Citation Nr: 1754937 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 14-24 885A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to an effective date prior to January 2, 2014, for the award of service connection for radiculopathy of the right upper extremity. 2. Entitlement to an effective date prior to April 6, 2010, for the award of service connection for temporomandibular joint (TMJ) disability. 3. Entitlement to a rating higher than 10 percent for residuals of fracture of the right great toe. 4. Entitlement to a rating higher than 10 percent for degenerative joint disease of the right knee (right knee disability). 5. Entitlement to an initial compensable rating for TMJ disability. 6. Entitlement to an initial rating higher than 50 percent for depression. 7. Entitlement to an initial rating higher than 10 percent for degenerative changes of the cervical spine. 8. Entitlement to an effective date prior to April 6, 2010, for the award of service connection for depression. 9. Entitlement to an effective date prior to January 2, 2014, for the award of total disability rating based on individual unemployability (TDIU), due to service-connected disabilities. 10. Entitlement to an effective date prior to January 2, 2014, for eligibility to Dependents' Education Assistance (DEA) benefits. REPRESENTATION Appellant represented by: John S. Berry, Attorney ATTORNEY FOR THE BOARD G. Fraser, Associate Counsel INTRODUCTION The Veteran served on active duty from February 1997 to November 1999. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. The record before the Board consists of electronic records in systems known as Virtual VA and the Veterans Benefits Management System. The Veteran's claims for increased ratings for his right knee and right great toe disabilities were previously denied by the Board in May 2016. He subsequently appealed that denial to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2017 Joint Motion for Remand, the Court returned the case to the Board for additional development. The issues of entitlement to earlier effective dates for the awards of service connection for radiculopathy of the right upper extremity and TMJ, as well as entitlement to a rating in excess of 10 percent for residuals of a right great toe fracture are decided in the decision below, and the remaining claims are addressed in the REMAND that follows the ORDER section of the decision. FINDINGS OF FACT 1. The Veteran's claim for a cervical spine disability was received on April 6, 2010, and his right upper extremity radiculopathy was shown to be an objective neurological abnormality consequentially related to his cervical spine disability. 2. The Veteran's claim of entitlement to service connection for TMJ was received on April 6, 2010, more than one year following his separation from active service. 3. During the entire period of the claim, the Veteran's residuals of a fracture of the right great toe has more nearly approximated moderate malunion of the metatarsal bone than moderately severe malunion. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 2, 2014, for the grant of service connection for right upper extremity radiculopathy have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). 2. The criteria for an effective date earlier than April 6, 2010, for the award of service connection for TMJ have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). 3. The criteria for a rating in excess of 10 percent for residuals of a fracture of the right great toe have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71(a), Diagnostic Code 5283 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the claims for earlier effective dates for entitlement to service connection for right upper extremity radiculopathy and TMJ disability, as explained below, the pertinent facts in this case are not in dispute, and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate these claims, and no further action is required to comply with VA's duties to notify and assist under 38 U.S.C. §§ 5103, 5103A (2012) or 38 C.F.R. § 3.159 (2017). See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C. §§ 5103, 5103A (2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2017), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. The Veteran was provided all required notice in a letter mailed in April 2010, prior to the initial adjudication of the right great toe increased rating claim. The Board also finds VA has complied with its duty to assist the Veteran in the development of his claim. The record shows his complete service treatment records (STRs), as well as all available post-service medical evidence identified by the Veteran have been obtained. The Veteran has also been afforded an opportunity for a hearing before a Decision Review Officer or before the Board, but declined to do so. Additionally, the Veteran underwent VA examinations in May 2010, March 2013, and January 2014. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant's discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). The effective date, "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.A. § 5110(a). Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2017). The combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed. 38 C.F.R. § 4.68 (2017). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2017). Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Burden of Proof Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Factual Background and Analysis Earlier Effective Date for Radiculopathy The record shows the Veteran submitted an initial claim for service connection for a cervical spine disability on April 6, 2010. A June 2014 rating decision granted service connection for the cervical spine disability, effective from April 6, 2010. The same rating decision also granted right upper extremity radiculopathy, as being consequentially related to the Veteran's cervical spine disorder. However, the rating decision assigned an effective date of January 2, 2014 for the radiculopathy, indicating this was the "date of facts found." The Veteran expressed disagreement with the assigned effective date. Initially, the Board observes that there are several notes set out after 38 C.F.R. § 4.71(a), Diagnostic Code 5242. The first note provides that objective neurologic abnormalities are to be rated separately under an appropriate diagnostic code. In sum, this note instructs the rating official to consider objective neurological abnormalities as part of the claimed cervical spine disability process. In this case, the Veteran initiated his claim for a cervical spine disability on April 6, 2010; however, the RO did not afford him a VA examination until January 2, 2014. At the time of that examination the Veteran reported experiencing right sided pain and numbness that radiated from the scalp to the base of his neck and into his right shoulder area. The Veteran reported that his problems had existed since his in-service motor vehicle accident. It appears the RO determined service connection could not be established for this disability until a confirmed diagnosis was made at the time of his January 2014 VA examination. The Board disagrees. It is readily apparent that the Veteran has experienced neurological abnormalities of the right upper extremity that were found to be consequentially related to his cervical spine disorder since he initiated his claim for service connection for the neck disability. Though a concrete diagnosis was not rendered until many years after his initial claim, this resulted from the RO's failure to obtain the required examination. More importantly, the cervical spine Diagnostic Code instructs that neurological abnormalities should be assessed as part of the claim for a cervical spine disability, and if found, separately evaluated. Therefore, the Board finds an effective date of April 6, 2010 is warranted for the award of service connection for right upper extremity radiculopathy. Earlier Effective Date for TMJ The record shows the Veteran submitted an initial claim for service connection for TMJ syndrome on April 6, 2010. A June 2014 rating decision granted service connection for the TMJ disability, effective from April 6, 2010. The Veteran expressed disagreement with the assigned effective date. The evidence does not indicate the Veteran expressed any intent to file a claim for service connection for a TMJ disability prior to April 6, 2010. Though the Veteran's attorney has asserted service connection should have been established from an earlier date, he has provided no plausible basis for such date. Therefore, in the absence of a valid earlier claim, the earliest possible effective date is April 6, 2010. See 38 C.F.R. § 3.400(b)(2)(i). Accordingly, the claim must be denied. Increased Rating Right Great Toe In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability under review. As noted in the Board's May 2016 decision, the Veteran contends a rating in excess of 10 percent is warranted for his right great toe. The Board disagrees. The Board also observes the February 2017 Joint Motion for Remand found the May 2016 decision insufficient solely because that decision failed to consider and discuss the results of a January 2014 VA examination. Since the particular findings of the May 2016 decision were not found to be erroneous, in the interest of judicial economy, the Board will not replow a field that has been so extensively cultivated. Rather, the Board will strictly focus on the undiscussed findings contained in the January 2014 VA examination, and summarize why the evidence continues to demonstrate a rating in excess of 10 percent is simply not warranted. As noted in the May 2016 Board decision, the Veteran's residuals of a fracture of the right great toe have been evaluated under Diagnostic Code 5283 which provides the rating criteria for evaluation of malunion or nonunion of the tarsal or metatarsal bones. Under Diagnostic Code 5283, 10 percent rating will be assigned for moderate impairment associated with a malunion, 20 percent for moderately severe, and 30 percent for severe impairment. The note to the Diagnostic Code provides that a 40 percent rating will be assigned if there is actual loss of the foot. See 38 C.F.R. § 4.71a, Diagnostic Code 5283. Foot injuries may also be evaluated under 38 C.F.R. § 4.71a, Diagnostic Code 5284, which provides that a 10 percent disability rating is warranted if the disability is moderate, a 20 percent disability rating is warranted if the disability is moderately severe and a 30 percent disability rating is warranted if the disability is severe. 38 C.F.R. § 4.17a, Diagnostic Code 5284. The words "slight," "moderate," and "severe" are not defined in the rating schedule. Use of terminology by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Amputation of the great toe is rated under Diagnostic Code 5171, which provides for a rating of 10 percent for amputation without metatarsal removal. A rating of 30 percent is awarded for amputation with removal of the metatarsal head. The Veteran has not undergone amputation of the great toe. Therefore, a higher rating under Diagnostic Code 5171 is not warranted for this disability. As noted above, the Veteran underwent a VA examination on January 2, 2014 to assess the residuals of his right great toe fracture. At that time, he stated the toe always felt locked up, and there was pain on walking, which worsened with running. The examiner stated the Veteran had a moderate impairment resulting from his great toe injury, which caused some functional deficiencies with prolonged walking, standing, running, jumping, and using a pedal. However, the examiner found the Veteran's disability was not so disabling that he would be equally served by amputation of the great toe. The Veteran's outpatient treatment notes from the Loma Linda VAMC have also been extensively reviewed. These notes fail to show the Veteran has received any additional treatment for his right great toe since the January 2014 VA examination. Based on the foregoing, the Board has determined the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for residuals of fracture of the right great toe. The Board has considered the Veteran's statements regarding this disability and finds that they are competent and credible; however, these statements simply do not show the Veteran warrants a higher disability rating. The above noted evidence indicates the Veteran's great toe has been manifested by pain and a locking sensation. The Veteran has not alleged and the evidence does not otherwise indicate he has experienced incapacitating episodes as a result of his residuals of fracture of the right great toe. Moreover, on review of the evidence above the Board notes the Veteran's current 10 percent rating for his great toe is the highest evaluation available under the applicable rating criteria; it is also the highest evaluation available under the "amputation rule." It would be odd if the Veteran were to receive a higher rating for his painful great toe than another veteran whose great toe has been amputated. Moreover, the Board finds the Veteran's lack of treatment for the disability probative, as one would expect a person suffering from a moderately severe or severe disability to seek some form of treatment over the last several years. The Board has considered whether there is any other schedular basis for granting a higher or separate rating, but has found none. Initially, the Board notes that the Veteran's disability has never been assessed as being more than moderate in severity. As such, there is no evidence indicating his disability is a moderately severe tarsal or metatarsal bone malunion or nonunion required for a 20 percent rating under Diagnostic Code 5283. Indeed, the March 2013 VA examination revealed x-rays demonstrating only a small old avulsion of the distal phalanx of the big toe, certainly not severe enough to constitute a moderately severe bone malunion or nonunion. In addition, the Board notes that Diagnostic Code 5276 is not for application because the great toe disability is not comparable to pes planus. Similarly, Diagnostic Code 5278 is not for application because there is no objective evidence of acquired claw foot (pes cavus). Further, the objective evidence of record does not support a finding that the Veteran's great toe disability is comparable to the moderately severe foot disability required for a 20 percent rating under Diagnostic Code 5284, as the evidence indicates the Veteran's disability is confined to his great toe alone. Additional Considerations VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has accordingly considered the lay evidence offered by the Veteran in the form of correspondence, in addition to the medical evidence cited above. However, even affording the Veteran full competence and credibility, the evidence simply does not show entitlement to a higher rating under any applicable diagnostic code. Consideration has been given to assigning a staged rating for the disabilities decided herein; however, as explained above, the evidence does not show the disability on appeal has substantially fluctuated in severity over the pendency of the appeal period. As such, a staged rating is not applicable in this case. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). ORDER An effective date of April 6, 2010, but no earlier, for the award of service connection for right upper extremity radiculopathy is granted. Entitlement to an effective date earlier than April 6, 2010, for the grant of service connection for temporomandibular joint disability is denied. Entitlement to a rating higher than 10 percent for residuals of fracture of the right great toe is denied. REMAND The Board finds additional development is required before the Veteran's remaining claims are decided. Missing Records Initially, the Board notes the RO recently attempted to obtain missing medical records from the Darnell Army Hospital as directed by the Board's May 2016 remand instructions. The Veteran has indicated he was treated at that facility following a motor vehicle accident in service. As such, these medical records would be considered part of the Veteran's official service treatment records. Though it appears the RO has attempted to obtain those records on two occasions, in April 2013 and December 2016, the RO erroneously determined these attempts fulfilled the duty to assist this Veteran. These records are in the possession of a federal agency, and as such, VA must attempt to obtain those records until it determines the records either do not exist or that any additional attempts to obtain those records would be futile. See 38 C.F.R. § 3.159 (c)(1). In such instances, VA must prepare a formal finding of unavailability for the record. Further, a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Since these records may contain relevant and material evidence, the Board finds additional development is necessary to obtain these records. Specifically, the record indicates the RO has only contacted the National Personnel Records Center (NPRC). However, to date the RO has not developed to obtain any and all sick call, morning reports, and outpatient treatment/clinical records from the above-noted military hospital. See M21-1, Part III, Subpart iii, Chapter 2, Section D. A review of this M21-1 section indicates the information necessary to submit such request consists of the Veteran's name, organizational assignment, dates of treatment, and hospital if applicable. To date, the RO has neither contacted the Veteran, nor solicited him to complete an NA Form 13055. The Board finds additional indicated development must be done to obtain the Veteran's STRs, and if unavailable, a formal finding of unavailability should be completed and associated with the record. These records may bear upon the effective date and rating assigned for the Veteran's psychiatric disability, as well as the potential entitlement to earlier effective dates for his collateral TDIU and DEA benefits; as such, these issues must be held in abeyance at this time. In this respect, 38 C.F.R. § 3.156 (c) clearly permits the assignment of an earlier effective date when relevant service department records were received following an initial denial of a claim. If the above-noted records are obtained, the RO must consider whether an earlier effective date or higher rating is warranted for the Veteran's previously denied psychiatric disorder under this provision. Increased Musculoskeletal Disability Ratings In the February 2017 Joint Motion for Remand, the parties agreed the January 2014 VA examiner failed to provide a statement with respect to whether the Veteran experiences additional limitation of motion during a flare-up of his right knee disability. Rather, the examiner stated there was "no observed decrease in ROM on repetitive use testing." In this respect, the Board notes the examiner provided the same insufficient response during the Veteran's cervical spine examination. Further, the Veteran has indicated he experiences flare-ups of his TMJ disability; however, the January 2014 examiner stated the Veteran had not experienced any flare-ups of the disability. In sum, the Board finds these examinations are fatally flawed, and as such, new examinations are required. Initially, the Board notes that in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court determined that the final sentence of 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. While the spine is not a paired joint, such that range of motion measurements for the opposite undamaged joint are not necessary, under Correia there is a need for testing for pain on both active and passive motion and, if possible, when weight-bearing and nonweight-bearing. During the Veteran's most recent VA examinations in January 2014 the examiners failed to conduct Correia compliant testing, because they failed to provide an assessment of the Veteran's range of motion when weight bearing and non-weight bearing. Further, in a recent decision, Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court explained that VA examiners must do all that can be reasonably done to become informed about a veteran's reported musculoskeletal flare-ups prior to providing an opinion on functional loss during flares. Specifically, the Court found an examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, before concluding an assessment of the functional loss during flares could not be provided without resorting to speculation. As noted above, the examiners failed to provide an opinion with respect to the Veteran's loss of motion during flare-ups during the January 2014 VA examinations. In other words, the examiner failed to state what information and evidence was considered, and explain why such evidence did not permit the examiner to offer an estimation of the functional loss during flare-ups in this case. Therefore, a remand is also necessary to elicit relevant information as to the Veteran's musculoskeletal flares, to include the additional functional loss due to flares based on all evidence of record-to specifically include the Veteran's lay information-or explain why, with this information, such an estimation cannot be offered. Based on the foregoing insufficiencies, a remand is required in order to obtain adequate examinations. On remand, relevant ongoing medical records should also be obtained. 38 U.S.C.A. § 5103A(c) (West 2014); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Accordingly, the case is REMANDED for the following actions: 1. Undertake appropriate development to the National Personnel Record Center (NPRC), Darnell Army Hospital, or other appropriate source, to obtain the Veteran's treatment records from the Darnell Army Hospital. This development should specifically include a PIES M05 request, to determine whether any additional service records are available. If any requested records are deemed unavailable, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e) and M21-1, Part III, Subpart iii, Chapter 2, Section C and D. If unavailable, a formal finding should be prepared, outlining all efforts made to obtain those records. 2. Undertake appropriate development to obtain any outstanding records pertinent to the Veteran's remaining issues on appeal, to include any more recent treatment records related to the claimed disabilities. If any requested records are not available, the record should be annotated to reflect such and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Then, afford the Veteran a VA examination by an examiner with sufficient expertise to fully assess the severity of the Veteran's service-connected TMJ, cervical spine, and right knee disabilities. All pertinent evidence of record should be made available to and reviewed by the examiner. Any indicated studies should be performed. Ensure the examiner provides all information required for rating purposes, to specifically include both active and passive range of motion testing, as well as weight-bearing and nonweight-bearing range of motion assessments. In addition, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should be directed to clearly explain why that is so. 4. Finally, undertake any other development determined to be warranted, and then readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. The Veteran need take no action until he is otherwise notified, but he may furnish additional evidence and/or argument during the appropriate time frame. See Kutscherousky v. West, 12 Vet. App. 369 (1999). _________________________________________________ T. REYNOLDS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs