Citation Nr: 1423742 Decision Date: 05/27/14 Archive Date: 06/03/14 DOCKET NO. 11-05 561 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for tardive dyskinesia. 2. Entitlement to service connection for left eye twitch. 3. Entitlement to service connection for a right knee disability. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to an initial increased rating for irritable bowel syndrome (IBS) currently rated 10 percent disabling. 6. Entitlement to an increased rating for lumbosacral strain, currently rated 20 percent disabling. 7. Entitlement to an effective date earlier than August 29, 2012, for the grant of the 20 percent rating for lumbosacral strain. 8. Entitlement to an effective date earlier than August 29, 2012, for the grant of entitlement to Dependents' Educational Assistance (DEA) pursuant to Chapter 35. REPRESENTATION Veteran represented by: John S. Berry, Attorney-at-Law ATTORNEY FOR THE BOARD M.W. Kreindler, Counsel INTRODUCTION The Veteran served on active duty from March 1981 to March 2001. These matters come to the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In a May 2010 rating decision, the RO granted entitlement to service connection for IBS, assigning a 10 percent disability rating, effective February 6, 2004. The Veteran appealed the initial rating. In a January 2011 rating decision, the RO denied entitlement to service connection for right and left knee disabilities. In a November 2011 rating decision, the RO denied entitlement to service connection for tardive dyskinesia and left eye twitch. In a March 2013 rating decision, the RO assigned a 20 percent disability rating for lumbosacral strain, effective August 29, 2012, and granted entitlement to DEA benefits effective August 29, 2012. The Veteran appealed the disability rating assigned and the effective date assigned for the rating and DEA benefits. In a June 2012 rating decision, the RO granted service connection for radiculopathy, bilateral lower extremities, assigning a 20 percent disability rating for the right lower extremity and 10 percent disability rating to the left lower extremity. A notice of disagreement was filed in August 2012 and a statement of the case was issued in March 2013; however, the Veteran did not file a substantive appeal and the issue was not certified to the Board. These issues are; however, intertwined with the proper evaluation for lumbosacral strain. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1 (2013). In a January 2010 submission, the Veteran claimed entitlement to service connection for a gastrointestinal condition to include gastroesophageal reflux disease (GERD), hiatal hernia and acid reflux as due to his service-connected conditions. While service connection was established for IBS, these claimed conditions are considered separate and distinct disabilities. These issues have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these issues, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2013). The issues of entitlement to service connection for left eye twitch, left knee disability, and right knee disability; entitlement to increased ratings for lumbosacral strain and IBS; and, entitlement to effective dates earlier than February 16, 2012, for the 20 percent rating assigned to lumbosacral strain and DEA benefits, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. Tardive dyskinesia is caused by metoclopramide taken for service-connected migraines. 2. On February 16, 2012, the Veteran filed an informal claim seeking separate compensable ratings for radiculopathy associated with service-connected lumbosacral strain. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for tardive dyskinesia have been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2013). 2. The criteria for an effective date of February 16, 2012, for the assignment of a 20 percent disability rating for lumbosacral strain have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. § 3.400 (2013). 3. The criteria for an effective date of February 16, 2012, for the grant of entitlement to Dependents' Educational Assistance (DEA) pursuant to Chapter 35 have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. In June 2011, the Veteran sought treatment from a neurologist, Dr. M.A.F. The Veteran complained of abnormal movements of his eye and lips since 2000. He had been taking metoclopramide since September 2000 for migraines. He discontinued the metoclopramide in June 2010, but noticed that he pursed his lips and he had a twitch under his left eye. Dr. M.A.F. diagnosed tardive dyskinesia secondary to metoclopramide. Based on the opinion of Dr. M.A.F. and documentation in the record that the Veteran has been prescribed metoclopramide for migraines, the evidence supports the Veteran's claim of service connection for tardive dyskinesia. Earlier effective dates The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See Harper v. Brown, 10 Vet. App. 125 (1997). The "date of the claim" means the date of the application based upon which benefits are awarded, not the original claim for service connection. See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003). In this context, it should be noted that the provisions of 38 U.S.C.A. § 5110 also refer to the date an application is received. While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "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), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). On August 29, 2012, the Veteran filed an increased rating claim for lumbosacral strain. In a March 2013 rating decision, the RO assigned a 20 percent disability rating, effective August 29, 2012. On February 16, 2012; however, the Veteran filed a claim for separate compensable ratings for radiculopathy affecting the lower extremities as a result of his service-connected lumbosacral strain. In May 2012, the Veteran underwent a QTC neurological examination. He reported the condition began in 2000. He reported getting cramps, numbness, and unusual cold sensations in both legs and feet. The cramps occur 1 to 2 times per week. His symptoms included moderate pain, paresthesias/dysesthesias, and numbness affecting the bilateral lower extremities. The examiner diagnosed radiculopathy associated with his lumbosacral strain. An August 6, 2012 private treatment record reflects complaints of loss of sensation, which the Veteran reported started more than one week ago. He reported that the problem had been gradually worsening. There was left lower extremity and right lower extremity focality noted. On neurological examination, numbness was found. The assessment was radiculopathy of leg; neuropathy; and, leg numbness. In light of receipt of the February 16, 2012 claim in which the Veteran was asserting that he had radiculopathy symptoms as a result of his lumbosacral strain, suggesting a worsening of his lumbar spine and associated symptoms, and the subsequent medical evidence verifying the severity of his associated radiculopathy, the Board finds that the February 16, 2012 claim constitutes a claim for increased rating for lumbosacral strain. Thus, an effective date of February 16, 2012 is warranted for the award of a 20 percent rating for lumbosacral strain. In light of the grant of an effective date of February 16, 2012 for the award of a 20 percent rating for lumbosacral strain, it follows that an effective date of February 16, 2012 is warranted for the grant of entitlement to DEA benefits pursuant to Chapter 35. As for the period prior to February 16, 2012, as there are outstanding treatment records for the one year prior period (see § 4.300(o)). ORDER Entitlement to service connection for tardive dyskinesia is granted. An effective date of February 16, 2012, for the award of a 20 percent rating for lumbosacral strain is granted. An effective date of February 16, 2012, for the award of DEA benefits pursuant to Chapter 35 is granted. REMAND In the March 2013 rating decision that assigned a 20 percent disability rating for lumbosacral strain, the RO referenced treatment records from the Oklahoma VA Medical Center (VAMC) for the period from July 12, 2000 to September 29, 2011. The records on file only extend to December 20, 2010. Treatment records from December 21, 2010 must be associated with the claims folder or Virtual VA. Left eye twitching The Veteran claims entitlement to service connection for a left eye twitch which he claims is due to taking metoclopramide for his service-connected migraine headaches. In September 2011, the Veteran underwent a VA examination with an optometrist. The examiner diagnosed conjunctivitis of both eyes, dry eyes, and eyelid myokymia. The examiner stated that the claims file was not available, consultation was made with an oculoplastic surgeon, and she conducted a review of ophthalmology textbooks. The examiner stated that the left eye twitching was not due to Reglan (generic name is metoclopramide) as Reglan caused a specific type of eyelid twitching called blepharospasm. The examiner stated that the Veteran has a less severe type of eyelid twitching called eyelid myokymia. The examiner stated that this condition was caused by dry eyes, caffeine, fatigue and/or stress. The examiner stated that the Veteran had significant dry eyes. It is also not clear whether the eyelid myokymia is a symptom of tardive dyskinesia, which is now service-connected, or a separate and distinct disability due to tardive dyskinesia. Lumbar spine disability The Veteran was afforded a VA examination in October 2012. The examiner noted flare-ups, but did not report whether there was additional limitation of motion due to the identified pain on active motion or flare-ups. Hence, the examination report does not meet the requirements imposed by the Court's decision in Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Irritable bowel syndrome In May 2010, the Veteran underwent a VA examination pertaining to IBS. Statements from the Veteran indicate the disability may have grown worse since the last examination and he is entitled to a new examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); VAOPGCPREC 11-95 (1995). Accordingly, the case is REMANDED for the following actions: 1. Obtain all records of VA treatment for the conditions at issue for the period from December 21, 2010. Insure that the records are associated with the paper or electronic claims files. 2. AFTER all treatment records have been associated with the claims folder afford the Veteran a VA examination to determine whether current eye twitching is at least as likely as not a manifestation of tardive dyskinesia, is proximately due to or aggravated by tardive dyskinesia; or is a an objective manifestation of an undiagnosed illness. If eye twitching is aggravated by tardive dyskinesia, the examiner should state whether there is medical evidence created prior to aggravation or at any time prior to the current level of disability that shows a baseline for the eye twitching disability prior to aggravation. If eye twitching is an objective manifestation of undiagnosed illness, the examiner should document all manifestations of the disability. The examiner should provide reasons for all opinions. The reasons should take into account the Veteran's reports of history and symptoms, because these are considered competent evidence. 3. AFTER all treatment records have been associated with the claims folder, schedule the Veteran for a VA examination to determine the severity of his lumbar spine disability. The examiner should note that the claims file was reviewed. The examination of the lumbar spine should include range of motion studies. The examiner should report whether there is any other functional loss due to weakened movement, excess fatigability, incoordination, pain or flare-ups. Any such functional loss should be expressed in degrees of additional loss of motion. The examiner should specifically state if ankylosis and muscle spasm are present. The examiner is advised that the Veteran is competent to report limitations during flare-ups. The examiner should report any specific information as to the frequency and duration of physician prescribed bed rest (incapacitating episodes) in the past 12 months. The examiner should also describe all neurologic manifestations, to include, but not limited to, radiating pain into an extremity, and bowel or bladder impairment. The examiner must provide reasons for the opinion. If unable to provide an opinion without resort to speculation, the examiner should explain why this is so and what, if any, additional evidence would be necessary before an opinion could be rendered. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 4. AFTER all treatment records have been associated with the claims folder, schedule the Veteran for a VA examination to determine the severity of his irritable bowel syndrome. The claims folder must be made available to the examiner for review in conjunction with the examination. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered in formulating any opinions. If the examiner rejects the Veteran's reports, the examiner must provide a reason for doing so. 5. If any benefit sought on appeal is not granted in full, issue a supplemental statement of the case. The case should then be returned to the Board, if otherwise in order. The Veteran and his attorney have the right to submit additional evidence and argument on the 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. 2013). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs