Citation Nr: 1602906 Decision Date: 01/29/16 Archive Date: 02/05/16 DOCKET NO. 08-01 929 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for a disability of the right upper extremity, also claimed as right carpal tunnel syndrome to include as secondary to service-connected left knee disability. 2. Entitlement to an effective date prior to December 8, 2010 for the grant of entitlement to service connection for post-traumatic stress disorder (PTSD) with major depression, severe. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. M. Schaefer, Counsel INTRODUCTION The Veteran served on active duty from November 1977 to November 1980. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2006 and July 2012 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In August 2011 and January 2014, the Board remanded the issue of entitlement to service connection for a right upper extremity disability for further development. It now returns to the Board for appellate review. The issue of entitlement to service connection for a disability of the right upper extremity is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran filed an original claim for service connection for an acquired psychiatric disorder, to include major depression, in November 2002, which was denied in an unappealed rating decision issued in July 2003. 2. On December 13, 2005, the Veteran filed a claim to reopen the previously denied claim seeking service connection for an acquired psychiatric disorder, to include major depression, which was denied in May 2006 and July 2007 rating decisions, and new and material evidence related to that claim was received within one year of those denials, in August 2006 and September 2007. 3. The Veteran's December 2005 was not readjudicated and the August 2007 evidence not considered until the July 2012 rating decision; hence, neither the May 2006 nor July 2007 decisions became final. 4. The nature of the Veteran's psychiatric disability is a question of fact for the Board, and the Veteran was diagnosed with PTSD in August 2006; hence, the issue of entitlement to service connection for PTSD is implicitly adjudicated in the July 2006 and July 2007 rating decisions. CONCLUSION OF LAW The criteria for an effective date of December 13, 2005, but no earlier, for the grant of service connection PTSD have been met. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. §§ 3.1, 3.156(c), 3.303, 3.400(q) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist As the Board's decision herein to grant an effective date of December 13, 2005 for the grant of service connection for PTSD is a full grant of the benefit sought on appeal, no further action is required to comply with the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), enacted November 9, 2000 (codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014) and the implementing regulations. This is a complete grant because the Veteran has stated that his claim should date back to August 29, 2006 and the Board is granting an effective date of December 13, 2005. Therefore, the Veteran's claim is fully satisfied as he has clearly described the scope of his appeal. See AB v. Brown, 6 Vet. App. 35 (1993). II. Effective Date Under governing law, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose, if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2). The effective date of an award based on the receipt of new and material evidence in a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.1(r), 3.400(q)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C.A. § 101(30) (West 2014); 38 C.F.R. § 3.1(p) (2015). In making this determination, the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet. App. 511 (1997). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C.A. § 101(30); 38 C.F.R. § 3.1(r) (2015). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claims must identify the benefit sought. 38 C.F.R. § 3.155 (2015). The Veteran contends that he is entitled to an effective date of August 29, 2006 for the grant of entitlement to service connection for PTSD. The record shows that the Veteran has submitted multiple claims of entitlement to service connection for an acquired psychiatric disorder. Entitlement to service connection for major depression was denied in a July 2003 rating decision. The Veteran did not appeal this decision, and additional evidence pertinent to the Veteran's acquired psychiatric disorder was not received within one year of notice of the rating decision. Therefore, the July 2003 rating decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2003); currently, 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2015). The Veteran filed another claim of entitlement to service connection for depression in December 2005, which was denied in a May 2006 rating decision. Then, in November 2006, the Veteran claimed entitlement to service connection for major depression and bipolar disorder. These claims were denied in a July 2007 rating decision. However, in August 2006, within one year of the May 2006 rating decision, additional relevant VA treatment notes were received. Therefore, the May 2006 decision did not become final, and the July 2007 rating decision relates back to the May 2006 decision. See 38 C.F.R. § 3.156(b); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); Jennings v. Mansfield, 509 F.3d 1362 (2007) (a claim becomes final and subject to a motion to reopen only after the period for appeal has run, and any interim submissions before finality must be considered by the VA as part of the original claim). Moreover, in September 2007, additional relevant records were received from the Social Security Administration. These records were not considered by the RO until the Veteran's claim of entitlement to service connection for PTSD was adjudicated in July 2012. As a result, neither the May 2006 nor July 2007 rating decisions became final. The claims adjudicated in all rating decisions prior to July 2012 pertained to acquired psychiatric disorders other than PTSD. However, the determination of the nature of the Veteran's disability is a finding of fact for the Board and not dependent on the disability as claimed by the Veteran. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled). Consequently, the Board finds that the July 2012 rating decision was yet another adjudication of the claim of entitlement to service connection for an acquired psychiatric disorder addressed in the May 2006 and July 2007 rating decisions. In light of these facts, the Board determines that an effective date of December 13, 2005, the date of the claim adjudicated in May 2006, is warranted for the grant of entitlement to service connection for PTSD. As no communication from the Veteran that could be construed as a claim was received between the final July 2003 rating decision and the December 2005 claim, an effective date prior to December 13, 2005 must be denied. ORDER Entitlement to an effective date of December 13, 2005, but no earlier, for the grant of entitlement to service connection for PTSD is granted. REMAND The Board determines that another remand is necessary of the Veteran's service connection claim for carpal tunnel syndrome of the right upper extremity. In August 2011, the issue was remanded for a VA examination and opinion that addressed whether the Veteran's carpal tunnel syndrome was a result of military service or caused or aggravated by service-connected disability. The examination was performed in September 2011, but in January 2014, the Board found that the examiner did not address the question of aggravation in the opinion or rationale. Therefore, the issue was again remanded so that an opinion could be obtained. In March 2014, another examiner reviewed the claims file and opined that the Veteran's right hand carpal tunnel syndrome which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in- service event, injury or illness, which is not the question at hand. However, the rationale discusses the Veteran's service-connected left knee disability and not a preexisting disability; consequently, the Board determines that the examiner had a choice of several pre-set questions and answers on the examination report template regarding etiology and chose incorrectly. Even so, the rationale does not address the question of aggravation of the carpal tunnel syndrome due to the Veteran's use of a cane. The examiner states that "[t]he most likely etiology of the Veteran's RIGHT AND LEFT carpal tunnel syndrome is the repetitive motions he performed with his wrists while working as a plumber" and that "it is less likely that the Veteran's RIGHT median nerve neuropathy (carpal tunnel syndrome) is due to the use of a cane" and the cane is "less likely the source of the Veteran's right hand carpal tunnel syndrome. The use of the words "due to" and "source of" limits the opinion to the question of causation and does not address aggravation. Therefore, the March 2014 examiner also did not answer the question of aggravation, and the opinion does not comply with the January 2014 remand orders. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, the case is REMANDED for the following action: 1. Request another opinion from the March 2014 VA examiner, or another equally qualified examiner if that examiner is not available, as to whether the Veteran's right carpal tunnel syndrome has been aggravated by the use of a cane for his service-connected left knee disability. Upon review of the claims file, the examiner must offer an opinion as to whether it is at least as likely as not (i.e. at least a 50 percent probability) that the carpal tunnel syndrome of the right upper extremity was aggravated (permanently worsened beyond natural progression) by the Veteran's service connected disabilities to include by the use of a cane to assist with ambulation as a result of his service-connected left knee disability. A complete rationale for any opinion advanced must be provided. If an opinion cannot be rendered without another clinical examination, such examination should be scheduled. 2. After completing the above development, and any other development deemed necessary, readjudicate the issue remaining on appeal. If any benefit sought remains denied, provide an additional supplemental statement of the case to the Veteran and his representative, and return the appeal to the Board for appellate review, after the Veteran has had an adequate opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matter 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 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs