Citation Nr: 1719162 Decision Date: 05/31/17 Archive Date: 06/06/17 DOCKET NO. 16-54 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date prior to November 17, 2009, for the award of service connection for bilateral hip avascular necrosis with osteoarthritis (bilateral hip disability), secondary to service-connected hepatitis C. 2. Entitlement to an initial disability rating for a left hip disability in excess of 10 percent from November 17, 2009, to June 8, 2014, and in excess of 30 percent from August 1, 2015. 3. Entitlement to an initial disability rating for a right hip disability in excess of 30 percent for the entire rating period from November 17, 2009. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Thomas, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from August 1944 to July 1946 and active duty for training (ACDUTRA) from March 7 to March 21, 1951; from June 1, 1952 to June 15, 1952; and from July 25, 1954 to August 8, 1954. He participated in combat during World War II, and received the Combat Infantry Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, awarded service connection for a left hip disability and assigned a 10 percent disability rating effective November 17, 2009, a 100 percent disability rating from June 9, 2014 to August 1, 2015, and a 30 percent disability rating thereafter. Service connection was also awarded for a right hip disability, and a 30 percent disability rating was assigned, effective November 17, 2009. In January 2016, the Board remanded the issues of increased initial ratings for the bilateral hip disabilities for the issuance of a statement of the case, which was accomplished. The Veteran's most recent power-of-attorney was executed in favor of Disabled American Veterans (DAV), which effectively revoked all prior representations. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to increased initial ratings for right and left hip disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. On November 17, 2009, the VA received the Veteran's original informal service connection claim for a bilateral hip disability, secondary to hepatitis C. 2. There was no pending informal service connection claim for a bilateral hip disability, secondary to hepatitis C, prior to November 17, 2009. The claim for a bilateral hip disability was not part of the then-pending claim for service connection for hepatitis C. 3. The earliest communication that may be reasonably construed as seeking to claim entitlement to service connection for a bilateral hip disability was the Veteran's informal claim during the November 17, 2009, Board hearing. CONCLUSION OF LAW The criteria for an effective date earlier than November 17, 2009, for the award of service connection for a bilateral hip disability, have not been met. 38 U.S.C.A. § 5102(b), 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Procedural Duties As provided by the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). The current claim arises from the Veteran's disagreement with the effective assigned following the grant of service connection for left and right hip disabilities. Once service connection is granted the 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). Moreover, the United States Court of Appeals for Veterans Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of the claim is based on statutory interpretation, rather than consideration of the factual evidence. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). As the law is dispositive in the instant claim, further discussion regarding VA's duties pursuant to the VCAA is not required. See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Earlier Effective Date Claims Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a). The term "claim" means 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). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). A 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). VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a) (2016). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran's duly authorized representative, may be considered an informal claim. Such an informal claim must identify the benefit sought. In certain circumstances, VA treatment records may constitute an informal claim. 38 C.F.R. § 3.157. General rules defining informal claims apply to claims for entitlement to disability benefits raised under a theory of secondary causation. See Ellington v. Nicholson, 22 Vet. App. 141, 145-47 (2007). Secondary service connection is granted for a "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). The "plain meaning of th[is] regulation is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations." Roper v. Nicholson, 20 Vet .App. 173, 181 (2006). Building on Roper, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a requirement that a secondary condition 'be considered a part of [an] original condition' does not, in our view, establish that the original condition and the secondary condition must receive identical effective dates." Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). "Indeed, a per se rule requiring identical effective dates for primary and secondary conditions would be illogical, given that secondary conditions may not arise until years after the onset of the original condition." Id. The Federal Circuit concluded that "the effective date for secondary conditions is governed by [38 C.F.R. §] 3.400, which establishes the effective date as the 'date of receipt of claim, or [the] date entitlement arose, whichever is later.'" Id. It explained: We think this result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards. Section 5110(a) provides generally that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." The statute contains no exception to this rule for a claim, such as the one filed in this case, seeking service connection for an alleged secondary condition. Id. at 1370 (emphasis added). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). In this case, the RO assigned an effective date of November 17, 2009, for the grant of service connection for right and left hip disabilities; this date corresponds with the date of the Board hearing during which the Veteran raised the issue of service connection for left and right hip problems as secondary to the then-pending issue of service connection for hepatitis C. Service connection for hepatitis C has since been granted. The Veteran does not dispute that he submitted an informal claim for benefits during the November 2009 Board hearing. Rather, he asserts that this claim was not his original service connection claim for left and right hip disabilities. He contends that medical evidence indicating the presence of left and right hip disabilities and linking them to the hepatitis, including September 2003 VA treatment records, was available to the VA during the pendency of the claim for service connection for hepatitis. He argues that "since the hepatitis claim was not resolved until after he had again brought up the hip issues during the 2009 hearing, the question of secondary service connection stemming from the hepatitis should be considered as part of the original disability claim for hepatitis and addressed through a manner similar to staged ratings." Although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006). The scope of the Veteran's claim for service connection for hepatitis C includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Regardless of whether a claimant identifies a particular disorder upon filing the claim, the scope of the claim is not limited to that condition, but is considered a claim for any disability that reasonably may be encompassed by several factors - including his description of the claim, the symptoms he describes, and the information he submits or that VA obtains in support of his claim. See Clemons, supra. Notably, the Board finds that the Veteran's initial claim for service connection for hepatitis C did not reasonably encompass any related impairment of the bilateral hips. In this regard, on his original claim for service connection for hepatitis C received on December 2, 1997, he requested, in pertinent part, "that [his] claim be amended to include hepatitis C as a service [c]onnected condition resulting from a transfusion received at a battlefield aid station in Germany during Feb. 1945, after being wounded in [his] upper thigh." No reference was made in the original hepatitis claim to any secondary or related issues, and no reference was made to any effects that the hepatitis C medication had on his body. As the Board finds that the Veteran's initial claim for service connection for hepatitis C did not reasonably encompass any related impairment of the bilateral hips, the effective date for the grant of service connection for the bilateral hip disability, secondary to the service-connected hepatitis C, can arise no earlier than the date on which the Veteran applied for benefits for the secondary condition. See Ellington v. Peake, 531 F.3d 1364 (Fed. Cir. 2008); Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). Further, the Veteran suggests that the evidence dated prior to his November 2009 hip claim showing diagnoses of right and left hip disabilities and relating them to hepatitis should be construed as a claim for benefits. Although under the provisions of 38 C.F.R. § 3.157 (b)(1), the date of outpatient or hospital examination may be accepted as the date of receipt of a claim, the Court has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Merely seeking treatment does not establish a claim, to include an informal claim, for service connection. Thus, absent any evidence of a claim or an intent to seek benefits, the Veteran's medical treatment for the hip disabilities received prior to the claim for a bilateral hip disability cannot constitute a claim for earlier effective date purposes. Under the law, November 17, 2009, is the proper effective date for the grant of service connection for the Veteran's bilateral hip disability, secondary to hepatitis C, because it is the date of the initial informal claim for service connection. There is no basis to assign an effective date prior to November 17, 2009, for the award of service connection for the Veteran's bilateral hip disability. For these reasons, the effective date claim must be denied. ORDER An effective date prior to November 17, 2009, for the award of service connection for a bilateral hip disability, is denied. (CONTINUED ON NEXT PAGE) REMAND Further development is necessary prior to analyzing the merits of the increased rating claims on appeal. The Veteran was afforded a VA examination in April 2015 to determine the nature and severity of his bilateral hip disability. Once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The April 2015 VA examination report does not include joint testing results for both active and passive motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). In addition, the VA examination report indicates that pain was noted on range of motion testing, but does not indicate the point at which pain began. Therefore, a new examination is necessary to obtain the results of such testing. When assessing the severity of a musculoskeletal disability that, as here, is rated on the basis of limitation of motion, VA must also consider the extent of additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent ("flare-ups") due to pain, painful motion, weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45. The April 2015 VA examination report indicates that the Veteran's symptoms include balance issues, muscle weakness, and fatigue. However, it is not clear whether these symptoms are related to or caused by his bilateral hip disability or other service-connected disabilities. On remand, the VA examiner should differentiate the symptoms of the bilateral hip disability versus the symptoms associated with his other service-connected disabilities, to include bilateral feet disabilities, chronic vertigo, bilateral hearing loss, hepatitis C, tinnitus, cirrhosis of the liver, and bilateral lower extremity peripheral neuropathies. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Obtain the Veteran's updated VA treatment records and associate them with the claims file. 2. Schedule the Veteran for another VA examination to determine the current severity of his service-connected bilateral hip disability. The examiner is requested to review all pertinent records associated with the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner shall test the range of bilateral hip motion in active motion, passive motion, weight-bearing, and nonweight-bearing, and specifically describe the point at which pain begins during range of motion testing and any additional functional limitations due to pain. After examining the Veteran and reviewing the claims file, the examiner is asked to respond to the following: (a) Indicate the current symptoms associated with the bilateral hip disability. (b) To the extent possible, please differentiate the symptoms associated with the Veteran's bilateral hip disability versus the symptoms associated with his other service-connected disabilities. If it is not possible to differentiate the symptoms, please provide an explanation to support this conclusion. (The Veteran is currently in receipt of service connection for bilateral feet disabilities, chronic vertigo, bilateral hearing loss, hepatitis C, tinnitus, cirrhosis of the liver, and bilateral lower extremity peripheral neuropathies). A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 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 increased rating claims should be readjudicated based on the entirety of the evidence. If the claims remain 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 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). ______________________________________________ S. B. MAYS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs