Case A26038913

M. HYLAND · 2026 · Case ID: A26038913

MIXED

Summary

The veteran, who served from August 17, 1998, to October 15, 2005, and earned the Purple Heart and Combat Action Ribbon, appeals the denial of earlier effective dates for several claims. The primary issues on appeal concern the effective dates for service connection of left arm neuropathy with bicep atrophy, an increased rating for a left elbow small chip fracture, and earlier effective dates for right knee disability and painful scars on the left elbow, right knee, and lower lip. The Board denied earlier effective dates for the left arm neuropathy and left elbow claims, finding that the evidence did not support dates prior to the Veteran's intent to file in March 2020 or the date of claim in July 2020, and that no increased symptoms were factually ascertainable in the year prior to the claim. The Board also denied earlier effective dates for the right knee and scar claims, as the existing 10 percent and 20 percent ratings, respectively, were already in effect from the Veteran's separation date in October 2005, and no evidence supported an earlier date. The Board noted that the Veteran's assertion of clear and unmistakable error (CUE) regarding a December 2005 decision was outside its jurisdiction and must be adjudicated by the agency of original jurisdiction. However, the claim for an increased rating for the right knee disability was remanded due to an inadequate VA examination, which failed to discuss the ameliorative effects of NSAIDs used by the Veteran for pain, a pre-decisional duty to assist error.

Rationale

Service connection granted from March 10, 2020; No evidence for earlier effective date; Reasonable doubt doctrine not applicable

Special Benefit

EARLIER EFFECTIVE DATE

Docket No.

210416-153160

Full Decision Text

Citation Nr: A26038913
Decision Date: 04/27/26 Archive Date: 04/27/26

DOCKET NO. 210416-153160
DATE: April 27, 2026

ORDER

An effective date, prior to March 10, 2020, for service connection for left arm neuropathy with bicep atrophy is denied.

An effective date, prior to March 10, 2020, for the award of an increased 10 percent rating for left elbow small chip fracture with debridement of multiple fragment wounds is denied.

An effective date, earlier than October 16, 2005, for a 10 percent rating for a right knee disability under the criteria for Diagnostic Code (DC) 5260 is denied.

An effective date, earlier than October 16, 2005, for a 20 percent rating under DC 7804 for scars is denied.

REMANDED

Entitlement to an increased rating for a right knee disability is remanded.

FINDINGS OF FACT

1. On March 10, 2020, the Veteran notified VA of his intent to file a claim and, in July 2020, he filed a claim seeking service connection for a left arm nerve disability and for a left arm muscle disability.

2. On March 10, 2020 the Veteran notified VA of his intent to file a claim; in July 2020, he filed a claim seeking an increased rating for a left elbow disability; and it is not factually ascertainable that the left elbow small chip fracture with debridement of multiple fragment wounds disability increased in severity within one year prior to the date the claim was filed.

3. A 10 percent rating for a right knee disability under the rating criteria of DC 5250 has been in effect since October 16, 2005, the date the Veteran separated from active service.

4. A 20 percent rating for scars under DC 7804 which had been in effect since October 16, 2005, the date the Veteran separated from active service.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to March 10, 2020 for service connection for left arm neuropathy with bicep atrophy have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400

2. The criteria for an effective date prior to March 10, 2020, for the 10 percent increased disability evaluation for left elbow left elbow small chip fracture with debridement of multiple fragment wounds disability, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; Hazan v. Gober, 10 Vet. App. 511 (1997); VAOGCPREC 12-98.

3. The criteria for an effective date prior to October 16, 2005, for a 10 percent rating for a right knee disability under the rating criteria described in DC 5250 have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400.

4. The criteria for an effective date prior to October 16, 2005, for a 20 percent rating for scars under DC 7804 have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from August 17, 1998 to October 15, 2005. His military awards include the Purple Heart and the Combat Action Ribbon.

The rating decision on appeal was issued in August 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies.

In the April 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 20, 2025.

Therefore, the Board may only consider the evidence of record at the time of the August 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its
Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Hearing docket. A Board hearing was held on February 20, 2025.

Therefore, the Board may only consider the evidence of record at the time of the August 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the Board hearing, or (2) more than 90 days following the hearing, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(a), 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of entitlement to an increased rating for a right knee disability, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Entitlement to an increased rating/earlier effective date for a lower lip scar under DC 7800

The February 20, 2025 hearing included a discussion of the issue of entitlement to a rating in excess of 30 percent for a lower lip scar. On review of the claims file, this issue is not included in the current appeal. Procedurally, the August 2020 rating decision was issued in response to the Veteran's July 2020 claim for increased facial scaring. In addition to continuing the 20 percent rating under DC 7804 (discussed below), the August 2020 rating decision provided an increased rating of 30 percent rating from March 10, 2020 for the lower lip scar under DC 7800. However, the April 2021 VA Form 10182 did not identify an appeal as to the separate lower lip scar rating. Instead, the Veteran filed VA Form 20-0996 requesting higher level review as to "evaluation and effective date of scar, lower lip." The AOJ issued a June 2021 higher level review rating decision as to this issue. In April 2022 the Veteran filed VA Form 10182 and requested Board review of the June 2021 rating decision. That appeal is currently pending at the Board with docket number 220427-238883. The issues of entitlement to an increased rating and entitlement to earlier effective date for the lower lip scar under DC 7800 will be addressed in a separate Board decision.

Assertions of Clear and Unmistakable Error (CUE)

The Board is unable to adjudicate CUE in the first instance. See Jarrell v. Nicholson, 20 Vet. App. 326 (2006). While an appeal of an effective date and a motion for revision of a prior final rating decision based on CUE are both methods by which an appellant may obtain an earlier effective date, they are separate processes, each with distinct requirements. Generally, 38 C.F.R. § 3.400 governs the effective date assigned for an award of pension, compensation, or dependency and indemnity compensation. An appellant can directly challenge the effective date assigned within one year from when the AOJ issues notice of the decision. However, once a rating decision becomes final, an appellant can only challenge that decision by demonstrating CUE in the decision. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006); see also 38 C.F.R. §§ 3.105(a), 3.160(d), 3.400(h)(2).

An assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of an appeal for an earlier effective date. See, e.g., Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011). Therefore, jurisdiction over an earlier effective date appeal does not extend to an allegation of CUE in a prior final rating decision. See Phillips v. Brown, 10 Vet. App. 25, 33 (1997). Rather, such a CUE motion must be adjudicated by the AOJ in the first instance and separately appealed to the Board. See Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006). Whether there was CUE in an AOJ decision is a separate and distinct matter from the issue of entitlement to an earlier effective date; both questions involve different standards of proof and law. Compare 38 U.S.C. § 5109A with 38 U.S.C. § 5110.

During the February 2, 2025 hearing, the Veteran asserted CUE in a December 2005 rating decision warranted earlier effective dates for an increased lower lip scar rating and service connection for a separate left arm neuropathy with bicep atrophy disability. The AOJ did not adjudicate the CUE assertions as to these claims. Therefore, the Board does not have jurisdiction to review the CUE assertions. The Veteran may request AOJ adjudication in the first instance as to CUE in the December 2005 rating decision. The Board did not consider any CUE assertion in addressing the effective date claims discussed below.

1. Entitlement to an effective date, prior to March 10, 2020, for service connection for left arm neuropathy with bicep atrophy

Except as otherwise provided, the effective date of an evaluation and award of 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 the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

VA regulation allows for an effective date based on an intent to file a claim if a formal claim is received within one year of the submission of the intent to file a claim. See 38 C.F.R. § 3.155(b).

Under the AMA, the effective date of an award based on an initial claim, or a supplemental claim, 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)(1); 38 C.F.R. § 3.2500(h)(1). For purposes of determining the effective date of an award under these provisions, the date of application shall be considered the date of the filing of the initial application for a benefit if the claim is continuously pursued by filing any of the following, either alone or in succession: (A) a request for higher-level review on or before the date that is one year after the date on which the AOJ issues a decision; (B) a supplemental claim on or before the date that is one year after the date on which the AOJ issues a decision; (C) a notice of disagreement on or before the date that is one year after the date on which the AOJ issues a decision; (D) a supplemental claim on or before the date that is one year after the date on which the Board issues a decision; or (E) a supplemental claim on or before the date that is one year after the date on which the Court issues a decision. Id.

A December 2005 rating decision granted service connection for a left elbow disability. VA did not receive a notice of disagreement or new and material evidence within one year of notice of the December 2005 rating decision. Therefore, it is final.

On March 10, 2020, the Veteran notified VA of his intent to file a claim. In July 2020, he submitted a claim seeking service connection for left arm nerve and muscle conditions. The August 2020 rating decision now on appeal granted service connection for left arm neuropathy with bicep atrophy from March 10, 2020. In April 2021, the Veteran submitted VA Form 10182 and requested Board review of the effective date for service connection for
rating decision granted service connection for a left elbow disability. VA did not receive a notice of disagreement or new and material evidence within one year of notice of the December 2005 rating decision. Therefore, it is final.

Here, service connection for left arm neuropathy with bicep atrophy is provided from March 10, 2020, the date the Veteran notified VA of his intention to file a claim. The claim was filed in July 2020. An effective date, prior to March 10, 2020 is not indicated. 38 U.S.C. § 5110; 38 C.F.R. § 3.155(b), 3.400. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the evidence persuasively weighs against the claim, the doctrine is not for application. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

As discussed above, the Veteran's representative asserted an earlier effective date was warranted based on CUE in the December 2005 rating decision which adjudicated a claim for service connection for a left elbow disability. The Veteran may request AOJ adjudication as to CUE in the first instance.

2. Entitlement to an effective date, prior to March 10, 2020 for the award of an increased 10 percent rating for left elbow small chip fracture with debridement of multiple fragment wounds

The effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997) (When considering the appropriate effective date for an increased rating, VA must consider the evidence of disability during the period one year prior to the application). In other words, the effective date of an increased rating claim is when it is ascertainable that an increase in disability has occurred, if the application is received within one year from such date. The award of an increased rating should normally be effective either on the date of receipt of the claim or on some date in the preceding year if it was ascertainable that the disorder had increased in severity during that time. See also VAOGCPREC 12-98

The Veteran seeks an effective date prior to March 10, 2020 for the award of a 10 percent rating for a left elbow small chip fracture disability. A December 2005 rating decision granted service connection for this disability and applied a noncompensable rating. VA did not receive a notice of disagreement or new and material evidence within one year of notice of the December 2005 rating decision. Therefore, it is final.

On March 10, 2020, the Veteran notified VA of his intent to file a claim and in July 2020 he filed a claim identifying left arm muscle and nerve conditions. The August 2020 rating decision provided an increased rating of 10 percent from March 10, 2020 for the left elbow small chip fracture with debridement of multiple fragment wounds disability. The Veteran has not asserted any increased left elbow symptoms in the one year period prior to the date he filed his claim. The medical evidence of record does not show increased left elbow symptoms during this period.

Because effective dates in claims for increase - as is the case here - will be the date of receipt of the claim or the date entitlement arose (whichever is later), the Board is prohibited, as a matter of law, from assigning an effective date prior to March 10, 2020, as this is the date the Veteran notified VA of his intent to file a claim and the notification was received within one year of the July 2020 claim. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155(b), 3.400. Although an exception applies to the general rule, allowing an earlier effective date where it is factually ascertainable that the Veteran's disability increased in severity in the year prior to his claim, there is no evidence his left symptoms increased during this time frame. Accordingly, the claim for an earlier effective date for the 10 percent rating must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the evidence persuasively weighs against the claim, the doctrine is not for application. See Lynch, supra.

3. Entitlement to an earlier effective date for the award of an increased 10 percent rating for a right knee disability

The Veteran seeks an earlier effective date for the application of a 10 percent rating for a right knee disability. A December 2005 rating decision granted service connection for a right knee disability and provided an initial 10 percent rating under DC 5299-5260. Under this hyphenated diagnostic code, the criteria for the diagnostic code listed after the hyphen (DC 5260) is used as the basis for the evaluation. See 38 C.F.R. § 4.27.

On March 10, 2020, the Veteran notified VA of his intent to file a claim. In July 2020, he filed a claim seeking an increased rating for his right knee disability. The August 2020 rating decision continued a10 percent rating for the right knee disability under DC 5003-5260. The August 2020 rating decision did not include any other grant or increased evaluation as to the Veteran's right knee. The April 2021 VA Form 10182 sought review as to the effective date of the right knee disability. Here, the August 2020 rating decision continued the 10 percent right rating which had been in effect from October 16, 2005, the date the Veteran separated from active service. A 10 percent rating, prior to the Veteran's separation from active service is not possible. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400.

4. Entitlement to an earlier effective date for a 20 percent rating for painful scars of the left elbow, right knee, and lower lip

The Veteran seeks an earlier effective date for the application of a 20 percent rating under DC 7804 for painful scars of the left elbow, right knee and lower lip. A December 2005 rating decision granted service connection for a left elbow scar with an initial 10 percent rating under DC 7804 and for a right knee scar with an initial 10 percent rating under DC 7804. Under the combined ratings table of 38. C.F.R. § 4.25, these 10 percent ratings are combined as a single 19 percent rating which is rounded up to a 20 percent rating. Thus the December 2005 rating decision provided an initial 20 percent rating under DC 7804 for the left elbow and right knee scars.

On March 10, 2020, the Veteran notified VA of his intent to file a claim. In July 2020, he filed a claim seeking an increased rating for a facial scaring disability. The August 2020 rating decision continued a 20 percent rating under DC 7804 as a single disability described as "painful scar of the left elbow, right knee and lower lip." The April 2021 VA Form 10182 sought review as to "the effective date of painful scar of the left elbow, right knee, and lower lip."

Here, a 20 percent rating under DC 7804 (as combined under 38. C.F.R. § 4.25) has been in effect from October 16, 2005, the date the Veteran separated from active service.
a claim. In July 2020, he filed a claim seeking an increased rating for a facial scaring disability. The August 2020 rating decision continued a 20 percent rating under DC 7804 as a single disability described as "painful scar of the left elbow, right knee and lower lip." The April 2021 VA Form 10182 sought review as to "the effective date of painful scar of the left elbow, right knee, and lower lip."

Here, a 20 percent rating under DC 7804 (as combined under 38. C.F.R. § 4.25) has been in effect from October 16, 2005, the date the Veteran separated from active service. The August 2020 rating decision continued a 20 percent rating under DC 7804. An earlier effective date, prior to the Veteran's separation from active service is not possible. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.400.

As discussed above, the Veteran's representative asserted an earlier effective date for an increased lower lip scar rating was warranted based on CUE in the December 2005 rating decision. The Veteran may request AOJ adjudication as to CUE in the first instance.

REASONS FOR REMAND

1. Entitlement to an increased rating for a right knee disability is remanded.

The Board must remand an appeal to the AOJ for correction of an error on the part of the AOJ to satisfy its duties under 38 U.S.C. § 5103A if the error occurred prior to the date of the AOJ decision on appeal. 38 C.F.R. § 20.802. Once VA undertakes the effort to provide an examination or opinion, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Failure to obtain an adequate examination constitutes a pre-decisional duty to assist error requiring a remand.

In assigning a disability rating, the Board may not consider the ameliorative effects of medications where such effects are not explicitly contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). More recently, in Ingram v. Collins, 38 Vet. App. 130 (2025), the Court of Appeals for Veterans Claims determined that because the applicable diagnostic codes and special regulations pertaining to musculoskeletal disabilities do not explicitly contemplate medication use, the Board must discount the beneficial effects of medication when assigning an evaluation of a musculoskeletal disability.

In July 2020, the Veteran filed a claim seeking an increased rating for his service-connected right knee disability. A July 2020 VA knee conditions examination was provided to evaluate the claim. The Veteran reported using nonsteroidal anti-inflammatory drugs (NSAIDS) for right knee pain, including during flare ups. The examiner did not discuss the ameliorative effects of these medications. The examination is inadequate to evaluate the claim. The failure to provide an adequate examination is a pre-decisional duty to assist error. The claim must be remanded to correct the error.

The matters are REMANDED for the following action:

Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the disability under the rating criteria.

In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. 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).

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).

In addressing the severity
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).

In addressing the severity of the Veteran's right knee disability (as to all evaluations directed above), the examiner is instructed to consider and specifically address: (1) whether any medications the Veteran uses or has used during the appeal period affect or affected the severity of his right knee disability, and if so, to identify each medication and clearly explain how such medication affects the right knee symptomatology, and (2) if any such medication is productive of ameliorative effects, clearly identify such effects and opine as to the severity of the condition absent such medication.

M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Celtnieks, Jeanne

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.

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