Citation Nr: 21031279 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 16-32 575 DATE: May 21, 2021 ORDER Entitlement to an earlier effective date of May 6, 2002, but no earlier, for the grant of service connection for left knee quadricep muscle atrophy with joint instability associated with arthritis of the left knee, to include an earlier effective date of May 6, 2002, but no earlier, for the assigned 10 percent rating is granted. Entitlement to an earlier effective date of May 6, 2002, but no earlier, for a 10 percent disability rating for the service-connected carpal tunnel syndrome with ulnar discopathy of the right upper extremity is granted. FINDINGS OF FACT 1. The Veteran did not submit a claim for service connection for his left knee quadricep muscle atrophy disorder until May 6, 2002. 2. The earliest possible date for the assignment of a 10 percent rating for the Veteran's left knee quadricep muscle atrophy disorder is May 6, 2002, the effective date of the grant of service connection for this disability and the date the Veteran submitted his claim for service connection. 3. The earliest possible date for the assignment of a 10 percent rating for the Veteran's right carpal tunnel syndrome is May 6, 2002, the effective date of the grant of service connection for this disability and the date the Veteran submitted his claim for service connection. CONCLUSIONS OF LAW 1. The criteria for an effective date of May 6, 2002, but no earlier, for the grant of service connection for a left knee quadricep muscle atrophy disorderand for the award of a 10 percent rating for a left knee quadricep muscle atrophy disorderhave been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.109, 3.114, 3.155, 3.159, 3.400. 2. The criteria for an effective date of May 6, 2002, but no earlier, for the award of a 10 percent rating for right carpal tunnel syndrome have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1973 to October 1976 and from January 1977 to January 1994. This current appeal comes before the Board of Veterans' Appeals (Board) from a March 2012 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. Effective Dates The law regarding effective dates states that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, 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). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. Regulations that were in effect prior to March 24, 2015, required that an informal claim "must identify the benefit sought." See 38 C.F.R. §§ 3.155, 3.160. The regulations also provided that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1 (p) (2014). The regulations in effect since March 24, 2015 do not allow for informal claims that are not submitted on an application form prescribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160. VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). Left Knee Quadricep Muscle Atrophy Disorder The Veteran seeks entitlement to an effective date earlier than February 28, 2011 for the grant of service connection for his left knee quadricep disorder. See January 2013 Correspondence from Veteran. Specifically, he states that he should be assigned an effective date of May 6, 2002, the date he first submitted his claim for benefits to VA. Id. VA received the Veteran's formal claim seeking entitlement to service connection for a bilateral knee disability on May 6, 2002. There is no evidence that VA received a claim from the Veteran, either formal or informal, earlier than May 6, 2002 for any left knee disorder. In fact, he acknowledged in his January 2013 correspondence that he first filed his claim on May 6, 2002. In a March 12, 2012 decision, a Decision Review Officer (DRO) granted service connection for left knee arthritis and assigned a 10 percent rating to this disability, effective from May 6, 2002, the date VA received his claim. In that same decision, the DRO granted service connection for left knee quadricep muscle atrophy with joint instability and assigned a 10 percent rating to this disability, effective from February 28, 2011, the date of a second VA examination for his knees. The Veteran was first examined for his knees in June 2008. The results of that examination were translated from German to English in February 2009. This examination determined that there was no muscle atrophy or instability. However, a February 2011 VA examiner cast doubt on the June 2008 examination results, noting that "Normal X-ray findings during the Veteran's retirement examination on September 24, 1993 and still normal ranges of motion did not exclude painful condition such as axis deviations causing ligament strains, muscle atrophy causing weakness and instability..." The examiner further stated that, "Maybe 'pain on use' was not questioned and maybe the examination was not meeting the VA requirements as they are standard our days." The examiner's rationale indicates that muscle atrophy and joint instability had been present since the time of the June 2008 VA examination, the same VA examination used to grant the Veteran service connection for his left knee arthritis, for which he was assigned a 10 percent rating effective May 6, 2002. As such, the Board resolves reasonable doubt in the Veteran's favor and finds, based on the February 2011 VA examiner's findings and rationale, that the Veteran should also be granted an earlier effective date of May 6, 2002 for his left knee quadricep muscle atrophy with joint instability associated with arthritis of the left knee. As previously stated, the proper date of the claim is May 6, 2002, the date VA received the Veteran's claim for service connection. There is no documentation in the record which may be reasonably construed as a formal or informal claim for service connection for the Veteran's left knee quadricep muscle atrophy disorder dated as having been received prior to the May 6, 2002 claim for service connection. Although entitlement may have arisen prior to the date of this claim (according to the February 2011 examiner's statement indicating that the Veteran likely had this disability at the time of the September 1993 retirement examination), the appropriate effective date for the award of service connection for the Veteran's left knee quadricep muscle atrophy disorder is no earlier than the date of the claim, May 6, 2002, which is later than the date of the September 1993 retirement examination. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, resolving all reasonable doubt in favor of the Veteran, an effective date of May 6, 2002, but no earlier, is warranted for the grant of service connection for left knee quadricep muscle atrophy with joint instability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Regarding the assignment of a 10 percent rating for this disability, the Board also resolves reasonable doubt in the Veteran's favor, based on the February 2011 VA examiner's findings and rationale, in finding that the Veteran's disability was also mild in severity at the time of the September 1993 retirement examination. An earlier effective date for an increased rating will be granted from the date of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). Here, similar to the claim for an earlier effective date for a grant of service connection for the Veteran's left knee quadricep muscle atrophy, the Board finds that entitlement arose for a 10 percent rating at the time of the Veteran's September 1993 retirement examination, pursuant to the February 2011 examiner's rationale. However, as the Veteran did not submit his claim until May 6, 2002, which is the later date, the Board resolves reasonable doubt in his favor and finds that an earlier effective date of May 6, 2002, and not earlier, is warranted for the assignment of a 10 percent rating for his service-connected left knee quadricep muscle atrophy with joint instability. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Carpal Tunnel Syndrome The Veteran also asserts that he should be assigned an earlier effective date of May 6, 2002 for the 10 percent rating for his service-connected carpal tunnel syndrome. See January 2013 Correspondence from Veteran. The Board agrees that the effective date for the 10 percent rating for the Veteran's carpal tunnel syndrome should be May 6, 2002, the date he filed his claim for service connection for this disability. An earlier effective date, however, is not warranted. VA received the Veteran's claim for service connection for this disability on May 6, 2002. However, service connection was first denied in a December 2002 rating decision, then later granted in the March 2012 DRO decision. In the March 2012 DRO decision, the Veteran was assigned a noncompensable rating from May 6, 2002 to February 27, 2011, then an increased 10 percent rating from February 28, 2011 until present. The 10 percent rating was based on the results of the February 28, 2011 VA examination results. Similar to the results of the examination concerning the Veteran's left knee, the February 2011 examiner also seemed to question the results of the June 2008 VA examination, on which the initial denial of service connection was based. At that June 2008 VA examination, the examiner did not diagnose the Veteran with carpal tunnel syndrome. He determined that the Veteran did not have a right-hand disability. However, the February 2011 VA examiner stated that the Veteran had the right-hand condition for almost 30 years, since service. The examiner explained the reason he believed that the condition may have not been detectable at both the prior VA examination and the September 1993 retirement examination. Specifically, the examiner noted that the Veteran had learned how to deal with the condition by avoiding prolonged strenuous activities. The examiner indicated that the disability had always been relatively mild in severity, which warrants a 10 percent rating under the relevant Diagnostic Code. See 38 C.F.R. § 4.124a, Diagnostic Code 8515. The examiner concluded that the examination results support a finding of a long-standing posttraumatic condition since service. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board finds that he has had right-hand carpal tunnel syndrome of a mild severity since service. However, he did not file a claim for service connection for this disability until May 6, 2002. Thus, the Board finds that an earlier effective date of May 6, 2002, but no earlier, is warranted for a rating of 10 percent for right carpal tunnel syndrome, as May 6, 2002 is later than the date entitlement arose (since service). 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert, supra. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Trowers, 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.