Citation Nr: A24064458 Decision Date: 10/09/24 Archive Date: 10/09/24 DOCKET NO. 220711-258536 DATE: October 9, 2024 ORDER Entitlement to an increased disability evaluation for left wrist fracture with a history of tendonitis, currently rated as 10 percent disabling, is dismissed. Entitlement to an effective date prior to January 23, 2012 for the award of service connection for right wrist sprain with tenosynovitis is denied. REMANDED Entitlement to an increased disability evaluation for right wrist sprain with tenosynovitis, currently rated as 10 percent disabling, is remanded. FINDINGS OF FACT 1. The Veteran's claim for an increased disability evaluation for left wrist fracture with a history of tendonitis was adjudicated by the Board in a September 2022 decision. 2. On January 23, 2012, the AOJ received an informal claim of entitlement to service connection for a right hand/wrist disorder. 3. No claim of entitlement to service connection for right wrist sprain with tenosynovitis was received by VA prior to January 23, 2012. CONCLUSIONS OF LAW 1. The claim of entitlement to an increased disability evaluation for left wrist fracture with a history of tendonitis is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 3.151, 3.2500, 20.104, 20.201, 20.202, 20.204. 2. The criteria for an effective date prior to January 23, 2012, for the award of service connection for right wrist strain with tenosynovitis have not been met. 38 U.S.C. §§ 5103A, 5110; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1980 to August 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Appeals Modernization Act (AMA) creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. The AMA became effective on February 19, 2019. 38 C.F.R. § 3.2400(a)(1). The rating decision in this case was issued after February 19, 2019; thus, the AMA framework applies. In a March 10, 2022 rating decision, the AOJ awarded the Veteran service connection for a right wrist sprain with tenosynovitis. A 10 percent disability evaluation was assigned, effective January 23, 2012. The Veteran was notified of this rating decision on March 15, 2022. The Veteran appealed the March 2022 rating decision to the Board by filing a July 11, 2022 VA Form 10182, Decision Review Request: Board Appeal. The Veteran requested Direct Review. On July 21, 2022, the Board acknowledged receipt of the Veteran's Board Appeal request (VA Form 10182). Under its review, the Board will now only consider all evidence of record at the time of the March 10, 2022 rating decision on appeal. 38 C.F.R. § 20.301. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Dismissal 1. Entitlement to an increased disability evaluation for left wrist fracture with a history of tendonitis, currently rated as 10 percent disabling. The Board has jurisdiction where there is a question of law or fact necessary for a decision by the Secretary of Veterans Affairs under a law that affects the provision of benefits by the Secretary to veterans or their dependents or survivors. 38 U.S.C. § 7104. The Board may dismiss any appeal which fails to allege a specific error in fact or law in the determination being appealed. 38 U.S.C. § 7105(d). In a September 27, 2022 decision, the Board denied entitlement to an increased disability evaluation for left wrist fracture with a history of tendonitis. The September 27, 2022 Board 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). As the September 27, 2022 decision denied the Veteran's appeal of his claim for an increased disability evaluation for left wrist fracture with a history of tendonitis, the issue of entitlement an increased disability evaluation for left wrist fracture with a history of tendonitis is rendered moot by virtue of the final September 27, 2022 Board decision having previously adjudicated this issue. The Board acknowledges that, in his July 11, 2022 VA Form 10182, the Veteran indicated that he disagreed with the March 10, 2022 supplemental statement of the case (SSOC) to the extent that it denied his claim of entitlement to an increased disability evaluation for left wrist fracture with a history of tendonitis. However, the Veteran's claim of entitlement to an increased disability evaluation for left wrist fracture with a history of tendonitis originated as a legacy claim; the Veteran's claim for an increased disability evaluation for his left wrist fracture was denied in an October 2013 rating decision. A legacy claim is a claim for which VA provided notice of an initial decision prior to the February 19, 2019 effective date of the AMA modernized review system. 38 C.F.R. §§ 3.2400, 19.2. As noted, the AMA modernized review system applies to all claims for which VA issues a notice of an initial decision on or after the February 19, 2019 effective date of the modernized review system. The AMA may also apply to claims where the claimant has elected review of a legacy claim under the modernized review system. 38 C.F.R. §§ 3.2400, 19.2. The Board notes that a claimant with a legacy claim may elect to participate in the AMA modernized review system in one of two ways: First, a claimant with a legacy claim could elect to opt-in to the modernized review system on or after November 1, 2017 as part of the rapid appeals modernization program (RAMP) pursuant to section 4 of Public Law 115-55. 38 C.F.R. §§ 3.2400, 19.2. Second, a claimant with a legacy claim may elect to opt-in to the AMA modernized review system following issuance, on or after the effective date of the AMA, of a VA Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC). 38 C.F.R. §§ 3.2400, 3.2500, 19.2. Here, the Veteran's July 11, 2022 VA Form 10182 did not indicate that the Veteran wished to opt into the AMA modernized review system following the March 10, 2022 issuance of the SSOC. Accordingly, the Veteran's appeal of his claim of entitlement to an increased disability evaluation for a left wrist fracture with a history of tendonitis continued in the legacy system. As previously noted, this claim was adjudicated by the Board in the aforementioned September 27, 2022 decision. As such, the claim of entitlement to an increased disability evaluation for left wrist fracture with a history of tendonitis is moot. Thus, there is no case or controversy left to adjudicate. The appeal as to this claim is dismissed. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.104, 20.201, 20.202. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). ? Earlier Effective Date 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 the application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran is the day following the date of discharge or release if the application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). Prior to March 24, 2015, a claim was 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). Any communication or action indicating intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). After March 24, 2015, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by the Secretary. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The Court has made it clear that the date of the filing of a claim is controlling in determinations as to effective dates. A specific claim in the form prescribed by the Secretary 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). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Upon receipt of an intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by VA. If VA receives a complete application form prescribed by VA, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date the intent to file a claim was received. 38 C.F.R. § 3.155(b). Under the modernized, AMA, system of review, an effective date can be preserved if a claim is continuously pursued. For a claim to be continuously pursued, a supplemental claim must be filed within one year after a final decision or the date entitlement arose. 38 C.F.R. § 3.2500(h). For continuously pursued claims, except as otherwise provided by other provisions of this part, including § 3.400, the effective date will be fixed in accordance with the date of receipt of the initial claim or date entitlement arose, whichever is later, if a claimant continuously pursues an issue by timely filing in succession any of the available review options as specified in 38 C.F.R. § 3.2500(c) within one year of the issuance of the decision, provided that any appeal to the U.S. Court of Appeals for Veterans Claims must be accepted as timely by that court. 38 C.F.R. § 3.2500(h)(1). Except as otherwise provided in 38 C.F.R. § 3.2500, for supplemental claims received more than one year after the date on which the AOJ issues notice of a decision or the Board issues notice of a decision, the effective date will be fixed in accordance with the date entitlement arose but will not be earlier than the date of receipt of the supplemental claim. 38 C.F.R. § 3.2500(h)(2). In a recent decision, the United States Court of Appeals for the Federal Circuit (Federal Circuit) invalidated the part of 38 C.F.R. § 3.155 that excluded supplemental claims from the intent-to-file framework; thus, if a supplemental claim is received within one year of an intent to file, the date the intent to file was received is the date of claim for effective date purposes. Military-Veterans Advocacy v. McDonough, 7 F.4th 1110 (Fed. Cir. 2021). A pending claim is an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160(c). The pending claims doctrine provides that a claim remains pending in the adjudication process if VA fails to act on it. Norris v. West, 12 Vet. App. 413, 422 (1999). Raising a pending claim theory in connection with a challenge to the effective-date decision is procedurally proper. Ingram v. Nicholson, 21 Vet. App. 232, 249, 255 (2007). Regarding the date of entitlement, the term "date entitlement arose" is not defined in the current statue or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober; 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the facts found. DeLisio v. Shinseki, 25 Vet. App. 45 (2011). For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). 2. Entitlement to an effective date prior to January 23, 2012 for the award of service connection for right wrist sprain with tenosynovitis. In arguing for the assignment of an earlier effective date for the award of service connection for right wrist sprain with tenosynovitis, the Veteran argues that the effective date should be retroactive; the Veteran did not specify a retroactive effective date to which he felt entitled, nor did he state his reasons for seeking an earlier effective date. Here, the Veteran separated from service in 1992, but he did not file a claim for service connection for right wrist strain with tenosynovitis within one year of his separation from service. Thus, an effective date of the date after separation from service is not warranted. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b). The assignment of an effective date in the Veteran's case turns on the date of claim and the date entitlement arose, whichever is later. As previously discussed, VA first received communication from the Veteran evincing intent to apply for benefits on January 23, 2012, when VA received an informal claim, wherein the Veteran claimed entitlement to service connection for a right wrist/hand disorder. No relevant evidence or formal or informal claim relating to compensation for the Veteran's right wrist was received by VA prior to January 23, 2012. Therefore, the Board finds that January 23, 2012 represents the earliest possible date for the date that a claim was received, as it is the first date demonstrating an intent to apply for benefit. Accordingly, the Board finds that the date of claim is January 23, 2012. January 23, 2012 is the date currently assigned as the effective date for the award of service connection of a right wrist strain with tenosynovitis. To the extent that the Veteran argues that he should be entitled to an earlier effective date based on the date he was diagnosed with right wrist strain with tenosynovitis, or first treated for related complaints, the Board points out that there is no provision in the law for awarding an earlier effective date based simply on the presence of the disability or treatment therefor, and there is no basis for finding such a date as the date of claim. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). See also 38 C.F.R. § 3.155(a) (requiring claimants to file formal application after informal claim is accepted and proper form is provided). Thus, his date of first treatment cannot serve as the date of claim in this case as there was no intent to file for benefits at that time. As noted, the Board finds that the date of claim is January 23, 2012. As for the date entitlement arose, even if this date is prior to January 23, 2012, the date that the Veteran's claim was received was January 23, 2012. Thus, even if entitlement arose in service or prior to this date, the date of receipt of the claim, January 23, 2012, is the later of the dates, and thus, this is the proper effective date for the award of service connection for the Veteran's right wrist strain with tenosynovitis. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Therefore, under the laws and regulations pertaining to effective dates, January 23, 2012 is the appropriate effective date for the grant of entitlement to service connection for right wrist strain with tenosynovitis. The claim for an earlier effective date for the award of service connection for right wrist strain with tenosynovitis is denied. REASONS FOR REMAND 1. Entitlement to an increased disability evaluation for right wrist sprain with tenosynovitis, currently rated as 10 percent disabling, is remanded. Under the AMA, the Board must remand a claim to correct an error by AOJ to satisfy its duty to assist the Veteran under 38 U.S.C. § 5103A if the error occurred prior to the AOJ decision on appeal. 38 U.S.C. § 5103A(f)(2)(A); 38 C.F.R. § 20.802(a). The Board may also remand a claim to correct any other AOJ error "in satisfying a regulatory or statutory duty, if correction of the error would have a reasonable possibility of aiding in substantiating" the claim. 38 C.F.R. § 20.802(a). In the present case, the Board acknowledges that the AOJ obtained VA wrist examinations in November 2012, January 2020, and February 2022. Nevertheless, the evaluations and opinions provided by the VA examiners were inadequate such that it constitutes a pre-decisional duty to assist error. To this point, the Board notes that the effective date for an increased disability rating, whether an initial rating or staged rating, is predicated on when the increase in the level of disability can be ascertained. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). The Board notes that VA has an obligation to obtain retrospective medical opinions in instances where there is competent evidence suggesting that a higher rating may be appropriate during a relevant period, but insufficient clinical evidence to determine whether such an increase is, in fact, warranted. See Chotta v. Peake, 22 Vet. App. 80 (2008). In this regard, the Board finds that the November 2012, January 2020, and February 2022 VA examination reports, as well as the associated medical opinions, did not provide sufficient information for rating purposes for the rating period on appeal (since January 23, 2012). To this point, the Board observes that the VA examinations were obtained in an effort to determine whether the Veteran was entitled to service connection for right wrist strain with tenosynovitis and did not fully evaluate the severity and manifestations of the Veteran's right wrist disability. Additionally, the Board observes that the VA examinations provide inconsistent information as to whether the Veteran experiences flare-ups; the January 2020 VA examiner indicated that the Veteran experiences right wrist flare-ups, but the February 2022 VA examiner found that the Veteran does not experience flare-ups and failed to provide an estimate regarding the specific loss of range of motion during flare-ups. The Board also notes that the February 2022 VA examiner made no attempt to include information on the functional effects of repeated use of the right wrist over time. The Board notes that the United States Court of Appeals for Veterans Claims (Court) held in Sharp v. Shulkin, 29 Vet. App. 26 (2017) that VA examiners are obligated when conducting evaluations for musculoskeletal disabilities to inquire whether there are periods of flare-ups and, if the answer is yes, to state their "severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, 'per [the] veteran,' to what extent, if any, they affect functional impairment." Sharp, 29 Vet. App. at 34. The Court further explained that, in the event an examination is not conducted during a flare-up, the "critical question" in assessing the adequacy of the examination was "whether the examiner was sufficiently informed of and conveyed any additional or increased symptoms and limitations experienced during flares." Id. (quoting Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Moreover, the Board points out that, in Correia v. McDonald, 28 Vet. App. 158 (2016), CAVC held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Likewise, the Board observes that none of the VA examination reports addressed whether the Veteran's pain on motion was the equivalent of ankylosis for any portion of the rating period on appeal. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Chavis v. McDonough, 34 Vet. App. 1 (2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare."). To the extent that the November 2012, January 2020, and February 2022 VA examination reports did not discuss the severity of the Veteran's service-connected right wrist strain with tenosynovitis during the entire rating period on appeal (since January 23, 2012), particularly as pertains to functional limitations during flare-ups, the examination reports are inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). This constitutes a pre-decisional duty to assist error. Thus, an adequate examination must be provided. The matters are REMANDED for the following action: Schedule the Veteran for a VA wrist examination with an appropriate physician to ascertain the severity and manifestations of the Veteran's service-connected right wrist strain with tenosynovitis for the rating period on appeal (since January 23, 2012). The claims file should be made available to the examiner for review in connection with the examination. The examination report should include a statement as to the effect of the Veteran's service-connected right wrist strain with tenosynovitis on his occupational functioning and daily activities. Specifically, the examiner is advised to consider, along with the rating criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. In particular, the VA examination must include range of motion testing for the right and left wrists in the following areas: " Active motion; " Passive motion; " Weight-bearing; and " Nonweight-bearing If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The VA examiner is advised that the Veteran's report of worsening symptoms following prolonged activity may be construed as a flare-up. The VA examiner is also requested to address the severity and functional impairment caused by the Veteran's service-connected right wrist strain with tenosynovitis. In rendering the opinion, the VA examiner should consider, and discuss with specificity, the Veteran's VA treatment records, as well as any imagining reports. The VA examiner should provide a complete rationale for any opinions provided. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.