Citation Nr: 1635511 Decision Date: 09/12/16 Archive Date: 09/20/16 DOCKET NO. 13-35 200 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to service connection for right upper extremity peripheral neuropathy, as secondary to service-connected cervical spine degenerative joint disease. 2. Entitlement to service connection for left upper extremity peripheral neuropathy, as secondary to service-connected cervical spine degenerative joint disease. 3. Entitlement to service connection for right lower extremity peripheral neuropathy, as secondary to service-connected cervical spine degenerative joint disease. 4. Entitlement to service connection for left lower extremity peripheral neuropathy, as secondary to service-connected cervical spine degenerative joint disease. 5. Entitlement to service connection for headaches, as secondary to service-connected cervical spine degenerative joint disease. 6. Entitlement to service connection for chest pain, as secondary to service-connected cervical spine degenerative joint disease. 7. Entitlement to an increased disability rating in excess of 20 percent for cervical spine degenerative joint disease. 8. Entitlement to an effective date earlier than October 5, 1989 for the grant of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. Chad Johnson, Associate Counsel INTRODUCTION The Veteran served on active duty in the Navy from September 1968 to June 1970. These matters come to the Board of Veterans' Appeals (Board) from a May 2010 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a March 2016 Travel Board hearing, and a transcript of the hearing has been associated with the claims file. The issues of entitlement to service connection for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, headaches, and chest pain, each as secondary to service-connected cervical spine degenerative joint disease, and entitlement to an increased disability rating in excess of 20 percent for cervical spine degenerative joint disease are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's service-connected acquired psychiatric disorder, to include PTSD, first manifested in August 1971, when he was hospitalized with anxiety neurosis which he claimed began after his service-connected neck injury. 2. The Veteran filed a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as an anxiety neurosis condition, on November 21, 1980. 3. A May 1981 RO decision denied the Veteran's claim of entitlement to service connection for a nervous condition. 4. In December 1981, the Veteran filed a timely notice of disagreement (NOD) with the May 1981 RO decision; thereafter, a related statement of the case (SOC) was never issued. CONCLUSION OF LAW The criteria for an effective date of November 21, 1980 for the grant of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), have been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process VA has duties to notify and assist claimants in substantiating a claim for VA benefits. See, e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2016). However, given the Board's favorable decision herein, no further discussion of VA's duties is warranted. II. Earlier Effective Date - Service Connection, Acquired Psychiatric Disorder The Veteran has claimed entitlement an effective date earlier than October 5, 1989 for the grant of service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD. Generally, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2016). The effective date of an award of disability compensation based on direct service connection is the date following separation from service, if the claim is received within one year of that date; otherwise, the effective date is the date VA receives the claim, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1) (West 2014); 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, VA regulations defined a "claim" 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) (2016). Prior to March 24, 2015, any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a) (2016). The reference above to "the date entitlement arose" is not defined in the current statute or regulation. The U.S. Court of Appeals for Veterans Claims (CAVC) has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. See 38 U.S.C.A. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C.A. § 7104(a) (West 2014). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran filed a claim of entitlement to service connection for an acquired psychiatric disorder, claimed as an anxiety neurosis condition, on November 21, 1980. This claim was denied in a May 1981 RO decision. Arguably, the Veteran properly appealed by submitting a timely notice of disagreement (NOD) in December 1981 in which he stated that he continued to seek treatment for psychiatric problems. See 38 C.F.R. §§ 20.200-01, 20.302 (2016). Thereafter, a statement of the case (SOC) was never issued regarding the Veteran's claim for service connection. Thus, the May 1981 RO decision remained pending and did not become final. See 38 C.F.R. § 20.1103 (2016). In light of the above, the Board finds that the proper effective date for the grant of service connection for an acquired psychiatric disorder, to include PTSD, is the date of receipt of the Veteran's claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. As has been explained, the Veteran's claim was received on November 21, 1980 and remained pending thereafter given his timely December 1981 NOD. Therefore, the Board must determine whether the Veteran's entitlement to service connection for an acquired psychiatric disorder arose prior to November 21, 1980 or thereafter. The evidence of record indicates that the Veteran was hospitalized in August 1971 with anxiety neurosis which he claimed began after his service-connected neck injury. Additionally, the Veteran has been diagnosed with PTSD which has also been related to his service-connected neck injury. After review of the evidence of record and resolving any reasonable doubt in favor of the Veteran, the Board finds that the Veteran's service-connected acquired psychiatric disorder, to include PTSD, first manifested in August 1971, when he was hospitalized with anxiety neurosis which he claimed began after his service-connected neck injury. As such, the proper effective date for the grant of service connection for an acquired psychiatric disorder, to include PTSD, is the date of receipt of the Veteran's November 21, 1980 claim. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. To that extent, the Veteran's claim is granted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. ORDER An effective date of November 21, 1980 for the grant of service connection for an acquired psychiatric disorder, to include PTSD, is granted. REMAND Although the Board regrets the additional delay, a remand is necessary to ensure proper development regarding the Veteran's claims of entitlement to an increased disability rating in excess of 20 percent for cervical spine degenerative joint disease and entitlement to service connection for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, headaches, and chest pain, each as secondary to service-connected cervical spine degenerative joint disease. Specifically, remand is required in order to obtain a current VA cervical spine examination, with related examinations and/or opinions regarding the etiology of the Veteran's various conditions claimed as secondary to his cervical spine degenerative joint disease. Additionally updated VA and/or private treatment records must also be obtained upon remand. VA's duty to assist includes providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2014). VA is also required to conduct an accurate and descriptive medical examination based on the complete medical record. 38 C.F.R. §§ 4.1, 4.2 (2016); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Additionally, it is within VA's duty to assist to afford the Veteran a new VA examination in order to accurately assess the current level of impairment when there is evidence that the claimed disability has worsened. Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). Private treatment records from February 2016, submitted by the Veteran following his March 2016 Travel Board hearing, document a physician's assessment, following an MRI study, that the Veteran's service-connected cervical spine disability had continued to progress since 2012. The physician also noted serious limitations of the MRI study, and suggested CT confirmation. Additionally, the Board notes that the Veteran's most recent VA cervical spine examination was conducted in March 2010, over six years ago. Given the evidence above documenting a progression in the Veteran's service-connected cervical spine disability since 2012, and in light of the fact that it has been over six years since the Veteran's most recent March 2010 VA cervical spine examination, a current VA cervical spine examination should be obtained upon remand. The Veteran's remaining claims of entitlement to service connection for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, headaches, and chest pain are each claimed as secondary to his service-connected cervical spine degenerative joint disease; therefore, they are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Regarding the Veteran's claims of bilateral upper and lower extremity peripheral neuropathy, the Veteran has reported subjective symptoms regarding his bilateral upper and lower extremities for many years. Previously, the medical evidence of record has not revealed evidence of a nerve condition associated with his cervical spine disability. However, the Board notes that private treatment records from March 2010 document a nerve conduction/electromyography study which revealed generalized peripheral polyneuropathy of the bilateral lower extremities, with moderate motor and sensory involvement. Due to noted time constraints, only the bilateral extremities were tested at that time, and although it was noted that the Veteran was scheduled for a similar study of his upper extremities, a subsequent study is not of record. As such, updated VA and/or private medical records must be obtained upon remand, as they could be supportive of the Veteran's claims. Moreover, given the Veteran's ongoing competent reports of subjective nerve symptoms and evidence of neuropathy of the lower extremities, the Board finds that an examination and medical opinion should be obtained as to the presence and etiology of any nerve conditions of the bilateral upper and lower extremities. Private treatment records also document the Veteran's ongoing complaints of headaches and chest pain related to neck pain from his service-connected cervical degenerative joint disease. Notably, in February 2010 a private physician opined that the Veteran's headaches may be residual, postconcussion from years ago. Given the Veteran's ongoing competent reports of subjective headaches and chest pain, with at least some indication that his headaches may be associated with his service-connected cervical spine disability, the Board finds that an examination and medical opinion should be obtained upon remand regarding the presence and etiology of the Veteran's claimed headaches and chest pain. Finally, VA is obligated to make reasonable efforts to obtain records not in the custody of a Federal department or agency, such as from private medical care providers; such reasonable efforts will generally consist of an initial request for the records, and if the records are not received, at least one follow up request. 38 C.F.R. § 3.159(c)(1) (2016). As noted above, following the March 2016 Travel Board hearing, the Veteran submitted private treatment records regarding his cervical spine disability and his claimed conditions secondary thereto. The Board finds this to be sufficient indication that the Veteran is in receipt of ongoing private treatment which is relevant to his claims on appeal. Therefore, such records must be obtained upon remand. See id. Similarly, VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The Board notes that the most recent VA treatment records within the claims file appear to be from 2010; therefore, upon remand, the AOJ should also obtain any outstanding and relevant VA treatment records and associate them with the claims file. 38 U.S.C.A. § 5103A (b)(1) (West 2014). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding relevant private or VA treatment records, after obtaining authorization from the Veteran as necessary. Ensure that all such pertinent records are associated with the claims file and all responses, positive or negative, are properly documented, and the Veteran is properly notified. 2. After the above, schedule the Veteran for a VA cervical spine examination to assess the current severity of his service-connected cervical spine degenerative joint disease, as well as the presence and/or etiology of his claimed bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, headaches, and chest pain each claimed as secondary to his service-connected cervical spine disability. The entire claims file, including this remand, must be made available to the examiner, and the examiner must indicate review of such records. Any indicated diagnostic tests and studies must be accomplished and all pertinent symptomatology and findings should be reported in detail. A complete rationale for all opinions expressed should also be provided. Specifically, in addition to complete findings regarding the current severity of the Veteran's service-connected cervical spine degenerative joint disease and any associated objective neurologic abnormalities, the examiner is asked to provide the following opinions, including a complete and thorough rationale, with reference to relevant evidence of record as appropriate, for any and all conclusions reached: a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran has bilateral upper extremity peripheral neuropathy which is caused by or aggravated by service-connected cervical spine degenerative joint disease? b) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran has bilateral lower extremity peripheral neuropathy which is caused by or aggravated by service-connected cervical spine degenerative joint disease? c) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran has headaches which are caused by or aggravated by service-connected cervical spine degenerative joint disease? d) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran has chest pain which is caused by or aggravated by service-connected cervical spine degenerative joint disease? e) If the examiner finds that it is as least as likely as not (a 50 percent probability or greater) that any of the Veteran's claimed conditions are aggravated by his service-connected cervical spine degenerative joint disease, the examiner must also provide an opinion as to the baseline level of severity of the Veteran's claimed condition prior to any such aggravation. The term "aggravated" as used herein refers to a permanent worsening of the underlying condition beyond the natural progression of the disease, as contrasted with temporary or intermittent flare-ups of symptomatology which resolve with return to baseline level of disability. 3. Following the above development, review the resulting examination reports and/or opinions to ensure adequacy and compliance with the above directives. If any opinion rendered is inadequate, take any corrective action deemed necessary. 4. Thereafter, readjudicate the Veteran's claims of entitlement to an increased disability rating in excess of 20 percent for cervical spine degenerative joint disease and entitlement to service connection for right upper extremity peripheral neuropathy, left upper extremity peripheral neuropathy, right lower extremity peripheral neuropathy, left lower extremity peripheral neuropathy, headaches, and chest pain, each as secondary to service-connected cervical spine degenerative joint disease. If any benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC) and allow a reasonable time for response before returning the matters to the Board for further adjudication, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the 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). ______________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs