Citation Nr: 18141293 Decision Date: 10/11/18 Archive Date: 10/10/18 DOCKET NO. 15-17 510 DATE: October 11, 2018 ORDER Entitlement to an effective date prior to February 1, 2012, for the award of service connection for obstructive sleep apnea (OSA), anxiety, a left knee disability, a lumbar spine disability, gastroesophageal reflux disease (GERD), a left rib fracture, allergic rhinitis, and eczema is denied. REMANDED 1. The issue of entitlement to an initial rating in excess of 50 percent for OSA is remanded. 2. The issue of entitlement to an initial rating in excess of 30 percent for anxiety is remanded. 3. The issue of entitlement to an initial rating in excess of 10 percent for a left knee disability is remanded. 4. The issue of entitlement to an initial rating in excess of 10 percent for a lumbar spine disability is remanded. 5. The issue of entitlement to an initial rating in excess of 10 percent for GERD is remanded. 6. The issue of entitlement to an initial compensable rating for a left rib fracture is remanded. 7. The issue of entitlement to an initial compensable rating for allergic rhinitis is remanded. 8. The issue of entitlement to an initial compensable rating for eczema is remanded. FINDING OF FACT The Veteran was granted service connection for OSA, anxiety, a left knee disability, a lumbar spine disability, GERD, a left rib fracture, allergic rhinitis, and eczema effective February 1, 2012, which is the day following his January 31, 2012 separation from service. CONCLUSION OF LAW The criteria for an effective date earlier than February 1, 2012, for the grant of service connection for OSA, anxiety, a left knee disability, a lumbar spine disability, GERD, a left rib fracture, allergic rhinitis, and eczema have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1983 to November 1996, and from April 2005 to January 2012. These matters come before the Board of Veterans’ Appeals (BVA or Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. 1. Entitlement to an effective date earlier than February 1, 2012 for the grant of service connection for OSA, anxiety, a left knee disability, a lumbar spine disability, GERD, a left rib fracture, allergic rhinitis, and eczema is denied. In general, 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 the receipt of the application. 38 U.S.C. 5110 (a); 38 C.F.R. 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. 5110 (b)(1); 38 C.F.R. 3.400 (b)(2)(i). Effective March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. 5101 (a) (2012); 38 C.F.R. 3.151 (a). The Veteran is seeking an effective date prior to February 1, 2012, for the award of service connection for OSA, anxiety, a left knee disability, a lumbar spine disability, GERD, a left rib fracture, allergic rhinitis, and eczema. The record reflects that the Veteran separated from service on January 31, 2012. In an August 2012 rating decision, the Veteran was granted entitlement to service connection for OSA, anxiety, a left knee disability, a lumbar spine disability, GERD, a left rib fracture, allergic rhinitis, and eczema, effective February 1, 2012, the day following his separation. The record reveals no claim for relevant benefits prior to the period of service beginning in 2005. Neither the Veteran nor his representative have advanced any specific arguments as to why an earlier effective date is warranted for the grant of service connection for these disabilities. Following its review of the record, the Board finds that February 1, 2012, is the correct effective date for the award of service connection for these disabilities, because that is the day following the Veteran’s separation from active duty service. Therefore, the Veteran has the earliest possible date allowable for the grant of service connection for OSA, anxiety, left knee and lumbar spine disabilities, GERD, allergic rhinitis, left rib fracture, and eczema. VA law and regulations do not provide an effective date earlier than the day following separation from service, February 1, 2012. REASONS FOR REMAND 1. The issues of entitlement to increased initial ratings for service-connected OSA, anxiety, left knee disability, lumbar spine disability, GERD, left rib fracture, allergic rhinitis, and eczema are remanded. In the May 2015 VA Form 9, the Veteran’s representative stated that the Veteran’s service-connected disabilities had worsened in severity. Additionally, August 2017 private medical opinions concluded that the Veteran’s GERD, allergic rhinitis, and lumbar spine disability had undergone significant progression. Based on the reports of worsening symptomatology, the medical evidence of record, and the fact that the Veteran’s last VA examinations related to these disabilities took place in November 2011 and early December 2011, the Board finds that he should be afforded new VA examinations to determine the current severity of his service-connected OSA, anxiety, left knee and lumbar spine disabilities, GERD, left rib fracture, allergic rhinitis, and eczema. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Further, the Veteran has not been afforded a VA examination that measures his range of motion upon weight bearing, and under both active and passive conditions, for his service-connected left knee and lumbar spine disabilities. Correia v. McDonald, 28 Vet. App. 158 (2016) (precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight bearing and nonweight bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Therefore, a new examination is necessary to determine the severity of the Veteran’s left knee and lumbar spine disabilities. The matters are REMANDED for the following action: 1. Associate any of the Veteran’s outstanding VA medical records related to his OSA, anxiety, left knee disability, lumbar spine disability, GERD, left rib fracture, allergic rhinitis, and eczema with the claims file. Contact the Veteran and request that he provide or identify any additional updated outstanding private records pertinent to treatment for these disabilities. He should be asked to authorize the release of any outstanding pertinent non-VA medical records. If any requested records cannot be obtained, the Veteran must be notified of the attempts made and of what additional actions will be taken regarding his claim. 2. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected OSA. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s OSA. 3. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected anxiety. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s anxiety. 4. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected left knee and lumbar spine disabilities. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. Those findings provided should include range of motion of the left knee and lumbar spine, including tests for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In the context of flare-ups, if one is not occurring at the time of the examination, it is requested that the examiner estimate any functional limitation in terms of the degree of additional loss of range of motion after eliciting appropriate information from the Veteran, and considering all the information of record. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s left knee and lumbar spine disabilities. 5. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected left rib fracture. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s left rib fracture. 6. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected allergic rhinitis. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s allergic rhinitis. 7. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected eczema. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s eczema. 8. Schedule the Veteran for a VA examination by a qualified clinician to determine the severity and extent of his service-connected GERD. All indicated tests and studies should be accomplished and all clinical findings should be reported in detail. A complete rationale for all opinions expressed should be provided. The examiner is specifically asked to address the functional and occupational effect of the Veteran’s GERD. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel