Citation Nr: 21031409 Decision Date: 05/21/21 Archive Date: 05/21/21 DOCKET NO. 17-48 384 DATE: May 21, 2021 ORDER Entitlement to an earlier effective prior to January 1, 2014 for a 10 percent rating for myofascial tear of the right anterior tibia is denied. Entitlement to an earlier effective date prior to January 1, 2014 for a 10 percent rating for myofascial tear of the left anterior tibia is denied. Entitlement to an earlier effective date prior to July 14, 2014 for a 10 percent rating for asthma is denied. REMANDED Entitlement to a rating in excess of 10 percent for myofascial tear of the left anterior tibia is remanded. Entitlement to an increased rating in excess of 10 percent for myofascial tear of the right anterior tibia is remanded. REFERRED The issues of entitlement to an earlier effective date for 10 percent ratings for myofascial tears of the right and left anterior tibia based on clear and unmistakable error (CUE) in an October 1995 rating decision and an earlier effective date for a 10 percent rating for asthma based on a claim of clear and unmistakable error (CUE) in an October 1995 rating decision were raised in the transcript of the Veteran's hearing testimony and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. A claim for service connection for myofascial tears was received on August 10, 1995. An October 1995 rating decision granted service connection for myofascial tears with a 0 percent rating. The Veteran did not appeal the November 1995 rating decision. 2. A claim for an increased rating for myofascial tears was received on January 28, 2007. A December 2007 rating decision continued a 0 percent rating for myofascial tears. The Veteran did not appeal the December 2007 rating decision. 3. A claim for an increased rating for myofascial tears was received on December 31, 2013. A May 2015 rating decision granted temporary total rating for myofascial tears from October 2, 2013 and 10 percent ratings for myofascial tears from January 1, 2014. There were no pending, unadjudicated claims for increase for myofascial tears prior to December 31, 2013, and it is not factually ascertainable that the Veteran's myofascial tears were 10 percent disabling prior to January 1, 2014. 4. A claim for service connection for asthma was received on August 10, 1995. An October 1995 rating decision granted service connection for asthma and assigned a non-compensable rating. The Veteran did not appeal the October 1995 rating decision. 5. A claim for an increased rating for asthma was received on July 14, 2014. A May 2015 rating decision granted a 10 percent rating for asthma, effective from July 14, 2014. There were no pending, unadjudicated claims for increase for asthma prior to July 14, 2014, and it is not factually ascertainable that the Veteran's asthma was 10 percent disabling prior to July 14, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date prior to January 1, 2014 for a 10 percent rating for myofascial tear of the right anterior tibia have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an earlier effective date prior to January 1, 2014 for a 10 percent rating for myofascial tear of the left anterior tibia have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to an earlier effective date prior to July 14, 2014 for a 10 percent rating for asthma have not been 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 May 1993 to July 1995. In September 2020, the Veteran testified at a Central Office hearing. A transcript of the hearing has been reviewed. Effective Date The law and regulations governing effective dates establish 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 therefore. 38 U.S.C. § 5110 (a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefore is received within one year from such date of discharge or release. 38 U.S.C. § 5110 (b)(1). This statutory provision is implemented by a 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. See 38 C.F.R. § 3.400. An exception to that rule provides that the effective date of an award of an increase 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), 38 C.F.R. § 3.400 (o)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). 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). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for an increased rating and revised 38 C.F.R. § 3.400 (o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an 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 claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105 ; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE)). 38 C.F.R. § 3.105 (a). The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). 1. Entitlement to an earlier effective prior to January 1, 2014 for a 10 percent rating for myofascial tear of the right anterior tibia 2. Entitlement to an earlier effective date prior to January 1, 2014 for a 10 percent rating for myofascial tear of the left anterior tibia The Veteran seeks an earlier effective date for 10 percent ratings for myofascial tears of the right and left anterior tibias. A claim for service connection for myofascial tears was received on August 10, 1995. An October 1995 rating decision granted service connection for bilateral myofascial tears and assigned noncompensable ratings, effective from July 1995. A November 1995 letter informed the Veteran of the rating decision. The Veteran did not submit a timely notice of disagreement (NOD) to the November 1995 rating decision. The Veteran did not submit any additional evidence within a year following this decision. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242 (2010). Therefore, the decision became final one year later. A claim for an increased rating for myofascial muscle tears was received on January 28, 2007. A December 2007 rating decision continued a non-compensable rating for myofascial muscle tears. A December 2007 rating decision informed the Veteran of the rating decision and appellate rights. The Veteran did not submit a timely notice of disagreement (NOD) to the December 2007 rating decision. The Veteran did not submit any additional evidence within a year following the December 2007 decision. See 38 C.F.R. § 3.156 (b); Buie, supra. The decision became final one year later. A claim for an increased rating for myofascial muscle tears was received on December 31, 2013. A May 2015 rating decision granted a temporary total rating for myofascial tears from October 2, 2013 and 10 percent ratings for myofascial tears from January 1, 2014, following the expiration of the convalescence period. An increase in the severity of the Veteran's myofascial tears was not factually ascertainable in the year prior to the claim on October 2, 2013, the date on which she had surgery for compartment syndrome. The assignment of a 100 percent ratings from October 2, 2013 reflected the increased severity of her disability. It was not factually ascertainable that the criteria for the assignment of compensable ratings were met prior to October 2, 2013. There is no evidence concerning the severity of myofascial tears during the period from December 31, 2012 to October 1, 2013. Thus, an effective date earlier than January 1, 2014 for a 10 percent rating for myofascial tears is not warranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to an earlier effective date prior to July 14, 2014 for a 10 percent rating for asthma A claim for service connection for asthma was received on August 10, 1995. An October 1995 rating decision granted service connection for asthma with a non-compensable rating. A November 1995 letter advised the Veteran of the rating decision and her appellate rights. The Veteran did not submit a timely notice of disagreement (NOD) to the October 1995 rating decision. The Veteran did not submit any additional evidence within a year following this decision. See 38 C.F.R. § 3.156 (b); Buie v. Shinseki, 24 Vet. App. 242 (2010). The decision became final one year later. A claim for an increased rating for asthma was received on July 14, 2014. A May 2015 rating decision granted a 10 percent rating for asthma, effective from July 14, 2014. The evidence in the year prior to the increased rating claim did not reflect a worsening of the Veteran's asthma. Medical records that were received on February 2, 2014 showed a diagnosis of asthma but did not include respiratory tests that showed findings of the severity to warrant a 10 percent rating. The Board finds that it was not factually ascertainable in the year prior to the claim that an increase in the severity of asthma had occurred. Thus, an effective date earlier than July 14, 2014 for an increased rating for asthma is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for myofascial tear of the left anterior tibia is remanded. 2. Entitlement to an increased rating for myofascial tear of the right anterior tibia is remanded. At the September 2020 Board hearing, the Veteran testified that she has nerve pain in her legs, for which she takes Lyrica. The Veteran's last examination for the evaluation of myofascial tears of the anterior tibias was in March 2017. The March 2017 VA examination shows that the Veteran reported constant tingling and weakness in the legs since her surgery in 2015. The March 2017 VA examination identified muscle group impairments of both legs but did not identify any nerve impairments. The hearing testimony reflects a possible worsening of the myofascial tear disabilities. The Veteran should be provided a current VA examination to ascertain the current severity and manifestations of the myofascial tears of the anterior tibias. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected myofascial tears of the left and right tibia. The examiner must identify any nerve impairments of the lower extremities and should indicate whether such impairments are related to the service-connected myofascial tears. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.