Citation Nr: 1707186 Decision Date: 03/09/17 Archive Date: 03/17/17 DOCKET NO. 10-10 893 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an effective date prior to September 25, 1996, for the award of service connection neurological impairment of the right lower extremity. 2. Entitlement to an effective date prior to September 25, 1996, for the award of service connection neurological impairment of the left lower extremity. 3. Entitlement to a rating in excess of 40 percent for degenerative disc disease, L4-L5 and L5-S1 ("low back disability"). 4. Entitlement to a rating in excess of 10 percent for neurological impairment of the right lower extremity. 5. Entitlement to a rating in excess of 10 percent for neurological impairment of the left lower extremity. 6. Entitlement to a rating in excess of 30 percent for major depressive disorder. 7. Entitlement to service connection for post-traumatic stress disorder (PTSD). 8. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. Nelson, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1975 to September 1978. These matters come before the Board of Veterans' Appeals (Board) on appeal from May 2008, August 2008, and January 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The May 2008 rating decision denied entitlement to a TDIU. The August 2008 rating decision granted service connection for neurological impairment of the bilateral lower extremities, pursuant to a May 2008 Board decision, assigning 10 percent disability ratings effective September 25, 1996. The January 2010 rating decision continued a 40 percent rating for the low back disability, continued 10 percent ratings for neurological impairment of the bilateral lower extremities, continued a 30 percent rating for major depressive disorder, denied service connection for PTSD, and denied entitlement to a TDIU. In March and July 2010 substantive appeals, the Veteran notified the Board that he did not want a Board hearing. The Board notes as a procedural matter that the Veteran previously appealed a June 2004 rating decision that granted service connection for the low back disability (then rated as a chronic strain, lower back), assigning a 20 percent disability rating effective September 25, 1996, pursuant to a July 2003 Board decision. During the pendency of appeal, the RO increased the rating for the low back disability to 40 percent effective July 7, 2003. In May 2008, the Board denied a rating in excess of 20 percent for the period of appeal prior to July 7, 2003, and a rating in excess of 40 percent thereafter. The Board also granted separate 10 percent ratings for neurological impairment of the bilateral lower extremities. The Veteran appealed the May 2008 Board decision to the Court of Appeals for Veterans Claims (Court). In April 2009, before the Court decision, the Veteran submitted claims for increased ratings for the low back disability and bilateral lower extremities. In April 2010, the Court affirmed the May 2008 Board decision. As such, the claims currently before the Board for increased ratings for the low back disability and neurological impairment of the bilateral lower extremities relate to the period of time since the April 2009 claims for increased ratings. The issues of increased ratings for the low back disability, bilateral lower extremities, and major depressive disorder; service connection for PTSD; and entitlement to a TDIU 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 filed a claim for service connection for a low back disability, claimed as a low back strain, in September 1996, which was granted in a June 2003 Board decision. 2. Service connection for neurological impairment of the bilateral lower extremities was granted in an August 2008 rating decision, pursuant to a May 2008 Board decision. The Board decision granted service connection for neurological impairment of the bilateral lower extremities as part of an appeal for an increased rating for the low back disability. CONCLUSIONS OF LAW 1. The criteria for the assignment of an effective date earlier than September 25, 1996 for the award of service connection for neurological impairment of the right lower extremity have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155(a), 3.400 (2016). 2. The criteria for the assignment of an effective date earlier than September 25, 1996 for the award of service connection for neurological impairment of the left lower extremity have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.155(a), 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, with regard to the claims for earlier effective dates for neurological impairment of the bilateral lower extremities, the RO provided a notice letter to the Veteran in August 2006, prior to the adjudication of the service connection claims. The letter notified the Veteran of what information and evidence must be submitted to substantiate the claims for service connection, what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA. The Veteran was told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence to the RO in support of his claims. The letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The Veteran's claims for earlier effective dates are downstream issues, which were initiated by the notice of disagreement. The Court has held that, as in this case, once a notice of disagreement from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements..." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Thus, there is no duty to provide additional notice with regard to these claims. The record nevertheless establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claims. The Board notes that there has been no allegation from the Veteran or his representative that he has been prejudiced by any of notice defects. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, there is no prejudice to the Veteran in the Board's considering the increased rating claims on their merits. The Board finds that the duty to notify provisions have been fulfilled with regard to the effective date claims, and any defective notice is nonprejudicial to the Veteran and is harmless. The Board further finds that all relevant evidence has been obtained with regard to the effective date claims, and the duty to assist requirements have been satisfied for these claims. All available service treatment records (STRs), VA medical records, and private treatment records are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the effective date claims. The Board finds that the duties to notify and assist the Veteran have been met for the effective date claims, and no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of these claims. Law and Regulations Under 38 C.F.R. § 3.400(b)(2)(i), if a claim for service connection is not received within one year after separation from service, the effective date for a grant of direct service connection will be the date of receipt of the claim, or the date that entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(ii). The term "claim" or "application" means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). "Date of receipt" generally means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). An informal claim is any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). VA is required to look to all communications from the appellant that may be interpreted as applications or claims, formal and informal, for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196 (1992). All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by the Department, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). VA has a duty to "give a sympathetic reading to the Veteran's filings by 'determining all potential claims raised by the evidence, applying all relevant laws and regulations.'" Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (quoting Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001)). VA is required to identify and act on informal claims for benefits. 38 C.F.R. § 3.155(a); see Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The law grants a period of one year from the date of the notice of the result of the initial determination for initiating an appeal by filing a notice of disagreement; otherwise, that determination becomes final and is not subject to the revision on the same factual basis in the absence of clear and unmistakable error (CUE). 38 U.S.C.A. § 7105; 38 C.F.R. § 3.105(a). Neurological Impairment of the Bilateral Lower Extremities The Veteran contends without further elaboration that he is entitled to an effective date earlier than September 25, 1996 for the award of service connection for neurological impairment of the right lower extremity and left lower extremity as secondary to the service-connected low back disability. See the September 2008 notice of disagreement. The record reflects that a formal claim for service connection for a low back strain was received at the RO on September 25, 1996, which was granted in a June 2003 Board decision. A formal claim for service connection for pain radiating from the lower back to the lower extremities was received in September 2004, and service connection for neurological impairment of the bilateral lower extremities as secondary to the low back strain was granted in May 2008 Board decision with an effective date of September 25, 1996. The Veteran subsequently perfected an appeal of the effective dates for the lower extremities. As discussed above, the effective date for the award of service connection is the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). In this case, the claim for compensation which led to the award of service connection for the neurological impairment of the bilateral lower extremities was received at the RO on September 25, 1996. The Board has reviewed the record to determine whether an informal claim of service connection for a back disability or lower extremities disability was filed at any time prior to September 25, 1996. The Board finds that no document was received prior to September 25, 1996 that can be construed as an informal or formal claim for compensation benefits for a back disability or lower extremities disability. All earlier-dated evidence in the claims file relates to educational assistance. The Board emphasizes that a veteran is required to file a claim to obtain benefits and that, at a minimum, the veteran must identify the benefit sought in such a claim. See 38 C.F.R. §§ 3.151, 3.155. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) ("[M]ere receipt of medical records cannot be construed as an informal claim."); Brannon v. West, 12 Vet. App. 32, 35 (1998) ("[T]he Board is not required to conjure up issues that were not raised by the appellant."). Medical evidence indicates that the Veteran reported having pain in his back, stomach, legs, and feet in May 1996, with a history of intermittent low back pain since a car accident in 1991. Thus, the date that entitlement arose was likely prior to the date that the claim for service connection was filed. As noted above, however, the effective date for the award of service connection is the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). In this case, the later date is the date that the Veteran applied for service connection for a back disability. Accordingly, under the applicable regulations, September 25, 1996, the date of the claim for service connection for a back disability, is the earliest assignable date for the award of service connection for neurological impairment of the bilateral lower extremities. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. The preponderance of the evidence is against the assignment of an effective date prior to September 25, 1996 for the award of service connection for neurological impairment of the bilateral lower extremities. Because the preponderance of the evidence is against the claim for an earlier effective date, the benefit of the doubt doctrine is not for application with regard to these claims. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). ORDER Entitlement to an effective date earlier than September 25, 1996 for the award of service connection for neurological impairment of the right lower extremity is not warranted, and the appeal is denied. Entitlement to an effective date earlier than September 25, 1996 for the award of service connection for neurological impairment of the left lower extremity is not warranted, and the appeal is denied. REMAND Review of the record reveals that further development is necessary, as the duty to assist has not been satisfied. 38 U.S.C.A. § 5103A. Increased Ratings Claims With regard to the claims for increased ratings for the low back disability, neurological impairment of the bilateral lower extremities, and major depressive disorder, outstanding VA treatment records are necessary before adjudication of the claims. As noted in the Introduction, the appeal period for the claims for increased ratings for the low back disability and bilateral lower extremities is from April 2009. The claim for an increased rating for major depressive disorder was also received in April 2009. The claims file currently contains VA treatment records dated from April 2009 to October 12, 2009, and from June 18, 2014 to February 10, 2015. However, treatment records for the periods between October 13, 2009 and June 17, 2014, and from February 11, 2015 are not associated with the claims file. There is evidence that those records include relevant evidence, including a March 2015 VA examination that references a 2012 MRI of the lumbar spine, and an August 2014 substance abuse treatment program (SATP) group therapy note indicate that the Veteran attended the group "for the first time in months." As such, the outstanding VA treatment records should be associated with the claims file. VA has a duty to seek these records. 38 U.S.C.A. § 5103A(b)(1). Service Connection for PTSD 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). The Board notes that the Veteran is currently service-connected for major depressive disorder. However, VA treatment records dated in June 2009 indicate that the Veteran also had a diagnosis of PTSD. In an August 2009 memorandum (formal finding on a lack of information required to verify stressors for PTSD), the RO indicated that they were unable to corroborate the Veteran's stressful incidents in service that may have resulted in PTSD. However, the Veteran has not been afforded a VA examination to assist in determining whether the Veteran's claimed stressors are adequate to support a diagnosis of PTSD and that the Veteran's symptoms are related to the claimed stressor. As such, the Board finds that a VA examination is necessary to determine the nature and etiology of any current acquired psychiatric disorders aside from major depressive disorder. 38 U.S.C.A. § 5103A(d). In addition, if any disorder(s) other than major depressive disorder are diagnosed, then a medical opinion is necessary to determine which symptoms are attributable to the depressive disorder and which are attributable to PTSD or other diagnosed psychiatric disorder. See Snuffer v. Gober, 10 Vet. App. 400 (1997); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (1996)). TDIU Finally, with regard to the issue of entitlement to a TDIU, any decision on the service connection and increased rating claims being remanded herein may affect the claim for a TDIU. Consideration of entitlement to a TDIU must therefore be deferred until the intertwined issues are resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: 1. Obtain from the VA healthcare system all outstanding relevant treatment records of the Veteran dated from October 2009 to June 2014, and from February 2015 to present. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. Schedule the Veteran for a VA psychiatric examination to determine the current nature and likely etiology of any diagnosed acquired psychiatric disorder (other than major depressive disorder), to include PTSD. The entire claims file, including a copy of this REMAND, must be reviewed by the examiner in conjunction with the examination. All indicated studies, tests, and evaluations deemed necessary should be performed. a. If PTSD is diagnosed, the examiner should indicate whether it is at least as likely as not (50 percent or greater probability) that the claimed stressors are adequate to support a diagnosis of PTSD, whether the symptoms are related to the claimed stressor, and whether the stressors are based on a fear of hostile military or terrorist activity during service. b. For any diagnosed acquired psychiatric disorder other that PTSD (and other than major depressive disorder), the examiner should provide an opinion as to whether it is at least as likely as not that the diagnosed acquired psychiatric disorder was incurred in or aggravated by military service. c. If any acquired psychiatric disorder (other than major depressive disorder) is found to be at least as likely as not incurred in or due to military service, the examiner should explicitly state whether that disorder's symptoms overlap with the symptoms of the service-connected major depressive disorder to such an extent that they cannot be differentiated and explain why. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation under different diagnoses is to be avoided); Esteban v. Brown, 6 Vet. App. 259, 261 (1994) (the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition). If the symptoms are distinguishable, the examiner must clearly identify which symptoms are attributable to which psychiatric disorder, and should assign separate global assessment of functioning scale scores (GAFs) to each diagnosed acquired psychiatric disorder. The examiner should fully explain any opinion expressed. If the examiner cannot render the requested opinion, a full explanation for why the opinion cannot be made must be provided. 3. After completing all indicated development, and any additional development deemed necessary, readjudicate the claims in light of all the evidence of record. If any benefit sought on appeal remains denied, then a fully responsive Supplemental Statement of the Case should be furnished to the Appellant and his representative and they should be afforded a reasonable opportunity for response. 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). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs