Citation Nr: 1757581	
Decision Date: 12/13/17    Archive Date: 12/28/17

DOCKET NO. 14-18 343	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1. Entitlement to an effective date earlier than November 18, 2011, for the assignment of a 50 percent disability rating for a total hip replacement of the left hip.

2. Entitlement to an effective date earlier than November 18, 2011, for the grant of service connection for recurrent condyloma acuminata.

3. Entitlement to an effective date earlier than November 18, 2011, for the grant of service connection for hemorrhoids.

4. Entitlement to an effective date earlier than November 18, 2011, for the grant of service connection for residual scars, status post bunionectomies of the bilateral toes.

5. Entitlement to an effective date earlier than November 18, 2011, for the grant of service connection for residual scars of the left hip secondary to the total hip replacement of the left hip.

6. Entitlement to service connection for nasal channel repair.
REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran had active service in the United States Navy from September 1978 to October 2001. 

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

In August 2017, the Veteran appeared at a Board hearing via videoconference before the undersigned Veterans Law Judge. A transcript of that hearing is of record.

The issue of entitlement to service connection for nasal channel repair is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).



FINDINGS OF FACT

1. An October 2012 rating decision granted the Veteran's claims for an increased rating for service-connected total hip replacement of the left hip and service connection for recurrent condyloma acuminata; hemorrhoids; residual scars, status post bunionectomies of the bilateral toes; and residual scars of the left hip secondary to the total hip replacement of the left hip, assigning an effective date for each claim of November 18, 2011, the date VA received the claims.

2. The date entitlement arose for recurrent condyloma acuminata, January 9, 2012, is later than the date the claim was received by the RO, November 18, 2011.

3. The date entitlement arose for hemorrhoids, January 9, 2012, is later than the date the claim was received by the RO, November 18, 2011.

4. The date entitlement arose for residual scars, status post bunionectomies of the bilateral toes, January 9, 2012, is later than the date the claim was received by the RO, November 18, 2011.

5. The date entitlement arose for residual scars of the left hip secondary to the total hip replacement of the left hip, January 9, 2012, is later than the date the claim was received by the RO, November 18, 2011.

6. The date entitlement arose for the award of a 50 percent rating for total hip replacement of the left hip, January 9, 2012, is later than the date the claim was received by the RO, November 18, 2011.


CONCLUSIONS OF LAW

1. The criteria for an effective date prior to November 18, 2011, for the award of a 50 percent rating for a total hip replacement of the left hip is not warranted. 38 U.S.C. §§ 1155, 5110 (2012); 38 C.F.R. §§ 3.400 (o), 4.104, Diagnostic Code 5054 (2017).

2. The criteria for an effective date prior to November 18, 2011, for the grant of service connection for recurrent condyloma acuminata have not been met. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. §§ 3.400, 3.816 (2017).

3. The criteria for an effective date prior to November 18, 2011, for the grant of service connection for hemorrhoids have not been met. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. §§ 3.400, 3.816 (2017).

4. The criteria for an effective date prior to November 18, 2011, for the grant of service connection for residual scars, status post bunionectomies of the bilateral toes have not been met. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. §§ 3.400, 3.816 (2017).

5. The criteria for an effective date prior to November 18, 2011, for the grant of service connection for residual scars of the left hip secondary to the total hip replacement of the left hip have not been met. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. §§ 3.400, 3.816 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. The Veterans Claims Assistance Act of 2000

VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). 

This appeal arises from the Veteran's disagreement with the effective date following the grant of benefits. Once a claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

With respect to the duty to assist, VA has of record evidence including service and treatment records, VA treatment records, private treatment records, and VA examination reports. There is no indication in the record that additional evidence relevant to these issues are available but absent from the claims folder. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dela Cruz v. Principi, 15 Vet. App. 143  (2001); Smith v. Gober, 14 Vet. App. 227 (2000).

The Veteran also provided relevant testimony during the hearing before the Veterans Law Judge in August 2017. In Bryant v. Shinseki, 23 Vet. App. 488  (2010), the Court held that 38 C.F.R. § 3.103 (c)(2) requires that the hearing officer who chairs a hearing fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the Veterans Law Judge identified the issues on appeal and solicited the Veteran to identify evidence relevant to the claims, and asked questions that ensured no evidence was overlooked. The Veteran was offered an opportunity to ask the undersigned questions regarding his claims. The Board, therefore, concludes that it has fulfilled its duty under Bryant.

Given the foregoing, the Board finds that VA has substantially complied with the duty to obtain the requisite information necessary to make a decision on the Veteran's claims decided herein.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected.

II. The Merits of the Claims

The Veteran filed a claim for an increased disability rating in excess of 30 percent for total hip replacement of the left hip and service connection for recurrent condyloma acuminata, and hemorrhoids. An October 2012 rating decision granted these claims as well as entitlement to service connection for residual scars, status post bunionectomies of the bilateral toes, and residual scars of the left hip secondary to the total hip replacement of the left hip. The effective date was determined as November 18, 2011, the date the VA received the claim. 

The Veteran claims the effective date should be earlier than November 18, 2011. He believes the effective date should be either August 29, 2011, the date he signed the claim form, or at least September 11, 2011, the date VA received his private medical records that he contends should have been inferred as a claim. 

Under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim, or date entitlement arose, whichever is later.

In addition, except as otherwise provided, the effective date of an award of an increased rating shall be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1).

An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Harper v. Brown, 10 Vet. App. 125, 126  (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. Id. 

Regarding the Veteran's claim for an increased disability rating for total hip replacement of the left hip, this disability was granted service connection by the RO in Philadelphia, Pennsylvania, in February 2003. The Veteran did not appeal and the decision became final. Subsequently, as stated above, an increased disability rating was granted by the October 2012 rating decision and assigned an effective date of November 18, 2011, the date his claim for increase was received by VA. There were no relevant VA examinations or medical records submitted subsequent to the February 2003 rating decision but prior to November 2011. Accordingly, the Veteran's claim turns on whether there was a factually ascertainable increase in the left hip disability within the year prior to his most recent claim. 

Disorders of the hips are rated under Diagnostic Codes 5250 through 5255 of 38 C.F.R. § 4.71a (2017). Hip flexion is measured from 0 degrees to 125 degrees; abduction is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II.

Here, the Veteran's left hip disability is rated under Diagnostic Code 5054, which provides a 100 percent rating for hip replacement (prosthesis) with prosthetic replacement of the head of the femur or of the acetabulum for one year following implantation of prosthesis. Thereafter, a 90 percent rating may be assigned following implantation of prosthesis, with painful motion or weakness such as to require the use of crutches. A 70 percent rating is assignable for markedly severe residual weakness, pain or limitation of motion following implantation of prosthesis. With moderately severe residuals of weakness, pain, or limitation of motion, a 50 percent rating may be assigned. The minimum rating assignable is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5054. 

The Board notes that the terms "markedly severe" and "moderately severe" in the criteria under Diagnostic Code 5054 are not defined in the VA Schedule. Rather than applying a mechanical formula, VA must evaluate all the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6. Terminology such as "moderate" and "marked" used by VA examiners and others, although an element of evidence to be considered by the Board, are 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 (2017).

According to the evidence of record, the Veteran was afforded a VA examination in January 2012 where the physical examination revealed that his total left hip replacement had increased in severity. Specifically, there was a loss in range of motion and decreased hip strength. The subjective factors included hip pain. 

Regarding the Veteran's claims for an earlier effective date for the service connection of his recurrent condyloma acuminata; hemorrhoids; residual scars, status post bunionectomies of the bilateral toes; and residual scars of the left hip secondary to the total hip replacement of the left hip, the January 2012 VA examination report also provided the necessary medical evidence providing a positive nexus between the Veteran's disabilities and his military service, or his already service-connected disabilities. 

In the Veteran's claims for an earlier effective date both for an increased disability evaluation and for service connection, there have been no other medical treatment records pertaining to the Veteran's disabilities on appeal; namely, no evidence of treatment for a left hip disorder was received since the February 2003 rating decision but prior to the November 18, 2011, date of receipt of the claim for increase, and no other medical treatment records pertinent to the Veteran's recurrent condyloma acuminata; hemorrhoids; residual scars, status post bunionectomies of the bilateral toes; and residual scars of the left hip secondary to the total hip replacement of the left hip were received prior to November 18, 2011. 

Therefore, the Board finds that at no time prior to November 18, 2011 was any increase in disability commensurate with the currently assigned disability rating factually ascertainable, nor was there medical evidence supporting a positive nexus in the Veteran's service-connection claims. The Board acknowledges the Veteran submitted medical records in September 2011. However, these records do not pertain to any of the disabilities addressed in this appeal. As such, these records do not reflect the symptomatology or treatment for the Veteran's left hip disability one year prior to November 18, 2011, or even the signature date of August 29, 2011, on the claim form received by VA in November 2011. They also do not contain any treatment records for the Veteran's recurrent condyloma acuminata; hemorrhoids; residual scars, status post bunionectomies of the bilateral toes; or residual scars of the left hip secondary to the total hip replacement of the left hip. Further, no records submitted by the Veteran or obtained by VA between November 18, 2011, and January 9, 2012, reference or document any of the Veteran's claimed disabilities.

In this case, it is clear that the date the entitlement arose, January 9, 2012 (as evidenced by the VA examination report), should have been the proper effective date for all the issues in this appeal. The Board acknowledges the arguments set forth by the Veteran and is sympathetic to his contentions. Under the law, however, the effective date for a grant of service connection is the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Here, the date the entitlement arose-January 9, 2012-is the later of the two dates. Nevertheless, the Board will not disturb the effective date of November 18, 2011. Regarding the Veteran's contention that the effective date for his claims should be in August 2011, when he signed the claim form, the Board notes that regardless of the date the document was signed, VA is bound to apply the date the document was received in claims regarding effective dates. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. There is simply no provision to allow for the assignment of an earlier effective date in a case where, as here, a form was not submitted until after the date it was signed. 

Accordingly, the Board finds that the evidence does not establish that prior to November 18, 2011, the Veteran was entitled to a 50 percent rating for his service-connected total hip replacement of the left hip. In addition, the date entitlement arose for service connection for recurrent condyloma acuminata; hemorrhoids; residual scars, status post bunionectomies of the bilateral toes; and residual scars of the left hip secondary to the total hip replacement of the left hip (January 9, 2012) is later than the date the claims for service connection were received by VA (November 18, 2011). As the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.§ 5107 (b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).



ORDER

Entitlement to an effective date earlier than November 18, 2011, for the assignment of a 50 percent disability rating for a total hip replacement of the left hip is denied.

Entitlement to an effective date earlier than November 18, 2011, for the grant of service connection for recurrent condyloma acuminata is denied.

Entitlement to an effective date earlier than November 18, 2011, for the grant of service connection for hemorrhoids is denied.

Entitlement to an effective date earlier than November 18, 2011, for the grant of service connection for residual scars, status post bunionectomies of the bilateral toes is denied.

Entitlement to an effective date earlier than November 18, 2011, for the grant of service connection for residual scars of the left hip secondary to the total hip replacement of the left hip is denied.


REMAND

The Veteran has contended that his nasal channel repair stems from the treatment for his service-connected obstructive sleep apnea. 

The Veteran testified at the August 2017 Board hearing that he underwent a surgery on his deviated septum and tonsil in approximately 2003 or 2004 to treat his obstructive sleep apnea (which was service-connected in July 2013) but that the surgery resulted in more damage. As a result he has undergone 42 additional surgeries to rebuild his nasal system. 

It is unclear to the Board whether the Veteran's surgery was to treat obstructive sleep apnea. Furthermore, the Veteran has not been afforded a VA examination for the purposes of obtaining a nexus opinion. As such, based on his competent lay description of his disability and the surgeries/procedures he underwent as reflected by the record, a VA examination should be conducted.

The duty to assist includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on the claim. An examination is required when (1) there is evidence of a current disability, (2) evidence establishing an in-service event, injury, or disease, or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The Veteran stated at the Board hearing that he would attend the VA examination if one was scheduled. Therefore, the Veteran is informed that it is his responsibility to report for examination and to cooperate in the development of the claim, and that "[t]he duty to assist in the development and adjudication of a claim is not a one way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). "If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran is encouraged to cooperate and to accurately state the symptomatology of his nasal channel repair during the VA examination.

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a VA examination before an appropriate specialist regarding his claim for service connection for his nasal channel repair. The Veteran's claims file must be made available to the VA examiner, who must state in his/her report that such was reviewed in conjunction with this examination. 

Thereafter, the VA examiner must determine whether the surgery described by the Veteran (conducted in 2003 or 2004) was to treat his obstructive sleep apnea. 

The VA examiner should then provide nexus opinions, presented in the context of the medical record, with complete supportive rationales, addressing the following questions:

a. Does the Veteran have a diagnosed disability resulting from his nasal passage repair? 

b. If so, then, is it at least as likely as not (i.e., 50 percent probability or greater) that the diagnosed nasal channel repair disorder revealed on examination had its onset during active military service or is otherwise related thereto?

c. If not, is it at least as likely as not that the Veteran's nasal channel repair disorder is proximately due to or caused by a service-connected disability, namely obstructive sleep apnea? 

d. If not, is it at least as likely as not that the Veteran's nasal channel repair disorder has been aggravated by a service-connected disability, namely obstructive sleep apnea? 

All tests and studies deemed appropriate should be performed. A rationale for the requested opinions shall be provided. Additionally, the VA examiner should consider and comment on the Veteran's lay statements, prior pertinent VA Compensation and Pension examination records, and private treatment records. Furthermore, the VA examiner should also discuss the Veteran's lay statements regarding history and chronicity of symptomatology when discussing the offered opinions.

If the VA examiner cannot provide an opinion without resorting to mere speculation, he/she shall provide a complete explanation stating why this is so. In so doing, the VA examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he/she has exhausted the limits of current medical knowledge in providing an answer to the particular question.

2. Upon completion of the above, review the examination report to ensure substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Take any necessary corrective action. 38 C.F.R. § 4.2.

3. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim on appeal should be readjudicated. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his representative. After they have had an adequate opportunity to respond, the issue should be returned to the Board for further appellate review.

The appellant 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 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).




______________________________________________
CAROLINE B. FLEMING
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs