Citation Nr: 1804678	
Decision Date: 01/24/18    Archive Date: 02/05/18

DOCKET NO.  10-00 225A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Whether new and material evidence has been received to reopen a claim for service connection for a low back disability.

2.  Entitlement to service connection for a low back disability.

3.  Entitlement to service connection for left carpal tunnel syndrome (CTS).

4.  Entitlement to service connection for right CTS.

5.  Entitlement to a rating in excess of 20 percent for degenerative joint disease (DJD) of the right ankle, right knee with metal fragments, and left knee, prior to July 17, 2013.

6.  Entitlement to a rating in excess of 10 percent for DJD of the right ankle since July 17, 2013.

7.  Entitlement to a rating in excess of 10 percent for a Baker's cyst of the left knee with tricompartmental osteoarthritis since July 17, 2013.

8.  Entitlement to a rating in excess of 10 percent for a Baker's cyst of the right knee with tricompartmental osteoarthritis since July 17, 2013.

9.  Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD)

10.  Entitlement to a rating in excess of 10 percent for bilateral hearing loss disability.

11.  Entitlement to a compensable rating for plantar fasciitis.

12.  Entitlement to an effective date prior to December 13, 2013 for service connection for allergic rhinitis with deviated nasal septum (claimed as an upper respiratory infection (URI) and chronic sinusitis).

13.  Entitlement to an effective date prior to September 19, 2012 for a rating in excess of 10 percent for enthesopathy of the left hip with limitation of extension of the thigh.

14.  Entitlement to an effective date prior to September 19, 2012 for a rating in excess of 10 percent for enthesopathy of the right hip with limitation of extension of the thigh.

15.  Entitlement to a total disability evaluation based on individual employability to a service connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

A. Arnold, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1975 to January 1996.

This matter came before the Board of Veterans Appeals (Board) on appeal from December 2008, December 2013 and April 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

In a December 2016 rating decision, the RO granted service connection for right CTS and granted entitlement to TDIU for the period on appeal when the Veteran was not already evaluated at the 100 percent schedular rate.  As these decisions both constitute a full grant of benefits sought on appeal on these issues, they are not before the Board.

In August 2017, the Board remanded this matter to provide the Veteran with a Video Conference hearing.  The Board also noted the Veteran's July 2017 Motion for Remand which requested that all pending issues on appeal be certified to the Board to allow the Veteran to present testimony at the requested Video Conference hearing.

The Veteran testified before the undersigned Veteran's Law Judge during an October 2017 Video Conference hearing.  The transcript of the hearing is of record.

The issue of an earlier effective date for service connection for the Veteran's bilateral hip enthesopathy has been raised by the Veteran at the October 2017 Video Conference hearing, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  38 C.F.R. § 19.9(b) (2017). 

The issues of entitlement to an increased rating for bilateral hearing loss disability, service connection for a low back disability, and entitlement to an effective date prior to September 19, 2012 for a rating in excess of 10 percent for the right and left hips with limitation of extension of the thigh are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  A March 1996 rating decision denied service connection for low back strain.  The Veteran did not appeal the decision.

2.  The evidence associated with the claim file subsequent to the March 1996 rating decision is probative and relevant concerning the claim of service connection for low back strain.

3.  During the October 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran stated that he desired to withdraw his appeal for service connection for left CTS and his appeals for increased ratings for DJD of the right ankle (right knee with metal fragments and left knee), DJD of the right ankle, Baker's cyst of the left knee, Baker's cyst of the right knee, PTSD and plantar fasciitis.

5.  The Veteran filed a claim for service connection for "nose operation/sinuses plug in cold weather" in February 1996.  The RO granted service connection for a deviated septum, effective February 1, 1996, in a March 1996 rating decision.  The Veteran did not appeal the decision.

6.  The Veteran filed an application for compensation for chronic sinusitis that was received by the RO on December 13, 2013.



CONCLUSIONS OF LAW

1. The March 1996 rating decision as to the denial of service connection for a low back disability is final.  38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017).

2.  New and material evidence sufficient to reopen the claim of service connection for low back strain has been received.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017).

3.  The criteria for withdrawal of the appeal for left CTS have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

4.  The criteria for withdrawal of the appeal for DJD of the right ankle, right knee with metal fragments, and left knee have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

5.  The criteria for withdrawal of the appeal for DJD of the right ankle have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

6.  The criteria for withdrawal of the appeal for Baker's cyst of the left knee have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

7.  The criteria for withdrawal of the appeal for Baker's cyst of the right knee have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

8.  The criteria for withdrawal of the appeal for PTSD have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

9.  The criteria for withdrawal of the appeal for plantar fasciitis have been met.  38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.204 (2017).

10.  The criteria for a an effective date prior to December 13, 2013 for service connection for allergic rhinitis with deviated nasal septum (claimed as an upper respiratory infection (URI) and chronic sinusitis) have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. VCAA

With respect to the Veteran's issues on appeal, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326.


II. Withdrawal

An appeal may be withdrawn by an appellant or by his representative.  38 C.F.R. § 20.204(a).  Except when made on the record at a hearing, appeal withdrawals must be in writing.  38 C.F.R. § 20.204(b)(1).  An appeal withdrawal is effective when it is received by the Board before it issues a final decision.  38 C.F.R. § 20.204 (b)(3).  Withdrawal of an appeal will be deemed a withdrawal of the notice of disagreement and, if filed, the substantive appeal, as to all issues to which the withdrawal applies. 38 C.F.R. § 20.204(c).

At the August 2017 Video Conference hearing, the Veteran stated on the record that he wished to withdraw his appeal regarding service connection for left CTS and his appeals for an increased rating for DJD of the right ankle (right knee with metal fragments and left knee), DJD of the right ankle, Baker's cyst of the left knee, Baker's cyst of the right knee, PTSD and plantar fasciitis.  Thus, there are effectively no longer any remaining allegations of error of fact or law concerning these issues.  See 38 U.S.C. § 7105(d)(5) (2012).  Accordingly, the Board will dismiss the appeal as it pertains to the withdrawn issues.



III. New and Material

A prior final decision will be reopened if new and material evidence is presented or secured with respect to a claim which has been disallowed.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  New evidence means evidence not previously submitted to agency decision makers.  Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the issue on appeal, and must raise a reasonable possibility of substantiating the claim.  New and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).

In determining whether the evidence is new and material the specified basis for the last final disallowance must be considered.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).  Mere offering of an alternative theory of entitlement does not constitute new and material evidence sufficient to reopen the claim.  Roebuck v. Nicholson, 20 Vet. App. 307 (2006); Bingham v. Principi, 18 Vet. App. 470 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  New and material evidence is not required as to each previously unproven element of a claim in order to reopen.  Shade v. Shinseki, 24 Vet. App. 110, 120 (2010).  

The Veteran's was denied service connection for a low back disability in a March 1996 rating decision.  The basis of the decision was that there was no diagnosis of a low back strain.  The decision was not appealed and is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  The evidence previously considered that pertains to the issue on appeal includes the Veteran's service treatment records and a September 1995 VA examination.

The additional evidence added since the final denial of March 1996 includes May 2001 lumbar spine x-rays showing narrowing of discs and a March 2009 MRI showing moderate to severe narrowing at L5-S1 due to marginal osteophyte formation.  The Veteran has also submitted private treatment records, including a low back assessment from May 2009 that diagnosed him with degenerative disc disease, spinal stenosis and lumbar radiculopathy and another assessment from May 2013, which documents diagnoses of osteoarthritis, cervical and lumbar radiculopathy and sciatica.

The Board finds that this evidence pertains to the unestablished fact of the Veteran's current low back disability as it documents several low back diagnoses.  It therefore raises a reasonable possibility of substantiating the Veteran's entitlement to service connection and constitutes new and material evidence for the purpose of reopening the issue on appeal.  38 C.F.R. § 3.156(a).  Therefore, reopening the claim for service connection for low back strain is warranted.  The reopened claim of service connection for low back strain is addressed further in the remand section.

IV. Effective Date

Unless otherwise provided, the effective date for an award of service connection and disability compensation is the date of receipt of claim, or date entitlement arose, whichever is later.  38 U.S.C. § 5110(a), (b)(l); 38 C.F.R. § 3.400.  If the claim is received within one year after separation from service, the effective date is the day following separation from active service or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2)

Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA.  See 38 C.F.R. § 3.151(a).  A claim is defined as "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).  

The Veteran contends that he is entitled to an earlier effective date for his allergic rhinitis.  The Veteran's effective date for his service connected allergic rhinitis is December 13, 2013.  Veteran contends that he is entitled to an earlier effective date based on an application for benefits filed in February 1996.

The Veteran separated from service in January 1996.  On February 8, 1996, the RO received an application for compensation listing several disabilities, including "nose operation/sinuses plug in cold weather."  The RO issued a rating decision in March 1996 that granted service connection for marked deviation nasal septum to right, postoperative external septorhinoplasty and assigned a noncompensable rating effective February 1, 1996.  The decision was not appealed and is final.  38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.  

Thereafter, the record is silent as to any claims for or any communication showing an intent to file a claim for service connection for allergic rhinitis.  The next communication by the Veteran is not until December 13, 2013 when the Veteran filed an application for disability compensation for chronic sinusitis.  Subsequently, the RO granted service connection for allergic rhinitis in an April 2014 rating decision and assigned a 30 percent evaluation effective the date of the claim, or December 13, 2013.

The Veteran's service treatment records (STRs) document two episodes of sinusitis in January 1985 and January 1987, which are listed under temporary(minor) problems in the Veteran's master problem list, but the STRs do not include a diagnosis of chronic sinusitis or allergic rhinitis.  STRs from July 1994, when a sinus series was performed to rule out a deviated septum, indicated that the Veteran's sinuses were normal.  A VA examination of September 1995, conducted prior to the Veteran's separation from service, found that the Veteran's nose, sinuses mouth and throat were within normal limits. No other respiratory disabilities were noted.

To the extent that the February 1996 claim could be interpreted to encompass allergic rhinitis or chronic sinusitis, in order to assign an effective date based upon that claim the evidence would need to indicate entitlement to benefits as of the date of that claim.  In other words, the evidence should show that there was a diagnosed disability of sinusitis or allergic rhinitis, and that said disability was incurred in or aggravated by service.  

However, the Board's review of the record indicates that at the time the February 1996 claim for benefits was filed, the Veteran had not been diagnosed with either chronic sinusitis or allergic rhinitis and the competent evidence indicated that the Veteran's sinuses were normal.  The Veteran was granted service connection for deviated septum, which was the diagnosis documented in the record.  Service connection for allergic rhinitis or chronic sinusitis could not have been granted because said disabilities had not been diagnosed.

The Veteran then filed an application for chronic sinusitis that was received by the RO on December 13, 2013 which is the effective date of the grant of service connection.  As noted above, the effective date for an award of service connection and disability compensation is the date of receipt of claim, or date entitlement arose, whichever is later.  As the Veteran's application for compensation for sinusitis was received by the RO on December 13, 2013, the Board finds that an earlier effective date for allergic rhinitis is not warranted.  38 U.S.C. § 5110(a), (b)(l); 38 C.F.R. § 3.400.


ORDER

The request to reopen the claim for service connection for a low back disability is granted and, to this extent only, the appeal is granted.

The issue of entitlement to service connection for left CTS is dismissed.

The issue of entitlement to a rating in excess of 20 percent for degenerative joint disease (DJD) of the right ankle, right knee with metal fragments, and left knee, prior to July 17, 2013 is dismissed.

The issue of entitlement to a rating in excess of 10 percent for DJD of the right ankle since July 17, 2013 is dismissed.

The issue of entitlement to a rating in excess of 10 percent for a Baker's cyst of the left knee with tricompartmental osteoarthritis since July 17, 2013 is dismissed.

The issue of entitlement to a rating in excess of 10 percent for a Baker's cyst of the right knee with tricompartmental osteoarthritis since July 17, 2013 is dismissed.

The issue of entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) is dismissed.

The issue of entitlement to a compensable rating for plantar fasciitis is dismissed.

Entitlement to an effective date earlier than December 13, 2013 for a grant of service connection for allergic rhinitis is denied.


REMAND

At the October 2017 Board hearing, the Veteran testified that his bilateral hearing loss disability, particularly his ability to discern words, has worsened in severity since his last VA examination.  A new examination is therefore required to determine the current severity of the Veteran's bilateral hearing loss disability.  See Snuffer v. Gober, 10 Vet. App. 400 (1997).

With regards to the issue of the Veteran's low back strain, the Board notes that the Veteran has been diagnosed with osteoarthritis, degenerative disc disease, spinal stenosis and lumbar radiculopathy and is service connected for arthritis and degenerative joint disease in several joints.  The Veteran has not yet been afforded a VA examination in connection with these low back diagnoses or regarding the relationship between his lower back disability and his other service connected musculoskeletal disabilities.  A new examination is therefore needed to determine whether the Veteran's low back disability was caused or aggravated by service or by his other service-connected disabilities.  McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  

The issue of the effective date for service connection for the Veteran's bilateral hip disability was raised by the Veteran's testimony at the October 2017 Video Conference hearing and has been referred to the AOJ.  As the adjudication of the effective date for service connection for the Veteran's hip disabilities could impact the issues of his entitlement an effective date prior to September 19, 2012 for a rating in excess of 10 percent for the right and left hips with limitation of extension of the thigh, the increased rating issues must be deferred pending the adjudication of the service connection issue.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when the adjudication of one issue could have "significant impact" on the other issue).

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for an appropriate VA examination to determine the current level of severity of his bilateral hearing loss disability.  The examiner should review the file and provide a complete rationale for all opinions expressed.  

2.  Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current low back disability.  The examiner should review the file and provide a complete rationale for all opinions expressed.  

For any current low back disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is caused or aggravated by the Veteran's active service or to the Veteran's service-connected disabilities.  In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms.  

3.  The examination reports must be reviewed to ensure they are in complete compliance with the directives of this remand.  If a report is deficient in any manner, the AOJ must implement corrective procedures.

4.  If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures.


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 matter must be afforded expeditious treatment.  The law requires that all issues 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 (2012).




______________________________________________
E. I. VELEZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs