Citation Nr: 18144823 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-22 715 DATE: October 25, 2018 ORDER Entitlement to a rating in excess of 10 percent for allergic rhinitis is denied. Entitlement to an effective date earlier than June 17, 2014, for the award of a 10 percent rating for allergic rhinitis is denied. Entitlement to an effective date earlier than January 7, 2015, for the grant of service connection for peripheral neuropathy of the bilateral lower extremities is denied. REMANDED Entitlement to a rating in excess of 20 percent prior to February 23, 2015, and in excess of 40 percent thereafter, for intervertebral disc syndrome (IVDS) is remanded. Entitlement to an initial rating in excess of 20 percent prior to February 23, 2015, and in excess of 40 percent thereafter, for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is remanded. FINDINGS OF FACT 1. The Veteran's allergic rhinitis does not result in polyps. 2. A June 2008 rating decision denied an increased rating claim for the Veteran’s allergic rhinitis; he did not appeal that decision. 3. A claim, either informal or formal, seeking entitlement to an increased rating for allergic rhinitis was not again received until June 17, 2014. 4. A June 2008 rating decision denied an increased rating claim for the Veteran's lumbar spine disability and noted that there was no evidence of neurological impairment; he did not appeal that decision. 5. VA back conditions and peripheral nerve conditions examinations were performed on January 7, 2015; such constitutes an informal claim for service connection for peripheral neuropathy of the bilateral lower extremities. 6. Following the June 2008 denial, there is no intervening communication of record prior to January 7, 2015, which can be reasonably construed as either a formal or informal claim of entitlement to VA compensation benefits for peripheral neuropathy of the bilateral lower extremities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.97 Diagnostic Code (DC) 6522. 2. The criteria for effective date earlier than June 17, 2017, for the award of a 10 percent rating for allergic rhinitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.340, 3.341, 3.400. 3. The criteria for effective date earlier than January 7, 2015, for the grant of service connection for peripheral neuropathy of the bilateral lower extremities have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1979 to September 1982 and from February 1983 to February 2000. This matter is on appeal from December 2014 and January 2015 rating decisions. A March 2016 rating decision assigned higher ratings for the Veteran’s lumbar spine and bilateral lower extremity disabilities; granted service connection for chronic sinusitis; and granted a total rating based on individual employability due to service-connected disabilities (TDIU) and Dependents’ Educational Assistance (DEA). A June 2016 rating decision is duplicative of the March 2016 rating decision as to those issues. The Veteran filed a November 2016 notice of disagreement (NOD) with the June 2016 rating decision as to the effective dates of the increased ratings, date of service connection and evaluation of chronic sinusitis, and date of award of TDIU and DEA. In May 2018, the Veteran elected to participate in the Rapid Appeals Modernization Program (RAMP) for that NOD. With regards to the increased ratings assigned to the lumbar spine and bilateral lower extremity disabilities in 2016, such are already on appeal from the January 2015 rating decision as the grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, such will be addressed herein, while the other issues disagreed with in November 2016 will be adjudicated as part of the Veteran’s appeal in RAMP. After the March 2016 Statement of the Case (SOC), additional evidence was obtained by the Agency of Original Jurisdiction (AOJ) and added to the claims file. As such evidence is either cumulative or duplicative of evidence previously considered or is not relevant to the claims adjudicated herein, a waiver of AOJ review or a remand for AOJ review is not necessary. 38 C.F.R. §§ 19.37(b), 20.1304(c). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 10 percent for allergic rhinitis. An evaluation of 10 percent is available for allergic or vasomotor rhinitis under 38 C.F.R. § 4.97, DC 6522, without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. The highest rating of 30 percent disabling is available when there are polyps. The Board of Veterans’ Appeals (Board) finds that the assigned 10 percent evaluation for the Veteran’s allergic rhinitis fully contemplates all symptomatology associated with the Veteran’s disability. The evidence of record, including a December 2014 VA sinusitis, rhinitis, and other conditions of the nose, throat, larynx and pharynx examination, and a February 2016 independent medical evaluation, indicate that that the Veteran does not have polyps. As noted above, a 30 percent rating contemplates polyps. The 2014 examination specifically notes that the Veteran did not have nasal polyps, and no polyps were noted in the 2016 evaluation. Furthermore, the Veteran has not reported having any polyps. There accordingly exists no basis for an underlying allergic rhinitis rating in excess of 10 percent. 38 C.F.R. § 4.97, DC 6522. The overall evidence of record does not show symptomatology warranting a rating in excess of 10 percent for this disability. The most pertinent evidence reviewed in reaching this decision includes the 2014 VA examination and 2016 independent medical evaluation, as well as the VA treatment records assembled in conjunction with this appeal. In making this determination, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). As the Veteran is already in receipt of TDIU, the Board need not consider whether such has been raised by the record. Earlier Effective Dates The general rule regarding effective dates is that 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 the later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1(p). “Date of receipt” generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, 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 an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). While VA must interpret a claimant’s submissions broadly, VA is not required to conjure up issues not raised by the claimant. VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection on a direct basis, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service. Otherwise, the effective date shall 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(b)(2)(i). Under 38 C.F.R. § 3.400(o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. Id.; see also 38 U.S.C. § 5110(a), (b)(2). The United States Court of Appeals for Veterans Claims (Court) has held that 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400(o)(1) applies. See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). Harper, 10 Vet. App at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Additionally, where new and material evidence is submitted prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, it is considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). 2. Entitlement to an effective date earlier than June 17, 2014, for the award of a 10 percent rating for allergic rhinitis. Service connection for allergic rhinitis was initially granted in a March 2000 rating decision with a zero percent rating assigned. The Veteran did not appeal the rating assigned, and that decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. A June 2008 rating decision denied a compensable rating. The Veteran did not appeal that rating decision, and it too became final. Id. No new and material evidence was received prior to the expiration of the appeal period for either of those decisions. A September 2009 VA nose, sinus, larynx, and pharynx examination was provided to the Veteran in connection with a claim seeking service connection for sinusitis. This examination contained findings pertinent to the Veteran's service-connected allergic rhinitis; however, it was received outside of the appeal period following the June 2008 rating decision. Moreover, the examination specifically shows that the Veteran did not have nasal obstruction, which is required for a 10 percent rating under 38 C.F.R. § 4.97, DC 6522. An increased rating claim was received on June 17, 2014. A 10 percent rating was assigned effective June 17, 2014, in the December 2014 rating decision on appeal. Based on a review of the evidence, the Board concludes that an effective date earlier than June 17, 2014, is not warranted. As discussed above, the 2000 rating decision awarding service connection and 2008 rating decision denying an increased rating are both final. The 2009 examination was received outside of the appeal period of the 2008 rating decision and cannot be considered new and material evidence. Furthermore, such examination does not support a finding that the currently assigned 10 percent rating is warranted. There are no statements received from the Veteran after the March 2008 increased rating claim denied in the June 2008 rating decision until the June 17, 2014, claim evidencing an intent to claim an increased rating for his allergic rhinitis. The evidence of record in the one year prior to the June 17, 2014, claim does not show that the Veteran met the criteria for a 10 percent rating. The effective date for an increased rating claim is the date that it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(2). Therefore, the earliest possible effective date assignable in this circumstance is June 17, 2014. While the Board recognizes the Veteran’s personal belief that the effective date for the award of a 10 percent rating for allergic rhinitis should be earlier than June 17, 2014, the governing legal authority is clear and specific, and VA is bound by it. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and his claim of entitlement to an effective date earlier than June 17, 2014, for the award of a 10 percent rating for allergic rhinitis is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to an effective date earlier than January 7, 2015, for the award of service connection for peripheral neuropathy of the bilateral lower extremities. A claim seeking service connection for a back disorder was received in March 2000. A March 2000 rating decision denied service connection; the Veteran did not appeal that decision and it is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.200, 20.302, 20.1103. A claim to reopen service connection for a low back disorder was received in May 2001; service connection for degenerative disc disease of the lumbar spine was granted in an October 2001 rating decision. The Veteran did not appeal that decision. Id. No new and material evidence was received prior to the expiration of the appeal period for either of those decisions. A claim seeking an increased rating for the lumbar spine disability was received in March 2008 and denied in a June 2008 rating decision; the Veteran did not appeal and that decision is final. Id. No new and material evidence was received prior to the expiration of the appeal period for that decision. The rating decision noted that there was no evidence of neurological impairment. It also informed the Veteran that the assigned evaluation was not considered permanent and was subject to a future review examination since there was the possibility of sustained improvement. In December 2014, a routine VA back conditions examination was requested. The Veteran was provided VA back conditions and peripheral nerve conditions examinations on January 7, 2015. The peripheral nerve conditions examination shows that the Veteran had peripheral neuropathy of the lower extremities related to his service-connected lumbar spine disability. In the January 2015 rating decision on appeal, the Veteran was granted service connection for peripheral neuropathy of the bilateral lower extremities effective from January 7, 2015, the date of the examination showing such diagnosis related to the Veteran's service-connected lumbar spine disability. A January 2016 independent medical evaluation shows that it was the physician’s opinion that the Veteran had had radiculopathy since at least August 2009 based on MRI findings that month and complaints of severe radiculopathy in September 2009. Based on a review of the evidence, the Board concludes that an effective date earlier than January 7, 2015, for the grant of service connection for peripheral neuropathy of the bilateral lower extremities is not warranted. The Board acknowledges the January 2016 medical opinion indicating that the Veteran had radiculopathy since at least August 2009. However, in cases of service connection, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 38 C.F.R. § 3.400(b)(2)(i). In this case, the Veteran did not file a claim seeking service connection for peripheral neuropathy of the bilateral lower extremities. Rather, a routine examination for his service-connected lumbar spine disability showed bilateral lower extremity disabilities associated with the lumbar spine. Such examination constitutes an inferred claim for service connection for peripheral neuropathy of the bilateral lower extremities. There is no clear indication of an intent to seek benefits for peripheral neuropathy of the bilateral lower extremities prior to the review examination in January 2015. Therefore, the earliest possible effective date assignable in this circumstance is January 7, 2015. While the Board recognizes the Veteran’s personal belief that the effective date for the grant of service connection for peripheral neuropathy of the bilateral lower extremities should be earlier than January 7, 2015, the governing legal authority is clear and specific, and VA is bound by it. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and his claim of entitlement to an effective date earlier than January 7, 2015, for the grant of service connection for peripheral neuropathy of the bilateral lower extremities is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a rating in excess of 20 percent prior to February 23, 2015, and in excess of 40 percent thereafter for IVDS is remanded. Entitlement to higher ratings for peripheral neuropathy of the lower extremities is remanded. While the record contains a contemporaneous VA examination regarding the Veteran’s low back disability, the examination does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examination does not contain passive range of motion measurements/pain on weight-bearing testing. As the examination for the Veteran's low back may contain findings relevant to his lower extremities, these issues must also be remanded. The matters are REMANDED for the following action: Schedule the Veteran for an examination of the current severity of his lumbar spine and bilateral lower extremity disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to IVDS and peripheral neuropathy of the bilateral lower extremities alone and discuss the effect of the Veteran’s lumbar spine and bilateral lower extremity disabilities on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. The examiner should also discuss any associated ankylosis (favorable or unfavorable) of the Veteran’s entire spine, as well as the frequency (in the past 12 months) of any incapacitating episodes (i.e., physician-prescribed bed rest). For the Veteran's peripheral neuropathy of the bilateral lower extremities, the examiner should determine if the Veteran's symptomatology is best characterized as “slight,” “moderate,” “moderately severe,” or “severe” incomplete paralysis or complete paralysis. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Barstow, Counsel