Citation Nr: 1753887	
Decision Date: 11/24/17    Archive Date: 12/01/17

DOCKET NO.  10-11 100	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Newark, New Jersey


THE ISSUES

1.  Entitlement to service connection for a gastrointestinal disorder, other than gastroesophageal reflux disorder (GERD), to include as secondary to GERD with associated anemia.

2.  Entitlement to an effective date prior to November 25, 2007, for the award of a 100 percent rating for posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for peripheral neuropathy (claimed as restless leg syndrome), to include as secondary to PTSD.


REPRESENTATION

Veteran represented by:	Anne M. Buckley-Johnson, Attorney at Law



ATTORNEY FOR THE BOARD

Dominic Jones, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1969 to October 1971.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2009, July 2009, and January 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey.

In August 2014, the Veteran and his friend, T.F., testified at a Board hearing before the undersigned Veterans Law Judge sitting in Washington, D.C.  A transcript of the hearing is of record.  

In October 2014, the Board remanded the issues listed on the title page for additional development and the case now returns for further appellate review.  While on remand, a May 2017 rating decision awarded an earlier effective date of November 25, 2007, for the award of a 100 percent rating for PTSD.  Consequently, such issue has been recharacterized as shown on the title page of this decision.

The Board notes that an April 2017 rating decision denied a compensable rating for the Veteran's GERD.  Thereafter, the Veteran entered a notice of disagreement as to such denial in May 2017.  Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claim is still being developed by the Agency of Original Jurisdiction (AOJ).  As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. 

The issues of entitlement to service connection for a gastrointestinal disorder other than GERD and entitlement to service connection for peripheral neuropathy are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  VA received the Veteran's claim for an increased rating for his service-connected PTSD on November 25, 2008.

2. The record includes no pending formal or informal claim for an increased rating for PTSD prior to November 25, 2008.

3.  A May 2017 rating decision assigned an effective date of November 25, 2007, one year prior to the receipt of his claim for an increased rating, for the award of a 100 percent rating for PTSD. 


CONCLUSION OF LAW

The criteria for an effective date prior to November 25, 2007, for the award of a 100 percent rating for PTSD have not been met.  38 U.S.C. § 5110 (West 2012); 38 C.F.R. § 3.400(o)(2) (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Preliminary Matters

The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

Further, neither the Veteran nor his representative has alleged any deficiency with respect to VA's duties to notify or assist.  See Scott, supra (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II.  Analysis

The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on a claim for service connection or for an increase of compensation "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a).  The implementing regulation clarifies this to mean that the effective date of an award of service connection or for increase compensation "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400.

This claim is subject to the more specific criteria under 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2).  "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C. § 5110(b)(2).  The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date; otherwise, date of receipt of claim." 38 C.F.R. § 3.400(o)(2).  In Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010), the Federal Circuit interpreted this provision as a so-called one-year look-back from the date VA received the Veteran's claim.  Thus, should it be factually ascertainable that a Veteran's increase in severity of a service-connected condition be found within that year prior to receipt of the claim for increase, the Veteran is entitled to an earlier effective date for such increase - but at most one year before the claim for increase was received.

The United States Court of Appeals for Veterans Claims (Court) has indicated that it is axiomatic that the fact that must be found, in order for entitlement to an increase in disability compensation to arise, is that the service-connected disability must have increased in severity to a degree warranting an increase in compensation.  See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2), which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one the next disability level" provided by law for the particular disability).  Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Id. at 521.

"Claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Prior to March 24, 2015, any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155 (a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).  Since March 24, 2015, a claim for benefits must be submitted on the application form prescribed by the Secretary.  38 C.F.R. §§ 3.1(p), 3.155, 3.160.

According to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits.  See Servello at 199.  The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. §  3.157(b).  When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. §  3.157(b)(2). 

A "report of examination or hospitalization" under § 3.157(b) should "indicate that [a] veteran's service-connected disability [has] worsened since the time it was last evaluated."  Massie v. Shinseki, 25 Vet. App. 123, 134 (2011).  Moreover, the term "report of examination" under § 3.157(b) "implies that the medical record in question must describe the results of a specific, particular examination." A letter may qualify if it, for instance, was "generated in connection with any particular VA medical examination" rather than, for example, a "claim for Social Security disability benefits that was pending at the time it was written."  Massie, 25 Vet. App. at 133.  Other considerations include whether the letter relates "the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation," rather than "present[ing] a very short summation of [the Veteran's general condition, as [the physician] had observed it over" time. Id.   

The Veteran contends he is entitled to an earlier effective date for the award of a 100 percent rating for his PTSD.  By way of background, VA received the Veteran's current claim for an increased rating for his service-connected PTSD, which was evaluated as 30 percent disabling at the time, on November 25, 2008.  The record includes no pending formal or informal claim, to include those that may be considered as such under 38 C.F.R. § 3.157, for an increased rating for PTSD prior to such date.  In a February 2009 rating decision, the RO granted an increase to 100 percent with an effective date of November 6, 2008.  The Veteran subsequently appealed the issue to the Board, which in its October 2014 decision remanded the claim to, among other development, obtain a medical opinion as to whether the Veteran's PTSD symptoms manifested as total social and occupational impairment within the year before the date VA received his claim for increase.  This opinion was obtained in May 2017, and a May 2017 rating decision granted an earlier effective date of one year before the date VA received the Veteran's claim for increase, i.e., November 25, 2007.  Consequently, the Veteran has been awarded the earliest possible effective date under the law for the assignment of a 100 percent rating for his PTSD.  

To the extent that the Veteran and his current representative contend that the effective date of service connection for the Veteran's PTSD should be earlier than its current date, which is February 6, 1998, this misunderstands the issue presently before the Board.  The Veteran filed a claim for an increase in the rating assigned for his service-connected PTSD in November 2008.  An increased rating was granted, and the Veteran appealed with respect to the propriety of the effective date of such increase.  To the extent the Veteran contends the date of service connection for PTSD be the day after his separation from service, such issue is not presently before the Board.  

The Board notes that in Rudd v. Nicholson, 20 Vet. App. 296 (2006), the United States Court of Appeals for Veterans Claims (Court) held that once a rating decision which establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE).  The Court noted that any other result would vitiate the rule of finality.  Here, a June 1999 rating decision granted service connection for PTSD effective February 6, 1998.  The Veteran did not appeal the effective date of service connection within one year of this rating decision, and thus it has become final.  Therefore, the Veteran is advised that the only way for him to claim entitlement to an effective date prior to February 6, 1998, for the award of service connection for PTSD is by alleging CUE, with specificity, in the June 1999 rating decision that awarded such benefits.  Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000); see also 38 C.F.R. § 20.1104.


ORDER

An effective date prior to November 25, 2007, for the award of a 100 percent rating for PTSD is denied.

REMAND

With respect to the Veteran's remaining claims, the Board finds that there has not been substantial compliance with its October 2014 directives and, therefore, another remand is necessary.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

With respect to the Veteran's claim for service connection for peripheral neuropathy, the October 2014 remand directed the AOJ to provide the Veteran with a statement of the case on such matter.  This has not been accomplished and, therefore, another remand is necessary.

With regard to the Veteran's claim for service connection for a gastrointestinal disorder other than GERD, the October 2014 remand, as relevant, directed that an addendum opinion be obtained from a March 2012 examiner so as to determine the nature and etiology of such disorder.  In ordering such development, the Board indicated that, if the March 2012 VA examiner is no longer available or otherwise determines that the Veteran should be reexamined, the Veteran should be afforded a VA examination for gastrointestinal disorders.  Thereafter, the AOJ determined that an examination of the Veteran was necessary in order to such claim and, as such, scheduled one in March 2017.  However, the Veteran failed to attend due to a lack of transportation.  The Board finds good cause for the Veteran having missed the scheduled examination.  Furthermore, a VA examination remains crucial to the matter of whether the Veteran has a gastrointestinal disorder other than GERD that is related to his military service or GERD.  Therefore, a remand is necessary in order to afford the Veteran a VA examination addressing such matter.     

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran and his representative with a statement of the case on the issue of entitlement to service connection for peripheral neuropathy (claimed as restless leg syndrome), to include as secondary to service-connected PTSD.  Please advise them of the time period in which to perfect the appeal.  If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate.

2.  Schedule the Veteran for a VA examination by an appropriate medical professional so as to determine the nature and etiology of any gastrointestinal disorder other than GERD.  The entire record should be reviewed by the examiner.  All indicated tests and studies should be accomplished (with all results made available to the clinician prior to the completion of his or her report), and all clinical findings should be reported in detail.

(A)  The examiner should clearly identify all valid disorders of the gastrointestinal tract other than GERD with associated anemia, to include mild chronic gastritis and gastric polyp diagnosed in April 2011; diverticulosis diagnosed in July 2011; and hiatal hernia and esophageal diverticulum, diagnosed in the May 2017 DBQ submitted by the Veteran, even if the disorder(s) has since resolved. 

(B)  With respect to each such diagnosed disorder, the examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., there is a 50 percent or greater probability) that such disorder is related to the Veteran's military service.

(C)  If any such disorder is not directly related to service, is it at least as likely as not caused or aggravated by the Veteran's service-connected GERD?  If the examiner finds that any current gastrointestinal  disability other than GERD was aggravated by such service-connected disability, he/she should determine, if possible, to what extent it was aggravated beyond the natural progression of the disorder.

The examiner should set forth complete rationale for the conclusions reached.

3.  After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence.  If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case.  An appropriate period of time should be allowed for response.

The Veteran has the right to submit additional evidence and argument on the matter 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 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. §§ 5109B, 7112 (West 2012).




______________________________________________
A. JAEGER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs