Citation Nr: 1607541 Decision Date: 02/26/16 Archive Date: 03/04/16 DOCKET NO. 14-11 186 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disability, to include degenerative joint disease and strain. 2. Entitlement to service connection for a low back disability, to include degenerative joint disease with radiculopathy. 3. Entitlement to service connection for a left knee disability, to include degenerative joint disease with total knee replacement. 4. Entitlement to service connection for a right knee disability, to include degenerative joint disease with total knee replacement. 5. Entitlement to service connection for a left ankle disability, to include degenerative joint disease and amputation of the foot. 6. Entitlement to service connection for a right ankle disability, to include degenerative joint disease. 7. Entitlement to service connection for a left foot disability, to include degenerative joint disease and amputation of the foot. 8. Entitlement to service connection for a right foot disability, to include degenerative joint disease. 9. Entitlement to service connection for a bilateral eye disability, to include cataracts and asteroid hyalosis. 10. Entitlement to an initial rating greater than 10 percent for residuals of traumatic brain injury (TBI). 11. Entitlement to an effective date prior to September 3, 2010, for the grant of entitlement to service connection for residuals of TBI. 12. Entitlement to an effective date prior to October 12, 2010, for the grant of entitlement to service connection for cervical spine degenerative disc disease. 13. Entitlement to an effective date prior to September 3, 2010, for the grant of entitlement to service connection for head injury scar. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from January 1958 to January 1962. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The July 2012 rating decision granted the Veteran entitlement to service connection for residuals of TBI, assigning him a noncompensable rating. Thereafter, a subsequent November 2012 rating decision increased the rating to 10 percent, effective September 3, 2010, the original date of claim. Regardless of the RO's actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran appeared at a hearing before the undersigned Veterans Law Judge in August 2015. A transcript of the hearing has been reviewed and is of record. Subsequent to the final RO adjudication of the claim, in a May 2015 Supplemental Statement of the Case (SSOC), additional evidence was added to the claims file through submissions by the Veteran. Where the Substantive Appeal is dated February 2, 2013 or later (such as the case here), a waiver of initial consideration by the Agency of Original Jurisdiction (AOJ) is not necessary. See 38 U.S.C.A. § 7105(e) (West 2014); VA Fast Letter 14-02 (May 2, 2014). In any case, the Veteran has submitted a waiver of initial consideration by the RO for the new evidence. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the Veteran's case should take into consideration the existence of these electronic records. 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 issues of entitlement to an increased rating for residuals of TBI and entitlement to service connection for low back, bilateral knee, bilateral ankle, and bilateral feet disabilities 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 August 2015, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran, during the aforementioned Board hearing, that a withdrawal of the appeals of entitlement to service connection for right shoulder and bilateral eye disabilities, as well as entitlement to an earlier effective date for the grant of entitlement to service connection for head injury scar, was requested. 2. The Veteran filed a formal claim of entitlement to service connection for "Concussion with TBI fell 15 ft" on September 3, 2010, more than one year following his separation from service, without having filed an informal or formal claim for residuals of TBI prior to that date. 3. During a telephone conversation with a VA representative on October 12, 2010, the Veteran indicated that he wished to add a claim for "neck from fall," which was more than one year following his separation from service and without having filed an informal or formal claim for residuals of a neck disability prior to that date. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for a right shoulder disability have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015). 2. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to service connection for a bilateral eye disability have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015). 3. The criteria for withdrawal of the substantive appeal by the Veteran for the issue of entitlement to an earlier effective date for the grant of entitlement to service connection for head injury scar have been met. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.202, 20.204(b), (c) (2015). 4. The criteria for an effective date prior to September 3, 2010, for the award of service connection for residuals of TBI have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 5. The criteria for an effective date prior to October 12, 2010, for the award of service connection for cervical spine degenerative disc disease have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claims of Entitlement to Service Connection for Right Shoulder and Bilateral Eye Disabilities and Entitlement to an Earlier Effective Date for the Grant of Entitlement to Service Connection for Head Injury Scar Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2015). Withdrawal may be made by the Veteran or by his or her authorized representative. 38 C.F.R. § 20.204 (2015). The Board notes that a March 2014 statement of the case (SOC) included the issues of entitlement to service connection for a right shoulder disability and left / bilateral eye disability, as well as entitlement to an earlier effective date for the grant of entitlement to service connection for head injury scar. The Veteran properly appealed these issues in his April 2014 substantive appeal. However, the Veteran subsequently indicated during his August 2015 Board hearing that he wished to withdraw his appeal of those issues. Such notification was reduced to writing in the hearing transcript noted above. Hence, there remains no allegation of error of fact or law for appellate consideration regarding those claims. Accordingly, the Board finds that the issues of entitlement to service connection for right shoulder and left / bilateral eye disabilities, as well as entitlement to an earlier effective date for the grant of service connection for head injury scar have been properly withdrawn by the Veteran and the claims are dismissed. Veterans Claims Assistance Act of 2000 (VCAA) VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). VCAA letters dated in September 2010 and October 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As noted above, the Veteran also was afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 48 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here the VLJ fully explained the issues on appeal during the hearing and specifically discussed the bases of the prior determination, the element(s) of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent, with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. Furthermore, the Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2015). As will be discussed in greater detail below, the Veteran's effective date claims hinge on when he filed his claims for benefits. As such, additional VA examinations would serve no useful purpose. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Earlier Effective Date During the Veteran's August 2015 Board hearing, he discussed how in late 1994 he had been told that he had fractured his kneecap in three places. The Veteran initially was uncertain as to how that had occurred, but his wife believed it was when he had injured his head and right knee in service. During a follow-up appointment for his right knee at the VA medical facility in Temple, Texas, the Veteran went to the front desk to find out about filing a claim for compensation benefits. When the Veteran described the incident to the individual to whom he was directed, he was told, "my God man that was more than 30 years ago. You can't come in here and file a claim now. And I said, well, I didn't know until now that I had this knee. I mean, I knew my knee hurt." From the Veteran's statements, it is unclear whether he believed the above individual was a VA representative, a state or federal veteran service organization representative, or from some other organization. Under VA laws and regulations, 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 laws administered by the VA. 38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. § 3.151(a) (2015). In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2015). However, if the claim is received within one (1) year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). 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) (2015); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a veteran 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 Veteran for execution. 38 C.F.R. § 3.155(a) (2015). 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. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that September 3, 2010, is the correct date for the grant of service connection for residuals of TBI and that October 12, 2010, is the correct date for the grant of service connection for cervical spine degenerative disc disease. While the Veteran has alleged that he is entitled to an earlier effective date for his award of service connection, there is no basis under the governing legal criteria to establish that he is legally entitled to an earlier effective date. The evidence of record clearly indicates that the Veteran's original claims for service connection for residuals of TBI and for the cervical spine were submitted on September 3, 2010, and October 12, 2010, respectively. The Board has considered the Veteran's assertion that he spoke with a VSO or VA representative in late 1994 or early 1995 about filing a claim for service connection and, as such, should be awarded service connection dating back to that time. However, the Veteran concedes that he never filed a written formal or informal claim during that visit. While the Board sympathizes with the Veteran's sincerely held belief that he would be eligible for benefits without filing a formal or informal claim, an earlier effective date cannot be awarded based on these circumstances. As noted above, except in rare circumstances not present in this case, benefits are awarded from the date of receipt of a written claim. As the claims file contains no documents of record suggesting an intent to file a claim for compensation benefits for the neck or residuals of TBI prior to the above effective dates, the Board must conclude that an earlier effective date is not warranted. The Board has considered whether the effective date of the Veteran's neck claim should be September 3, 2010, when he brought his initial claims for compensation benefits. That filing, however, raised claims only for "Concussion with TBI fell 15 ft," "broken Left knee Cap," "Scars head front and back," and "Left eye due to fall from tower." The September 3, 2010, filing failed to raise the issue of entitlement to service connection for a neck disability with any degree of specificity to find that such a claim had been raised. Although the neck disability was a result of the same fall that caused the Veteran's TBI and head scars (and which he contends caused the broken left knee cap), the neck disability was a separate and distinct disability and raising claims for residuals of TBI, head scars, and/or a left knee disability did not put VA on notice that he intended to also file a claim for a neck disability. Indeed, during his October 12, 2010, conversation with the RO representative the Veteran specifically indicated that he wanted to add the following issues to his claim: "neck from fall," "right shoulder from fall," "low back from fall," and "right knee secondary to left knee." Thus, the Veteran clearly understood that his prior filings had not raised a claim for entitlement to service connection for a neck disability. Thus, an effective date prior to October 12, 2010, for the grant of entitlement to service connection for a neck disability is not warranted. In short, as there is no evidence of a formal or informal claim for entitlement to service connection for residuals of TBI being received prior to September 3, 2010, or for entitlement to service connection for a neck disability prior to October 12, 2010, the Board finds that those dates are the earliest dates permissible under the provisions of 38 U.S.C. 5110(a) and 38 C.F.R. § 3.400 for the awards of service connection. ORDER The appeal regarding the claim of entitlement to service connection for a right shoulder disability, to include degenerative joint disease, is dismissed. The appeal regarding the claim of entitlement to service connection for a bilateral eye disability, to include cataracts and asteroid hyalosis, is dismissed. The appeal regarding the claim of entitlement to an effective date prior to September 3, 2010, for the grant of entitlement to service connection for head injury scar is dismissed. Entitlement to an effective date prior to September 3, 2010, for the grant of entitlement to service connection for residuals of TBI is denied. Entitlement to an effective date prior to October 12, 2010, for the grant of entitlement to service connection for cervical spine degenerative disc disease is denied. REMAND Residuals of TBI The Veteran was last afforded a VA examination for residuals of his service-connected TBI in April 2012. During the aforementioned August 2015 Board hearing, the Veteran contended that the VA examiner mischaracterized the nature of his memory loss. In addition, he alleged that the failure to give him a CAT scan prevented the full nature of his disability to be shown. He indicated that when a CAT scan subsequently was performed at the order of his treating VA neurologist that it showed moderate cerebral atrophy. As a result, the Veteran was placed on anti-seizure medication. Moreover, the Veteran described ongoing headaches that he described as "almost debilitating," as he was able to get up to use the bathroom, but little else. The Veteran also discussed problems with interacting with co-workers that he believed could be a manifestation of his TBI residuals. The Veteran indicated specifically that his headaches had worsened since the time of the last VA examination. In light of the foregoing calling into question the adequacy of the prior VA examination report and the potential worsening since that examination, the Board concludes that a remand is required for a new VA examination. Service Connection Claims As to the Veteran's service connection claims, he contends that problems with his left ankle began in service in August 1959. Specifically, during heavy seas he slid across the deck of a ship and got his left foot wedged between a bulkhead and a stanchion. When the ship rolled again, his body shifted while his foot remained wedged and he injured his left ankle. The Veteran sought treatment with the ship's corpsman, who thought the ankle might be broken, but that there was definitely a ligament tear. In October 1959, the Veteran reinjured the left ankle falling off a ladder. The Veteran indicated that after service his orthopedic surgeon had indicated that his post-service left ankle problems were related to his in-service injuries. The Veteran also believed that his other orthopedic problems were caused or aggravated by the left ankle disability. In support of his claim, the Veteran submitted a letter in August 2015 from his private physician. The physician discussed the Veteran's reports of in-service and post-service injuries to and as a result of his left ankle. The physician concluded that the Veteran suffered from "Post Traumatic Osteoarthritis" and that it was a testament to the human spirit that the Veteran was able to walk on his ankle for as long as he did, based on the degree of arthritic change noted at the time of his ankle replacement. The above opinion is at odds with the October 2012 VA examination report addendum that concluded that it was less likely than not that the Veteran's current left ankle disability was related to the left ankle treatment in service. The rationale was that x-rays at the time of the August and October 1959 injuries were negative, the Veteran was able to continue in his duties until separation, and that his exit examination was negative for any left ankle problems. The Board acknowledges that the August 2015 private physician's letter did not specifically opine that the post-traumatic arthritis of the left ankle was incurred in or otherwise was related to service, but the letter appears to suggest this belief. In light of the apparent disparity of opinions, the Board concludes that a remand is necessary to obtain a medical opinion from a qualified professional to reconcile the above opinions. As to the remaining orthopedic service connection claims, the Veteran has made it clear that he believes all of these disabilities were caused or aggravated by the left ankle disability and there is certain medical evidence of record to support this assertion. As such, these issues are inextricably intertwined with the above left ankle claim and adjudication is deferred pending the above development for the left ankle. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain treatment records from all applicable VA facilities from July 2014 to the present. 2. Obtain a medical opinion from a qualified professional as to the Veteran's left ankle claim. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled. However, the Veteran should not be required to report for another examination as a matter of course, if it is not found to be necessary. The claims file must be made available to and reviewed. The medical professional is asked to provide an opinion regarding whether it is as at least as likely as not (50 percent probability or more) that any current left ankle disability was incurred in or is otherwise related to the Veteran's 1959 in-service accidents or any other incident of service. In that regard, the medical professional is requested to consider, and reconcile as necessary, the findings of the October 2012 VA examination addendum and the August 2015 private physician's letter. The medical professional must provide a complete rationale for any opinion provided. 3. Schedule the Veteran for an examination to determine the current severity of his TBI residuals. The electronic claims file should be made available to the examiner and reviewed in conjunction with the examination. All tests deemed necessary should be conducted, and all clinical findings should be reported in detail. 4. Thereafter, readjudicate the Veteran's claims. If a complete grant of the benefits sought is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative. The Veteran and his representative should be given an opportunity to respond before the case is returned 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 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). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs