Citation Nr: 1805993 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 09-49 314 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for basal cell carcinoma on the face, neck, back, and arms. 2. Entitlement to service connection for a gastrointestinal disorder other than irritable bowel syndrome (IBS) to include gastroesophageal reflux disease (GERD). 3. Entitlement to service connection for a respiratory disorder to include chronic obstructive pulmonary disease (COPD). 4. Entitlement to service connection for muscle pain, joint pain, and fatigue. 5. Entitlement to service connection for migraines. 6. Entitlement to service connection for a left knee disability. 7. Entitlement to service connection for hypothyroidism. 8. Entitlement to initial rating higher than 50 percent for posttraumatic stress disorder (PTSD). 9. Entitlement to initial compensable rating for IBS. 10. Entitlement to a rating in excess of 10 percent for IBS. 11. Entitlement to an effective date earlier than October 19, 2006 for the grant of service connection for PTSD. 12. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from February 1983 to May 1986 and in the Army from December 1990 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The Board notes that the Veteran requested to appear at a hearing before a member of the Board. In October 2017, however, he withdrew the request for a Board hearing. The Board considers the hearing request withdrawn at this time. See 38 C.F.R. § 20.704(e). The issues of entitlement to an initial compensable rating for IBS and entitlement to an effective date earlier than October 19, 2006 for the grant of service connection for PTSD are addressed in the DECISION below. Notably, the Board awards a partial grant for a compensable rating for IBS but defers consideration of a higher rating still. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. IBS is manifested by moderate IBS with frequent episodes of bowel disturbance and abdominal distress. 2. By rating decision in October 2013, the RO assigned an effective date of October 19, 2006 for the grant of service connection for PTSD, the date of receipt of the claim. 3. No claim, either formal or informal, alleging entitlement to service connection for PTSD was presented to VA before October 19, 2006. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating for IBS have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7319 (2017). 2. The criteria for an effective date earlier than October 19, 2006 for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156(c), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). RATINGS Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal concerning an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appeals the denial of an initial compensable rating for his service connected IBS. His disability is rated under Diagnostic Code 7319. Under Diagnostic Code 7319, a noncompensable rating is warranted for mild IBS, with disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent disability rating is warranted for moderate IBS with frequent episodes of bowel disturbance and abdominal distress. A maximum schedular 30 percent disability rating is warranted for severe IBS with diarrhea or alternating diarrhea and constipation with more or less constant abdominal distress. Based on the evidence of record, the Board finds that a 10 percent rating for IBS is warranted. To that end, in a September 2013 evaluation, private examiner Dr. C found that the Veteran had signs and symptoms of nausea, alternating diarrhea and constipation, and abdominal distension. She further found that the Veteran had frequent episodes of bowel disturbance with abdominal distress. In the April 2014 VA examination, it was noted that the Veteran had alternating diarrhea and constipation. It was described as intermittent, moderate to severe diarrhea and constipation. The examiner noted that the Veteran had occasional episodes of bowel disturbance with abdominal distress. The Board notes that the Veteran's episodes of bowel disturbance with abdominal distress have been described as occasional by one examiner but as frequent by another examiner. In resolving reasonable doubt in his favor, the Board finds that his manifestations of IBS are best contemplated by the 10 percent rating, i.e. moderate irritable bowel syndrome with frequent episodes of bowel disturbance and abdominal distress. At this time, the Board defers consideration of a higher rating still pending additional development. In this respect, the criteria for evaluating gastrointestinal disorders recognize that co-existing disorders may exist, and instruct the rater to assign a disability rating according to the predominant disorder. 38 C.F.R. § 4.114. On appeal, the Veteran describes gastrointestinal symptoms which include reflux which is a feature of his GERD that he seeks to service-connect. To the extent possible, the Board requires medical opinion specifically delineating the symptoms of IBS as opposed to any other co-existing gastrointestinal disorders. EFFECTIVE DATES The Veteran appeals the denial of an effective date earlier than October 19, 2006 for the grant of service connection for PTSD. Based on the evidence of record, the Board finds that the assigned effective date is the earliest possible effective date assignable in this case. In this regard, Section 5110(a) of Title 38, United States Code, governs the assignment of an effective date for an award of benefits: The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The implementing regulation similarly states that except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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 the later. See 38 C.F.R. § 3.400. In this case, the RO received the Veteran's original claim for entitlement to service connection for PTSD on October 19, 2006. The claim for service connection for PTSD was denied by the RO in a July 2008 rating decision. The RO found that the Veteran did not provide sufficient information to corroborate his in-service stressor. The Veteran timely appealed that decision and, in November 2009, the RO issued a statement of the case on this issue. In December 2009, the RO received the Veteran's VA Form 9 Substantive Appeal. On July 13, 2010, VA published a final rule that amended its regulations governing service connection for PTSD by, eliminating the requirement for corroborating evidence that the claimed in-service stressor occurred if a stressor claimed by a veteran is related to the veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted, confirms that the claimed stressor is adequate to support a diagnosis of PTSD and that the veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the veteran's service. 75 Fed. Reg. 39,843 (Jul. 13, 2010), 75 Fed. Reg. 41092 (Jul. 15, 2010) (correcting the effective and applicability dates from July 12, 2010 to July 13, 2010). In August 2010, the RO received correspondence from the Veteran which stated, "please stop all action on my appeal at this time and pull the PTSD claim out and use the new criteria for stressor and award the PTSD as service connected." He went on to state that the award of PTSD should satisfy his appeal. In a March 2010 rating decision, service connection for PTSD was granted, effective August 10, 2010. The Veteran's claim for entitlement to service connection for PTSD was granted under the amended version of 38 C.F.R. § 3.304(f) which relaxed the evidentiary standard required for establishing an in-service stressor to support a diagnosis of PTSD. Although the RO initially assigned an effective date of August 10, 2010 for the grant of service connection, in an October 2013 rating decision an effective date of October 19, 2006 for the grant of service connection for PTSD was assigned. The RO assigned an effective date of October 19, 2006 as that was the date the claim for PTSD was first received by the RO. The record is devoid of a showing that the Veteran submitted a claim for PTSD or a similar disorder prior to October 19, 2006. In new service connection cases, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. As the Veteran submitted a claim for service connection for PTSD on October 19, 2006, an effective date of October 19, 2006 is warranted. The fact that the Veteran may have manifested PTSD prior to the effective date of award, or that a diagnosis of PTSD may be reflected in prior treatment records, is irrelevant as the effective date of claim is statutorily limited to a written statement by the Veteran reflecting an intent to file a service connection claim for PTSD. See Sears v. Principi, 16 Vet. App. 244, 249 (2002); Pacheco v. Gibson, 27 Vet. App. 21 (2014); Lalonde v. West, 12 Vet. App. 377, 382 (1999). As the applicable law and regulatory provisions are clear on the issue at hand the Board concludes that entitlement to an effective date for the grant of service connection for PTSD earlier than October 19, 2006 must be denied. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to initial 10 percent rating for IBS is granted. Entitlement to an effective date earlier than October 19, 2006 for the grant of service connection for PTSD is denied. REMAND The Veteran appeals the denial of service connection for a left knee disability. Service treatment records show the Veteran injured his left knee in March 1984. He was treated for the left knee in April 1984 and was assessed with left knee joint effusion and meniscus tear during that time. He claims that his current left knee problems are due to his in service injury. The Veteran also appeals the denial of service connection for basal cell carcinoma, a stomach disorder to include GERD, a respiratory disorder to include COPD, a disability manifested by muscle/joint pain, migraines and hypothyroidism. The Veteran argues that his disabilities may have resulted from his service in the Persian Gulf and/or are secondary to his service-connected PTSD. The Board notes that the Veteran is a Persian Gulf veteran for purposes of 38 C.F.R. § 3.317 and his signs or symptoms can be considered signs or symptoms of undiagnosed illness. Id. The Veteran has not been afforded a VA examination in relation to these claims. In light of the Veteran's contentions and outpatient treatment records, the Board finds that a VA examination(s) is needed. The Board also requires clarification as to the symptoms attributable to service-connected IBS. The Veteran also appeals the denial of an initial evaluation higher than 50 percent for PTSD. The Veteran was afforded a VA examination in relation to claim in February 2011. Since that time, however, the Veteran has indicated that his PTSD has worsened. A review of the record also shows that the Veteran's PTSD symptoms may have increased in severity since his last VA examination. In light of the Veteran's statements, outpatient treatment records and lay statements, the Board finds that an additional VA examination is necessary for the purpose of ascertaining the current severity and manifestations of the Veteran's service-connected disability. Furthermore, the Veteran claims that he is unemployable because of his service-connected PTSD. The Board finds that a TDIU claim is considered to have been raised by the record and thus is a component of the increased rating claim on appeal before the Board. Accordingly, the Board has jurisdiction over this issue. Accordingly, the case is REMANDED for the following action: 1. Associate with the claims folder complete VA treatment records since 2015. 2. Schedule the Veteran for a VA examination to address the nature and etiology of his left knee disability. The examiner must be provided access to the Veteran's VBMS file. As to each and every left knee disability diagnosed at the examination, or diagnosed in the record, the examiner must opine whether it is at least as likely as not, i.e., is there a 50/50 chance that the Veteran's disability had its onset in service or was caused by service. In doing so, the VA examiner must address the March 1984 in service left knee injury and assessment of left knee joint effusion and meniscus tear. The VA examiner should provide a complete rationale for any opinions provided. The examiner must reconcile any opinion with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If he or she rejects the lay evidence, an explanation must be provided, and the examiner should note that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of his claimed basal cell carcinoma, stomach disorder to include GERD, respiratory disorder to include COPD, disability manifested by muscle/joint pain, migraines and hypothyroidism. Access to VBMS must be made available to the examiner(s) in conjunction with the examination. The examiner must render an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed disability arose during active service or is otherwise related to service to include environmental hazards during the Persian Gulf War; or whether it is at least as likely as not that any diagnosed disability was caused and/or aggravated beyond the normal progress of the disorder by the service connected PTSD. The examiner should specifically discuss whether the Veteran manifests a functional gastrointestinal disorder other than service-connected IBS (a group of conditions characterized by chronic or recurrent symptoms that are unexplained by any structural, endoscopic, laboratory, or other objective signs of injury or disease and may be related to any part of the gastrointestinal tract)? If no diagnosis is rendered for any of the above, the examiner must address whether there are objective indications of a qualifying chronic disability. This includes both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. To be "chronic" the disability must have existed for 6 months or more or have exhibited intermittent episodes of improvement and worsening over a 6-month period. A complete, well-reasoned rationale must be provided for all opinions offered. Additionally, the examiner should record the Veteran's description of gastrointestinal symptoms in terms of frequency, duration and severity and, to the extent possible, identify those symptoms specifically attributable to IBS. 4. Schedule the Veteran for a VA compensation examination to determine the nature and severity of his PTSD. The examiner must be provided access to VBMS. All appropriate tests and studies should be accomplished and all clinical findings should be reported in detail. In accordance with the latest worksheets for rating psychiatric disabilities, the examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints and the nature and extent of his psychiatric disability. A complete rationale should be provided for any opinion expressed. 5. Thereafter, the AOJ should consider all of the evidence of record and readjudicate the issues on appeal including entitlement to a rating greater than 10 percent for IBS. If the benefits sought are not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond. 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. §§ 5109B, 7112 (2012). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs