Citation Nr: 21022053 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 20-11 332 DATE: April 14, 2021 ORDER Entitlement to an effective date earlier than October 3, 2014, for the award of service connection for right ankle burn scar residuals with ulceration and necrosis and postoperative muscle flap and grafting procedures (hereafter referred to as a "right ankle disability") is denied. Entitlement to an initial disability rating in excess of 30 percent for service-connected right ankle disability is denied. REMAND Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Since the June 2007 final denial, the first claim, informal or otherwise, to reopen the appeal for entitlement to service connection for a right ankle disability was October 3, 2014. 2. The Veteran’s right ankle disability currently is rated as a severe muscle injury. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than October 3, 2014, for the award of service connection for the Veteran’s right ankle disability are not met. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2). 2. The criteria for entitlement to an initial disability rating in excess of 30 percent for service-connected right ankle disability are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.73, Diagnostic Code (DC) 5310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to May 1973. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas. Earlier Effective Date As an initial matter, the Board notes that the Veteran’s representative has filed a motion seeking revision of a January 1975 rating decision based on clear and unmistakable error (CUE), arguing that the effective date for service connection for the Veteran’s right ankle disability should stretch back to the Veteran’s original claim in 1974. See December 10, 2018, Motion for CUE. CUE is a separate, distinct claim over which the Board must have jurisdiction to effectuate appellate consideration. Phillips v. Brown, 10 Vet. App. 25, 30 (1997). A request for revision of a decision of the Secretary based on CUE shall be submitted to the Secretary and shall be decided in the same manner as any other claim. 38 U.S.C. § 5109A(e). Thus, for the Board to have jurisdiction of CUE claims, all the proper appellate steps must be taken. Jarrell v. Nicholson, 20 Vet. App. 326 (2006). Here, there has not been an initial adjudication on the merits of the claim seeking revision of the January 31, 1975 rating decision. Thus, the Board’s will not address this issue. As it pertains to a regular claim for an earlier effective date, neither the Veteran nor Counsel made any argument as to why an earlier effective date is warranted. Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, 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). A claim means a written or electronic communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA submitted on an application form prescribed by the Secretary. 38 C.F.R. § 3.1(p). A supplemental claim is defined as “a claim for benefits under laws administered by the Secretary filed by a claimant who had previously filed a claim for the same or similar benefits on the same or similar basis.” 38 U.S.C. § 101(36). A complete claim is one on an application form prescribed by the Secretary that (1) provides the name of the claimant, relationship to the veteran (if applicable), and sufficient information for VA to verify the claimed service (if applicable); (2) is signed by the claimant or representative; (3) identifies the benefit sought; and (4) lists a description of the symptoms or medical conditions on which the benefit is based. 38 C.F.R. § 3.160(a). While VA originally operated under both an informal and formal claims process, that system was amended. Effective on and after March 24, 2015, a complete claim on an application form prescribed by the Secretary, as indicated above, is required for all types of claims. See 79 Fed. Reg. 57,660, 57,663–64, 57,686 (Sept. 25, 2014). The Board recognizes that the Veteran’s earlier-effective-date claim includes a time during which VA recognized informal claims. Thus, the Board also will discuss whether the laws concerning those claims are applicable. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits 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 claimant, it will be considered filed as of the date of receipt of the informal claim. See 38 C.F.R. § 3.155(a) (2014). Where new and material evidence is received after a final disallowance, the effective date is the date of receipt of the new claim or date entitlement arose, whichever is later. Id. at (q)(2). The most recent final denial for the Veteran’s claim for his right ankle disability was a June 2007 rating decision. The Veteran next filed to reopen his claim on October 3, 2014. A February 2015 rating decision denied the claim for lack of new and material evidence. The Veteran asked in June 2015 for that determination to be reconsidered, and VA again denied the claim in November 2015, citing a lack of new and material evidence. The Veteran filed his notice of disagreement in January 2016 and eventually was awarded service connection in the January 2018 decision now on appeal. Between the last final denial—June 2007—and the Veteran’s filing to reopen, which required new and material evidence—October 3, 2014—there is nothing in the claims file that can be construed as an informal claim. There are no documents of record that were received by VA between the June 15, 2007 notification of the June 2007 rating decision and the October 3, 2014, claim to reopen. As such, there is no communication from the Veteran expressing a desire to file a claim for his right ankle disability. Thus, the Board is satisfied that his October 3, 2014, claim is the most recent since the June 2007 denial. Furthermore, October 3, 2014, is the proper effective date pursuant to the applicable regulations. As noted above, where new and material evidence is required to reopen a previously denied claim and said evidence is received after a final disallowance, the proper effective date is either the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. VA received the Veteran’s most recent claim to reopen on October 3, 2014. The Veteran either was awarded the effective date, or the VA generously awarded him an effective date earlier than that to which he is entitled. If entitlement to service connection for the right ankle arose prior to the receipt of the Veteran’s filing, then the latter date would win—October 3, 2014. If entitlement did not arise until after filing, then that latter date would prevail. Thus, in either scenario, the Veteran legally is not entitled to an effective date earlier than October 3, 2014, and his appeal on this issue is denied. See 38 C.F.R. § 3.400(q)(2). Increased Rating Like with the earlier-effective-date claim, no specific argument is advanced for this issue. Counsel simply indicates that certain evidence was not reviewed by VA before it assigned the Veteran a 30 percent rating. December 7, 2018, Notice of Disagreement. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In addition, codes ending in “99” are for all unlisted conditions. When an unlisted condition is encountered, it is permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology, closely are analogous. 38 C.F.R. § 4.20. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. VA awarded the Veteran a 30 percent disability rating under DC 8599-5310. As noted above, this rating indicates that the Veteran’s nerves in his ankle have been affected, but that his condition more closely is analogous to a muscle injury. DC 5310 is used to rate injuries of muscles found in Group X. Function that could be affected include movements of forefoot and toes and propulsion thrust in walking. The intrinsic muscles of the foot include Plantar: (1) Flexor digitorum brevis; (2) abductor hallucis; (3) abductor digiti minimi; (4) quadratus plantae; (5) lumbricales; (6) flexor hallucis brevis; (7) adductor hallucis; (8) flexor digiti minimi brevis; (9) dorsal and plantar interossei. Other important plantar structures include plantar aponeurosis, long plantar and calcaneonavicular ligament, tendons of posterior tibial, peroneus longus, and long flexors of great and little toes. Severe, moderately severe, and moderate impairment warrant a 30, 20, or 10 percent rating, respectively. The Veteran currently receives the maximum schedular rating for his right ankle disability. That is, he receives a 30 percent rating for a severe muscle injury. As noted, no specific argument is advanced as to why the Veteran should be provided a higher rating. In the NOD, Counsel asserts that VA failed to consider records from Dr. H., which show that the Veteran only has 15 percent of normal range of motion in his right ankle, as well as severe pain that has worsened since January 2018. While this statement is vague, even if Counsel means to argue that the Veteran’s right ankle disability should be rated under painful limitation of motion, that argument is to the Veteran’s detriment. For limitation of motion, the highest rating the ankle can receive is 20 percent. 38 C.F.R. § 4.71a, DC 5271. The next highest rating, above the Veteran’s current 30 percent rating, for limitation of motion requires documentation of ankylosis. See 38 C.F.R. § 4.71a, DC 5270 (requiring ankylosis in plantar flexion at more than 40 degree, or in dorsiflexion at more than 10 degrees or with abduction, adduction, inversion, or eversion deformity for a 40 percent rating). There is no evidence that the Veteran’s right ankle disability suffers from ankylosis. See December 18, 2017, VA Ankle Examination (noting no existence of ankylosis). Thus, there is no avenue under DCs for limitation of motion where the Veteran could secure a higher rating. Thus, as the Veteran already receives the maximum schedular rating for his right ankle disability, there are no additional benefits to be awarded for this issue. Therefore, the Veteran’s appeal is denied. See 38 C.F.R. § 4.73, DC 5310. REASONS FOR REMAND A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record in association with an increased rating, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for the increased rating on appeal. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the agency of original jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). On the above-mentioned VA examination for the ankle, the examiner noted that the Veteran’s disability resulted in two–four weeks of lost working time in the last twelve months and that the Veteran is unable to be on his feet for any length of time, can withstand limited walking, and has reduced balance. The Veteran’s occupation is listed as “letter carrier.” In January 2020, VA sent to the Veteran a packet for an application for TDIU; however, the Veteran never completed the required paperwork. In the Board’s view, the record has raised the issue of whether the Veteran, by virtue of his service-connected disability, is able to secure and follow a substantially gainful occupation. The information the Board does have shows that the Veteran likely is unable to continue his occupation as a letter carrier, which presumably requires much time on one’s feet. At the time of the examination, the Veteran already had missed, at most, one month of work in the last twelve months. Furthermore, VA itself already has acknowledged that this issue was raised when it invited the Veteran to apply for such benefits; his failure to do so does not vitiate the suggestive evidence already of record. Thus, the Board finds that the issue of TDIU reasonably has been raised by the record. Where the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, that disability shall be ratable at 60 percent or more. If there are two or more disabilities, then there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran currently has a combined disability evaluation of 40 percent. As the Veteran does not meet the schedular requirements for TDIU, the question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities on an extraschedular basis under 38 C.F.R. § 4.16(b). The Board does not have jurisdiction to authorize an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88 (1996). It may, however, determine that a particular case warrants referral to the Director, Compensation Pension, for extraschedular consideration under 38 C.F.R. § 4.16(b). The Board finds that remand is warranted both so that the Veteran can submit a complete application for TDIU (so that the Board has a clear picture of the Veteran’s employment history) and for the Director to adjudicate in the first instance the issue of entitlement to TDIU on an extraschedular basis. See 38 C.F.R. §§ 4.16(b), 20.904(a). The matter is REMANDED for the following action: 1. Obtain any ongoing VA treatment records. Should they exist, associate them with the claims file. 2. Provide the Veteran a complete application for TDIU. 3. Once VA has received the Veteran’s application for TDIU, or after an appropriate amount of time has passed, submit to the Director, Compensation Pension, the Veteran’s claim for entitlement to TDIU on an extraschedular basis. The Director’s determination must be associated with the claims file. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.