Citation Nr: 1803284 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 13-44 051A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date for service connection for posttraumatic stress disorder (PTSD) earlier than March 20, 2012. 2. Entitlement to an increased evaluation for left trochanteric bursitis, left piriformis syndrome, and left sacroiliitis. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from March 1992 to January 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The November 2012 rating decision granted service connection for PTSD and assigned a 70-percent rating with an effective date of March 20, 2012, the date of the Veteran's claim to reopen the case. As to the issue of entitlement to an effective date for service connection for PTSD earlier than March 20, 2012, the Board notes that in the August 2016 Appellate Brief, by way of the Veteran's representative, the Veteran has asserted what the Board construes to be a claim for clear and unmistakable error (CUE) of the RO's March 2004 rating decision, which denied service connection for PTSD. In the August 2016 Appellate Brief, the Veteran asserts that an earlier effective date for the PTSD, specifically to the date of the original claim (as opposed to the date of the claim to reopen), should be granted because the Veteran asserts that the RO denied service connection for PTSD in March 2004 after failing its duty to assist by not affording the Veteran with a medical opinion or VA Form 0781a to identify PTSD stressors. Initially, the Board notes that after the March 2004 rating decision denying service connection for PTSD was issued, the Veteran appealed the rating decision to the Board. In March 2008, the Board denied service connection for PTSD. Where, as here, the RO decision as to which CUE is alleged was appealed to the Board, the Board decision in the case subsumes any prior RO rating decisions which addressed the same issue. Dittrich v. West, 163 F.3d 1349 (Fed. Cir. 1998). Thus, for the Veteran's purposes, the March 2004 rating decision is deemed subsumed by the March 2008 Board denial of the PTSD service connection claim. When the rating decision is deemed subsumed by a supervening Board decision, then as a matter of law the rating decision cannot be the subject of a claim of CUE. Rather, in such a case, the claimant "must proceed before the Board and urge that there was clear and unmistakable error" in the Board decision. Brown v. West, 203 F.3d 1378, 1381 (Fed. Cir. 2000). Furthermore, a Motion to Revise a Board decision must set forth clearly and specifically the alleged CUE of fact or law in the Board decision, the legal or factual basis for such allegations, and why the result would have been manifestly different but for the alleged error. 38 C.F.R. § 20.1404. Non-specific allegations of failure to follow regulations or failure to give due process, or any other general, non-specific allegations of error, are insufficient to satisfy the requirement of the previous sentence. Id. Motions which fail to comply with the requirements set forth in this paragraph shall be dismissed without prejudice to refiling. Id. Here, all of the Veteran's CUE arguments in the August 2016 Appellate Brief are directed at the March 2004 rating decision. However, as explained above, the March 2004 rating decision is subsumed by the later March 2008 Board decision. While the CUE arguments with respect to the March 2004 rating decision are potentially applicable to the March 2008 Board decision, the fact remains that these arguments have not been made specifically as to the March 2008 Board decision. Moreover, the Veteran did not make these arguments with the knowledge that she was in fact asserting CUE in the March 2008 Board decision as opposed to the March 2004 rating decision. Thus, the Veteran has not submitted a motion with the Board that requests reversal or revision of the Board's March 2008 decision based on CUE. Nevertheless, if the Veteran wishes to argue that there was CUE in a prior Board decision, she is free to do so in a motion submitted directly to the Board requesting review of the Board's decision for CUE. See 38 U.S.C. § 7111; 38 C.F.R. § 20.1400. The Board further generally notes that a motion for revision of a decision based on CUE must comply with the specific filing and threshold requirements set forth under 38 C.F.R. § 20.1404; otherwise they will be dismissed without prejudice. 38 C.F.R. § 20.1404. The issue of entitlement to an increased evaluation, of left trochanteric bursitis, left piriformis syndrome, and left sacroiliitis, being remanded is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a March 2008 Board decision, the Board denied service connection for PTSD. The Veteran did not appeal the decision. 2. On March 20, 2012, the Veteran sought to reopen her previously denied claim of service connection for PTSD, and the RO continued the denial in August 2012, and then granted the claim for service connection for PTSD in November 2012, assigning an evaluation of 70 percent, effective March 20, 2012, the date of the claim to reopen. 3. There was no unadjudicated or informal claim pending prior to the March 20, 2012 claim to reopen the previously denied claim for service connection for PTSD. CONCLUSION OF LAW An effective date prior to March 20, 2012 for the award of service connection for PTSD is not warranted. 38 U.S.C. § 5103, 5103A, 5107, 5110, 7105 (West 2012); 38 C.F.R. § 3.102, 3.151, 3.155, 3.156, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that she is entitled to an effective date earlier than March 20, 2012, for an award of service connection for PTSD. For the reasons that follow, the Board finds that an earlier effective date is not permitted by law, and the claim must be denied. Title 38 of the United States Code under § 5110 (a), governs the assignment of an effective date for an award of benefits. Generally, when service connection is granted based on a claim which had been finally denied and subsequently reopened by the submission of new and material evidence, the effective date is the date of VA receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (r); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd 349 F.3d 1225 (Fed. Cir. 2003). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). A "claim" means a formal or informal written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). An informal claim may include any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, provided that such informal claim identify the benefit sought. 38 C.F.R. § 3.155 (a). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C. § 5107. In this case, the RO awarded the Veteran service connection for PTSD with an evaluation of 70 percent, effective from March 20, 2012, the date VA received her most recent application to reopen the previously denied claim for service connection. The Veteran has alleged that she is entitled to an earlier effective date, as the evidence demonstrates that "there was enough evidence and personal statements from the claimant and close friends to support the benefit of the doubt" as "[n]ot all veterans that suffer from a personal assault or a military sexual trauma files reports of the incident." August 2016 Appellate Brief. However, the evidence is not dispostive of this claim and does not present an exception to the general rule of 38 U.S.C. § 5110 (a), the Board finds that an earlier effective date is not warranted as a matter of law. Furthermore, as discussed in the Introduction, the Veteran has not submitted a motion with the Board that requests CUE-based reversal or revision of the Board's March 2008 decision, which denied service connection for PTSD. By way of background, the Veteran first filed a claim for service connection for PTSD in September 2003. The RO denied the claim in March 2004, and continued and confirmed the denial in April 2005. The Veteran then appealed the rating decision to the Board. In March 2008, the Board denied the claim for entitlement to service connection for PTSD. This March 2008 Board decision has since become final and binding, as there is no evidence that the Veteran timely perfected an appeal of the Board decision or that the decision was modified or reversed by the Court. See 38 U.S.C. § 7104 (b), 7252; 38 C.F.R. § 20.1100. In March 20, 2012, the Veteran submitted an application to reopen the previously denied claim for service connection for PTSD. In an August 2012 rating decision, the RO reopened the claim but denied service connection for PTSD. The Veteran was then afforded a VA examination in October 2012. In November 2012, the RO granted the claim for service connection for PTSD, assigning a 70 percent evaluation, effective March 20, 2012, the date of the claim to reopen. In January 2013, the Veteran filed a notice of disagreement as to the effective date of the grant of benefits associated with her service-connected PTSD. Given the foregoing procedural history, the Board finds that there were no unadjudicated or informal claims pending prior to the Veteran's March 20, 2012 application to reopen. In addition, as discussed below, none of the statutory or regulatory exceptions to 38 U.S.C. § 5110 (a) apply. As such, an effective date that is earlier than the date of receipt of the Veteran's application to reopen is not permitted by law. The Board notes again that, with regard to an application to reopen a previously denied claim for service connection, the effective date assigned (in the event the RO reopens and grants the claim) cannot generally be earlier than the date the claim was received by VA. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (r); Sears, 16 Vet. App. at 247. In this regard, the Board reiterates that the effective date is 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). Additionally, the Board is aware of the provisions of 38 C.F.R. § 3.156 (c) which require earlier effective dates for claims that are reconsidered and substantiated based on service department records which were not associated with the record prior to a final decision on the claim. Here, the Veteran has not averred, and the evidence does not reflect, the existence of newly-discovered service department records not previously considered by the RO which could serve as the basis for an earlier effective date. Therefore, 38 C.F.R. § 3.156 (c) is not applicable. The Board also notes that this case does not present an exception to the general rule of 38 U.S.C. § 5110 (a) regarding effective dates on grounds that a new basis for entitlement has been created through a "liberalizing" VA law. See 38 U.S.C. § 5110 (g) (if a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question). Here, the laws and regulations regarding service connection for the Veteran's PTSD have not been amended so as to justify an earlier effective date. In sum, while the Board is sympathetic to the Veteran's claim that her service-connected PTSD preceded the effective date of her disability award, the record demonstrates no pending or unadjudicated claims prior to receipt of the March 20, 2012 reopening application. In addition, none of the statutory or regulatory exceptions to the general rule regarding effective dates, as stated in 38 U.S.C. § 5110 (a), apply in this case. Thus, as a matter of law, the effective date of the Veteran's award for service connection for PTSD cannot be earlier than the date of VA's receipt of the application to reopen, March 20, 2012. Accordingly, the Board finds that the Veteran's claim for entitlement to an effective date earlier than March 20, 2012, for an award of service connection for PTSD is denied as required by VA laws and regulations by which it is bound. 38 U.S.C. § 7104 (c); 38 C.F.R. § 20.101 (a). ORDER The claim for entitlement to an effective date earlier than March 20, 2012 for an award of service connection for PTSD is denied. REMAND Although further delay is regrettable, the Board finds that the claim for entitlement to an increased evaluation of the Veteran's service-connected left trochanteric bursitis, left piriformis syndrome, and left sacroiliitis, must be remanded for additional development. With respect to her increased rating claim, the Veteran last underwent a VA hip and thigh condition examination to assess the severity of her left trochanteric bursitis, left piriformis syndrome, and left sacroiliitis, in September 2012. By way of her representative in the April 2017 Appellate Brief, the Veteran requested the Board to afford her a new VA examination to assess the current severity of her disabilities, as her last examination report is now over four years old. See also Snuffer v. Gober, 10 Vet. App. 400 (1997). While the Board will not remand for a new VA examination solely based on the passage of time, the Board finds that remand for a new examination is warranted for other reasons. See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (the duty to assist does not require that a claim be remanded for a new VA examination solely because of the passage of time). First, upon review of the September 2012 VA hip and thigh condition examination report, the Board finds that while the examiner stated that the Veteran reported flare-ups that impact the function of the hip and/or thigh, the examiner failed to report, and there is no indication in the record that the examiner attempted to elicit, information regarding the severity, frequency, and duration of any of the flare-ups, the precipitating and alleviating factors of such flare-ups, and/or any estimate by the Veteran as to what extent the flare-ups may affect her functional impairment. Sharp v. Shulkin, 29 Vet. App. 26 (2017); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Thus, upon remand, the RO should obtain a new VA hip and thigh condition examination and opinion where the examiner addresses this missing information. Furthermore, since the VA hip and thigh condition examination was conducted in September 2012, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the case of Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016), which affects the Veteran's case. In Correia, the Court determined that additional requirements must be met prior to finding that a VA examination is adequate. See id. Thus, it is necessary to ensure that the new VA hip and thigh condition examination to be obtained on remand additionally complies with the requirements of the holding in Correia. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a new VA examination with a new examiner to ascertain the severity and manifestations of her service-connected left trochanteric bursitis, left piriformis syndrome, and left sacroiliitis. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which she has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for evaluating the Veteran's service-connected left trochanteric bursitis, left piriformis syndrome, and left sacroiliitis under the rating criteria. The examiner should also provide the range of motion in degrees of the left hip. In so doing, the examiner should test the Veteran's range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to her disability. In this regard, the examiner must indicate whether, and to what extent, the Veteran's range of motion is additionally limited during flare-ups or on repetitive use, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. The examiner shall inquire as to periods of flare-up, and note the frequency and duration of any such flare-ups. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. THIS TESTING SHOULD BE DONE REGARDLESS OF WHETHER THE VETERAN IS TESTED DURING A FLARE-UP OR NOT. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). IF THE EXAMINER IS UNABLE TO CONDUCT THE REQUIRED TESTING OR CONCLUDES THAT THE REQUIRED TESTING IS NOT NECESSARY IN THIS CASE, HE OR SHE SHOULD CLEARLY EXPLAIN WHY THAT IS SO. 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. Because it is important "that each disability be viewed in relation to its history [,]" (38 C.F.R. § 4.1), copies of all pertinent records in the Veteran's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. Following any additional indicated development, the AOJ should review the claims file and readjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and her representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board. 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. §§ 5109B, 7112 (West 2012). ______________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs