), regardless of whether the major or minor extremity is involved. 38 C.F.R. § 4.71a, DC 5215. When evaluating musculoskeletal disabilities based on limitation of motion, the Veteran is entitled to at least the minimum compensable evaluation if motion is accompanied by pain. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Additionally, pain is also relevant to assignment of a rating in excess of the minimum compensable rating, but only if that pain results in demonstrated functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, (2011); see 38 C.F.R. §§ 4.40, 4.45. Functional impairment as contemplated by 38 C.F.R. §§ 4.40 and 4.45 includes less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell, 25 Vet. App.at 44. Joint pain alone, without evidence of decreased functional ability, does not warrant a higher rating. See generally Mitchell, 25 Vet. App. at 32. In this regard, the Board notes that Veteran submitted to VA examinations in November 2014 and April 2017, relevant to the period on appeal. The Board notes that the 2014 VA examiner, when asked to comment on whether pain, weakness, fatigability or incoordination significantly limit functional ability with repeated use over time and during flareups, indicated he could not do so without resorting to mere speculation. These findings are in conflict with the VA Clinician’s Guide and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). This examination is, therefore, inadequate for rating purposes. The April 2017 VA examiner found the Veteran’s right wrist to be limited to 5 degrees during initial range of motion testing in palmar flexion, dorsiflexion, ulnar deviation, and radial deviation. The examiner noted painful motion with objective evidence of tenderness on palpation. There was no additional loss during observed repetitive use, repeated use over time, or during flare-ups. However, the examiner noted that flare-ups resulted in pain, weakness, fatigability, or incoordination that significantly limited functional ability. Notably, and most relevant to this decision, the Veteran sought treatment for the first time at a VA center on April 9, 2014. On that day, the Veteran called the VA medical center and complained of severe right wrist and forearm pain that had persisted constantly for approximately one week, or since April 2, 2014. The Veteran was then scheduled for treatment on April 11, 2014, and on that day the VA examiner noted the Veteran was experiencing painful motion on adduction and abduction and swelling that was causing him difficulty when typing resulting in functional loss. Prior to April 9, 2014, there are no other treatment records reflective of complaints for a right wrist disability. See, generally, VA treatment records. Additionally, there are no other medical records or statements from the Veteran regarding his right wrist disability prior to April 9, 2014. Thus, the Board finds the Veteran’s right wrist disability warrants at least a ten percent rating from April 2, 2014 (one week prior to April 9, 2014 report of right wrist pain of one week’s duration) and no earlier, as this is the date it became factually ascertainable that the Veteran’s right wrist disability had progressed and was resulting in functional impairment manifested by reduced movement and painful motion. See Burton, supra; 38 C.F.R. §§ 3.400, 4.59. Moreover, as the Veteran has been awarded the maximum rating based on limitation of motion, and ankylosis is not demonstrated in either examination report and has not been asserted by the Veteran or his attorney, the above-noted examination deficiencies are rendered moot by the Board’s award of a 10 percent rating herein. The Parties did not note any other deficiencies in the Board’s prior analysis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (“Court will [not] review BVA decisions in a piecemeal fashion”); Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) (“[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court”); Cf. Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the “law of the case” doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court’s prior action with respect to the same claim). S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.