Citation Nr: 1638030 Decision Date: 09/28/16 Archive Date: 10/07/16 DOCKET NO. 13-10 251 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 20 percent for low back strain. 2. Entitlement to a rating in excess of 10 percent for left ankle stress changes and arthralgia. 3. Entitlement to service connection for gastrointestinal disorder. 4. Entitlement to an effective date prior to October 31, 2005 for the grant of service connection for major depressive disorder with panic attacks. 5. Entitlement to an increased rating for major depressive disorder with panic attacks, currently evaluated as 30 percent disabling. 6. Entitlement to a compensable rating for acne keloidalis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Lawson, Counsel INTRODUCTION The Veteran served on active duty from December 1990 to June 1997. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May and December 2011 rating decisions by a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran did not file a substantive appeal following the August 2015 statement of the case concerning denials of service connection for bunions and a right ankle disability, and so those issues are not on appeal. The Veteran presented testimony at a Board hearing in April 2016, and a transcript of the hearing is associated with her claims folder. At the hearing, the record was held open for an additional 60 days to permit the Veteran an opportunity to obtain and submit additional evidence, and she indicated that she would waive initial RO consideration of any additional evidence received. This period has expired without additional evidence being submitted to the record; however, she was granted an additional 30 days to submit evidence following a June 2016 extension request. Additional evidence was submitted thereafter. RO data lists the Veteran's service-connected skin disorder as acne keloiditis. However, there is no such skin disorder as acne keloiditis. It is obvious that the RO meant to list the disorder as acne keloidalis, and so the issue has been recharacterized accordingly. The issues of higher ratings for major depressive disorder and acne keloidalis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. At the time of the Veteran's April 2016 hearing, prior to the promulgation of a decision in the appeal, she indicated that she wanted to withdraw her appeals for higher ratings for low back strain and left ankle stress changes and arthralgia. 2. The Veteran has gastroesophageal reflux disease and irritable bowel syndrome which were aggravated by her service-connected low back strain. 3. The RO last denied the Veteran's claim for entitlement to service connection for a psychiatric disorder in August 2003. The Veteran did not timely perfect an appeal of that determination or submit new and material evidence within 1 year of the August 2003 notification of that decision, and it became final. 4. Thereafter, an application to reopen a claim for entitlement to service connection for a psychiatric disorder was not received prior to October 31, 2005, and no additional service treatment records have been received. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeals for higher ratings for low back strain and left ankle stress changes and arthralgia are met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2015). 2. The criteria for service connection for gastroesophageal reflux disease and irritable bowel syndrome are met. 38 C.F.R. § 3.310 (2015). 3. An effective date prior to October 31, 2005 for the award of service connection for major depressive disorder is not warranted. 38 U.S.C.A. §§ 5110, 7105 (West 2014); 38 C.F.R. §§ 3.156, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Higher ratings for low back and left ankle disorders The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2015). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn her appeals for higher ratings for low back strain and left ankle stress changes and arthralgia and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed. Service connection for gastrointestinal disorder The Veteran appeals for service connection for gastrointestinal disorder as due to medications for service-connected low back strain. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may be granted, on a secondary basis, for a disability which is proximately due to, or the result of an established service-connected disorder. 38 C.F.R. § 3.310. Similarly, any increase in severity of a non-service connected disease or injury that is proximately due to or the result of a service connected disease or injury, and not due to the natural progress of the nonservice connected disease, will be service connected. Allen v. Brown, 7 Vet. App. 439 (1995). In the latter instance, the non-service connected disease or injury is said to have been aggravated by the service-connected disease or injury. 38 C.F.R. § 3.310. It is not argued that service connection is warranted for a gastrointestinal disorder on a direct basis, and no such compensation path appears viable based on the evidence of record. However, the Veteran's treating VA physician indicated in May 2016 that the Veteran has "gastroesophageal reflux and a long history of irritable bowel syndrome, and is currently on medications" for both of these. The physician stated that the Veteran has a "history of chronic low back pain and using anti-inflammatory medications which have aggravated her symptoms of reflux and irritable bowel syndrome." Service connection is in effect for low back strain. Based on the relevant law and the evidence of record, the Board finds that service connection is warranted for gastroesophageal reflux disease and irritable bowel syndrome on the basis of aggravation due to medication taken for the Veteran's service-connected low back strain. Entitlement to effective date prior to October 31, 2005 for the grant of service connection for major depressive disorder With respect to the Veteran's claim being decided herein, VA has met all statutory and regulatory notice and duty to assist provisions, and it has not been contended otherwise. 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); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The effective date of an award of disability compensation based on an original claim is 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. § 3.400. If the claim is received within one year of separation from the service, the effective date for an award of disability compensation for direct service connection is the day following separation from active service, or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Under 38 U.S.C. § 5101 (a), a specific claim in the form prescribed by the VA Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151 (a) (2013). 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) (2015). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2015). The Veteran filed a claim for service connection for a psychiatric disorder in July 1997. The RO denied that claim in December 1997 based on the absence of satisfactory proof of a relevant in-service disease, injury, or event. The RO notified the Veteran of that decision and of her appeal rights on December 30, 1997. Within a year of that decision, additional service treatment records were received and the RO again considered and denied the claim in September 1998. The Veteran did not appeal that decision or submit new and material evidence within 1 year of the September 1998 date that she was notified of that decision. The Veteran applied to reopen in June 2003. The RO denied service connection for a psychiatric disorder in August 2003, on the basis of an absence of new and material evidence. The RO notified the Veteran of that decision and of her appeal rights on August 6, 2003, and the Veteran filed a notice of disagreement with it in August 2003. Following the June 1, 2004 statement of the case on the matter, a VA Form 9 substantive appeal was received on August 17, 2004. [She had telephoned the RO on August 8, 2004, and reported that she had mailed a substantive appeal in late June. When she was advised that no substantive appeal had been received, a new substantive appeal form was sent to her. This August 8, 2004 report of contact cannot suffice as a timely substantive appeal as it was not timely and as it was not in writing, as required by 38 U.S.C.A. § 7105.] The substantive appeal was not timely as it was not filed within 1 year of the August 6, 2003 decision notification or within 60 days following the June 1, 2004 issuance of the statement of the case, even when the mailbox rule is considered. See 38 C.F.R. §§ 20.302, 20.305 (2015). An August 24, 2004, letter notified the Veteran of her untimely substantive appeal and advised her that she could appeal that decision, or, if she desired to reopen her claim, she should use the attached VA Form 21-4138, Statement in Support of Claim, to inform the AOJ of her intent. [She telephoned the RO again in September 2004 indicating that she had been told by RO personnel that the substantive appeal form mailed to her in August would be considered timely if she returned it promptly. She wanted to speak with a member of the appeals team as she "had an issue" with the letter informing her the substantive appeal was not timely. The record reflects no further action on the August 2004 substantive appeal. This report of contact cannot suffice as a timely notice of disagreement with the timeliness issue as it was not a writing from the Veteran, as required by 38 U.S.C.A. § 7105.]. No new and material evidence was received within a year of the August 2003 decision notification date. As such, the August 2003 rating decision became final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Thereafter, no other evidence which could be considered to be a claim for service connection for a psychiatric disorder was received prior to the October 31, 2005 effective date for service connection for major depressive disorder with panic attacks currently set by the RO, and no additional service treatment records have been received. After reviewing the totality of the evidence, the Board is compelled to find that in light of 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400, an effective date prior to October 31, 2005 for the grant of service connection for major depressive disorder is not warranted. The claims filed prior to October 31, 2005 were denied and the Veteran did not timely perfect an appeal of the August 2003 decision or submit new and material evidence within 1 year of its notification of the August 2003 decision and of her appeal rights. Accordingly, the prior decisions became final. Thereafter, no evidence which could be considered a claim to reopen was received prior to October 31, 2005, the currently assigned effective date for the grant of service connection. No earlier effective date for the grant of service connection for major depressive disorder with panic attacks is warranted in this case based on the law and evidence of record. 38 U.S.C.A. § 5110; 38 C.F.R. §§ 3.156, 3.400. The Veteran maintains that there are missing service treatment records, showing psychiatric treatment during service, and the Board acknowledges her statement. While there could be a different decision on the effective date determination, pursuant to 38 C.F.R. § 3.156, if missing service treatment records were obtained, no such records have been obtained in the instant case, despite exhaustive attempts to obtain the same. ORDER The appeals for higher ratings for low back strain and left ankle stress changes and arthralgia are dismissed. Service connection for gastroesophageal reflux disease and irritable bowel syndrome as secondary to the Veteran's service-connected low back strain is granted. An effective date prior to October 31, 2005 for the grant of service connection for major depressive disorder with panic attacks is denied. REMAND The Veteran appeals the matters of the proper ratings for major depressive disorder and acne keloidalis. During her hearing before the undersigned in April 2016, the Veteran and/or her representative provided indications that her depressive disorder and acne keloidalis had become worse since her last VA examinations. For instance, she indicated that in the prior month, her doctor had increased her Cymbalta to help her with psychiatric symptomatology; that she felt it had worsened since the May 2015 VA examination; and that her acne keloidalis has expanded since the 2012 VA examination and she now has skin discoloration as a result of shots she has been given for her acne keloidalis. She stated that recently, her dermatologist advised her that if they keep giving her injections, they could not guarantee that her color was going to return to her face. They also indicated that she receives treatment at the Washington, D.C. VA Medical Center, and also at a VA outpatient clinic at Fort Belvoir, in Virginia. After the hearing, additional medical records were submitted. However, since the claims are being remanded for additional VA psychiatric and skin examinations in light of the indications of increasing disability, any additional relevant medical records of treatment which she has received since July 2016, the month of the most recent treatment record now contained in the claims folder, should be obtained. Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain all available VA and non-VA medical records of treatment which the Veteran has received since July 2016. 2. After the above development is completed, schedule the Veteran for an appropriate VA psychiatric examination to determine the nature, extent, and severity of her service-connected major depressive disorder with panic attacks. The claims folder and copies of all pertinent records should be made available to the examiner. All indicated tests should be performed. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service-connected major depressive disorder with panic attacks. Please provide a full description of the manner and extent to which the Veteran's service-connected psychiatric disability, considered alone, impairs functions related to employment. 3. Also after the above development is completed, schedule the Veteran for an appropriate VA skin examination to determine the nature, extent, and severity of her service-connected acne keloidalis. The claims folder and copies of all pertinent records should be made available to the examiner. All indicated tests should be performed. The examiner is requested to delineate all symptomatology associated with, and the current severity of, the service-connected acne keloidalis. Please provide a full description of the manner and extent to which the Veteran's service-connected skin disability, considered alone, impairs functions related to employment. The examiner is requested to please be very gentle with the Veteran during the examination, as she is known to be very emotional over the subject matter. 4. Thereafter, readjudicate the Veteran's pending claims in light of any additional evidence added to the record. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. 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). ______________________________________________ M. C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs