Citation Nr: 1330678 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 06-25 216A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an effective date earlier than September 23, 2002, for the grant of service connection for radiation to the right upper extremity associated with cervical spine degenerative changes, post operative C6-7 fusion. 2. Entitlement to an effective date earlier than September 23, 2002, for the grant of service connection for radiation to the left upper extremity associated with cervical spine degenerative changes, post operative C6-7 fusion. 3. Entitlement to an effective date earlier than May 18, 2001 for the grant of service connection for posttraumatic stress disorder (PTSD). 4. Entitlement to an effective date earlier than March 1, 2002 for the grant of service connection for irritable bowel syndrome (IBS). 5. Entitlement to an effective date earlier than May 18, 2001 for the grant of service connection for an eye disorder. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Zawadzki, Counsel INTRODUCTION The Veteran served on active duty from June 1987 to September 1987 and from February 1988 to December 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2003 and September 2004 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. During the pendency of the appeal, the case was transferred to the jurisdiction of the RO in Cleveland, Ohio, which certified the case for appellate review. In the April 2003 rating decision, the RO granted service connection and assigned initial ratings of 10 and 20 percent, respectively, for PTSD and a cervical spine injury, effective May 18, 2001. The RO also granted service connection and assigned an initial 20 percent rating for right side upper extremity radiation from cervical spine injury and granted service connection and assigned an initial noncompensable (0 percent) rating for left side upper extremity radiation from cervical spine injury, each effective September 23, 2002. The RO granted service connection and assigned an initial 30 percent rating for IBS, effective March 1, 2002. In the September 2004 rating decision, the RO, in pertinent part, granted service connection for a small atrophic retinal hole, right eye, stable and not interfering with vision, peripheral retinal degeneration in each eye, keratoconus, right eye, claimed as retinal defects and tear. The RO assigned a 30 percent initial rating, effective May 18, 2001. The RO also denied entitlement to an earlier effective date for the grant of service connection for cervical spine degenerative changes and status post operative C6-7 fusion, previously evaluated as cervical injury, and for the grants of service connection for right and left upper extremity radiation from cervical injury. In March 2010, the Veteran testified before a Decision Review Officer (DRO) at the RO. A transcript of that hearing is of record. In a March 2011 decision, the Board denied service connection for chronic fatigue syndrome and denied earlier effective dates for the grants of service connection for a cervical spine disorder and radiation to the right and left upper extremities associated with cervical spine degenerative changes, post operative C6-7 fusion. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In October 2012, the Court issued a Memorandum Decision vacating that portion of the Board's March 2011 decision which denied entitlement to earlier effective dates for the grants of service connection for radiation to the right and left upper extremities associated with cervical spine degenerative changes, post operative C6-7 fusion, and remanding these claims to the Board for further proceedings. The Court affirmed the Board's denial of service connection for chronic fatigue syndrome and noted that the Veteran had expressly declined to appeal the issue of entitlement to an earlier effective date for his cervical spine disorder. In June 2013, the Board remanded the claims on appeal to schedule the Veteran for a requested Travel Board hearing before a Veterans Law Judge. Later in June 2013, the Veteran withdrew his Board hearing request. There are no outstanding hearing requests of record. The claims file reflects that the Veteran was previously represented by Veterans of Foreign Wars of the United States (as reflected in an April 2001 VA Form 21-22, Appointment of Veterans Service Organization as Claimant's Representative). In December 2009, the Veteran filed a VA Form 21-22 appointing Disabled American Veterans as his representative. In November 2012, he filed a VA Form 21-22 appointing Paralyzed Veterans of America, Inc. as his representative. The Board has reviewed the Veteran's Virtual VA file and finds that it does not include any additional relevant documents. In June 2005, the Veteran filed a claim for service connection for liver disease. In an August 2006 statement, the Veteran asserted that he had Peyronie's disease, a varicocele, low sex drive, low testosterone levels, and low and damaged sperm count related to Gulf War undiagnosed illness. In March 2010, the Veteran filed a claim for an increased rating of his right eye disorder and cervical spine disorder as well as a request to reopen a claim for service connection for fibromyalgia. A request to reopen a claim for service connection for fibromyalgia, claims for service connection for liver disease, Peyronie's disease, a varicocele, low sex drive, low testosterone levels, and low and damaged sperm count, to include as due to undiagnosed illness, as well as claims for increased ratings for the service-connected eye and cervical spine disorders have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over these matters, and they are referred to the AOJ for appropriate action. The Board's decision granting an effective date of May 18, 2001 for the grants of service connection for radiation to the right and left upper extremities associated with cervical spine degenerative changes, post operative C6-7 fusion, is set forth below. The remaining issues listed on the title page are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims decided below has been accomplished. 2. The Veteran filed a claim for service connection for a cervical spine disability and its associated neurological symptomatology that was received by the RO on May 18, 2001. 3. There is medical evidence that the Veteran's service-connected radiation to the right and left upper extremities, associated with his cervical spine disorder, existed at the time he filed the May 18, 2001 claim. CONCLUSIONS OF LAW 1. An effective date of May 18, 2001 for the service- connected radiation to the right upper extremity associated with cervical spine degenerative changes, post operative C6-7 fusion, is assignable. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). 2. An effective date of May 18, 2001 for the service- connected radiation to the left upper extremity associated with cervical spine degenerative changes, post operative C6-7 fusion, is assignable. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The Court, in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), has held that the VCAA notice requirements apply to all elements of a claim. The Veteran is seeking an effective date earlier than September 23, 2002 for the grants of service-connection for radiation to the right and left upper extremities, associated with his cervical spine disability. While he had previously argued that he was entitled to an earlier effective date because his claim was initially filed in 1992 and a prior, March 1993 rating decision which denied service connection for a right shoulder disability contained clear and unmistakable error in that the RO failed to grant service connection for his cervical spine disorder, with associated symptomatology, the Veteran through counsel specifically argued in January 2012 that the Veteran was not appealing the Board's March 2011 decision to deny an effective date earlier than May 18, 2001 for the grant of service connection for a cervical spine disorder but that the Veteran's right and left upper extremities "warranted an effective date consistent with the effective date for his cervical spine disorder." Brief of Appellant, at p. 4. The Veteran specifically asked the Court to "reverse the Board's decision and order the Secretary to grant the same effective date as [the Veteran's] service-connected cervical spine disorder." Brief of Appellant, at p. 8. In an April 2013 statement to the Board, the Veteran stated that the arguments supporting an earlier effective date for the Veteran's cervical pain radiating into his upper extremities had been articulated in the brief before the Court. The Board will assign an earlier effective date of May 18, 2001 for the grants of service connection for radiation to the right and left upper extremities. Because the Board is granting the effective date specifically requested by the Veteran, this decision is a full grant of the benefits sought, and further discussion of the VCAA is not necessary. Analysis Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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 later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400 (2013). "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). If a claim for service connection is received within a year following separation from service, the effective date will be the day following separation; otherwise, the effective date is the date of the claim. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). In May 1992, the Veteran filed a claim for service connection for a right shoulder condition, asserting that he injured his right shoulder during in approximately August 1991. In a March 1993 rating decision, the RO denied service connection for a right shoulder condition. Although notified of the denial in a March 1993 letter, the Veteran did not initiate an appeal. The Veteran asserted in April 2005 that he was not provided notice of his appellate rights, to include a VA Form 4107, with the March 1993 notice of the rating decision. However, the March 1993 letter advising the Veteran of the denial of his claim does indicates that a form used by VA to explain a veteran's appellate rights, was attached. There is a "presumption of regularity" under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut this presumption. Ashley v. Derwinski, 2 Vet. App. 307 (1992). The mere allegation of non-receipt is not sufficient to rebut this presumption. While Ashley dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court also applied this presumption of regularity to procedures at the RO. Although a copy of the form 4107 is not included with the copy of the March 1993 letter in the claims file, there is nothing of record to rebut the presumption of regularity and the Board presumes that the Veteran did receive notice of his appellate rights in March 1993. Therefore, the March 1993 rating decision is final. See 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. On May 18, 2001, the RO received the Veteran's claim for service connection for a cervical spine injury, to include pain radiating to the arms and hands. He asserted that while his condition was originally thought to be a shoulder injury, it was "now known to be a severe herniation of the cervical disk between C6 and C7." He included a March 2001 letter from his private chiropractor in support of his claim. The chiropractor reported that the Veteran had multiple chronic medical conditions, including cervical disc herniation with cervical stenosis, chronic radiculopathy, and pain. The chiropractor opined that all if not most of the Veteran's conditions were in direct relation to his military service, commenting that his cervical injury was a direct result of a parachute jump. During a July 2001 VA general medical examination, the Veteran described a hyperextension injury of the neck sustained during an in-service parachute jump, with residual neck and shoulder pain. The diagnoses included chronic neck pain with radiation to shoulder. The diagnosis following VA spine examination on the same day was degenerative disc disease (DDD) of the cervical spine with bilateral radiculopathy. The spine examiner opined that it was more likely than not that the Veteran's right shoulder pain was caused by his documented cervical disc disease, and that his cervical disc disease was more likely than not related to the in-service parachute jump injury, at which time the Veteran complained of shoulder pain which was, more likely than not, referred pain from the cervical spine. In the April 2003 rating decision, the RO granted service connection and assigned an initial 20 percent rating for a cervical spine injury, effective May 18, 2001. The RO also granted service connection and assigned an initial 20 percent rating for right side upper extremity radiation from cervical spine injury and granted service connection and assigned an initial noncompensable (0 percent) rating for left side upper extremity radiation from cervical spine injury, each effective September 23, 2002. The RO denied entitlement to effective dates earlier than September 23, 2002 for the grants of service connection for radiation to the right and left upper extremities based on the fact that the rating criteria for evaluating intervertebral disc syndrome were amended effective September 23, 2002. The RO stated that, prior to this date, neurological manifestations were rated in combination with orthopedic manifestations, but this change in law allowed for the grant of separate evaluations for neurological and orthopedic manifestations. See November 2005 SOC. Prior to the September 23, 2002 revision, the rating criteria provided that other neurological findings appropriate to the site of the diseased disc could be considered as part of the criteria for evaluating intervertebral disc syndrome (IVDS). 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Since September 23, 2002, IVDS is to be evaluated by one of two alternative methods: on the basis of total duration of incapacitating episodes over the previous 12 months, or, alternatively, by combining under 38 C.F.R. § 4.25 separate ratings for its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2013). However, prior to the September 23, 2002 revision, in Bierman v. Brown, 6 Vet. App. 125 (1994), it was noted that manifestations of neurological symptomatology of a lower extremity which are distinct from low back symptoms (that is, neither duplicative nor overlapping) could be rated under a diagnostic code different from Diagnostic Code 5293 without violating the VA anti-pyramiding regulation of 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259 (1994). Viewing the Veteran's upper extremity radiation as separate manifestations of his cervical spine disability that can be rated separately, even prior to the implementation of the revised spinal rating criteria effective September 23, 2002, also is supported by an explanation found in the Federal Register: ... there are existing criteria for evaluating neurologic and orthopedic disabilities, whether they result from IVDS, stroke, or other condition, in the neurologic and musculoskeletal portions of the rating schedule... For further clarity, we have revised note (2) to indicate that the chronic orthopedic and neurologic manifestations of IVDS are to be evaluated under the most appropriate code or codes. Evaluating disabilities due to IVDS that are identical to disabilities of other etiology under the same criteria will assure consistency and fairness of evaluations. 67 Federal Register 163, 54347 (August 2002). Although the third sentence quoted above indicates future intent, the criteria were described in the first sentence as "existing" and the Federal Register notice explained that the revision regarding evaluation of chronic neurologic symptoms was provided "for further clarity," rather than as an additional change. Ibid; see also Ross v. Peake, 21 Vet. App. 528 (2008); Ellington v. Nicholson, 22 Vet. App. 141 (2007). Thus, separate ratings for radiation to the upper extremities may be established prior to September 23, 2002. The claim received on May 18, 2001 is the first communication from the Veteran following the March 1993 denial, and there is evidence that the Veteran had radiation to the upper extremities associated with his cervical spine disorder at that time. For example, private treatment records dated from April 1999 to October 2000 include complaints of neck and upper extremity pain with findings of radicular pain symptoms and cervical radiculopathy. An effective date of May 18, 2001 for the grants of service connection for right and left upper extremity radiation is warranted. Because the Board is granting the effective date specifically requested by the Veteran's representative, this decision represents a full grant of the benefits sought, and further discussion regarding entitlement to an effective date earlier than May 18, 2001 is not necessary. ORDER Entitlement to an effective date of May 18, 2001, for the grant of service connection for radiation to the right upper extremity associated with cervical spine degenerative changes, post operative C6-7 fusion, is granted, subject to the laws and regulations governing the award of monetary benefits. Entitlement to an effective date of May 18, 2001, for the grant of service connection for radiation to the left upper extremity associated with cervical spine degenerative changes, post operative C6-7 fusion, is granted, subject to the laws and regulations governing the award of monetary benefits. REMAND Remand of the matters of entitlement to earlier effective dates for the grants of service connection for PTSD, IBS, and an eye disorder is necessary because, although the Veteran expressed disagreement with the effective dates assigned within one year of issuance of the rating decisions granting service connection for these disabilities, he has not yet been provided an SOC. See 38 C.F.R. § 19.29; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997). Accordingly, the case is REMANDED for the following action: Furnish to the Veteran and his representative an SOC as regards the claims for an effective date earlier than May 18, 2001 for the grant of service connection for PTSD; an effective date earlier than March 1, 2002 for the grant of service connection for IBS; and an effective date earlier than May 18, 2001 for the grant of service connection for an eye disorder, along with a VA Form 9, and afford them the appropriate opportunity to file a substantive appeal perfecting an appeal on these issues. The Veteran and his representative are hereby reminded that to obtain appellate review of any matter not currently in appellate status-here entitlement to an effective date earlier than May 18, 2001 for the grant of service connection for PTSD, an effective date earlier than March 1, 2002 for the grant of service connection for IBS, and an effective date earlier than May 18, 2001 for the grant of service connection for an eye disorder-a timely appeal must be perfected within 60 days of the issuance of the SOC. The appellant has the right to submit additional evidence and argument on the matters that the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. 2012). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs