Citation Nr: 1509090 Decision Date: 03/03/15 Archive Date: 03/17/15 DOCKET NO. 12-16 812 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a disability of the lumbar spine. 2. Entitlement to a rating in excess of 30 percent for bronchial asthma with bronchitis obliterans with organized pneumonia (BOOP). 3. Entitlement to an effective date prior to March 24, 2011, for an increased, 10 percent rating for a left foot disability. REPRESENTATION Appellant represented by: Mississippi State Veterans Affairs Board WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran had active duty service from April 1974 to April 1977, June 1981 to April 1985, July 1989 to December 1989, and from October 2005 to January 2007, with more than 20 years of inactive duty service. This matter comes before the Board of Veterans' Appeals (Board) on appeal from June 2010, May 2011, and July 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. The Veteran testified at a March 2014 videoconference hearing before the undersigned. A transcript of those proceedings is of record. The issues of entitlement to service connection for a disability of the lumbar spine, and entitlement to a rating in excess of 30 percent for bronchial asthma with BOOP, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a March 2010 rating decision, the Veteran was granted service connection for status post left foot fracture, with an initial noncompensable rating; the RO mailed her notice of the rating decision on March 11, 2010. 2. The Veteran did not file a timely Notice of Disagreement concerning the March 2010 rating decision, and VA did not receive additional relevant evidence within a year of notice of that decision. 3. The Veteran's next communication that could be construed as a claim for increase was a VA Form 21-526b, received by VA on March 24, 2011; no evidence of increased pathology was noted within a year prior to the claim. CONCLUSION OF LAW An effective date prior to March 24, 2011, for an increased, 10 percent rating for a left foot disability, is not assignable by law. 38 U.S.C.A. §§ 5101, 5110, 7105 (West 2014); 38 C.F.R. §§ 3.1, 3.104, 3.155, 3.156, 3.400, 19.25, 20.302, 20.1103 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2014). The Veteran's claim for an earlier effective date derives from a partial grant of her March 2011 claim for an increased rating for left foot disability. In April 2011, VA provided notice to the Veteran addressing the type of evidence needed to substantiate her increased rating claim, as well as general notice regarding how disability ratings and effective dates are assigned, prior to initial adjudication of her claim in May 2011. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Thus, the duty to notify has been met. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). VA's duty to assist the Veteran in the development of the claim includes assisting her in the procurement of relevant treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's VA and private treatment records, and there is no indication that outstanding evidence exists that may substantiate the appellant's claim. The Veteran's statements in support of the claim are of record, including testimony provided at a March 2014 videoconference hearing before the undersigned. The Board hearing focused on the elements necessary to substantiate her earlier effective date claim and the Veteran, through her testimony and her representative's statements, demonstrated that she had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant v. Shinseki, 23 Vet. App. 488 (2010), the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2014), and that the Board can adjudicate the claim based on the current record. For the above reasons, no further assistance to the appellant is required. 38 C.F.R. § 3.159(c). II. Effective Date for an Increased Rating The Veteran asserts that she should be assigned an earlier effective date for her compensable rating for a left foot disability, based on the fact that her symptoms were present when the RO initially granted a noncompensable rating in March 2010, following her June 2009 claim for service connection. Unless specifically provided otherwise by statute, the effective date of an award for compensation benefits based on a claim for increase is the date VA received the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o). In a March 2010 rating decision, the Veteran was granted service connection for status post left foot fracture, with an initial noncompensable rating; the RO mailed her notice of the rating decision on March 11, 2010. She did not file a timely Notice of Disagreement concerning the March 2010 rating decision, and VA did not receive additional relevant evidence within a year of notice of that decision. The Board has reviewed the claims file for any document, submitted after the March 2010 rating decision, but before her March 24, 2011 claim, that could be considered a claim for an increased rating. Lalonde v. West, 12 Vet. App. 377, 381 (1999). A "claim" is defined as "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). Any communication or action that (1) indicates "an intent to apply for one or more [VA] benefits" and (2) "identif[ies] the benefit sought" may be considered an informal claim. 38 C.F.R. § 3.155(a). After such a review, the Board has found no communication from the Veteran to VA that could be construed as a claim for benefits prior to the informal claim submitted on March 24, 2011. Additionally, there are no records of treatment from which the Board could factually ascertain that his disability had increased at any time during the period of one year prior to her March 24, 2011 claim. 38 C.F.R. § 3.400(o)(2). The Board recognizes the Veteran's testimony that she received inserts for her shoes, and that she was prescribed naproxen for her pain, both within the year prior to her March 2011 claim. See March 2014 Hearing Transcript, at 15. The available evidence demonstrates that her memory as to the timing of these events is mistaken. A review of the VA treatment records demonstrates that she was prescribed naproxen in January 2010, prior to the March 2010 grant of service connection. Concerning the inserts, she informed a May 2011 examiner that she used inserts for her shoes at times; she did not inform the examiner that she had been prescribed such inserts within the year between March 2010 and March 2011, or that she had obtained them on her own during that time. Further, despite the Veteran's testimony that VA gave her shoe inserts in the year prior to her March 2011 claim, she had previously noted, as recorded on page 14 of that same transcript, that VA actually gave her shoe inserts in 2009. The most recent medical record available related to the foot prior to the March 2011 claim is a January 2010 VA treatment note, and the Veteran has not identified any other records that might demonstrate an increase in disability during the interim period. The claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine, but as an effective date earlier than the date of claim is not assignable, the appeal must be denied by operation of law. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Entitlement to an effective date prior to March 24, 2011, for an increased, 10 percent rating for a left foot disability is denied. REMAND The Veteran's remaining claims must be remanded for new examinations. Concerning the claim for service connection for a disability of the lumbar spine, the Veteran's claim has been presented as one of secondary service connection, related to the service-connected disability of the cervical spine. Evidence in the file, however, suggests that the Veteran's arthritis of the lumbar spine may be etiologically related, either directly or on a presumptive basis, to her most recent period of active duty service. She informed a medical provider in January 2009 that she experienced lumbar spine pain beginning in March 2007, less than two months after separating from active duty service. X-rays taken at that time confirmed a diagnosis of degenerative arthritis of the lumbar spine. Additionally, a June 2007 VA general medical examination report indicates that the Veteran reported "arthritis in most joints," and that she had pain on bending at the waist. The evidence presented suggests that the currently-diagnosed arthritis of the lumbar spine may be etiologically related to service, and a complete examination is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also, 38 C.F.R. §§ 3.307, 3.309 (providing for a one-year presumptive period for arthritis). With respect to the claim for an increased rating for asthma with BOOP, the Veteran competently testified in March 2014 that her disability had worsened since her most recent VA examination. See 38 C.F.R. § 3.327(a) (2014). Additionally, while the RO denied the Veteran's claim for service connection for laryngitis in July 2013, she argued in her March 2014 videoconference hearing that her laryngitis was an aspect of her service-connected asthma and BOOP. As the treatment records suggest a possible relationship, a medical opinion in this regard is necessary. Finally, the Veteran indicated in her testimony that she has received ongoing treatment, all current VA treatment records must be obtained on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain and associate with the claims file any pertinent records adequately identified by the Veteran, including any ongoing VA treatment records. If the Veteran identifies private treatment records, request that she provide a completed release form (VA Form 21-4142) authorizing VA to request copies of any treatment records from any private medical providers who have treated her for her claimed conditions. After the Veteran has signed the appropriate releases, those records not already associated with the claims file should be obtained and associated therewith. All attempts to procure any outstanding treatment records should be documented in the claims file. If records identified by the Veteran cannot be obtained, a notation to that effect should be included in the claims file, and the AOJ must notify the Veteran and her representative of unsuccessful efforts in this regard, in order to allow her the opportunity to obtain and submit those records for VA review. 2. Schedule the Veteran for a VA orthopedic examination. The examiner is to be provided access to the claims folder, a copy of this remand, Virtual VA, and VBMS, and he or she must specify in the report that those sources were reviewed. The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any lumbar spine disability. Thereafter, the examiner should opine as to the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's current lumbar spine disability (if any) began during service, is due to an event or injury during service, or is otherwise etiologically related to active duty service? (b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's lumbar spine disability is caused or aggravated (permanently worsened beyond the natural course) by her service-connected cervical spine disability, as suggested by her chiropractor's June 2013 note? (c) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran's arthritis of the lumbar spine had its onset within one year of her January 2007 separation from active duty service? The examiner must provide a complete rationale in support of any opinions proffered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 3. Schedule the Veteran for a VA respiratory examination. The examiner is to be provided access to the claims folder, a copy of this remand, Virtual VA, and VBMS, and he or she must specify in the report that those sources were reviewed. In accordance with the latest worksheets for rating respiratory disorders, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any disability. After describing the extent of the disability, the examiner is requested to opine as to whether the Veteran's laryngitis symptoms are an aspect of her bronchial asthma with BOOP. The examiner must provide a complete rationale in support of any opinions proffered. If the examiner is unable to provide any requested opinion, he or she must explain why such an opinion would be speculative. 4. After the development requested has been completed, the AOJ should review the examination reports to ensure that they are in complete compliance with the directives of this remand. If any report is deficient in any manner, the AOJ must implement corrective procedures at once. 5. Then, readjudicate the claims. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and the representative should be furnished a supplemental statement of the case and provided an appropriate opportunity to respond before the claims folder is returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The appellant is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655 (2014). 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 2014). ______________________________________________ J. B. FREEMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs