Citation Nr: 1600993	
Decision Date: 01/11/16    Archive Date: 01/21/16

DOCKET NO.  15-14 276	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUES

1. Entitlement to service connection for residuals of liposarcoma of the right thigh to include as secondary to service-connected myotonic dystrophy.

2. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for adjustment disorder.

3. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for neurogenic bladder.

4. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for left lower extremity sciatic radiculopathy.

5. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for right lower extremity sciatic radiculopathy.

6. Entitlement to an effective date prior to June 3, 2014 for the grant of service connection for right lower extremity femoral radiculopathy.

7. Entitlement to an effective date prior to June 3, 2014 for the grant of special monthly compensation for loss of use of a creative organ.

8. Entitlement to an effective date prior to November 9, 2001 for the grant of total disability based on individual unemployability (TDIU).


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESSES AT HEARING ON APPEAL

Appellant, spouse


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from February 1980 to January 1982.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2014 and December 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.  

The Veteran and his wife testified before the undersigned in an August 2015 hearing.  A hearing transcript was associated with the claims file and reviewed.  At the hearing, the Veteran discussed the issue of entitlement to special monthly compensation for automobile or adaptive equipment.  The undersigned clarified that that issue was not on appeal before the Board.  The Veteran has one year from the July 2, 2015 rating decision to appeal the denial of that claim.

The issue of medical reimbursement for expenses incurred for treatment of liposarcoma was raised by the record in the Board hearing, as well as in a June 2014 statement, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2015).  

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015).  38 U.S.C.A. § 7107(a)(2) (West 2014).

The issue of service connection for lipoma is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ.


FINDINGS OF FACT

1. Correspondence received on June 3, 2014 has been construed as a claim of service connection for neurogenic bladder, radiculopathy, and loss of use of a creative organ on June 3, 2014.

2. The September 1990 denial of service connection for a mental health disability became final, the Veteran did not appeal or submit new evidence within one year, and he did not file a claim to reopen until June 3, 2014.

3. The Veteran did not appeal or submit new evidence for the effective date for TDIU or the denial of increased ratings within a year of the RO's 2002 decisions.





CONCLUSIONS OF LAW

1. The criteria for an effective date prior to June 3, 2014 for the grant of service connection for neurogenic bladder, radiculopathy, and adjustment disorder have not been met.  38 U.S.C.A. §§ 5101, 5103, 5107, 5110 (2014); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400 (2014).

2. The criteria for an effective date prior to June 3, 2014 for the grant of special monthly compensation for loss of use of a creative organ have not been met.  38 U.S.C.A. §§ 5101, 5103, 5107, 5110 (2014); 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.159, 3.400 (2014).

3. The claim for an effective date prior to November 9, 2001 for the grant of TDIU is dismissed.  38 U.S.C.A. § 7105 (2014); 38 C.F.R. § 20.301 (2014); Rudd v. Nicholson, 20 Vet. App. 296 (2006).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Procedural Duties

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a).  However, the U.S. Court of Appeals for Veterans Claims (Court) has held that when the interpretation of a statute is dispositive of the issue on appeal, neither the duty to assist nor the duty to notify provisions of the VCAA are implicated.  The Court recognized that enactment of the VCAA does not affect matters on appeal when the questions are determined as a matter of law.  Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); Smith v. Gober, 14 Vet. App. 227, 231-32 (2000).  

For the earlier effective date claims, the VCAA does not apply, because the facts of the claims are undisputed, and they are denied on the basis of the controlling law and regulations alone, which render the Veteran ineligible for the claimed benefits.  Nevertheless, the RO sent the Veteran a letter in August 2014 providing him notice in compliance with the VCAA and implementing laws.  See 38 U.S.C.A. § 5103; 38 C.F.R. §3.159(b); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

The United States Court of Appeals for Veterans Claims (Court) has held that VA employees have two duties to claimants during hearings: to fully explain the issues and to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010); 38 C.F.R. § 3.103(c)(2).  At the August 2015 hearing, the undersigned identified and explained the issues and suggested evidence that could support his claims.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.

II. Earlier Effective Date

The Veteran asserts that he is entitled to effective dates prior to June 3, 2014 and November 9, 2001 because his disabilities and unemployability existed prior to those dates.  The Board notes that the Veteran receives special monthly compensation for loss of use of a creative organ based on an award of service connection for erectile dysfunction.  For brevity and uniformity, the decision will refer to this award as service connection for loss of use of a creative organ.

Generally, for an award based on an original claim, a claim reopened after a final disallowance, or a claim for an increased rating, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  

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).  A claim for VA compensation must generally be in the form prescribed by the VA Secretary.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  Any communication or action, however, received from the claimant, or certain specified individuals on the claimant's behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim.  38 C.F.R. § 3.155(a).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, all reasonable doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107.

As explained below, the criteria for effective dates prior to June 3, 2014 for the grant of service connection for adjustment disorder, neurogenic bladder, radiculopathy, and loss of use of a creative organ have not been met.  See 38 C.F.R. § 3.400.  

Regarding neurogenic bladder, radiculopathy, and loss of use of a creative organ, the Veteran's first claim for compensation was received by VA on June 3, 2014.  There was no prior claim for these disabilities.  Neither the Veteran nor a representative on his behalf communicated intent to file a claim for benefits for urinary disabilities, erectile dysfunction, or lower extremity neurologic problems prior to June 3, 2014.  See 38 C.F.R. §§ 3.1(p), 3.155(a).  Regarding a mental health disability, the June 3, 2014 claim was a claim to reopen a previously denied claim.  His first claim for a mental health disability was denied by the RO in September 1990.  He claimed a "brain condition" and the RO discussed a depression diagnosis.  The Veteran did not appeal the September 1990 denial or submit new and material evidence within one year.  Thus, the denial of service connection for a mental health disorder became final.  See 38 C.F.R. §§ 3.104, 20.302, 20.1103.  The record does not show any formal or informal communication that could be construed as a claim for mental health disability between the time of the September 1990 denial and the June 3, 2014 correspondence.  See 38 C.F.R. §§ 3.1(p), 3.155(a).  

The evidence shows that the Veteran had these conditions prior to filing a claim in June 2014, and he contends the effective date should reflect the date he first sought treatment at VA.  Again, an appropriate effective date is based on the later of the date of claim and the date entitlement arose.  38 C.F.R. § 3.400.  Further, merely seeking treatment from VA does not establish a claim of service connection, as it does not show an intent of the Veteran to seek compensation for a disability.  See Crawford v. Brown, 5 Vet.App. 33 (1993); see also Sears  v. Principi, 16 Vet. App. 244, 249 (2002).  The Veteran's seeking treatment for radiculopathy, mental health, and urinary conditions did not establish a claim for those disabilities.  See id.  He did not file a claim for those disabilities until June 3, 2014.  Thus, the appropriate effective date for the grant of service connection for adjustment disorder, neurogenic bladder, radiculopathy, and loss of use of a creative organ is June 3, 2014.  See 38 C.F.R. § 3.400.   

With regard to TDIU, the claim for an effective date prior to November 9, 2001 for TDIU is dismissed as a matter of law.  

The claim on appeal originated on June 3, 2014.  Following a prior claim for an increased rating, the RO granted TDIU compensation beginning on November 9, 2001.  The RO proposed to discontinue TDIU benefits on multiple occasions but the Veteran's benefits ultimately continued since November 9, 2001.  The rating decision granting TDIU was issued on September 23, 2002.  The Veteran did not appeal or present new and material evidence for the effective date within a year of the September 23, 2009 decision.  The Court of Appeals for Veterans' Claims (Court) has held that a claim for TDIU may be part of an underlying claim for an increased rating of a service-connected disability.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, the RO conformed to Rice and granted TDIU based on the underlying claim for an increased rating for myotonic dystrophy and evidence of unemployment.  Following Rice, the effective date for TDIU could remain pending if the underlying increased rating claim remained pending.  However, the Veteran did not appeal or submit new and material evidence within a year of the RO's June 2002 denial of increased ratings for myotomic dystrophy and related disabilities.  Instead, the TDIU and underlying increased rating claims became final.  See 38 C.F.R. §§ 3.104, 20.302, 20.1103.  

The Court held that there can be no freestanding claim for an earlier effective date; meaning, the question of an earlier effective date can only be raised as an appeal of the underlying grant of benefits.  See Rudd v. Nicholson, 20 Vet. App. 296 (2006).  The Court in Rudd not only addressed effective date in the context of the grant of service connection but also in regard to the grant of an increased rating.  See id.  Because the prior decisions became final, the current claim for an earlier effective date is freestanding.  The Court's holding in Rudd applies to the claim for an earlier effective date for TDIU, and the claim is dismissed as a matter of law.  See Rudd, 20 Vet. App. at 296; see also 38 C.F.R. § 4.16.    

ORDER

An effective date prior to June 3, 2014 for the grant of service connection for adjustment disorder is denied.

An effective date prior to June 3, 2014 for the grant of service connection for neurogenic bladder is denied.

An effective date prior to June 3, 2014 for the grant of service connection for left lower extremity sciatic radiculopathy is denied.

An effective date prior to June 3, 2014 for the grant of service connection for right lower extremity sciatic radiculopathy is denied.

An effective date prior to June 3, 2014 for the grant of service connection for right lower extremity femoral radiculopathy is denied.

An effective date prior to June 3, 2014 for the grant of special monthly compensation based on loss of use of a creative organ is denied.

An effective date prior to November 9, 2001 for the grant of TDIU is dismissed.


REMAND

Additional development is needed to assist the Veteran with his claim of service connection for liposarcoma.  First, the Veteran reported being exposed to chemicals and nerve agents during training at Fort Leavenworth, Kansas.  The AOJ should obtain the Veteran's service personnel records and request information to verify exposure to chemicals from the Joint Services Records Research Center (JSRRC) or other appropriate repository.  Additionally, during the Board hearing, the Veteran presented and discussed medical research, which he purported to connect his form of cancer to myotonic dystrophy.  That medical research does not appear to be in the claims file.  The AOJ should request that the Veteran submit that research to be included in his file.  Finally, the AOJ should obtain an addendum medical opinion that addresses aggravation and to consider any new, relevant evidence.  See Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

Accordingly, the case is REMANDED for the following action:

(This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1. Request the Veteran's service personnel records.  Then, request verification from JSRRC, or another appropriate repository, of the Veteran's report of exposure to chemicals and nerve agents at Fort Leavenworth.  Make the appropriate number of requests to cover the entire period of the Veteran's service.  Requests for federal records should continue until the records are obtained or deemed unavailable.

2. Send a letter requesting that the Veteran submit the medical research he discussed in the Board hearing.  The documents were identified as coming from news.cancerconnect.com.  Put a copy of the letter in the claims file.

3. Then, forward the claims file to the November 2014 VA examiner, or another appropriate examiner, to provide an addendum opinion on liposarcoma.  The examiner should address the following:

a. Was liposarcoma at least as likely as not aggravated (permanently worsened) beyond its natural progression by service-connected myotonic dystrophy (MD)?

b. If additional medical research is provided, was the Veteran's liposarcoma at least as likely as not caused by MD?

c. If in-service chemical exposure is verified by service records, was liposarcoma at least as likely as not related to chemical exposure?  

Consider all relevant lay and medical evidence, including any additional medical research.  Please provide reasons and bases for the opinion.  If the examiner cannot provide an opinion without resort to speculation, the examiner should explain whether the limitation is due to the lack of evidence or scientific/medical knowledge.

4. If any benefit sought on appeal remains denied, issue a Supplement Statement of the Case, and return the case to the Board if otherwise in order.

The appellant has the right to submit additional evidence and argument on the matter the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).


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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).




______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs