Citation Nr: 1212918 Decision Date: 04/10/12 Archive Date: 04/19/12 DOCKET NO. 05-32 608A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to service connection for depression, to include as secondary to service connected degenerative disc disease, lumbosacral spine. 2. Entitlement to service connection for an acquired psychiatric disorder, including posttraumatic stress disorder (PTSD) and an anxiety disorder, to include as secondary to service connected degenerative disc disease, lumbosacral spine. 3. Entitlement to service connection for hypertension, to include as secondary to service connected degenerative disc disease, lumbosacral spine. 4. Entitlement to service connection for peptic ulcer disease, to include as secondary to service connected degenerative disc disease, lumbosacral spine. 5. Entitlement to service connection for hepatitis C. 6. Entitlement to an effective date earlier than January 16, 2002 for the grant of service connection for degenerative disc disease, lumbosacral spine. 7. Entitlement to an increased rating for service connected degenerative disc disease, lumbosacral spine, evaluated at 40 percent. 8. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Morton, Counsel INTRODUCTION The Veteran served on active duty from October 1967 to March 1968. This matter is before the Board of Veterans' Appeals (Board) from October 2004, March 2006, and January 2007 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon, which denied an increased rating in excess of 40 percent for service connected degenerative disc disease of the lumbosacral spine; denied an effective date earlier than January 16, 2002 for the grant of service connection for degenerative disc disease of the lumbosacral spine; denied service connection for depression, PTSD, hypertension, hepatitis C, and peptic ulcer disease; and denied TDIU. The Veteran timely perfected an appeal of these matters. The Veteran requested a hearing on these issues, which was held in September 2009 where he presented as a witness before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board has recharacterized the issue relating to PTSD so that it includes adjudication of a claim for service connection for an anxiety disorder. During the pendency of this appeal, the United States Court of Appeals for Veterans Claims (CAVC) in Clemons v. Shinseki, 23 Vet. App. 1 (2009) clarified how the Board should analyze claims for PTSD and other acquired psychiatric disorders. As emphasized in Clemons, although a Veteran may file a claim for service connection for one specific psychiatric disorder, the Veteran's claim "cannot be limited only to that diagnosis, but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. at 5. Essentially, the CAVC determined that a Veteran does not file a claim to receive benefits only for an acquired psychiatric disorder, such as PTSD, but in fact makes a general claim for whatever mental condition may be afflicting him or her. In the instant case, the RO denied service connection for PTSD, but in a March 2008 statement, the Veteran reported having an anxiety disorder and anxiety symptoms in conjunction with this claim. In light of Clemons, therefore, the Board must analyze the Veteran's current PTSD claim under an expanded framework, and as such, the claim is more accurately described as one for entitlement to service connection for an acquired psychiatric disorder, to include PTSD and an anxiety disorder. The issues of entitlement to service connection for depression, PTSD, an anxiety disorder, hypertension and peptic ulcer disease (all to include as secondary to the service connected degenerative disc disease, lumbosacral spine), service connection for hepatitis C, an increased rating for the service connected degenerative disc disease, lumbosacral spine, and TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ) for further action. Additionally, the Veteran has raised the issue of entitlement to service connection for hepatitis B. See Hearing Transcript at 15. The Board therefore refers this matter to the AOJ for appropriate action. FINDINGS OF FACT In a November 2002 rating decision, the RO granted service connection for degenerative disc disease, lumbosacral spine, evaluated at 40 percent from January 16, 2002, the date of the Veteran's claim to reopen; the Veteran did not timely appeal the effective date assigned, and therefore, the decision became final. CONCLUSION OF LAW Because the assignment of January 16, 2002 as the effective date for the grant of service connection for degenerative disc disease, lumbosacral spine is final, the claim for an earlier effective date cannot be reviewed on the merits. 38 U.S.C.A. §§ 5110, 7104, 7105 (West 2002) & 38 C.F.R. §§ 3.104, 3.400, 20.200, 20.302, 20.1103 (2011); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The enactment of the VCAA, codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002), significantly changed the law prior to the pendency of this claim. VA has issued final regulations to implement these statutory changes. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). The VCAA provisions include an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits, and they redefine the obligations of VA with respect to the duty to assist a Veteran with a claim. The United States Court of Appeals for Veterans Claims (CAVC) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim where the law, and not the underlying facts or development of the facts, is dispositive in a matter. Manning v. Principi, 16 Vet. App. 534, 542-543 (2002). In the instant case the facts with respect to this claim are not in dispute, and resolution of this issue depends upon the law, and judicial interpretation of that law, pertaining to free-standing earlier effective date claims. Rudd v. Nicholson, 20 Vet. App. 296 (2006). As no reasonable possibility exists that VCAA notice would aid in substantiating this claim, any deficiencies of such notice or assistance are moot. See 38 U.S.C.A. § 5103A; Wensch v. Principi, 15 Vet. App. 362, 368 (2001) (compliance with the VCAA is not required if no reasonable possibility exists that any notice or assistance would aid the appellant in substantiating the claim). II. Earlier Effective Date 38 U.S.C.A. § 5110(a) sets forth the provisions governing effective dates of awards for compensation. It provides that "[u]nless specifically provided otherwise in this chapter . . . the effective date of an award based on . . . a claim reopened after final adjudication . . . 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.A. § 5110(a) (Emphasis added). 38 C.F.R. § 3.400 similarly provides that "[e]xcept as otherwise provided, the effective date of an evaluation and award of . . . compensation based on . . . a claim reopened after final disallowance . . . will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400 (Emphasis added). The CAVC has held that there is no free-standing claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (holding that VA claimants may not properly file, and VA has no authority to adjudicate, a free-standing earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision). Thus, once an effective date has become final due to the failure of a claimant to appeal it, a claimant's only recourse is to have the final decision revised on the grounds of clear and unmistakable error (CUE). Id. at 299-300. The Veteran urges that he is entitled to "back pay" for his service connected degenerative disc disease, lumbosacral spine from the date of his service discharge in 1968. See Veteran's October 2005 Letter; May 2004 Notice of Disagreement (NOD). The Veteran initially filed a service connection claim for a back disorder in April 1968, but the RO denied that claim in August 1968. He did not appeal this decision, and therefore, it became final. The Veteran thereafter submitted a claim to reopen in November 1970, and, in a December 1970 response, the RO requested that he submit additional necessary evidence to support the claim. The Veteran did not submit the requested evidence, and having failed to do so, the claim was not adjudicated. More than thirty years later, in January 2002 the RO received another claim from the Veteran to reopen this issue, and, in November 2002, it issued a decision and notice of decision, which granted service connection for the back disability, assigning a 40 percent evaluation effective from January 16, 2002 (the date of the reopened claim). The Veteran thereafter did not file an NOD with this determination, and therefore this decision, including the assignment of the effective date, became final. The record reflects that it was not until years after the 2002 RO decision, in May 2004 and October 2005 correspondences, that the Veteran requested an effective date of 1968 for the grant of service connection for his back disability. The Veteran has not properly raised an allegation of CUE with any prior final RO decision, and because his May 2004 and October 2005 requests represent a free-standing earlier effective date claim for the grant of service connection for the back disability, the claim is dismissed. See Rudd, 20 Vet. App. at 300. ORDER The appeal for an effective date earlier than January 16, 2002 for the grant of service connection for a back disability is dismissed. REMAND The Board finds that additional development is warranted to address the merits of the Veteran's service connection, increased rating, and TDIU claims. 38 C.F.R. § 19.9. In particular, the Veteran, in a January 2008 letter, appears to indicate that he has been in receipt of benefits from the Social Security Administration (SSA), and a September 1998 correspondence indicates that he applied for SSA benefits relating to the back at that time. As such records could be pertinent to the Veteran's claims, the AOJ must obtain any such available SSA records and associated them with the claims file. Cohen v. Brown, 10 Vet. App. 128, 151(1997) (noting that "VA has a duty to assist in gathering social security records when put on notice that the veteran is receiving social security benefits"). The Veteran also maintains that L.B., who works as a clinician at the Stockton VA, Dr. S.K. of the Salem VA, and Dr. N.T. of White City diagnosed him with depression, anxiety, and PTSD. See Veteran's March 2008 Letter. As such diagnoses are critical to the instant appeal, the AOJ must obtain such records. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Finally, the AOJ should obtain all of the Veteran's VA treatment records from September 2009 to present to ensure that the record is complete should the case be returned to the Board for further adjudication. With respect to the service connection claims for depression, PTSD, and an anxiety disorder, to include as secondary to the service connected back disability, the Board determines that the current medical evidence and opinions of record are inadequate to fully and fairly adjudicate the claims. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. 3.159(c)(4); see McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In particular, although a June 2005 VA examiner determined that the Veteran did not have diagnoses of depression or PTSD, other VA medical records suggest that he has received positive screenings for both disorders. See VA Medical Records dated January 2005, November 2004, October 2004, April 2004. The June 2005 VA clinician did not address these contradictory, favorable findings, and therefore, the Board must obtain a fresh examination with opinion to assess whether the Veteran has a diagnosed depression or PTSD, and whether either such disorder may be causally related to his period of active service or his service connected back disability. In a similar vein, the Veteran has maintained that he has a diagnosis of an anxiety disorder, but the VA clinician did not specifically address this condition in the June 2005 examination report. The medical evidence of record is thus inadequate to fully and fairly adjudicate the matter, and therefore a fresh VA examination with nexus opinion is required to consider this issue. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. 3.159(c)(4); see McLendon, 20 Vet. App. at 81. With respect to the claims of service connection for hypertension and peptic ulcer disease, the Veteran has indicated that symptoms of these disorders tend to worsen as a result of the pain associated with his service connected back disability. See Veteran's March 2008 Letter. The Veteran is competent to describe such symptoms within his personal knowledge, see Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (noting that a layperson "is competent to provide information regarding visible, or otherwise observable, symptoms of disability"), and his account suggests that there could be a relationship between his hypertension and peptic ulcer disease, and his service connected back disability. McLendon, 20 Vet. App. at 81. Additionally, at least one VA medical report suggests that his hypertension becomes worse when he experiences back pain. See March 1999 VA Medical Record. Accordingly, a VA examination with opinion is warranted to adjudicate these claims. In relation to the Veteran's claim for service connection for hepatitis C, the Board determines that a VA examination with opinion is required. The record reflects that the Veteran reportedly had symptoms consistent with hepatitis C in the 1970s after his period of active service, to include jaundice, fever, and chills. See September 1998 VA Medical Record. Manifestation of such symptoms in the 1970s suggests that the Veteran could have been infected with hepatitis C before that time, which would include his period of active service in the late 1960s. Thus, a VA examination with opinion to address this issue is warranted. See McLendon, 20 Vet. App. at 81. Additionally, while the Board notes that a February 2001 VA medical record suggests that the Veteran was "probably infected [with hepatitis C] in the 70's," which would be after the Veteran's period of active service, this language is too attenuated alone to fully and fairly adjudicate the claim and further does not provide a complete rational for the conclusion offered. Accordingly, the Board deems it necessary to obtain a medical opinion to address the nexus issue. See 38 U.S.C.A. § 5103A(d)(1); 38 C.F.R. 3.159(c)(4); accord McLendon, 20 Vet. App. at 81. Turning to the Veteran's increased rating claim for his service connected degenerative disc disease of the lumbosacral spine, the Board determines that a fresh VA examination is required. At his September 2009 Board hearing, the Veteran testified that this back pain symptoms were worsening. See Hearing Transcript at 4. An examination of the record reveals that his most recent VA examination of the back occurred in 2008, therefore, a remand for a fresh VA examination is warranted. See 38 U.S.C.A. § 5103A(d)(1); accord 38 C.F.R. 3.159(c)(4). As for the Veteran's TDIU claim, the Board cannot fully and fairly adjudicate this claim until the AOJ has completed the actions outlined below in the Remand portion of this decision and has readjudicated the service connection claims and increased rating claim in appellate status. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the prohibition against the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other in the prescribed degree should not be subject to piecemeal decision-making or appellate litigation); see also Holland v. Brown, 6 Vet. App. 443, 445 (1994) (noting that a TDIU claim "is inextricably intertwined with the degree of impairment that is ultimately adjudicated"). As it stands, the Veteran's current disability ratings do not qualify him for schedular TDIU, see 38 C.F.R. § 4.16(a) (providing that "if there are two or more disabilities [as here], there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more"); accord Bowling v. Principi, 15 Vet. App. 1, 6 (2001), however, the AOJ's development and readjudication of the service connection and increased rating claims could alter this fact to the Veteran's benefit. See Gurley v. Nicholson, 20 Vet. App. 573, 575-76 (2007) (recognizing that issues are inextricably intertwined when "any decision by the Court on TDIU entitlement could be rendered meaningless by an adjudication . . . that awards a higher schedular rating that, in turn, may satisfy the requirements for an award of schedular TDIU under 38 C.F.R. § 4.16(a)"). Under such circumstances, and to avoid piecemeal decision-making, the Board will refrain from adjudicating the Veteran's TDIU claim at this time, but will also remand it to the AOJ for reconsideration after it has readjudicated the Veteran's service connection and increased rating claims. See e.g., Dunlap v. Nicholson, 21 Vet. App. 112, 120 (2007) (acknowledging that the "Court's case law may require remand for a TDIU claim where the higher initial rating claim is still before VA"). Accordingly, the case is REMANDED for the following action: 1. The AOJ must obtain any outstanding pertinent records, to include those from the Social Security Administration (SSA), from L.B. (Stockton VA), Dr. S.K. (Salem VA), and Dr. N.T. (White City), and all VA treatment records from September 2009 to present. Such records must be associated with the claims file, and all attempts to obtain the records must be documented. If the records are not available, the AOJ must include negative replies in the claims file. 2. The AOJ must afford a VA psychiatric examination to ascertain whether the Veteran has current diagnoses of depression, PTSD, or anxiety disorder, and if he does, whether any such disorder(s) may be related to his period of active service or to his service connected degenerative disc disease, lumbosacral spine. The examiner must review the claims file, and following such review, obtaining a history from the Veteran, the physical examination, any laboratory tests that are deemed necessary, and any additional specialty examinations that are warranted, the clinician is requested to answer the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran currently has a diagnosis of depression? b) If the Veteran has a current diagnosis of depression, is it at least as likely as not (50 percent or greater probability) that his depression is causally related to his period of active service or any incident thereof, to include the in-service back injury? c) If the Veteran has a current diagnosis of depression, is it at least as likely as not (50 percent or greater probability) that his depression has been caused or aggravated by his service connected degenerative disc disease, lumbosacral spine? d) Is it at least as likely as not (50 percent or greater probability) that the Veteran currently has a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a)? e) If the Veteran has a current diagnosis of PTSD, is it at least as likely as not (50 percent or greater probability) that his PTSD is causally related to the claimed in-service stressor of injuring his back? f) If the Veteran has a current diagnosis of PTSD, is it at least as likely as not (50 percent or greater probability) that his PTSD has been caused or aggravated by his service connected degenerative disc disease, lumbosacral spine? g) Is it at least as likely as not (50 percent or greater probability) that the Veteran currently has a diagnosis of anxiety disorder? h) If the Veteran has a current diagnosis of anxiety disorder, is it at least as likely as not (50 percent or greater probability) that his anxiety disorder is causally related to his period of active service or any incident thereof, to include the in-service back injury? i) If the Veteran has a current diagnosis of anxiety disorder, is it at least as likely as not (50 percent or greater probability) that his anxiety disorder has been caused or aggravated by his service connected degenerative disc disease, lumbosacral spine? The clinician is advised that the term "as likely as not" means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In addition, "aggravation" for VA compensation purposes is defined as a permanent worsening of the disability. The examiner is also requested to provide a full rationale for any opinion expressed. 3. The AOJ must afford a VA examination by an appropriate clinician to ascertain whether the Veteran's diagnosed hypertension and peptic ulcer disease are related to his period of active service or to his service connected degenerative disc disease, lumbosacral spine. The examiner must review the claims file, and following such review, obtaining a history from the Veteran, the physical examination, any laboratory tests that are deemed necessary, and any additional specialty examinations that are warranted, the clinician is requested to answer the following questions: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension is causally related to his period of active service or any incident thereof? b) Is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused or aggravated by service connected degenerative disc disease, lumbosacral spine? c) Is it at least as likely as not (50 percent or greater probability) that the Veteran's peptic ulcer disease is causally related to his period of active service or any incident thereof? d) Is it at least as likely as not (50 percent or greater probability) that the Veteran's peptic ulcer disease was caused or aggravated by his service connected degenerative disc disease, lumbosacral spine? The clinician is advised that the term "as likely as not" means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. In addition, "aggravation" for VA compensation purposes is defined as a permanent worsening of the disability. The examiner is also requested to provide a full rationale for any opinion expressed. 4. The AOJ must afford a VA examination by an appropriate clinician to ascertain whether the Veteran's diagnosed hepatitis C is related to his period of active service or any incident thereof. The examiner must review the claims file, and following such review, obtaining a history from the Veteran, the physical examination, any laboratory tests that are deemed necessary, and any additional specialty examinations that are warranted, the clinician is requested to answer the following question: Is it at least as likely as not (50 percent or greater probability) that the Veteran's hepatitis C is causally related to his period of active service or any incident thereof? The clinician is advised that the term "as likely as not" means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The examiner is also requested to provide a full rationale for any opinion expressed. 5. The AOJ must afford the Veteran a VA orthopedic examination to ascertain the current severity of his service connected degenerative disc disease, lumbosacral spine. The VA examiner should conduct a physical examination, any laboratory tests and X-rays that are deemed necessary, and any additional specialty examinations that are warranted. Testing must include pertinent range of motion studies with special attention to when, (in terms of degrees of motion), the Veteran experiences pain, fatigue, weakness of any other relevant DeLuca symptoms. The examiner should specifically comment on whether the Veteran, as likely as not (i.e., 50 percent or greater probability), has any unfavorable ankylosis or intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The examiner should also provide an opinion on the effect of the Veteran's service connected back condition on his employability. The clinician is advised that the term "as likely as not" means that the weight of medical evidence both for and against a conclusion is so evenly divided that it is medically sound to find in favor of causation as to find against causation. More likely and as likely support the contended causal relationship; less likely weighs against the claim. The examiner is also requested to provide a full rationale for any opinion expressed. 6. Then, after completion of any other notice or development indicated by the state of the record, with consideration of all evidence added to the record subsequent to the last Supplemental Statement of the Case (SSOC), the AOJ must readjudicate the Veteran's service connection claims, increased rating claim, and claim for TDIU. If the claims are not resolved to the Veteran's satisfaction, then the AOJ should issue an appropriate SSOC and provide an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ STEVEN L. KELLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs