Citation Nr: 1638537 Decision Date: 09/29/16 Archive Date: 10/13/16 DOCKET NO. 13-31 000 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for reflex sympathetic dystrophy (RSD) of the left lower extremity, currently evaluated as 20 percent disabling. 2. Entitlement to an initial evaluation in excess of 10 percent for degenerative disc disease of the thoracic spine. 3. Entitlement to an initial evaluation in excess of 10 percent for left axillary and posterior chest wall neuropathy. 4. Entitlement to an initial evaluation in excess of 10 percent for left side surgical scars, status post lobectomy. 5. Entitlement to an initial compensable evaluation for respiratory disability characterized as status post lobectomy. 6. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for missing ribs as the result of left lobectomy performed at a VA facility in July 2004. 7. Entitlement to an effective date earlier than August 26, 2010 for the grant of compensation under 38 U.S.C.A. § 1151 for axillary and posterior chest wall neuropathy. 8. Entitlement to an effective date earlier than August 26, 2010 for the grant of compensation under 38 U.S.C.A. § 1151 for left side scar status post lobectomy. 9. Entitlement to an effective date earlier than August 26, 2010 for the grant of compensation under 38 U.S.C.A. § 1151 for status post lobectomy. ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from September 2001 to January 2002. This matter comes before the Board of Veterans' Appeals (Board) from August 2010 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board notes that, in June 2016, the Veteran was advised that his appointed attorney's accreditation had been canceled, and that his attorney, David L. Huffman was no longer recognized as his representative. The Veteran was instructed as to his representation options and advised that if the Board did not receive a response in 30 days, it would assume that the Veteran wanted to represent himself and would resume review of his appeal. The Veteran did not respond; as such, he is assumed to be representing himself in this appeal. The issues of entitlement to an increased rating for reflex sympathetic dystrophy and higher initial evaluations for degenerative disc disease of the thoracic spine and left axillary and posterior chest wall neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran has three left side surgical scars that are painful, but not unstable; the surgical scars are not productive of functional impairment that has not been considered under an appropriate diagnostic code. 2. Respiratory disability characterized as status post lobectomy is manifested, at worst, by pulmonary function testing revealing forced expiratory volume in one second (FEV-1)/forced vital capacity (FVC) of 77 percent predicted. 3. There is no competent evidence of missing ribs as a residual of lobectomy. 4. The Veteran submitted an original claim of entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for residuals of left lobectomy on August 26, 2010. There are no communications prior to the August 26, 2010 claim which may be considered a formal or informal claim for compensation under 38 U.S.C.A. § 1151. CONCLUSIONS OF LAW 1. The criteria for a 20 percent evaluation, but no more, for painful surgical scars have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2015). 2. The criteria for an evaluation of 10 percent, but no more, for respiratory disability characterized as status post lobectomy have been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.97, Diagnostic Code 6844 (2015). 3. Compensation for missing ribs pursuant to 38 U.S.C.A. § 1151 is not warranted. 38 U.S.C.A. §§ 1151, 5107 (West 2014); 38 C.F.R. § 3.358 (2015). 4. The criteria for an effective date prior to August 26, 2010, for the grant of compensation under 38 U.S.C.A. § 1151 for axillary and posterior chest wall neuropathy 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 August 26, 2010, for the grant of compensation under 38 U.S.C.A. § 1151 for left side surgical scars have not been met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2015). 6. The criteria for an effective date prior to August 26, 2010, for the grant of compensation under 38 U.S.C.A. § 1151 for respiratory disability characterized as status post lobectomy 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 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). A December 2010 letter advised the Veteran of the evidence necessary to support his claims. It included information regarding the manner in which VA determines disability ratings and effective dates. The Veteran was instructed as to the allocation of duties between himself and VA. Subsequent correspondence advised the Veteran of the status of his claim. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. With respect VA's duty to assist, the Board notes that identified records have been associated with the claims file. VA examinations have been conducted, and the Board finds that they are adequate for the purpose of deciding these claims, in that they were performed by neutral, skilled providers who reviewed the record and conducted examinations prior to rendering their findings. The Veteran has not otherwise identified any additional available evidence or information which could be obtained to substantiate the claim. The Board is also unaware of any such outstanding evidence or information. Therefore, the Board is also satisfied that the RO has complied with the duty to assist requirements of the VCAA and the implementing regulations. For the foregoing reasons, it is not prejudicial to the appellant for the Board to proceed to a final decision in this appeal. Analysis Evaluations Disability evaluations are determined by the application of a schedule of ratings, which is based on average industrial impairment. 38 U.S.C.A. § 1155. A proper rating of the Veteran's disability contemplates its history, 38 C.F.R. § 4.1, and must be considered from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. In cases where the original rating assigned is appealed, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Surgical Scars The Veteran seeks a higher initial evaluation for surgical scars that are residuals of his left lobectomy. On VA examination in September 2012, the diagnosis was left chest wall axillary and posterior chest wall scars. The examiner specified that there were three painful scars. He indicated that they were not unstable, but that they were deep. One scar measured 32 x 1 cm, and two others measured 3 x 3 cm. He noted that the smaller scars were from chest tube placement and that the linear scar was elliptical, extending from the left axillary region to his posterior thorax inferior to the scapula. No keloid formation was indicated. The examiner indicated that the Veteran had increased left axillary chest wall pain with rotation or twisting of the chest wall. The criteria for rating scars were revised, effective October 23, 2008. The amendment applies to all applications for benefits received by VA on or after October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (codified at 38 C.F.R. § 4.118, Diagnostic Codes 7800 to 7805). As the Veteran filed the current claim in August 2011, the revised criteria apply. The Veteran is in receipt of a 10 percent evaluation for scars pursuant to Diagnostic Code 7804, which directs that one or two scars that are unstable or painful will be evaluated as 10 percent disabling. A higher 20 percent evaluation under this Diagnostic Code requires evidence demonstrating three or four scars that are unstable or painful. Here, the September 2012 VA examiner specified that there were three surgical scars, one linear scar and two nonlinear scars resulting from placement of chest tubes. He noted that all three scars were deep and painful, but not unstable. Therefore, the Board has determined that an evaluation of 20 percent is for application. As the record does not demonstrate more than three painful surgical scars, a higher evaluation is not warranted. Finally, the Board observes that Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 through 7804 under an appropriate diagnostic code. In this case, the AOJ has awarded separate service connection for the left axillary and posterior chest wall neuropathy, which contemplates residual functional limitation experienced by the Veteran as the result of his 2004 surgery. As the functional limitation has been considered and evaluated, the Board need not address this question herein. In consideration of the above discussion, the Board finds that the evidence supports a 20 percent evaluation, and no higher, for the Veteran's surgical scars. Respiratory Disability The Veteran seeks a compensable evaluation for his respiratory disability, characterized by the AOJ as status post lobectomy. In August 2011, a VA provider noted that recent pulmonary function tests indicated obstructive small airways disease or asthma, which responded well to bronchodilators during testing. He noted that FVC was 103 percent predicted, FEV1/FVC was 77 percent predicted, and DLCO was 80 percent predicted. He opined that these values represented reversible obstructive small airway disease or asthma. On VA examination in May 2012, FVC was 87 percent predicted, FEV1 was 87 percent predicted, FEV1/FVC was 80 percent predicted, and DLCO was 89 percent predicted. These values were interpreted as normal spirometry with normal diffusion. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96. Under DC 6844, post-surgical residuals of pneumonectomy, etc. will be rated under the general rating formula for restrictive lung diseases. The general rating formula for restrictive lung disease (DCs 6840-6845) assigns a 10 percent evaluation for FEV-1 of 71 to 80 percent predicted; or FEV-1/FVC of 71 to 80 percent; or DLCO (SB) 66 to 80 percent predicted. A 30 percent disability rating is warranted where there is FEV-1 of 56 to 70 percent predicted; or FEV-1/FVC of 56 to 70 percent; or DLCO (SB) is 56 to 65 percent predicted. A 60 percent rating is warranted if FEV-1 is 40 to 55 percent of predicted value; or FEV-1/FVC is 40 to 55 percent; or DLCO (SB) is 40 to 55 percent predicted; or if maximum oxygen consumption is 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent disability rating is warranted if FEV-1 is less than 40 percent of predicted value, or; FEV-1/FVC is less than 40 percent, or; DLCO (SB) is less than 40-percent predicted, or; maximum exercise capacity is less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or there is cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or the Veteran requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6844. The Board finds that the weight of the evidence demonstrates that a 10 percent rating is warranted based on the findings of the FEV1/FVC at 77 predicted in August 2011 and 80 percent predicted in May 2012. As noted, the 10 percent evaluation is contemplated where or FEV-1/FVC of 71 to 80 percent predicted. A higher evaluation is assignable where there is FEV-1 of 56 to 70 percent predicted; or FEV-1/FVC of 56 to 70 percent; or DLCO (SB) is 56 to 65 percent predicted. Such is not shown by the medical evidence of record. As such, the Board concludes that the 10 percent evaluation assigned here in is appropriate. The Board has also considered whether there is any other schedular basis for granting a higher rating, but has found none. The Board notes are other diagnostic codes relating to diseases of the trachea and bronchi. However, the Veteran's FEV-1/FVC, DLCO (SB) and maximum oxygen consumption rates do not meet the requirements for a higher evaluation under DCs 6600 (Bronchitis, chronic), DC 6602 (Asthma, bronchial) DC 6603 (Emphysema, pulmonary) or DC 6604 (Chronic obstructive pulmonary disease). Further, the record does not reflect that the Veteran requires daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication as required under DC 6602 or that he has incapacitating episodes of infection two to four weeks total duration per year, or daily productive sputum that is at times purulent or blood-tinged and that requires prolonged antibiotic usage more than twice per year as required under DC 6601 (Bronchiectasis). The Board accepts the Veteran's statements concerning his difficulty breathing, pain, and shortness of breath. The Veteran is competent to report symptoms that are perceivable to him. However he is not competent to assign particular pulmonary function test findings to his disability or to identify which result more accurately reflects the level of disability associated with his service-connected lung disability. See Jandreau v. Nicholson, 492 F.3d. 1372 (2007). The disability evaluation in this case is predicated on medical findings, PFT results - and such findings are is not susceptible to lay observation. In consideration of the above discussion, the Board finds that the evidence supports a 10 percent evaluation, and no higher, for the Veteran's respiratory disability. Evaluations - Additional Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). An extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2015). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence does not show such an exceptional disability picture that the available schedular evaluations for the Veteran's service-connected surgical scars and respiratory disability are inadequate. A comparison between the level of severity and symptomatology of these disabilities with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board also notes that a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The record reflects that the Veteran has at no point during the current appeal indicated that his service-connected scars and respiratory disability result in further impairment when viewed in combination with his other service-connected disabilities. In light of this discussion, the Board concludes that the schedular rating criteria adequately contemplate the Veteran's symptomatology, and the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In short, there is nothing in the record to indicate that the Veteran's disabilities cause impairment over and above that which is contemplated in the assigned schedular ratings. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. Finally, the Board observes that the Court has held that a request for an increase in benefits should be inferred as a claim for special monthly compensation (SMC) regardless of whether it has been raised by the Veteran or previously adjudicated. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). Moreover, VA's governing regulations direct the Board to review a claim for SMC in the first instance if reasonably raised by the record. In this case, however, the Board concludes that the issue of entitlement to SMC has not been raised by the record. The record does not reflect, nor does the Veteran argue, that he has loss of function that requires additional compensation under 38 C.F.R. § 3.350. Compensation Under § 1151 for Missing Ribs The Veteran seeks compensation under 38 U.S.C.A. § 1151 for missing ribs. He maintains that ribs were removed during lobectomy performed by VA in 2004. The appropriate legal standard for claims for compensation under 38 U.S.C.A. § 1151 filed on and after October 1, 1997, as in this case, provides that compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility as defined in section 1701(3)(A) of this title, and the proximate cause of the disability or death was (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C.A. § 1151 (West 2014). From the plain language of this statute, it is clear that, to establish entitlement to benefits under 38 U.S.C.A. § 1151, all three of the following factors must be shown: (1) disability/additional disability, (2) VA hospitalization, treatment, surgery, examination, or training was the cause of such disability, and (3) there was an element of fault on the part of VA in providing the treatment, hospitalization, surgery, etc., or that the disability resulted from an unforeseen event. Effective September 2, 2004, 38 C.F.R. § 3.361 relating to section 1151 claims was promulgated for claims filed on or after October 1, 1997, such as this claim. See 69 Fed. Reg. 46,426 (2004) (codified as amended at 38 C.F.R. § 3.361 (2014)). In determining whether a Veteran has an additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the Veteran's condition after such care or treatment. 38 C.F.R. § 3.361(b). To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the Veteran's additional disability. Merely showing that a Veteran received care or treatment and that the Veteran has an additional disability does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(1). 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused the Veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, the Veteran's representative's informed consent. Upon careful review of the record, the Board has concluded that service connection is not warranted for the claimed missing ribs. In this regard, the Board observes that in September 2012, a VA examiner noted that she had reviewed the record, to include the 2004 operative report, and that no ribs were resected during the Veteran's left lobectomy. She further stated that chest X-ray confirmed this, and that lobectomy procedures did not require the removal of anterior or posterior ribs. Although the Veteran has been advised of the evidence necessary to support this claim, he has neither identified nor produced evidence showing that any ribs were removed during the course of his left lobectomy. The record does not contain any competent medical evidence demonstrating that ribs were resected during the 2004 lobectomy. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Because there is no indication that any ribs were resected during the course of the Veteran's 2004 left lobectomy, the Board finds that a preponderance of the evidence is against the Veteran's claim of entitlement to compensation under 38 U.S.C.A. § 1151 for missing ribs as the result of left lobectomy; therefore, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Effective Dates Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . of compensation . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of compensation for disability due to hospitalization, etc. will be the "date injury or aggravation was suffered if claim is received within 1 year after that date; otherwise, date of receipt of claim." 38 C.F.R. § 3.400(i)(1). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. § 3.151(a) (2014). An informal claim may be any communication or action indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); 38 C.F.R. §§ 3.1(p), 3.155(a) (2013). An informal claim must be written and it must identify the benefit being sought. Although a claimant need not identify the benefit sought "with specificity," some intent on the part of the veteran to seek benefits must be demonstrated. The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," and extends to giving a sympathetic reading to all pro se pleadings of record. However, the case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). On August 26, 2010, the Veteran submitted an informal claim of entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of lobectomy performed by VA in 2004. In an August 2012 rating decision, compensation under 38 U S C 1151 was granted for left side scar, status post lobectomy, rated as 10 percent disabling from August 26, 2012 and for status post left lobectomy, evaluated as noncompensable from August 26, 2010. Compensation for left axillary and posterior chest wall neuropathy (claimed as left side numbness and weakness) was granted under 38 U.S. C 1151 with an evaluation of 10 percent effective August 26 2010 in a September 2012 rating decision. The RO assigned an effective date of August 26, 2010, based on the date of receipt of the Veteran's claim for compensation. The Board acknowledges the Veteran's argument that the effective date of compensation should date to his "original claim", which presumably is the date he filed a claim under the Federal Tort Claims Act (FTCA) for personal injury following his 2004 surgery. Review of the record reflects that such claim was received November 2004. In this regard, the Board observes that a Veteran's submission of a Standard Form 95 to the VA notifying VA of an intent to pursue a negligence claim, under the FTCA, for injuries sustained from surgery at a VA medical facility, was not an informal claim for disability benefits based on such negligent treatment, as required to assign earlier effective date for benefits under 38 C.F.R. § 3.154. Although a specific application for § 1151 benefits was not required under 38 C.F.R. § 3.154, the Standard Form 95 merely provided notice of intent to pursue monetary damages for the FTCA claim, not intent to seek disability benefits under § 1151. See Mansfield v. Peake, 525 F.3d 1312, 1317-19 Fed. Cir. (2008). Accordingly, there is no basis for an assignment of an effective date for compensation under § 1151 based on receipt of the Veteran's Standard Form 95. Rather, the pertinent and undisputed facts in this case are that a claim of entitlement to compensation under § 1151was received on August 26, 2010. Prior to that date, there are no documents that can be construed as a claim, informal claim or intent to file a claim of entitlement to such compensation. In sum, there is no indication of a claim, informal claim, or intent to file a claim of entitlement to compensation under 38 U.S.C.A. § 1151 prior to August 26, 2010. Under the law, the earliest effective date and the appropriate effective date for the grant of compensation under 38 U.S.C.A. § 1151 for axillary and posterior chest wall neuropathy, left side scars status post lobectomy, and a respiratory disability characterized as status post lobectomy is August 26, 2010, the date of receipt of the Veteran's claim. CONTINUED ON NEXT PAGE ORDER Entitlement to an initial evaluation in of 20 percent for left side surgical scars, status post lobectomy is granted, subject to the regulations controlling the payment of monetary benefits. Entitlement to an initial evaluation of 10 percent for respiratory disability characterized as status post lobectomy is granted, subject to the regulations controlling the payment of monetary benefits. Entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for missing ribs as the result of left lobectomy performed at a VA facility in July 2004 is denied. Entitlement to an effective date earlier than August 26, 2010 for the grant of compensation under 38 U.S.C.A. § 1151 for axillary and posterior chest wall neuropathy is denied. Entitlement to an effective date earlier than August 26, 2010 for the grant of compensation under 38 U.S.C.A. § 1151 for left side scars status post lobectomy is denied. Entitlement to an effective date earlier than August 26, 2010 for the grant of compensation under 38 U.S.C.A. § 1151 for respiratory disability characterized as status post lobectomy is denied. REMAND Upon review of the record, the Board has determined that additional action is necessary prior to appellate consideration of the claims of entitlement to higher evaluations for RSD, degenerative disc disease of the thoracolumbar spine, and left axillary and posterior chest wall neuropathy. With respect to the evaluation of RSD, the Board notes that on VA peripheral nerves examination in May 2011, the examiner noted the Veteran's report of weakness, numbness, tingling, and burning pain in his left lower extremity. However, he did not identify the nerves affected or characterize the severity of the disability. Absent this information, the Board is unable to determine the appropriate evaluation of this disability. A current examination should be conducted. The Veteran was afforded a VA spine examination in May 2011. While the examiner indicated that there was objective evidence of pain on motion and following repetitive motion, he did not report the point during motion at which pain was evident. Absent this information, the Board is unable to determine the appropriate evaluation for the Veteran's left shoulder disability. An additional examination must be conducted. Regarding the evaluation of left axillary and posterior chest wall neuropathy, the Board observes that this disability is currently evaluated pursuant to muscle injury. However, no muscle injuries examination has been carried out. On remand, the Veteran should be afforded neurological and muscle examinations, and a determination should be made regarding whether this disability is most appropriately evaluated pursuant to the criteria for neurological disability or muscle disability. Accordingly, the case is REMANDED for the following action: 1. Obtain any updated VA treatment records and associate with the claims file. 2. Schedule the Veteran for an examination to determine the current severity of his RSD. The claims file should be forwarded to the examiner for review. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner should specify which nerves in the Veteran's left lower extremity are affected by RSD, and indicate the level of paralysis present. The examiner should also describe any other associated deformity or functional impairment of the left lower extremity. 3. Schedule the Veteran for an examination to determine the current severity of his degenerative disc disease of the thoracolumbar spine. The claims file should be forwarded to the examiner for review. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner should report the results of range of motion testing and note the point at which the Veteran experiences pain. The examiner should also comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use, and should state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's report should include a description of the above factors that pertain to functional loss that develops on repetitive use or during flare-up. The examiner should also describe any other associated deformity or functional impairment of the thoracolumbar spine, and indicate whether there is ankylosis. A discussion of the complete rationale for all opinions expressed should be included in the examination report. 4. Schedule the Veteran for muscle and neurological examinations to determine the severity of his left axillary and posterior chest wall neuropathy. The claims file should be forwarded to the examiner for review. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The examiner is asked to specify which nerves and or muscles are affected by this disability. 5. Review the examination reports for compliance with the Board's remand directives. Any inadequacies should be addressed prior to recertification to the Board. 6. Regarding the left axillary and posterior chest wall neuropathy, the AOJ should make a determination for the record as to whether this disability is most appropriately evaluated pursuant to the criteria for nerve paralysis or muscle injury. 7. Then, after undertaking any additional development that is deemed warranted, adjudicate the issues on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which 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). ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs