Citation Nr: 0004262 Decision Date: 02/17/00 Archive Date: 02/23/00 DOCKET NO. 98-05 310 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an effective date prior to July 14, 1997, for assignment of a 30 percent rating for total left wrist fusion. REPRESENTATION Appellant represented by: South Carolina Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. D. Parker, Counsel INTRODUCTION The veteran served on active duty from June 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in October 1997 by the Columbia, South Carolina, Regional Office (RO) of the Department of Veterans Affairs, which granted an increased rating to 30 percent for the veteran's service- connected left wrist fusion, and assigned an effective date for the increase of July 14, 1997, the date of receipt of the veteran's claim for increase. In November 1997, the veteran filed a notice of disagreement to the effective date assigned for the 30 percent rating; a statement of the case was issued in November 1997; and the veteran filed a substantive appeal, on a VA Form 9, received in December 1997. It appears from various statements and the veteran's testimony at a January 1999 RO hearing that he is asserting a claim of clear and unmistakable error in prior rating decisions. In his substantive appeal received in December 1997, the veteran stated that his left wrist was not his minor wrist. Although not entirely clear, he further indicated that from September 1987, he "had a total left fusion and not a limited fusion." At the January 1999 personal hearing, the veteran testified that the percentage he was given for a partial fusion was incorrect, and he should have had a 30 percent rating since 1987. The matter of clear and unmistakable error in prior rating decisions is hereby referred to the RO for clarification and any necessary action. FINDINGS OF FACT 1. By rating decision in June 1996, entitlement to a rating in excess of 20 percent for postoperative total fusion of the left wrist on the minor side was denied; the veteran was notified of this decision, but did not file a timely notice of disagreement. 2. On July 14, 1997, the veteran's application for increased compensation for his service-connected left wrist disability was received by VA. 3. It was not factually ascertainable prior to July 14, 1997, that the veteran's postoperative total fusion of the left wrist on the minor side had increased in severity so as to meet the criteria for a 30 percent rating. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to July 14, 1997, for assignment of a 30 percent rating for total left wrist fusion, have not been met. 38 U.S.C.A. §§ 1155, 5107, 5110 (West 1991); 38 C.F.R. §§ 3.400, 4.71a, Diagnostic Code 5214 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board notes that the veteran has presented a claim that is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim that is plausible. The Board is also satisfied that all relevant facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist him mandated by 38 U.S.C.A. § 5107(a). By rating decision in January 1975, service connection was established for residuals of a fracture of the left navicular bone, rated as 10 percent disabling, and the rating was increased to 20 percent effective from October 1987. A rating decision in June 1996 denied a rating in excess of 20 percent for postoperative total fusion of the left wrist on the minor side. The veteran was notified of this decision in June 1996 and did not enter a notice of disagreement within one year of the date of notice of this decision. Therefore, this decision became final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.156, 20.302, 20.1103 (1999). Thereafter, on July 14, 1997, the veteran's application for increased compensation was received by VA. After considering treatment reports and the report of VA examination on September 27, 1997, the RO determined that a 30 percent rating should be assigned effective from July 14, 1997, the date of receipt of the veteran's claim for increased compensation. The pertinent regulation provides that 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 had occurred, if the claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2). The essential question before the Board is therefore when it was factually ascertainable that a 30 percent rating was warranted. Diagnostic Code 5214 provides that for favorable ankylosis of the wrist in 20 degrees to 30 degrees dorsiflexion, on the minor side, a 20 percent rating is warranted. For any other position of wrist ankylosis, except favorable, on the minor side, a 30 percent rating is warranted. 38 C.F.R. § 4.71a. Turning to the evidence, the Board is unable to find any basis for finding that it was factually ascertainable that the diagnostic criteria were met prior to the September 27, 1997, VA examination. In May 1996, the veteran was found to have 20 degrees of dorsiflexion of the left wrist, which is favorable ankylosis of the wrist (on the minor side), which warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5214. VA outpatient treatment records dated from July to September 1997 reflect that the veteran experienced pain and desired to have the plates removed, which was performed on September 3, 1997. The September 27, 1997, VA compensation examination documented a clinical finding that the veteran's left wrist disability was in approximately 10 degrees of extension and had no flexion or extension, and no motion at the wrist. The examiner noted that the veteran had recently had the hardware removed from the left wrist and was recovering from that. Based on this evidence, the Board finds that, as of September 27, 1997, it was first factually ascertainable that the veteran's postoperative total fusion of the left wrist on the minor side had increased in severity so as to meet the criteria for a 30 percent rating. Therefore, the effective date for the assignment of a 30 percent rating for the veteran's service-connected total left wrist fusion is the date of receipt of the veteran's claim for increase, that is, July 14, 1997. 38 C.F.R. § 3.400(o)(2). ORDER The appeal is denied. ALAN S. PEEVY Member, Board of Veterans' Appeals