Citation Nr: 1805913	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  01-05 771	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1. Entitlement to an evaluation in excess of 60 percent for chronic kidney disease. 

2. Entitlement to an increased rating in excess of 40 percent for low back strain.

3. Entitlement to an increased rating in excess of 20 percent for right lower extremity peripheral neuropathy with radiculopathy prior to January 16, 2015, and a rating in excess of 40 percent thereafter. 

4. Entitlement to an increased rating in excess of 20 percent for left lower extremity peripheral neuropathy with radiculopathy prior to January 16, 2015, and a rating in excess of 40 percent thereafter.

5. Entitlement to an effective date earlier than January 21, 2011, for the grant of service connection for chronic kidney disease.

6. Entitlement to special monthly compensation (SMC), to include as based the need for aid and attendance and housebound status.

REPRESENTATION

Appellant represented by:	Jeany Mark, Attorney


ATTORNEY FOR THE BOARD

J. Sandler, Associate Counsel


INTRODUCTION

The Veteran served on active duty from December 1967 to July 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2001, April 2014, and October 2014 rating decisions by the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO). In February 2017, a different Veterans Law Judge remanded these issues; the case has since been reassigned to the undersigned.

The February 2017 Board decision outlines the extensive procedural history for the Veteran's claim of an increased rating for his low back strain (spine disability). That same decision denied the Veteran's claim of an increased rating in excess of 40 percent for his spine disability and an evaluation in excess of 60 percent for his chronic kidney disease; it also granted an earlier effective date of January 21, 2011 for the grant of service connection for chronic kidney disease. The Veteran appealed the decision as to those issues to the United States Court of Appeals for Veterans Claims (Court).

Pursuant to a September 2017 Court Order and Joint Motion to Vacate, the Court vacated the Board's denials relating to the increased rating for his spine disability and chronic kidney disease and as to the denial of an effective date earlier than January 21, 2011 for chronic kidney disease. Those issues are again before the Board. 

The February 2017 Board decision remanded the issues of entitlement to an earlier effective date for the grant of service connection for right and left lower extremity peripheral neuropathy with radiculopathy for the issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The record shows that a March 2017 SOC was mailed to the Veteran's address of record and to the Veteran's representative. No mail was returned as undeliverable, and neither the Veteran nor his representative have stated that they did not receive the SOC. Because a substantive appeal (VA Form 9) has not been filed, those issues are not before the Board.

In June 2017, the Veteran's representative requested a 60 day extension. Such request was granted and complied with. The Board will proceed with adjudication.

The issues of entitlement to increased ratings for a spine disability, chronic kidney disease, and bilateral lower extremity peripheral neuropathy with radiculopathy, and entitlement to SMC are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required.


FINDING OF FACT

Resolving reasonable doubt in favor of the Veteran, the date entitlement arose for the grant of service connection for chronic kidney disease is June 1, 2010.


CONCLUSION OF LAW

The criteria for an effective date of June 1, 2010 for service connection for chronic kidney disease have been met. 38 U.S.C. §§ 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.114, 3.151, 3.155, 3.160, 3.400, 4.119 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Court remanded this matter due to the Board's inadequate reasons and bases regarding discussion of an April 2010 VA examination in the February 2017 decision. Earlier effective date matters are adjudicated based on the evidence already in the record. Thus, development is not ordinarily indicated or appropriate. Additionally, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist for the issue being adjudicated. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). 

Note (1) to Diagnostic Code (Code) 7913, for diabetes mellitus, provides that compensable complications of diabetes are to be evaluated separately unless they are part of the criteria used to support a 100 percent evaluation. 38 C.F.R. § 4.119.

The Veteran has stated he is entitled to an earlier effective date of February 1, 2010, or (as more recently argued) June 1, 2010. The Veteran filed an informal claim for an increased rating for his diabetes mellitus type II on May 14, 2010. April 2010 VA records reflect a history of chronic kidney disease, as noted in the patient history, but no diagnosis. VA treatment records dated June 1, 2010 reflect high creatinine levels and a diagnosis of chronic kidney disease. 

An August 2010 VA diabetes examiner stated that August 2010 lab results showed "creatinine 1.56, this is high[.]"

In a rating decision issued on January 21, 2011, the AOJ adjudicated an increased rating claim for the Veteran's service-connected diabetes mellitus type 2 and inferred a claim for nephropathy, because the August 2010 VA diabetes examiner noted that the Veteran had elevated creatinine levels. 

It is clear the AOJ inferred the Veteran's claim of nephropathy as a (possible) complication of his diabetes mellitus type II, which was simultaneously being adjudicated. The April 2010 VA treatment records noting a history of chronic kidney disease are not considered a diagnosis, because a mere transcription of lay history, unenhanced by any additional medical comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, 8 Vet. App. 406 (1995). Moreover, while elevated creatinine levels may be considered a symptom rather than an actual disease, there is nothing in the record to disassociate the high creatinine findings from the ultimate diagnosis of kidney disease.  Indeed, it was those findings in the VA treatment records which lead to the ultimate examination which yielded the diagnosis of kidney disease.  As a disease may exist far before the actual diagnosis and, as noted, there is nothing in the record to disassociate the high creatinine findings from the ultimate diagnosis of kidney disease, the Board resolves reasonable doubt in the Veteran's favor and finds that a chronic kidney disease existed as early as June 1, 2010, the date the high creatinine levels were noted.  

In sum, and for the reasons stated above, resolving reasonable doubt in the Veteran's favor, the record at the time of the January 2011 rating decision first reflected a diagnosis of chronic kidney disease on June 1, 2010. Accordingly, because the date entitlement arose, June 1, 2010, is later than the date of the Veteran's diabetes claim, May 14, 2010, the Board finds that the Veteran is entitled to an earlier effective date of June 1, 2010 for the grant of service connection for chronic kidney disease.


ORDER

An effective date of June 1, 2010, for the award of service connection for chronic kidney disease is granted.


REMAND

The Court remanded the issues of increased ratings for the Veteran's spine disability and his chronic kidney disease because the Board did not previously discuss the potential applicability of SMC based on loss of use of a creative organ. Specifically, the Court cited the Veteran's reports of erectile dysfunction during a February 2011 VA kidney examination and the examiner's statement that the Veteran is impotent. It is unclear whether the VA examiner was stating that the Veteran's erectile dysfunction is related to his chronic kidney disease or spine disability. VA treatment records do not reflect a cause for his erectile dysfunction, though it has been noted in association with his mental health. See February 2006 VA treatment records. Accordingly, remand for a VA examination to determine the cause of the Veteran's erectile dysfunction is necessary.

In February 2016, the Board remanded the issues of increased ratings for bilateral lower extremity peripheral neuropathy with radiculopathy to rectify inconsistencies in the record as to whether the Veteran has radiculopathy in the femoral nerve. See March 2014 and January 2015 VA examinations. The Veteran underwent a VA examination in April 2017, wherein the examiner opined that the Veteran did not have radiculopathy or peripheral neuropathy in the femoral nerve, but did not discuss the prior diagnosis of radiculopathy in the femoral nerve. Accordingly, the VA examination is inadequate and remand for a new VA examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Stegall v. West, 11 Vet. App. 268 (1998).

The issue of entitlement to SMC is inextricably intertwined with the matters remanded herein. Consequently, adjudication is deferred.

Accordingly, the case is REMANDED for the following action:

1. The AOJ should obtain copies of VA treatment records for the Veteran's disabilities from August 2015 to December 2016 and from May 2017 to the present. The AOJ should ensure that the complete records of all VA evaluations and treatment the Veteran has received for his disabilities are associated with the record.

2. After the above development has been completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and likely cause of his erectile dysfunction. The examiner should review the claim file (including this remand) and note that the file was reviewed. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

Is it at least as likely as not (50% or greater probability) that the Veteran's erectile dysfunction was either caused or aggravated by his service-connected chronic kidney disease or spine disability? The examiner must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated).

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

3. After the development in the first instruction has been completed, the AOJ should arrange for a VA examination of the Veteran to determine the nature and severity of the Veteran's bilateral lower extremity peripheral neuropathy with radiculopathy. The examiner should review the claims file (including this remand) and note that the file was reviewed. All indicted tests should be completed. Based on review of the record and examination of the Veteran, the examiner should provide an opinion that responds to the following:

Does the Veteran have radiculopathy or peripheral neuropathy in the femoral nerve? If not, the examiner must discuss the March 2014 VA examination that stated there was bilateral radiculopathy in the femoral nerves.

A detailed explanation (rationale) is required for all opinions provided. (By law, the Board is not permitted to rely on any conclusion that is not supported by a thorough explanation. Providing an opinion or conclusion without a thorough explanation will delay processing of the matter and may also result in a clarification being requested.)

If upon completion of the above action the claim remains denied, the case should be returned to the Board after compliance with appellate procedures. 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 appeal must be afforded expeditious treatment. The law requires that all matters that are remanded by the Board 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