Citation Nr: 18143767 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-11 563A DATE: October 22, 2018 ORDER Entitlement to service connection for degenerative changes of the lumbar spine, claimed as a low back injury, is granted. Entitlement to service connection for residuals of a right hand shock injury is granted. Entitlement to service connection for residuals of a left great toe injury is granted. Entitlement to service connection for cold injury residuals of the right toes, claimed as a right foot disability, is granted. Entitlement to service connection for cold injury residuals of the left toes, claimed as a left foot disability, is granted. Entitlement to an effective date prior to July 12, 2013 for service connection for posttraumatic stress disorder (PTSD) is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the degenerative changes of the lumbar spine are related to an in-service back injury. 2. The evidence is at least evenly balanced as to whether the Veteran's current neurological disturbances of the right hand had its onset in service. 3. The evidence is at least evenly balanced as to whether the Veteran's current left great toe disability had its onset in service. 4. The evidence is at least evenly balanced as to whether the Veteran's has right toe residuals of in-service cold injury. 5. The evidence is at least evenly balanced as to whether the Veteran's current left toe residuals of in-service cold injury. 6. The claim of service connection for PTSD was received on July 12, 2013; there is no evidence of any unadjudicated formal or informal claim of service connection for PTSD or similar mental disorder prior to July 12, 2013. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for service connection for mild degenerative changes of the lumbar spine are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.303(b), 3.307, 3.309. 2. The criteria for service connection for residuals of a right hand shock injury are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for left great toe injury residuals are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for cold injury residuals of the right toes are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for cold injury residuals of the left toes are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for an effective date earlier than July 12, 2013 for the award of service connection for PTSD are not met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. §§ 3.155, 3.157 (in effect prior to March 24, 2015), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1987 to July 1990, November 1990 to June 1991, and January 2001 to May 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for PTSD and denied service connection for the other issues on appeal. Since the Veteran appealed the initial rating and the effective date for service connection for PTSD, there is no issue with regard to an impermissible freestanding claim for an earlier effective date. Cf. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (prohibiting freestanding earlier effective date claims). The Board notes that the Veteran appealed the issue of an initial rating in excess of 70 percent from the May 2014 rating decision. In February 2016, the RO granted a total rating for PTSD from the date of service connection. This rating award constitutes the maximum schedular benefit for this claim. As this issue is fully resolved, it is no longer on appeal. See AB v. Brown, 6 Vet. App. 35 (1993); see also January 2017 VA Form 8, Certification of Appeal. In November 2017, the Board granted the representative’s request to withdraw with notification to the Veteran. The Veteran has not appointed another representative and is currently unrepresented in this appeal. Additional VA treatment records have been received following the last review of these claims by the RO. The instant decision results in full grants for the service connection issues on appeal. The additional VA treatment records do not include relevant information to the denied earlier effective date claim. The Veteran is not prejudiced by the Board’s consideration of these records in the first instance. 38 C.F.R. § 20.1304(d). I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159. An earlier effective date for the grant of service connection for PTSD is the only issue presently denied, the Board will address VCAA compliance specifically for this issue. Regarding the duty to notify, the Veteran was appropriately notified about how VA assigns effective dates in an April 2014 letter. In any event, this claim is a downstream issue following a service connection grant and additional notification is not required. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007). Regarding the duty to assist, it appears that all pertinent evidence has been obtained for the earlier effective date claim. The Veteran does not contend otherwise. 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 a duty to assist argument). The instant decision is mostly favorable to the Veteran and a remand would not raise any reasonable possibility of substantiating entitlement to additional benefits than those granted in the instant decision. Winters v. West, 12 Vet. App. 203, 208 (1999) (en banc) ("[A] remand is not required in those situations where doing so would result in the imposition of unnecessary burdens on the [Board] without the possibility of any benefits flowing to the appellant"); see also Scott, 789 F.3d at 1381 (noting that "[a] veteran's interest may be better served by prompt resolution of his claims rather than by further remands to cure procedural errors that, at the end of the day, may be irrelevant to final resolution and may indeed merely delay resolution"); 38 C.F.R. § 3.159(d). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the earlier effective date claim. II. Service connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease, however remote, are service connected, unless clearly attributable to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service is not in fact shown to be chronic or the diagnosis of chronicity may be legitimately questioned. The provisions of 38 C.F.R. § 3.303(b) apply only to the specific chronic diseases listed in 38 U.S.C. § 1101(3) and 38 C.F.R. § 3.309(a), which include degenerative arthritis and osteoarthritis. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for lumbar spine disability Service treatment records (STRs) from May 1990 include a Report of Medical History where the Veteran endorsed having recurrent back pain. The clinician noted a history of lumbar spine pain from a February 1990 injury. Contemporaneous physical examination did not reveal any spine abnormality. December 2000 STRs include a Report of Medical History where the Veteran denied having recurrent back pain. April 2006 VA primary care records showed that the Veteran had not had medical care in several years. Clinical evaluation was unremarkable. He denied having chronic back pain. September 2006 VA urgent care records included treatment for lower back pain that was associated with a recent lifting injury. January 2009 VA primary care records reflected that the Veteran wanted to re-establish medical care. His medical history was notable for a 1989 back injury from a fight. May 2013 VA mental health (MH) records included reports from the Veteran about low back pain. In another MH note, the Veteran reported a 1988 onset. He described it as intermittent sharp pain. June 2013 VA treatment records reflected that the Veteran developed low back pain in 1989 from lifting heavy objects and fighting. He described the disability as intermittent. Clinical examination was notable for pain. X-rays confirmed minimal degenerative changes. The clinician listed an impression of low back pain and provided medications. In July 2013, the Veteran reported that he injured his back in service when he was moving large ice chests. He believed the currently diagnosed lumbar spine arthritis initially started with this lifting injury. In February 2016, a VA medical opinion was obtained. The examiner reviewed the Veteran’s medical history and expressed a negative medical opinion. He stated that there was no documentation of continuous complaints since 1990 and the findings from imaging studies were age-related abnormalities. May 2017 VA treatment records showed that the Veteran sought treatment for chronic low back pain. He reported that it started intermittently in military service and then around 2010 became constant. However, it was low level pain. By 2013, it had progressed and led him to seek medical attention. He reported being diagnosed with lumbar disc disease at that time. Physical examination was notable for pain with lumbar flexion motion. The clinician assessed low back pain on the basis of degenerative disc disease and myalgia. The Veteran contends service connection is warranted for the currently diagnosed lumbar spine disability. For the following reasons, the Board agrees. The Veteran is competent to low back pain and his medical history. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4. He has consistently reported that his low back pain initially started in service. See VA treatment records from January 2009, May and June 2013, and May 2017. Although STRs do not reference a specific back injury, his May 1990 Report of Medical History showed that he endorsed having recurrent back pain. His reports are plausible. The Board considers his reports of back pain beginning in service credible. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). The evidence weighing against the claim is the February 2016 VA medical opinion. The VA examiner’s comments imply that the absence of medical treatment is a major factor in his determination. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The VA examiner did not address the competent and credible reports about intermittent back pain beginning with the military injury. Overall, the rationale from the February 2016 VA medical opinion is not persuasive to weigh against the claim. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Although the frequency of the low back pain episodes from service until 2013 or so are uncertain, the Board resolves reasonable doubt to find continuous symptoms from service that are related to the current degenerative changes in the lumbar spine. Caluza, 7 Vet. App. at 506; 38 C.F.R. § 3.303(d). Service connection for degenerative changes of the lumbar spine is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Residuals of a right hand shock injury STRs from February 1988 showed that the Veteran sustained a shock injury to right hand while cleaning a small appliance. He complained of numbness throughout his hand. Decreased motion was noted for the right index finger. He was placed on profile and instructed to return if his numbness did not resolve. On his May 1990 Report of Medical History, the Veteran endorsed having painful joints. He described it as painful knees. December 2009 VA primary care records showed that the Veteran reported having a fracture of the right fourth finger. He reported intermittent numbness and tingling without loss of power. No pertinent clinical findings or treatment was given. May 2013 VA treatment records showed that the Veteran reported right hand fracture around 2009 as part of this medical history. No details were given. In his July 2013 claim, the Veteran stated that he had pain, numbness, and tingling in his right fingers from a shock injury in 1987 or 1988. In April 2014, the Veteran recounted the shock injury. He reported that ever since the injury, he had limited sensation in his right hand, particular in his fingertips and tingling sensations. He described occasional difficulty grasping objects because of right hand cramping and pain. For this claim, the Veteran is competent to report his current symptoms and occupational impact due to the readily observable nature of the sensory disturbances associated with this disability. Jandreau, 492 F.3d at 1377 n.4. The Board finds him generally credible in his reports of residual neurological type right hand pain from the documented in-service right hand shock injury. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has clarified that pain alone resulting in functional impairment of earning capacity can satisfy the current disability requirement for service connection. Saunders, 886 F. 3d at 1367-68. The symptoms of right hand numbness and grip impairment imply occupational functional impairment as contemplated in Saunders, supra. The Board acknowledges the current medical evidence for this disability is limited and includes reports of a post service injury. However, the favorable evidence consists of a well-documented shock injury to the right hand and competent and credible reports of neurological disturbance type symptoms from this well- established military injury. The Board finds the favorable evidence sufficient to bring the issue of a nexus and current disability into a state of relative equipoise. In sum, the evidence includes an in-service right hand shock injury and reports of current neurological disorder of the right hand that results in occupational functional impairment. Although the reports of current disability are generalized, the Board resolves reasonable doubt in the Veteran’s favor to find a current disability related to the in-service injury. Buchanan, 451 F.3d at 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim). Entitlement to service connection for neurological disorder of the right hand as residuals of right hand shock injury is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Residuals of a left big toe injury November 1987 STRs showed that the Veteran injured his left great toe when an object fell on it. He was found to have a contusion ot the nail bed and it was removed. He was evaluated for possible fracture. A note indicated that a fracture was not found. In July 2013, the Veteran stated that he dropped the sharp edge of a cutting board on his left big toe nail. In April 2014, the Veteran again reported that he dropped a heavy cutting board on his left big toe that smashed his toe nail. Since then, the left great toe nail had not healed correctly and caused pain when walking. For this claim, the Veteran is competent to report his current symptoms and occupational impact due to the readily observable nature of this disability. Jandreau, 492 F.3d at 1377 n.4. The Board finds him generally credible in his reports of residual great left toe pain and nail abnormality from the documented in-service left great toe injury. Again, the Federal Circuit has clarified that pain alone resulting in functional impairment of earning capacity can satisfy the current disability requirement for service connection. Saunders v. Wilkie, 886 F. 3d 1356, 1367-68 (2018). The April 2014 report of pain in the left great toe implies occupational functional impairment as contemplated in Saunders, supra. The Board acknowledges the current medical evidence for this disability is limited. However, the favorable evidence consists of a documented injury to the left great toe and competent and credible reports of symptoms from this established injury. The Board finds the favorable evidence sufficient to bring the issue of a nexus and current disability into a state of relative equipoise. Caluza, 7 Vet. App. at 506; 38 C.F.R. § 3.102. In sum, the evidence includes an in-service left great toe injury and reports of current left great toe pain that results in occupational functional impairment. Although the reports of current disability are generalized, the Board resolves reasonable doubt in the Veteran’s favor to find a current disability related to the in-service injury. Id.; Buchanan, 451 F.3d at 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim). Entitlement to service connection for residuals of left great toe injury is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 4. Right and left foot residuals from cold exposure injury The Veteran contends that he has a residual cold injury disability in each foot from service in South Korea. STRs do not document a frostbite or similar cold exposure injury. Personnel records confirm that the Veteran served in South Korea. Notably, the May 1990 Report of Medical History included complaints about foot trouble that were described as a “history of cold feet.” In April 2014, the Veteran detailed the claimed foot disability as his toes hurting more during cold weather. He reported it started from a cold weather injury or frostbite while serving in South Korea. VA treatment records do not include any information pertinent to these claims. In this case, the Veteran is competent to report his current symptoms and occupational impact due to the readily observable nature of the disabilities at issue. Jandreau, 492 F.3d at 1377 n.4. The Board finds him generally credible in his reports of residual toe pain in both feet from a military cold exposure injury. Although STRs do not include a clinical evaluation, his May 1990 Report of Medical History suggests that he had a cold injury affecting both feet. His report that he currently has bilateral toe pain associated with cold weather is not inherently implausible. Caluza, 7 Vet. App. at 506. The Board will not discount his reports based on a lack of contemporaneous treatment. Buchanan, 451 F.3d at 1337. Again, the Federal Circuit has clarified that pain alone resulting in functional impairment of earning capacity can satisfy the current disability requirement for service connection. Saunders, 886 F. 3d at 1367-68. For these claims, the Board resolves reasonable doubt to find that the reported in-service injury occurred and the residuals consisting of pain in the toes of both feet causing functional impairment satisfy the current disability requirement. The Board acknowledges the medical evidence for this disability is limited. VA treatment records and STRs do not show that the Veteran was treated for frostbite or similar cold injury. Nonetheless, the Board points out that the Veteran’s May 1990 Report of Medical History noted a history of “cold feet” and he has made competent and credible reports of residual disabilities. In sum, the Board resolves reasonable doubt in the Veteran’s favor to find a current residual disability to the right and left toes related to the in-service cold injury. Id.; Buchanan, 451 F.3d at 1335 (lay evidence may be sufficient in and of itself to substantiate a service connection claim). Entitlement to service connection for cold injury residuals of the right and left toes is therefore warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. III. Entitlement to an effective date prior to July 12, 2013 for service connection for posttraumatic stress disorder (PTSD) If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The Veteran is seeking an effective date prior to July 12, 2013, for service connection for PTSD. He does not assert a particular theory of entitlement. The Board notes 38 C.F.R. § 3.157(b)(1) in effect prior to March 24, 2015 provides that 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. However, 38 C.F.R. § 3.157(b)(1) "makes clear that a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); Massie v. Shinseki, 25 Vet. App. 123, 134 (2011), aff'd 724 F.3d 1325 (Fed. Cir. 2013) (§ 3.157(b)(1) requires that a report of examination or hospitalization indicate that the veteran's service-connected disability worsened since the time it was last evaluated because, "[w]ithout such a requirement, every medical record generated by the Veterans Health Administration and received by VA that could possibly be construed as a report of examination would trigger the provisions of § 3.157(b)(1)," creating an unnecessary and unwarranted adjudicative burden on VA). This regulation is therefore not for application in connection with the instant claim. Recent amendments to VA’s regulations, effective March 24, 2015, describe the specific and limited manner and methods by which a claim can be initiated and filed. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160 (2015). However, the instant claim was filed prior to these amendments and they do not apply retroactively. The prior version of 38 C.F.R. § 3.155 provided that an informal claim is “[a]ny communication or action, indicating an intention to apply for one or more benefits.... Such informal claim must identify the benefit sought.” 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999) (noting that even an informal claim must be in writing); Brannon v. West, 12 Vet. App. 32, 35 (1998). There is no other document filed prior to July 12, 2013 indicating that the Veteran had intent to file a claim for service connection for PTSD for the prior version of 38 C.F.R. § 3.155 to apply. In this case, the RO assigned the date of the claim as the effective date for the service connection grant for PTSD in accordance with general effective date principles. 38 U.S.C. § 5110(a). There is nothing from any prior communication that indicates or implies that the Veteran intended to file a claim for compensation for PTSD. Consequently, an informal claim is not shown. For the foregoing reasons, the evidence preponderates against any contention that the Veteran intended to file a claim for compensation for PTSD prior to July 12, 2013. There is also no other document that could be construed as an informal claim and no other exception to general earlier effective date principles applies. An effective date prior to July 12, 2013 for service connection for PTSD is therefore not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel