Citation Nr: 1604066	
Decision Date: 02/04/16    Archive Date: 02/11/16

DOCKET NO.  15-20 587	)	DATE
	)	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUES

1.  Entitlement to service connection for sinusitis (epistaxis/nose bleeds).

2.  Entitlement to an evaluation of scoliosis of the thoracic spine in excess of 10 percent effective May 2, 2008 and in excess of 40 percent effective March 16, 2015.

3.  Entitlement to an effective date for service connection of thoracic scoliosis earlier than May 2, 2008.

4.  Entitlement to total disability rating based on individual unemployability (TDIU).

5.  Entitlement to service connection for bilateral hearing loss.

6.  Entitlement to service connection for arthritis (unspecified).

7.  Entitlement to service connection for painful joints (unspecified).

8.  Entitlement to service connection for anxiety disorder.

9.  Entitlement to service connection for asthma.

10.  Entitlement to service connection for Bell's palsy.

11.  Entitlement to service connection for an arm condition.

12.  Entitlement to service connection for vision.


REPRESENTATION

Veteran represented by:	Lori Chism, Attorney


ATTORNEY FOR THE BOARD

S. Finn, Counsel


INTRODUCTION

The Veteran had active service from March 1986 to March 1990.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from various rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

The claims file includes both a paper claims file and an electronic record.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002).

The issues on appeal, except for the earlier effective date, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.

FINDINGS OF FACT

1.  In an April 1991 rating decision, the RO denied service connection for thoracic scoliosis.  The Veteran was notified of that decision and of his appellate rights, but he did not appeal.  He also did not submit new and material evidence within one year of that decision.
 
2.  Following the April 1991 rating decision the Veteran first filed a claim to reopen for service connection for thoracic scoliosis on May 2, 2008.


CONCLUSION OF LAW

The criteria for an effective date earlier than May 2, 2008, for the grant of service connection for thoracic scoliosis have not been met.  38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. § 3.400 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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 2015); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015).

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a) (West 2015); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1).

The Veteran received VCAA notice in December 2008.

In addition, the VCAA notice letter was provided prior to initial adjudication of the Veteran's claim in July 2009 and explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).

Moreover, in cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled.  Dingess/Hartman v. Nicholson, 19 Vet. App. 490, 91; VAOPGCPREC 8-2003 (December 22, 2003).  Thus, VA's duty to notify has been satisfied with respect to the issue of entitlement to an earlier effective date.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c),(d).  The medical evidence of record is sufficient to show that the Veteran has had a back disability since he filed his claim in May 2008.  Thus, the claims file contains all relevant documentation necessary to adjudicate the claim for an effective date earlier than May 2, 2008 for the grant of service connection for thoracic scoliosis.  There is no indication of existing evidence that would raise a reasonable possibility of substantiation of an earlier effective date for service connection.  Thus, there is no further duty to assist that arises under the facts of this case.  See 38 U.S.C.A. § 5103A (a)-(d).

All relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to the matter decided below.

II.  Earlier Effective Date - Service Connection for a Thoracic Back Disability

In this case, the Veteran has asserted that he is entitled to an effective date earlier than May 2, 2008 for the grant of service connection for thoracic scoliosis.  As explained further below, the Board finds that an earlier effective date is not warranted. 

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, 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 U.S.C.A. § 5110(a) (West 2015); 38 C.F.R. § 3.400 (2015).  Unless otherwise provided, the effective date of compensation will be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application.  38 U.S.C.A. § 5110(a). 

If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose.  38 C.F.R. § 3.400(b)(2).

The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim.  38 U.S.C.A. § 5110(a); 38 C.F.R. §§ 3.400(q) (2), 3.400(r).  The effective date for the grant of service connection following a final decision is the date of the reopened claim.  See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C.A. § 5110(a) , is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed").  In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.  The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim.

In this case, the Veteran initially filed a claim for service connection for thoracic scoliosis in February 1991.  He asserted that his thoracic scoliosis was aggravated by service.  The RO denied service connection for his back disability in an April 1991 rating decision, finding that there was insufficient evidence of aggravation of his pre-existing thoracic scoliosis.  

He was provided notice of the rating decision and his appellate rights, but he did not appeal the decision or submit new and material evidence within one year of the decision.  Therefore, the April 1991 decision is final.  See 38 C.F.R. §§ 3.156, 20.302, 20.1103 (2015).

As an initial matter, the Board has thoroughly reviewed the evidence of record between April 1991 to May 2008 to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for service connection for thoracic scoliosis during that time.  However, there is nothing in the record to support such a finding.  The Veteran and his representative have also not identified any claim filed between April 1991 to May 2008.

To the extent that the Veteran may have sought medical treatment at VA for his back disorder prior to May 2008, the Board notes that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit.  See Brannon v. West, 12 Vet. App. 32, 35 (1998); Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). 

VA regulations do provide that, once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of reports of outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, the Board also notes that the type of reopening contemplated by the regulation is one for compensation where a claim for service connection for a disability has been allowed but "compensation disallowed for the reasons that the service-connected disability is not compensable in degree."  38 C.F.R. § 3.157(b); MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (holding that medical records do not satisfy the regulatory requirements of an informal claim if the condition disclosed in the medical records had not previously been determined to be service-connected); Crawford v. Brown, 5 Vet. App. 33 (1993); 38 C.F.R. § 3.157(b)(1) (1996) ("The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission.").  That is not the situation here.  Rather, a claim for service connection for thoracic scoliosis had been denied in April 1991.  Thereafter, the Board reopened the claim and granted service connection in March 2014 decision.  Thus, the reopening of the claim for service connection is not the kind of reopening that is contemplated by 38 C.F.R. § 3.157(b).  That provision contemplates "reopening" of a claim for "compensation" where service connection had already been granted, but no compensation was awarded.  In this case, no formal claim for service connection for a thoracic spine disability had ever been allowed before the March 2014 decision was promulgated.  Accordingly, the provisions of section 3.157(b) do not apply in this case.

VA first received a formal or informal claim for thoracic scoliosis on May 2, 2008.  As previously noted, an effective date is assigned based on the date of the claim or the date entitlement arose, whichever is later.  In the present case, the date of the claim to reopen was filed on May 2, 2008, which is later than the date entitlement arose. 

Accordingly, the Board concludes that May 2, 2008, is the proper effective date for the award of service connection for thoracic scoliosis.  38 U.S.C.A. § 5107(b).


ORDER

Entitlement to an effective date prior to May 2, 2008 for the grant of service connection for thoracic scoliosis is denied.


REMAND

The records reflect that the Veteran has a pending appeal of the February 11, 2014 Notice of Unfavorable Action for Social Security Administration (SSA) disability benefits.  (See April 2015 and May 2015 VA treatment records stating pending SSDI claim; October 2015 Written Statement from Veteran).  A remand is necessary to obtain any additional SSA records before his service connection claims, higher ratings claims for thoracic spine, and TDIU can be decided.  

On the March 27, 2015 VA 21-8940, the Veteran checked that he applied for Workers' Compensation disability benefits.  These records must be obtained on remand.

With regards to a higher rating for the thoracic spine, the most recent medical records reflect that he had an MRI (magnetic resonance imaging) in September 2015 from the VAMC in Indiana, which apparently showed a tumor on his spine.  (See Written Statement in August 2015 and MRI dated September 2015).  The Veteran complains of numbness in his legs, which requires him to use a wheelchair.  The Veteran is not service-connected for tumors of the thoracic spine.  Another VA examination is necessary to determine the current severity of the thoracic disability and separate any symptoms from the non-service connected disability from the service-connected disability.  See 38 C.F.R. § 3.102; Mittlieder v. West, 11 Vet. App. 181 (1998).  (See also May 2015 VA examination addendum).

With regard to the issues of entitlement to service connection for bilateral hearing loss, arthritis, painful joints, anxiety disorder, asthma, Bell's palsy, arm condition, and vision, the Veteran filed an NOD the same month as the August 2015 rating decision denying these claims.  Because the Veteran filed an NOD to the RO's August 2015 rating decision and the RO failed to issue him an SOC on the issues, the matter remains pending and in appellate status until the benefit sought on appeal is granted, i.e., service connection, or a Board decision resolved the appeal.  See Jones v. Shinseki, 619 F.3d 1368 (Fed. Cir. 2010) (where an NOD is filed and no SOC is issued, the claim is resolved by a later appellate adjudication of a subsequent claim where the claim stems from the same underlying disorder and the claimed disability is identical or substantially similar).  Under the circumstances, the Board has no discretion and is obliged to remand these issues to the RO for the issuance of an SOC.  Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); Holland v. Gober, 10 Vet. App. 433, 436 (1997).

The above remanded claims are inextricably intertwined with the TDIU claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991)(holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered).  Accordingly, adjudication of the Veteran's TDIU claim is deferred until after the AMC/RO adjudicates the remanded claims.

The Veteran was hospitalized recently at the Witham Hospital emergency room for his back located at 2605 N. Lebanon Street, Lebanon, IN 46052.  He also appears to have been treated at the VA Medical Center; Indianapolis, IN recently in September 2015, where an MRI was taken that reflects a tumor.  These records, and any other outstanding records pertinent to his claims, must be associated with the file.


(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). Expedited handling is requested.)


Accordingly, the case is REMANDED for the following action:


1.  The AMC/RO should obtain and associate with the claims file all VA medical records pertaining to treatment and evaluation of the above claims that have not been associated with the claims file (i.e., September 2015 MRI from VAMC in Indianapolis, IN), along with any recent private treatment records appropriately identified by the Veteran.

2.  Contact the Social Security Administration and obtain any additional records underlying his appeal of the February 11, 2014 denial.  All efforts to obtain Social Security records should be fully documented, and a negative response must be provided if records are not available.

3.  Contact the Veteran and inquire as to whether he applied for Worker's Compensation benefits, and if so, contact the appropriate agency or individual to obtain a copy of any decision, should one exist, awarding or denying Worker's Compensation benefits for the Veteran, copies of all medical records upon which any such Worker's Compensation award was based, and copies of any medical records associated with any subsequent Worker's Compensation determinations.  If such records are identified but not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e).

4.  After completing the above development, ensure that the Veteran is scheduled for a VA spine examination to determine the current severity of his service-connected thoracic spine disability and to separate any symptoms from the non-service connected disability (i.e., tumor on the spine) from the service-connected disability (thoracic scoliosis).  The claims file, including a copy of this REMAND must be provided to the examiner for review.  The examiner must determine the range of motion of the Veteran's thoracolumbar spine, in degrees, noting by comparison the normal range of motion of the thoracolumbar spine.  The VA examiner must specifically state whether there is any favorable or unfavorable ankylosis in the thoracolumbar spine, and must also indicate the normal range of motion of the thoracolumbar spine for comparison.  It must also be determined whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected spine disability, expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination.  Finally, an opinion must be stated as to whether any pain found in the spine could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups.

The examiner must additionally report any associated neurological complaints and findings attributable to the Veteran's service-connected thoracic spine disability.  In other words, please separate the symptoms attributed to the service-connected thoracic disability versus nonservice-connected tumor disability, if possible.

The examiner should specifically comment on the number of weeks of incapacitating episodes (i.e., episodes in which the Veteran's adverse symptomatology required bed rest ordered by a physician), if any, that the Veteran has experienced due to his service-connected thoracic spine in any given 12-month period since filing his claim.

The examiner should also address the impact of his service-connected disabilities on his employability.  The Veteran should be asked to provide a complete employment history, if possible.  Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the impact of his service-connected disabilities on his employability, the examiner is asked to opine whether the Veteran's service-connected disabilities, alone or in combination, preclude him from securing and following substantially gainful employment consistent with his education and occupational experience.

The examiner must explain the rationale for any opinion rendered.

5.  Issue the Veteran an SOC with respect to his claims of entitlement to service connection for bilateral hearing loss, arthritis, painful joints, anxiety disorder, asthma, Bell's palsy, arm condition, and vision, to include notification of the need to timely file a Substantive Appeal to perfect his appeal on these issues.

6.  Thereafter, readjudicate the issues on appeal.  If the determination remains unfavorable to the Veteran, he and his attorney should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case.  The Veteran and his attorney should be afforded the applicable time period in which to respond.


The Veteran 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).




______________________________________________
JOHN Z. JONES
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs