Citation Nr: 21040247
Decision Date: 07/02/21	Archive Date: 07/02/21

DOCKET NO. 16-33 295
DATE: July 2, 2021

ORDER

Entitlement to an effective date of October 29, 2012, but no earlier, for the award of an increased (40 percent) rating for degenerative arthritis, status-post surgical repair of the right wrist with ankylosis, is granted, subject to controlling regulations governing the payment of monetary awards.

FINDING OF FACT

1. In a May 2007 rating decision, the agency of original jurisdiction (AOJ) awarded service connection for right wrist disability (characterized as degenerative arthritis, status-post surgical repair of the right wrist) and assigned an initial 10 percent disability, from November 27, 2006.

2. In a July 2009 decision, the Board denied entitlement to an initial rating higher than 10 percent for the service-connected right wrist disability; the May 2007 AOJ decision was subsumed by the July 2009 Board decision.

3. In an October 2012 rating decision, the AOJ denied entitlement to a rating in excess of 10 percent for the service-connected right wrist disability; the Veteran did not appeal any aspect of this decision within one year of its issuance and new and material evidence was not received within that year.

4. A claim for an increased rating for the service-connected right wrist disability was received on October 29, 2013; there is no evidence of any unadjudicated formal or informal increased rating claim subsequent to the final October 2012 rating decision and prior to October 29, 2013.

5. The evidence is at least evenly balanced as to whether an increase in the Veteran's right wrist disability was factually ascertainable one year prior to his October 29, 2013 increased rating claim.

6. The Veteran has not submitted any signed written motion for revision of the Board's July 2009 decision based on clear and unmistakable error (CUE) and he has not claimed CUE in the October 2012 rating decision.

CONCLUSION OF LAW

With reasonable doubt resolved in favor of the Veteran, the criteria for an effective date of October 29, 2012, but no earlier, for the award of an increased (40 percent) rating for degenerative arthritis, status-post surgical repair of the right wrist with ankylosis have been met. 38 U.S.C. §§ 1155, 5107 (b), 5110, 7104, 7105; 38 C.F.R. §§ 3.104, 3.155 (in effect prior to March 24, 2015), 3.156 (a)-(c), 3.400, 4.1, 4.2, 4.7, 4.10, 4.21, 4.71a, Diagnostic Code (5214), 20.302, 20.1100(a), 20.1103, 20.1404.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from July 1983 to July 1987. This matter comes before the Board of Veterans' Appeals (Board) from February 2014 and September 2014 rating decisions. 

In the February 2014 decision, the AOJ re-characterized the Veteran's service-connected right wrist disability as degenerative arthritis status-post surgical repair of the right wrist with ankylosis and awarded an increased (40 percent) disability rating, from October 29, 2013. In the September 2014 decision, the AOJ determined that there was no CUE in a May 2007 rating decision, in which the AOJ awarded service connection for right wrist disability (characterized as degenerative arthritis, status-post surgical repair of the right wrist) and assigned an initial 10 percent disability rating, from November 27, 2006.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a February 2021 hearing and a transcript of the hearing is associated with his claims file.

Finally in this regard, the Board notes that the Veteran has claimed CUE in the May 2007 rating decision, in which the AOJ awarded service connection for right wrist disability and assigned an initial 10 percent disability rating. As will be explained in more detail below, the May 2007 rating decision was subsumed by a July 2009 Board decision which denied entitlement to a higher initial rating for the service-connected right wrist disability. Therefore, the May 2007 decision may not be the subject of a claim of CUE. In the decision below, the Board is awarding an October 29, 2012 effective date for the award of an increased (40 percent) rating for the service-connected right wrist disability. If the Veteran believes that an even earlier effective date is warranted for this rating on the basis of CUE in the July 2009 Board decision, he should file a motion alleging CUE in the Board's July 2009 decision, in accordance with 38 C.F.R. § 20.1404.

The Board would like to express its appreciation for the thorough and thoughtful arguments made by the Veteran and his representative in their written statements and during the Board hearing.

Entitlement to an effective date earlier than October 29, 2013 for the award of an increased (40 percent) rating for degenerative arthritis, status-post surgical repair of the right wrist with ankylosis, to include on the basis of CUE.

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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 (a); 38 C.F.R. § 3.400. 

Specifically as to claims for increase, the effective date of an award of increased compensation 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). The pertinent provisions of 38 C.F.R. § 3.400 clarify that, except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. Specifically as to claims for increase, 38 C.F.R. § 3.400 provides that the effective date of an evaluation and award of compensation based on a claim for increase will be the date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400 (o).

The courts and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase as follows: If the increase 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 award is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase.  See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010), interpreting 38 U.S.C. § 5110 (b)(3) and 38 C.F.R. § 3.400 (o)(1),(2).

VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim for an increased rating for the service-connected right wrist disability was filed prior to March 24, 2015, the amendments are not applicable in this case.

Under the former legal authority, 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) (in effect prior to March 24, 2015).

There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999).

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21.

In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.

The Veteran's service-connected right wrist disability is rated under 38 C.F.R. § 4.71a, DC 5214 as ankylosis. Under DC 5214, a 40 percent rating is warranted for ankylosis of the major (dominant) wrist in any other position, except favorable.

The Board finds, for the following reasons, that an effective date of October 29, 2012, but no earlier, is warranted for degenerative arthritis, status-post surgical repair of the right wrist with ankylosis.

The AOJ awarded service connection for right wrist disability (characterized as degenerative arthritis, status-post surgical repair of the right wrist) and assigned an initial 10 percent disability rating, from November 27, 2006, by way of a May 2007 rating decision. The Veteran submitted a timely notice of disagreement (NOD) with the initial rating assigned in the May 2007 decision later that same month, a statement of the case (SOC) was issued in April 2008, and the Veteran submitted a substantive appeal (VA Form 9) later in April 2008. In a July 2009 decision, the Board denied entitlement to an initial rating higher than 10 percent for the service-connected right wrist disability. The Board's decision was final when issued. See 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100 (a) (a Board decision is final on the date stamped on the face of the decision).

The Veteran has contended that an earlier effective date is warranted for the 40 percent rating currently assigned for his service-connected right wrist disability because, for various reasons, there was CUE in the May 2007 rating decision with respect to the initial rating that was assigned in that decision. CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44.

The United States Court of Appeals for Veterans Claims (Court) has established a three-pronged test, each of which must be met before CUE is established: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied, (2) the error must be "undebatable" and of the sort "which had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting in part Russell v. Principi, 3 Vet. App. 310 (1992)). In order to be CUE, the error must be of a type that is outcome determinative. Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999).

Regardless of any allegations of CUE in the May 2007 AOJ decision, that decision was subsumed by the subsequent final July 2009 Board decision which denied entitlement to a higher initial rating for the service-connected right wrist disability. See Manning v. Principi, 16 Vet. App. 534, 540-41 (2002) (a decision of the AOJ is subsumed by a subsequent Board decision if the Board decides the same issue addressed by the AOJ based on the same evidentiary record). If an AOJ decision is deemed subsumed by a supervening Board decision, then as a matter of law the AOJ decision cannot be the subject of a claim of CUE. Rather, in that case, the claimant "must proceed before the Board and urge that there was clear and unmistakable error" in the Board decision. Brown v. West, 203 F.3d 1378, 1381 (Fed Cir. 2000). As the Board clearly considered entitlement to a higher initial rating for the service-connected right wrist disability in its July 2009 decision and that decision subsumed the AOJ's May 2007 decision, no CUE claim regarding the May 2007 decision may exist as a matter of law.

With respect to the July 2009 Board decision, a motion for revision of a prior Board decision based on CUE must be in writing, and must be signed by the moving party or that party's representative. The motion must include the name of the Veteran; the name of the moving party, if other than the Veteran; the applicable Department of Veterans Affairs file number; and, the date of the Board's decision to which the motion relates. If the applicable decision involved more than one issue on appeal, the motion must identify the specific issue, or issues, to which the motion pertains. The motion must also set forth clearly and specifically the alleged clear and unmistakable error, or errors, of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to re-filing under this subpart. 38 C.F.R. § 20.1404 (a), (b).

In this case, the Veteran has not argued that CUE existed in the Board's July 2009 decision and he has not otherwise submitted any signed written motion for revision of that decision on the basis of CUE. Thus, he has not submitted a sufficient motion for revision of the Board's July 2009 decision on the basis CUE and no further consideration can be given to this matter. As explained below, the Board is awarding an effective date of October 29, 2012 for the award of an increased (40 percent) rating for the service-connected right wrist disability. If the Veteran believes that an even earlier effective date is warranted for this rating on the basis of CUE in the July 2009 Board decision, he should file a motion alleging CUE in the Board's July 2009 decision, in accordance with 38 C.F.R. § 20.1404.

Following the Board's July 2009 decision, a claim for a rating in excess of 10 percent for the service-connected right wrist disability was denied in an October 2012 rating decision. The Veteran was notified of the AOJ's October 2012 decision, he did not appeal the decision within one year of its issuance, and new and material evidence was not received within that year. Therefore, the October 2012 decision became final. See 38 U.S.C. § 7105 (d)(3); Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. The Veteran has not argued that any CUE existed in the October 2012 AOJ decision.

In October 2013, the Veteran contacted VA and requested an increased rating for his service-connected right wrist disability (see October 2013 "Report of General Information" form (VA Form 21-0820)). This communication was received by VA on October 29, 2013. In the February 2014 rating decision, the AOJ awarded an increased (40 percent) rating for the service-connected right wrist disability (re-characterized as degenerative arthritis status-post surgical repair of the right wrist with ankylosis), based on the findings made during a December 2013 VA examination. The AOJ assigned an effective date of October 29, 2013 for the award of the 40 percent rating, based on the date that the Veteran's increased rating claim was received by VA. There is no evidence of any unadjudicated formal claim for an increased rating for the service-connected right wrist disability subsequent to the final October 2012 rating decision and prior to October 29, 2013, nor is there any prior communication in the record that could be considered an informal claim for VA compensation for the same.

In light of the above, the Board will consider the evidence pertinent to the period beginning on October 29, 2012 (one year prior to receipt of the Veteran's increased rating claim) to determine when an increase in the Veteran's service-connected right wrist disability was factually ascertainable.

During the December 2013 VA wrist examination, the Veteran reported that he was right hand dominant and that he had no range of motion in his right wrist and that it was essentially fused. He experienced flare ups of wrist pain, but there was no change in function. The ranges of right wrist motion were recorded as being palmar flexion to 25 degrees with pain at that point and dorsiflexion to 10 degrees with pain at that point. The Veteran was able to perform repetitive use testing with at least 3 repetitions and the ranges of right wrist motion following repetitive use testing were palmar flexion to 25 degrees and dorsiflexion to 10 degrees. There was no additional limitation in the ranges of motion following repetitive use testing. There was functional loss/impairment of the wrist in terms of less movement than normal and pain on movement. There was localized tenderness or pain on palpation of the joint/soft tissue of the wrist. 

Moreover, muscle strength associated with right wrist flexion and extension was normal (5/5). There was wrist ankylosis in any other unfavorable position. He had not undergone any total wrist joint replacement. He did undergo right wrist surgery in service and the residual signs/symptoms of the surgery were reduced range of wrist motion and pain from the medial area of the wrist on the dorsal surface into the 3rd and 4th finger and at the base of the radius on the inner aspect of the wrist. There was no functional impairment of the wrist such that no effective function remained other than that which would have been equally well served by an amputation with prosthesis. Diagnoses of degenerative arthritis status-post surgical repair of the right wrist and right wrist ankylosis were provided. This disability impacted the Veteran's ability to work in that carrying tools in his hand caused pain, the pain limited his ability to lift, push, pull, reach, and carry, and he had to take frequent breaks due to painful keyboarding.

The examiner who conducted the December 2013 examination explained that pain, weakness, fatigability, and incoordination all limited repetitive motion of the wrist over time. However, the degrees of additional range of motion loss were not measurable because the Veteran was doing his maximum at present and the wrist was near ankylosis. Ulnar and radial deviation were both 0 to 10 degrees with pain at 10 degrees, but no change with fatiguing. Overall, the Veteran's right wrist was near ankylosis when attempting dorsiflexion, ulnar deviation, and radial deviation.

In statements dated in December 2013, April 2014, May 2014 , and July 2016, and during the February 2021 Board hearing, the Veteran essentially contended that his right wrist symptoms had been consistent since his surgery in service. This included the significantly limited ranges of wrist motion.

