Citation Nr: 18142461 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 14-40 539 DATE: October 15, 2018 ORDER Whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus is dismissed. Whether new and material evidence has been received to reopen a claim of service connection for diverticulitis is dismissed. New and material evidence has been received and the claim of entitlement to service connection for a cervical spine disability is reopened. Entitlement to an effective date prior to August 6, 2012, for the grant of service connection for fibromyalgia is denied. REMANDED Entitlement to an initial rating in excess of 40 percent for fibromyalgia is remanded. Entitlement to service connection for a cervical spine disability to include as due to an undiagnosed illness is remanded. Entitlement to a total rating for compensation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. On June 28, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal for whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus was requested. 2. On June 28, 2018, prior to the promulgation of a decision in the appeal, the Board received notification from the Veteran that a withdrawal of his appeal for whether new and material evidence has been received to reopen a claim of service connection for diverticulitis was requested. 3. In an unappealed September 2004 rating decision, the RO denied service connection for a neck disability. The Veteran did not timely perfect an appeal of this determination, and no new and material evidence was received within one year of notice of this decision. 4. Evidence received since the September 2004 rating decision includes evidence such as the Veteran’s June 2018 testimony indicating that he has a separate and distinguishable cervical spine disability due to an undiagnosed illness, that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a cervical spine disability. 5. The Veteran’s original service connection claim for fibromyalgia was received in April 2004 and was denied in a September 2004 rating decision. An April 2005 rating decision confirmed and continued the denial of service connection. The Veteran did not perfect an appeal of the April 2005 rating decision. 6. A request to reopen the claim of service connection for fibromyalgia was received in December 2008 and was denied in an August 2009 rating decision which was not appealed and became final. 7. A request to reopen the claim of service connection for fibromyalgia was received on August 6, 2012. 8. A March 2013 rating decision granted service connection for fibromyalgia, effective August 6, 2012. The effective date was the date of the claim to reopen his claim for service connection. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran as to the issue of whether new and material evidence has been received to reopen a claim of service connection for diabetes mellitus have been met. 38 U.S.C. §7105(b) (2), (d) (5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal by the Veteran as to the issue of whether new and material evidence has been received to reopen a claim of service connection for diverticulitis have been met. 38 U.S.C. §7105(b) (2), (d) (5) (2012); 38 C.F.R. § 20.204 (2017). 3. New and material evidence has been received since the September 2004 denial, and the claim of entitlement to service connection for a cervical spine disability is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 4. The criteria for an effective date prior to August 6, 2012 for the grant of service connection for fibromyalgia have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1987 to March 1991. These matters are before the Board of Veterans’ Appeals (the Board) on appeal of March 2013 and January 2014 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2018, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A copy of the hearing transcript is of record. In an October 2014 Statement of the Case (SOC), the RO, in part, denied the Veteran’s claims for service connection for a cervical spine disability, diabetes mellitus and diverticulitis without first addressing whether new and material evidence had been presented to reopen the claims. The Board points out that regardless of what the RO or AMC has done, the Board must address the question of whether new and material evidence to reopen the claim has been received because the issue goes to the Board’s jurisdiction to reach the underlying claims and adjudicate them on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). In other words, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The Board also notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans Claims (“Court”) held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In this case, at his June 2018 hearing, the Veteran indicated that he was currently unable to work as he was permanently disabled. As a result, the Board finds that a TDIU claim has been raised by the record. Service Connection The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the Veteran and his authorized representative indicated in the Veteran’s June 2018 hearing that the Veteran wished to withdraw his appeals as to the issues of entitlement to service connection for diabetes mellitus and diverticulitis. The transcript of that hearing is on file. Therefore, the Veteran has withdrawn his appeals as to these issues, and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to these issues and they are dismissed. Earlier Effective Date Laws and Regulations Generally, the effective date of an evaluation and award of compensation based on 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(a); 38 C.F.R. § 3.400. The terms “claim” and “application” mean 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). Any communication or action that demonstrates intent to apply for an identified benefit may be considered an informal claim. 38 C.F.R. § 3.155(a). VA or uniformed services medical records may form the basis of an informal claim for increased benefits where a formal claim for service connection has already been allowed. 38 C.F.R. § 3.157. Under the provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). The effective date of an award of disability compensation based on new and material evidence (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(q) (1)(ii). However, new and material evidence received prior to the expiration of the appeal period (one year after notice of the decision is sent) will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156(b) (2017). Factual Background and Analysis The Veteran’s original service connection claim for fibromyalgia was received in April 2004 and was denied in a September 2004 rating decision. An April 2005 rating decision confirmed and continued the denial of service connection. The Veteran did not perfect an appeal of the April 2005 rating decision and it therefore became final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). A request to reopen the claim of service connection for fibromyalgia was received in December 2008 and was denied in an August 2009 rating decision. The Veteran did not file an appeal and the August 2009 decision regarding the denial of the claim for fibromyalgia is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Another request to reopen the claim of service connection for fibromyalgia was received on August 6, 2012. In a March 2013 rating decision, the RO granted service connection for fibromyalgia, effective from August 6, 2012, the date on which the Veteran’s claim to reopen had been received. The Veteran argues that the effective date for the grant of service connection for fibromyalgia should go back to the date he originally filed his claim in 2004. He contends that the evidence dated since his original claim has shown that he had a diagnosis of fibromyalgia related to his service. Based upon the evidence of record, the Board finds entitlement to an earlier effective date prior to August 6, 2012, for the grant of his service-connected fibromyalgia is not warranted. The Board again notes that the effective date of an award of service connection based on new and material evidence received after a final adjudication will be the later of the date entitlement arose or the date of receipt of the reopened claim unless the new and material evidence consists of service department records, in which case the effective date will be the later of the date entitlement arose or the date of receipt of the earlier claim. 38 U.S.C.§ 5110; 38 C.F.R. § 3.400. As noted above, a September 2004 rating decision denied service connection for fibromyalgia and an April 2005 rating decision confirmed and continued the denial of service connection. While the Veteran filed a Notice of Disagreement (NOD) in September 2005 and a subsequent Statement of the Case (SOC) was issued in November 2006, he did not perfect an appeal of this rating decision. The record does not show that he subsequently filed a new substantive appeal within 60 days of issuance of any statement or the case or supplemental statement addressing his claim. Thus, the April 2005 rating decision became final. The Veteran filed a request to reopen the claim of service connection for fibromyalgia was received in December 2008 and was denied in an August 2009 rating decision. As the Veteran did not file an appeal, the August 2009 decision regarding the denial of the claim for fibromyalgia is final. See 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). Because the August 2009 rating decision is final, under the applicable statutes and regulations, the effective date of service connection is therefore correctly assigned as August 6, 2012, the date of receipt of the reopened claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Neither the Veteran nor his representative has specifically asserted that clear and unmistakable error (CUE) was present in that initial September 2004, April 2005 or August 2009 rating decisions to justify overturning it long after the fact. CUE must be pled with specificity, and this has not been done. See Andre v. West, 14 Vet. App. 7, 10 (2000) (per curium), aff’d sub nom., Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). The Board has also determined that the record does not contain evidence of an unadjudicated formal or informal claim for entitlement to service connection for fibromyalgia prior to August 6, 2012. An effective date prior to the date of the reopened claim (August 6, 2012) is not warranted. 38 C.F.R. § 3.400. The Board acknowledges the arguments set forth by the Veteran and is sympathetic to his contentions. Under the law, however, the effective date for a grant of service connection following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). As such, the RO assigned the earliest possible effective date for its grant of the reopened claim, which, based on the procedural history as outlined in detail above, was determined to be August 6, 2012. See Leonard, 405 F.3d at 1333; Sears, 349 F.3d at 1326 (Fed. Cir. 2003). The Board also parenthetically notes the Veteran’s contention that the rating officers did not take into account the diagnosis of fibromyalgia when initially denying service connection in the September 2004 and April 2005 rating decisions. Notably, the record contains an April 2004 correspondence from a private physician that indicated that the Veteran had a diagnosis of fibromyalgia. However, when denying the claim for service connection based on the May 2004 VA examination finding that the Veteran did not meet the diagnostic criteria for fibromyalgia, the November 2006 SOC specifically noted that there was a provisional diagnosis of fibromyalgia in the form of the April 2004 correspondence from a private physician. As a result, based on 38 U.S.C. § 5110(a), the RO assigned the earliest effective date for the grant of service connection for fibromyalgia permitted under the law. 38 C.F.R. § 3.400(b). Under the applicable statutes and regulations, the effective date of service connection is therefore correctly assigned as August 6, 2012, the date of receipt of the reopened claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. As described in detail above, the preponderance of the evidence is against the Veteran’s claim for an earlier effective date. The Veteran’s claim for an effective date earlier than August 6, 2012 for the grant of service connection for fibromyalgia must be denied on that basis. REASONS FOR REMAND The Board finds that more development is necessary prior to final adjudication of the claims remaining on appeal. For the Veteran’s claim of service connection for a cervical spine disability (other than fibromyalgia), as noted above, the Veteran is service-connected for fibromyalgia. However, it remains unclear as to whether the Veteran has a cervical spine condition that is a separate or distinguishable disability from the Veteran’s service-connected fibromyalgia. As a result, the Board finds that an examination is warranted to determine if the Veteran’s has a current cervical spine disability that is a separate or distinguishable disability from the Veteran’s service-connected fibromyalgia and if so, whether this cervical spine disability is due to environmental exposures while serving in Southwest Asia. Regarding the Veteran’s claim for an initial rating in excess of 40 percent for fibromyalgia, the Board notes that this issue is inextricably intertwined with the issue of entitlement to service connection for a cervical spine disability. As noted above, a determination still needs to be made as to whether the Veteran has a separate or distinguishable cervical spine disability from the Veteran’s service-connected fibromyalgia. As such, while the Veteran currently has a maximum initial 40 percent evaluation under Diagnostic Code 5025 for fibromyalgia, the Board finds that assessing the Veteran’s current level of fibromyalgia is unclear until adjudication of his cervical spine disability claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The Board also notes that the last VA examination for his service-connected fibromyalgia disability took place in January 2013. However, at his June 2018 hearing, the Veteran indicated that his service-connected fibromyalgia disability had worsened as he noted that he had become more sedentary and his fibromyalgia was not moderate to severe. Additionally, on a December 2017 Disability Benefits Questionnaire (DBQ), the treating physician indicated that the Veteran was unable to perform sedentary work due to his fibromyalgia disability. Given that the Veteran indicated that his service-connected fibromyalgia symptoms had worsened and he appears to be receiving continued treatment for this disability, the Board is of the opinion that a new VA examination would be probative. Although a new VA examination is not warranted based merely upon the passage of time [see Palczewski v. Nicholson, 21 Vet. App. 174 (2007)], the Court has held that where a veteran claims that a disability is worse than when originally rated, and the available evidence is too old to adequately evaluate the current state of the condition, the VA must provide a new examination. See Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Therefore, to ensure that the record reflects the current severity of the Veteran’s service-connected fibromyalgia disability, a contemporaneous examination is warranted, with findings responsive to the applicable rating criteria. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered contemporaneous”). Regarding the Veteran’s claim for a TDIU, the Board notes that further development and adjudication of the Veteran’s claims for service connection and an initial higher rating may provide evidence in support of his claim for TDIU. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991), for the proposition that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the claims are inextricably intertwined. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. The matters are REMANDED for the following action: 1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disabilities on appeal. After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder. 2. Thereafter, the Veteran should also be scheduled for a VA examination before an appropriate physician to determine the current level of severity of his service-connected fibromyalgia disability. The Veteran’s claims file and a copy of this remand must be provided to the examiner for review in conjunction with this examination, and the examination report should reflect review of these items. All necessary tests and studies should be performed, and the examiner should describe in detail all symptomatology associated with the Veteran’s fibromyalgia disability. The examiner should also provide an opinion concerning the impact of the Veteran’s service-connected fibromyalgia disability on his ability to work. 3. Schedule the Veteran for a VA examination to determine the etiology of the claimed cervical spine disability. After the record review and examination of the Veteran, the VA examiner should determine: (i) Whether the Veteran’s cervical spine disability is a disability in and of itself, or a manifestation of another underlying disability or disabilities, such as fibromyalgia. (ii) For any cervical spine disability, other than fibromyalgia, opine whether it is at least as likely as not (50 percent probability or greater) that that the condition onset during, or is otherwise etiologically related to service, including environmental exposures while serving in Southwest Asia. All opinions expressed by the examiner must be accompanied by a complete rationale. Adequate reasons and bases for any opinion rendered must be provided. All studies deemed appropriate in the medical opinion of the examiner should be performed, and all the findings should be set forth in detail. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review, if in order. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel