Citation Nr: 1337189 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-15 090 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for sleep apnea. 2. Entitlement to an effective date earlier than February 27, 2002, for the grant of service connection for pseudofolliculitis barbae (PFB). 3. Entitlement to an initial rating in excess of 10 percent for eczema. 4. Entitlement to a rating in excess of 10 percent for a right great toe disability. 5. Entitlement to a rating in excess of 10 percent for a right ankle disability. 6. Entitlement to a rating in excess of 10 percent for a right thigh disability involving the femoral nerve. 7. Entitlement to a rating in excess of 10 percent for PFB. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESSES AT HEARING ON APPEAL Veteran and spouse ATTORNEY FOR THE BOARD L. A. Rein, Counsel INTRODUCTION The Veteran had active service from August 1976 to July 1985. These matters come to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In July 2011, the Veteran and his spouse testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript of that hearing is of record. The issue of additional compensation for dependent child "K.R.M." based upon school attendance has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over that issue, and it is referred to the AOJ for appropriate action. The claims for increased ratings and for service connection for sleep apnea are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. An August 1992 rating decision denied service connection for PFB, claimed as a facial skin condition. The Veteran was notified of that decision and of his appellate rights, but did not initial an appeal of the decision. 2. On February 27, 2002, VA received correspondence from the Veteran accepted as a request to reopen previously denied claims for service connection for chronic PFB and for eczema, as identified by the Veteran. 3. A June 2002 rating decision granted service connection for PFB, effective February 27, 2002. 4. The Veteran submitted a freestanding claim for an earlier effective date for the grant of service connection for PFB on July 30, 2007. CONCLUSIONS OF LAW The claim for an effective date earlier than February 27, 2002, for service connection for PFB is dismissed. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2013), Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. § 3.159 (2013); Pelegrini v. Principi, 18 Vet. App. 112 (2004). As the resolution of the Veteran's appeal for an effective date earlier than February 27, 2002, for the grant of service connection for pseudofolliculitis barbae is dependent solely on the law and regulations pertaining to claims for VA benefits, no further development under the duty to notify and assist is warranted. Mason v. Principi, 16 Vet. App. 129 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Smith v. Gober, 14 Vet. App. 227 (2000); Livesay v. Principi, 15 Vet. App. 165 (2001); VAOPGCPREC 2-04 (2004), 69 Fed. Reg. 25180 (2004). Earlier Effective Date Generally, 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). A claim is 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)(2013); Brannon v. West, 12 Vet. App. 32 (1998); Servello v. Derwinski, 3 Vet. App. 196 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits 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. 38 C.F.R. § 3.155(a) (2013). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129 (1992). However, a rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.200, 20.302, 20.1103 (2013). Previous determinations that are final and binding, including decisions regarding service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE). 38 C.F.R. § 3.105(a) (2013). The statutory framework does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. Sears v. Principi, 16 Vet. App. 244 (2002). In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332 (1995). There is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). Any other result would vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296 (2006). When such a freestanding claim for an earlier effective date is raised, the appeal should be dismissed, but the dismissal should be without prejudice to refiling. See Simmons v. Principi, 17 Vet. App. 104 (2003); Canady v. Nicholson, 20 Vet. App. 393 (2006). The Veteran contends that an effective date prior to February 27, 2002, for the grant of service connection for PFB is warranted. In May 1992, the Veteran submitted a claim for service connection for a "facial skin problem." An August 1992 rating decision denied service connection for PFB on the basis that there was no evidence that the Veteran developed a disease process during active service that resulted in a residual disability. The Veteran did not appeal and that decision became final. On September 24, 1998, the Veteran submitted a VA form 21-4138 in which he claimed entitlement to service connection for eczema. There is absolutely no suggestion that the Veteran was seeking to reopen his claim for service connection for PFB. In the VA form 21-4138, the Veteran specifically referenced that he had been treated for eczema by a Dr. H.B.S. On February 27, 2002, the RO received a letter from the Veteran in which he asserted that he was treated in service for chronic PFB and eczema. He also asserted that while visiting the RO on September 24, 1998, a RO employee informed him that eczema, essentially a claim for service connection for eczema, would cover the Veteran's skin condition and that there was no need to input all the individual conditions, which the Veteran appears to be referring to as including PFB. In a June 2002 rating decision, the RO granted service connection for PFB, effective February 27, 2002, the date of the claim to reopen the claim for service connection for PFB. The rating decision also denied service connection for eczema and left leg injury with scars. In September 2002, the Veteran submitted a notice of disagreement with the denial of service connection for eczema and for left leg scars. However, the Veteran did not file a notice of disagreement as to the effective date assigned to the grant of service connection for PFB, and the decision regarding the effective date of service connection for PFB became final in June 2003. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013). The Veteran did not submit any new and material evidence or argument within one year of that decision. In July 2007, the Veteran submitted a statement in which he requested an earlier effective date for the grant of service connection for PFB. The Board will briefly address the Veteran's contentions that his September 1998 claim for service connection for eczema should have encompassed all skin disabilities. The Board disagrees. The Board is aware that a claim for service connection for one mental disorder includes claim for any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. However, the Court that made that finding held that the Board erred when it denied that veteran's claim for benefits for posttraumatic stress disorder for lack of a current diagnosis although he had a current diagnosis of a different mental disorder other because the fact that the appellant may be wrong about the nature of his condition does not relieve VA of the duty to properly adjudicate the claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). That is not the case here. In this case, the Veteran initially claimed service connection for a facial condition, which was then denied in a final rating decision as a claim for service connection for PFB, which the Veteran was diagnosed with at that time of the August 1992 rating decision and at the time he filed his claim to February 2002 claim to reopen. Therefore, the Veteran was claiming service connection for a diagnosed disability. This situation is distinguishable from that in Clemons in that the Veteran here is not mistaken as to his diagnosis. Moreover, to the extent the record notes diagnoses of eczema in 1996 and just prior to filing his reopened claim in 2002, that diagnosis has been made in addition to, not in lieu of, PFB. Unlike in Clemons, the Veteran has a definitive diagnosis of PFB, which was the disability for which he was claiming benefits in his 2002 claim, in addition to the separate claim for eczema. Boggs v. Peake, 520 F.3d 1330, 1336 (Fed.Cir.2008) (claims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims). Furthermore, the Veteran specified that he was claiming service connection for eczema in 1998 and did not mention the PFB for which service connection had been previously denied, nor did he mention any skin condition of the face, which he had previously claimed. The Board has also considered the history of the Veteran's claim for service connection for eczema, for which a December 2006 Board decision granted service connection. Thereafter, a January 2007 rating decision effectuated the December 2006 Board decision, and assigned February 27, 2002, for the effective date for the grant of service connection for eczema. In July 2007, the Veteran submitted a statement in which he requested an earlier effective date for the grant of service connection and initial 10 percent rating for eczema and keloids, specifically from his September 24, 1998, claim for service connection for eczema. In a March 2008 rating decision, the RO granted an earlier effective date of September 24, 1998, for the Veteran's service-connected eczema. The critical difference as to the assignment of that earlier effective date for the grant of service connection for eczema is based on the prior procedural history of the previous denial of service connection for eczema. Noting that although the previous denial of service connection in the August 2000 rating decision was final and the appeal period had expired, the RO took action on its own initiative to reopen the claim for service connection. In November 2000, a statute was enacted that eliminated the concept of a well-grounded claim and redefined VA's duty to notify and assist claimants. Public Law 106-475, 114 Stat. 2096 (2000). That statute provided that under certain circumstances claims that had been previously denied as not well grounded and became final during the period from July 14, 1999, to November 9, 2000, could be re-adjudicated as if the denial had not been made. In regards to the claim for service connection for eczema, the provisions that pertain to the re-adjudication of claims that were denied as not-well-grounded were applicable, and provided the basis for the earlier September 1998 effective date for the grant of service connection for eczema. VAOPGCPREC 03-2001 (2001), 66 Fed. Reg. 33311 (2001). The same does not apply to the previous denial of service connection for PFB in the initial August 1992 rating decision. That claim could not be re-adjudicated as if the denial had not been made because it was not denied between July 14, 1999, and November 9, 2000. In this case, absent CUE in the prior rating action, a claim that is not before the Board, the Board is statutorily barred from revisiting the RO's factual or legal findings in the June 2002 rating decision because that decision is final. The RO's June 2002 decision is a final decision, and any attempt to collaterally attack that decision must be addressed in a CUE motion. 38 U.S.C.A. §§ 5110(a), 7104, 7105 (West 2002); Rudd v. Nicholson, 20 Vet. App. 296 (2006). Such a claim has not been specifically raised by the Veteran and be adjudicated by the RO. Consequently, the Board finds that a claim of CUE with respect to the June 2002 rating action or any other rating decision is not a subject for current appellate review. Here, the Board finds that the Veteran's July 2007 claim of entitlement to an earlier effective date was filed after the June 2002 rating decision became final. Accordingly, the Board finds that the Veteran's free-standing earlier effective date claim must be dismissed without prejudice to the appellant filing a subsequent CUE claim. Sabonis v. Brown, 6 Vet. App. 426 (1994); Rudd v. Nicholson, 20 Vet. App. 296 (2006). ORDER The claim of entitlement to an effective date prior to February 27, 2002 for the grant of service connection for PFB is dismissed. REMAND The Veteran contends that his service-connected eczema; right great toe disability; right ankle disability; right thigh disability involving the femoral nerve, and PFB, are more severe than compensated by the currently assigned 10 percent ratings. The Veteran last underwent VA examinations of each of those disabilities in March 2008, and more than five years have passed since those examinations. In addition, the Veteran contends that his service-connected right thigh injury should include a separate rating for a muscle injury in addition to the nerve injury. Therefore, to ensure that the record has evidence of the current severity of each of the Veteran's service-connected disabilities on appeal, more contemporaneous examinations are needed. Green v. Derwinski, 1 Vet. App. 121 (1991); Caffrey v. Brown, 6 Vet. App. 377 (1994). Prior to scheduling the examinations, all outstanding VA medical records dated from November 2010 to present should be obtained and associated with the claims file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). With regard to the claim of entitlement to service connection for sleep apnea, the Veteran submitted a statement in April 2011 that he disagreed with the December 2010 rating decision that denied service connection for sleep apnea. The Veteran's April 2011 statement is a timely notice of disagreement with that rating decision. However, it does not appear that the RO has yet issued a statement of the case addressing that issue. Therefore, the appropriate Board action is to remand that issue for issuance of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following actions: 1. Issue a statement of the case which addresses the issue of entitlement to service connection for sleep apnea. Inform the Veteran of his appeal rights and that he must file a timely substantive appeal if he desires appellate review. 2. Then, provide the Veteran with an additional opportunity to submit any additional service medical records in his possession or to identify and authorize VA to obtain any outstanding VA or non-VA medical records pertaining to his claims on appeal. Specifically, the Veteran should be requested to provide authorization to obtain all outstanding medical records from J. C. Thornton, M.D., for the treatment of eczema and PFB. 3. Obtain from the Bay Pines VA Medical Center all outstanding medical records from November 2010 to the present. All records and responses received should be associated with the claims file. 4. After the above development has been completed, schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected right great toe and right ankle disabilities. The examiner must review the claims file and that review should be noted in the report. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected right toe and right ankle disabilities are worse than shown on his prior examinations. The examiner should specifically address the following: (a) Set forth all current complaints, findings, and diagnoses pertaining to the right great toe and right ankle. (b) Conduct all necessary tests, to include X-rays, and range-of-motion and repetitive motion studies. All ranges of motion should be expressed in degrees. (c) Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion should be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of motion beyond that shown clinically. (d) Discuss whether any right toe or right ankle disabilities are productive of any additional functional impairment. (e) State what impact, if any, the Veteran's right toe and right ankle disabilities have on his occupational functioning and daily living. 5. Then, scheduled the Veteran for a VA examination, by an examiner with the appropriate expertise, to determine the current nature and severity of his service-connected right thigh injury involving the femoral nerve. The examiner must review the claims file and that review should be noted in the report. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected right thigh injury involving the femoral nerve is worse than shown on his prior examinations. The examiner should identify and describe the severity of all symptomatology associated with the Veteran's service-connected right thigh injury involving the femoral nerve, to include any related muscle manifestations, if appropriate. If any muscle injury is shown, the examiner should state what muscle group is affected. 6. Schedule the Veteran for a VA examination, by an examiner with the appropriate expertise, to determine the current severity of eczema and PFB. If possible, the examination should be scheduled during a flare-up of the Veteran's skin conditions. The examiner must review the claims file and that review should be noted in the report. The examiner should provide a rationale for any opinion expressed and reconcile that opinion with all pertinent evidence of record, including all relevant VA medical records and any lay evidence suggesting that Veteran's service-connected eczema and PFB are worse than shown on his prior examinations. a) Identify all pathology related to the Veteran's service-connected eczema and PFB. b) Specify the location and extent of the Veteran's eczema and PFB disabilities in terms of a percentage of the body affected and a percentage of exposed areas affected, and state the frequency that systemic therapy, such as corticosteroids or immunosuppressive drugs, has been required during the past 12-month period. c) State whether the Veteran's eczema and PFB are manifested by exfoliation, exudation, or itching involving an exposed surface or extensive area; constant exudation or constant, extensive lesions, or marked disfigurement; systemic or nervous manifestations and ulceration, extensive exfoliation, or extensive crusting; or whether it is exceptionally repugnant. d) Indicate whether the Veteran has experienced any flare-ups of his eczema or PFB during the last year. e) Note whether the Veteran's eczema or PFB disabilities are productive of scarring and specify the size of any scar, whether it causes limitation of motion, is unstable or superficial, and whether it limits function. If limitation of function is shown, state what motions or functions are limited and to what extent. Describe the current extent and severity of any scarring. f) Discuss how the Veteran's eczema and PFB disabilities impact his activities of daily living, including his ability to obtain and maintain employment. 7. Then, readjudicate the claims. If any decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. The appellant 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 or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs