Citation Nr: 22017697 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 17-53 127 DATE: March 25, 2022 ORDER Entitlement to an effective date prior to February 26, 2016, for the grant of service connection for posttraumatic stress disorder (PTSD) and assignment of a 50 percent rating is denied. The previously denied claim for service connection for a left hand condition is reopened; to this extent only, the appeal is granted. The previously denied claim for service connection for a right hand condition is reopened; to this extent only, the appeal is granted. Entitlement to service connection for a left hand condition is denied Entitlement to service connection for a right hand condition is denied. FINDINGS OF FACT 1. The Veteran did not appeal May 2008 and October 2013 rating decisions which denied service connection for PTSD; in April 2016, the Veteran was diagnosed with PTSD by a Department of Veterans Affairs (VA) examiner; the RO assigned an effective date of February 26, 2016. 2. In an unappealed May 2008 rating decision, the RO denied service connection for a bilateral hand condition. 3. Evidence associated with the claims file since the denial of a bilateral hand condition relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims. 4. The evidence is persuasively against finding that the Veteran's left and right hand conditions had an onset during service or are otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to February 26, 2016, for the award of service connection for PTSD and assignment of a 50 percent rating have not been met. 38 U.S.C. §§ 1101, 1155, 5110; 38 C.F.R. §§ 3.155, 3.400, 20.201. 2. The May 2008 RO decision, which denied the Veteran's claim of service connection for a bilateral hand condition, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 3. New and material evidence has been received to reopen the claim of service connection for a bilateral hand condition. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156. 4. The criteria for service connection for left and right hand disabilities have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 2003 to November 2007. This matter is before the Board of Veterans' Appeals (Board) on appeal of an August 2016 rating decision of VA. In April 2019, the Board remanded the case for further development. Stegall v. West, 11 Vet. App. 268, 271 (1998). Since recertification of the appeal, VA treatment records and examination reports have been associated with the Veteran's claims file. The Board notes that the VA Regional Office (RO) has not had the opportunity to review these additional records, and these additional records are not accompanied by a waiver of RO consideration. However, since these records are either not pertinent to the Veteran's bilateral hand and/or PTSD claims or are cumulative of earlier lay contentions present in the record, the Veteran is not prejudiced by the Board's determination to proceed on this case without a remand for RO action. Earlier Effective Date The effective date for a claim seeking an increased rating for an already service-connected disability that is based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, the effective date may also be the earliest date as of which it is "factually ascertainable" that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). In determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." See Hazan, 10 Vet. App. at 521. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). 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 increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(1), (2). If the increase occurred after the date of the claim, the effective date is the date of increase. Id. See also Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). For VA compensation purposes, a "claim" is defined as "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). Although the regulations have since been amended to provide for standardized claims forms, this was after the time period in question for this case. An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are "(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). In addition, there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability in treatment records. See Brannon v. West, 12 Vet. App. 32, 35 (1998). The Veteran first sought service connection for an adjustment disorder in an October 2007 claim. The RO granted his claim in May 2008, assigning a disability rating of 10 percent and an effective date of December 1, 2007. The issue of service connection for PTSD was denied in this same decision. Of record, at the time of the denial was a VA treatment record dated in 2008 which showed a diagnostic impression of PTSD. The Veteran did not appeal the rating decision, nor did he submit new and material evidence within one year of that decision. 38 C.F.R. § 3.156. Accordingly, the May 2008 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.302. Thereafter, in October 2012, the Veteran sought to have a diagnosis of PTSD assigned to his adjustment disorder disability. In an October 2013 rating decision, the RO denied to reopen the claim for service connection for PTSD. The record shows that the Veteran was afforded a VA mental disorders examination later that same month, and a diagnosis of alcohol abuse was provided. An addendum report from February 2014 confirmed that there was no further diagnosis. As these reports do not contain a diagnosis of the claimed disorder, they are not considered new and material evidence to render the October 2013 rating decision not final as to PTSD. In a March 2014 rating decision, the RO denied an increased evaluation for adjustment disorder with anxious mood. Subsequently, the Veteran underwent a VA mental disorders examination in January 2016. At that time, no diagnosis of a psychiatric disorder was provided. In a January 2016 rating decision, a proposed reduction from 10 percent to noncompensable was recommended for the Veteran's assigned disability rating for his service-connected adjustment disorder. In February 2016, the Veteran submitted an Intent to File application and submitted a Notice of Disagreement (NOD) regarding the proposed reduction for his service-connected adjustment disorder. Then, in March 2016, the Veteran submitted a new claim for his psychiatric condition. The Veteran was afforded a VA PTSD examination in April 2016. Diagnoses of PTSD, depression, anxiety, alcohol abuse were provided. In a July 2016 rating decision, the RO associated PTSD with the Veteran's service-connected psychiatric disorder and increased the disability rating from 10 percent to 50 percent, effective February 26, 2016, the date of receipt of an intent to file claim a new claim and the Veteran's notice of disagreement regarding the proposed rating reduction. In the Veteran's August 2016 NOD, he disagreed with the effective date of the service-connected condition and stated that the effective date should be the original date of the denial in 2012. Given the above-summarized law and facts, the Veteran's claim could be substantiated in one of two ways: first, the evidence could show that the Veteran filed a formal or informal claim for benefits prior to February 2016; second, the evidence could show that the Veteran's psychiatric disorder met the criteria for a 50 percent rating at a factually ascertainable point between February 2015 and February 2016. Neither scenario is satisfied here. First, the RO's assignment of the current effective date of February 26, 2016, for the award of the 50 percent rating for the Veteran's service-connected adjustment disorder was based on the receipt date of the new claim requesting an increased disability evaluation. There is no evidence of the Veteran's filing a formal or informal claim for an increased rating between the time of the final rating decisions in May 2008 and October 2013, and his February 2016 claim for an increased rating. As noted above, the May 2008 and October 2013 rating decisions are final. Second, there is no factually ascertainable basis for a 50 percent evaluation from the one year period prior to February 26, 2016. Indeed, the January 2016 VA examination report revealed no diagnosis at all. There is no medical or lay evidence of record which provides an adequate basis to conclude that the service-connected disability underwent any ascertainable increase in severity that would allow for extending the effective date back based on his symptoms. There are no treatment records showing a "new" diagnosis of a psychiatric disorder, such as PTSD. The Veteran's generalized contention that the effective date should go back to 2012, the denial of service connection for PTSD, is not sufficient. As noted above, the effective date is generally based on the date of claim or the date entitlement arose, whichever is later. The Veteran was first diagnosed with PTSD in April 2016; thus, this is the year that entitlement arose, and the RO has assigned the effective date of February 26, 2016. Based on the forgoing, the evidence is persuasively against the claim for an earlier effective date, and there is no doubt to be resolved. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service Connection The previously denied claim for service connection for a bilateral hand condition is reopened; to this extent only, the appeal is granted. Here, the Veteran did not submit a NOD in response to the May 2008 rating decision denying service connection for a bilateral hand condition, on the basis that the medical evidence of record failed to show that the disability had been clinically diagnosed. 38 U.S.C. § 7105. Evidence received since that decision includes VA treatment records and a VA examination and medical opinion. The evidence is new to the record, relates to an unestablished fact necessary to substantiate the Veteran's claim, and is neither duplicative nor cumulative of evidence previously received. As such, the Board finds it to be new and material sufficient to warrant reopening the claim. 38 C.F.R. § 3.156; Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). The Board will proceed to adjudicate this matter on the merits. Entitlement to service connection for a left hand condition and entitlement to service connection for a right hand condition are denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Service treatment records dated in October 2007 show that the Veteran experienced pain his hands, bilaterally. In a Report of Medical History dated later in October 2007, the Veteran reported that his hand would cram and that he could not grip. The Veteran was afforded a VA examination in January 2008. The Veteran reported that while in service, his right hand would swell, and he experienced numbness. He also noted bilateral hand pain while in service. He stated that his hands would lock up and would become stiff. Upon examination, sensation testing was intact for both hands. There was slight pain noted at the end of range of motion testing, bilaterally. X-ray results were normal, bilaterally. A diagnosis of bilateral hand tendonitis, reported by the Veteran with no documentation in his service medical records and no clinical or radiographic evidence to support the diagnosis, was provided. A July 2015 VA treatment record shows that the Veteran complained of left forearm pain. It was noted that the Veteran was working out and felt a jerk in the left forearm. Pain and weakness in the left hand was also noted. The Veteran was afforded a VA examination in April 2016. The Veteran reported pain in both hands, weakness, stiffness, fatigability, and lack of endurance. He noted that he had pain and difficulty with daily activities. He also had difficulty with performing over-head activities and lifting and carrying gear/equipment. A diagnosis of hand strain, bilaterally, was provided. The VA examiner noted a review of the Veteran's claims file and opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include a specific exposure event experienced by the Veteran during service in Southwest Asia. The VA examiner noted that the hand disorder was a disease with a clear and specific etiology and diagnosis. It was noted that arthritis was the most common form of joint disease. Several powerful risk factors were major trauma, repetitive joint use, and age. Arthritis was diagnosed according to a combination of clinical features and radiographic findings. Arthralgia, which was a self-reported symptom of arthritis, referred to painful joints. The VA examiner noted that in the absence of other clinical features and radiographic findings, arthralgias are not necessarily diagnostic of arthritis. The VA examiner included an article from Gulf War and Health: Volume 8, titled Update of Health Effects of Serving in the Gulf War; Committee on Gulf War and Health: Health Effects of Serving in the Gulf War (2010, Institute of Medicine of the National Academies; The National Academies Press) which noted that "Among those examined, there was no significant difference in arthralgias, a surrogate for arthritis, but data on self-reports indicate that arthritis was more common among those deployed to the gulf...There appears to be no significant increase in the prevalence of arthralgias among veterans who underwent a medical examination," "The committee also concludes that there is inadequate/insufficient evidence to determine whether an association exists between deployment to the Gulf War and musculoskeletal system diseases." The VA examiner stated that an association between service in Southwest Asia and the development of hand disorders had not been clearly defined. Therefore, until further studies were available, it was reasonable to assume that said exposures may not be related to the Veteran's current symptoms. After a review of the record, the Board finds that the evidence is persuasively against the claims of service connection for a bilateral hand disability. The Veteran is currently diagnosed with bilateral hand strain. However, there is no medical opinion linking the Veteran's bilateral hand disabilities to service. The only competent medical opinion of record addressing the relationship between the current condition and service is that of the April 2016 VA examiner, and such opinion is against the claim. In this regard, the Board finds the opinion of the April 2016 VA examiner to be most probative. The opinion was provided based upon a comprehensive review of the claims file and examination of the Veteran, and provided an adequate rationale that considered the Veteran's in-service treatment, post-service treatment, and the Veteran's self-reported history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). There is no competent and probative opinion to the contrary. While the Veteran contends that his left hand and right hand disabilities are related to his service, there is no indication that he has specialized training in diagnosing joint disorders. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis of a hand disability requires medical testing and training to identify. Thus, the Veteran's lay opinion as to the diagnosis or etiology of his claimed disability is not competent medical evidence and is assigned less probative weight. In light of the foregoing, the Board finds that the evidence is persuasively against the claims of service connection, there is no doubt to be resolved, and service connection for a left hand condition and service connection for a right hand condition is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Evans, A-L 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.