In light of the above evidence, the Board finds that the evidence is at least evenly balanced as to whether an increase in the severity of the Veteran's service-connected right wrist disability was factually ascertainable at least a year prior to his October 29, 2013 claim. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, an effective date of October 29, 2012 is warranted for the award of an increased (40 percent) rating for degenerative arthritis, status-post surgical repair of the right wrist with ankylosis. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (all of the facts should be examined in determining the effective date and the effective date for an increased rating, as well as for an initial rating or for staged ratings, is predicated on when the increase in the level of severity can be ascertained).

An effective date earlier than October 29, 2012 is not warranted because the earliest possible effective date for an increase in compensation is one year prior to the claim for increase. In this case, October 29, 2012 is one year prior to the Veteran's October 29, 2013 claim for increase. There is no evidence of any unadjudicated increased rating claim for the service-connected right wrist disability subsequent to the final October 2012 rating decision and prior to October 29, 2013.

The Board acknowledges that the Veteran has contended that an earlier effective date is warranted because there were service treatment records that were not in VA's possession at the time of its initial May 2007 decision, but were received sometime in 2014 after the February 2014 rating decision. He essentially contends that these records are relevant because they are indicative of how severe his wrist disability has been ever since service, and he believes that an earlier effective date for the 40 percent rating is warranted with application of 38 C.F.R. § 3.156(c).

VA regulations provide that, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding paragraph (a) of the same section (which defines new and material evidence). 38 C.F.R. § 3.156 (c). In order to be relevant under 38 C.F.R. § 3.156 (c), "a record must address a dispositive issue and therefore affect the outcome of the case." Kisor v. Wilkie, 969 F.3d 1333, 1339. An award that is made based in whole or in part on relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156 (c)(3).

In this case, a review of the claims file reveals that, contrary to the Veteran's contention, it appears that the identified service treatment records have been in VA's possession since the time of the initial May 2007 rating decision. In this regard, a February 2007 response from the National Personnel Records Center (NPRC) indicates that all available service treatment records had been mailed, and the May 2007 rating decision specifically references things in the Veteran's service treatment records. Although the Veteran contends that the examiner who conducted an April 2007 wrist examination did not review his service treatment records (and this appears to be accurate because the claims file was not made available to the examiner), the records still appear to have been in VA's possession as of the May 2007 rating decision and the Board's final July 2009 decision. Nevertheless, even if it assumed that some relevant service treatment records were not in VA's possession at the time of its prior decisions, 38 C.F.R. § 3.156(c) is applicable to decisions in which service connection is denied and the newly obtained service records are relevant to the disability for which service connection was denied. There is nothing in the language of the regulation, the regulatory history in the Federal Register, or in judicial case law indicating 38 C.F.R. § 3.156(c) applies to a decision which grants service connection and assigns an initial disability rating, as is the situation in this case. See Proposed Rule, New and Material Evidence, 70 Fed. Reg. 35388 (June 20, 2005) (discussing the change in the regulation in terms of reopening of a previously denied claim); Final Rule, New and Material Evidence, 71 Fed. Reg. 52455, 52456 (Sept. 6, 2006) ("The provisions of section 3.156(c) . . . prescribe standards for reopening previously denied claims and establishing the effective dates of awards in such reopened claims").

Therefore, even if it is assumed that additional relevant service treatment records were obtained, an earlier effective date for the award of an increased (40 percent) rating is not warranted under 38 C.F.R. § 3.156(c).

In sum, an effective date of October 29, 2012 is warranted for the award of an increased (40 percent) rating for degenerative arthritis, status-post surgical repair of the right wrist with ankylosis. This is the earliest possible effective date in the absence of CUE.

(Continued on the next page)

 

The Board would like to again express its appreciation for the thorough and thoughtful arguments of the Veteran and his representative.  While VA must render a decision which grants every benefit that can be supported in law, 38 C.F.R. § 3.103(a), it is bound by the laws and regulations that apply to veterans claims.  38 U.S.C. § 7104(c) (2012); 38 C.F.R. § 20.105 (2020).  Those laws and regulations do not appear to the Board to allow an effective date earlier than October 29, 2012 under any theory advanced by the Veteran or raised by the record in the context of the issues before the Board on this appeal.  The Board intimates no opinion on the question of whether there was CUE in the July 2009 Board decision that subsumed the May 2007 AOJ decision.

 

 

Jonathan Hager

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Carroll, 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.