Citation Nr: 18145866 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 15-27 557A DATE: October 30, 2018 ORDER Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for asthma is denied. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for cervical spine degenerative disc disorder (DDD) is denied. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for right knee retropatellar pain syndrome (RPS) is denied. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for left knee RPS is denied. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for sinusitis is denied. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for thoracic scoliosis is denied. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for allergic rhinitis is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a gastrointestinal condition is remanded. Entitlement to an initial rating in excess of 30 percent for asthma is remanded. Entitlement to a compensable initial rating for allergic rhinitis is remanded. Entitlement to a compensable initial rating for sinusitis is remanded. Entitlement to a compensable initial rating for cervical spine DDD is remanded. Entitlement to a compensable initial rating for thoracic scoliosis is remanded. Entitlement to a compensable initial rating for right knee RPS is remanded. Entitlement to a compensable initial rating for left knee RPS is remanded. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran filed his claims for service connection for PTSD, asthma, cervical spine DDD, right and left knee RPS, sinusitis, thoracic scoliosis, and allergic rhinitis on November 27, 2012 2. The Veteran was discharged from service on April 15, 2013. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 16, 2013 for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 2. The criteria for an effective date prior to April 16, 2013 for the grant of service connection for asthma have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. The criteria for an effective date prior to April 16, 2013 for the grant of service connection for cervical spine DDD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 4. The criteria for an effective date prior to April 16, 2013 for the grant of service connection for right knee RPS have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 5. The criteria for an effective date prior to April 16, 2013 for the grant of service connection for left knee RPS have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 6. The criteria for an effective date prior to April 16, 2013 for the grant of service connection for sinusitis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 7. The criteria for an effective date prior to April 16, 2013 for the grant of service connection for thoracic scoliosis have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 8. The criteria for an effective date prior to April 16, 2013 for the grant of service connection for allergic rhinitis 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 service from January 1997 to April 2013, to include service in Southwest Asia theater of operations. He also had subsequent service in the Army Reserves. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2017 correspondence, the Veteran’s representative expressly raised the issue of entitlement to a TDIU. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the 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 record indicates that the Veteran has been unemployed or employed only part-time during the appeal period. Accordingly, the Board finds that a TDIU claim is part and parcel of the current appeal, and that issue has been added to the cover page. Effective Date 1. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for PTSD 2. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for asthma 3. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for cervical spine DDD 4. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for right knee RPS 5. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for left knee RPS 6. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for sinusitis 7. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for thoracic scoliosis 8. Entitlement to an effective date prior to April 16, 2013 for the grant of service connection for allergic rhinitis The effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). If the claim for service connection is received within one year of a veteran’s discharge from service, the effective date of an award of service connection will be the day following discharge from service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2) (2018). As the procedural history and analysis are identical for all the Veteran’s earlier effective date claims, for the sake of brevity, they will be discussed together. The record reflects that the Veteran filed his claims for service connection for PTSD, asthma, cervical spine DDD, right and left knee RPS, sinusitis, thoracic scoliosis, and allergic rhinitis on November 27, 2012, prior to his discharge from service. A February 2014 rating decision granted service connection and assigned effective dates of April 16, 2013, the day after the Veteran’s discharge from service, for all the aforementioned disabilities. The Board finds that an effective date earlier than April 16, 2013 is not warranted. As noted above, the effective date of an award of compensation for a claim filed within one year of separation from service is the day following separation from active service or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). Here, the effective date assigned is the day following the Veteran’s discharge from active service. Accordingly, there can be no effective date prior to April 16, 2013 under 38 C.F.R. § 3.400 (2018) and the claims must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As discussed below, the Board is remanding the Veteran’s service connection and increased rating claims for other development. However, for the reasons set forth above, any development on remand cannot establish entitlement to earlier effective dates prior to April 16, 2013 for the grant of service connection for PTSD, asthma, cervical spine DDD, right and left knee RPS, sinusitis, thoracic scoliosis, and allergic rhinitis because the claims must be denied as a matter of law. Thus, there is no prejudice to the Veteran in adjudicating the earlier effective date claims. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for a right shoulder disability is remanded. 3. Entitlement to service connection for a right hip disability is remanded. 4. Entitlement to service connection for a left hip disability is remanded. 5. Entitlement to service connection for a gastrointestinal condition is remanded. 6. Entitlement to an initial rating in excess of 30 percent for asthma is remanded. 7. Entitlement to a compensable initial rating for allergic rhinitis is remanded. 8. Entitlement to a compensable initial rating for sinusitis is remanded. 9. Entitlement to a compensable initial rating for cervical spine DDD is remanded. 10. Entitlement to a compensable initial rating for thoracic scoliosis is remanded. 11. Entitlement to a compensable initial rating for right knee RPS is remanded. 12. Entitlement to a compensable initial rating for left knee RPS is remanded. 13. Entitlement to an initial rating in excess of 50 percent for PTSD is remanded. 14. Entitlement to TDIU is remanded. Initially, the record indicates that the Veteran continued his service as a drilling reservist through, at least, the 2016 fiscal year. Any outstanding service treatment records dated since the Veteran discharge from active duty, to include all annual or periodic reports of medical examination, reports of medical history, and physical profiles, are potentially relevant to all the pending appeals and must be obtained. The record also indicates that there are outstanding private treatment records. An August 2015 disability benefits questionnaire (DBQ) by Dr. Galligan notes that the Veteran received treatment from a private medical doctor and therapist as needed. To date, these records have not been requested or otherwise obtained. On remand, reasonable efforts should be made to obtain them. Regarding the Veteran’s claims for service connection for a right shoulder disability, right and left hip disabilities, and a gastrointestinal condition, the February 2013 general medical examination noted that the Veteran endorsed right shoulder and bilateral hip pain, had reduced range of motion in these joints, and had frequent bowel movements with pain. However, the examiner opined that there were no conditions identified related to the Veteran’s reported symptoms. Nevertheless, as the Veteran served in the Persian Gulf, additional VA examinations are warranted to determine whether the Veteran’s right shoulder, right and left hip, and gastrointestinal symptomatology represent an undiagnosed illness consistent with his service in the Persian Gulf. In an August 2015 evaluation report, Dr. Gilligan stated that the Veteran’s mental health had continued to deteriorate since his discharge from active duty. In a corresponding DBQ, she also noted that the Veteran exhibited PTSD symptoms and functional limitations that were not noted at the time of February 2013 VA PTSD examination. Accordingly, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his PTSD. The Veteran’s most recent VA examination for his knees, thoracic spine, asthma, allergic rhinitis, sinusitis, and cervical spine DDD were in February 2013. Given the passage of time and the fact that the Board must remand the claims for other development, on remand the Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of these conditions. Finally, as noted above, the issue of TDIU has been raised. Specifically, the record indicates that the Veteran has been unemployed or employed only part-time during portions of the period on appeal. Moreover, his representative expressly raised the issue of entitlement to a TDIU. Thus, the Board finds that the issue of entitlement to a TDIU is part and parcel of the Veteran's increased rating claims. To date, this issue has not yet been developed or adjudicated by the RO. Accordingly, it is remanded for initial development and adjudication. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities, to include his private medical doctor and therapist. After securing any necessary releases, request any relevant records identified. In addition, obtain any updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Obtain the Veteran’s complete reserve service treatment records and service personnel records, to include documents pertaining to his service in the Army Reserves since April 2013. Document all requests for information as well as all responses in the claims file. If any requested records are unavailable, the Veteran should be notified of such. 3. Provide the Veteran and his representative notice pursuant to the Veterans Claims Assistance Act (VCAA) as to the issue of entitlement to a TDIU. Additionally, ask him to fully complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, to include any part time or occasional employment, including his employment with Landstuhl Regional Medical Center and service in the Army Reserves. 4. After records development is completed, the Veteran should be afforded a shoulder examination to determine the nature of his right shoulder symptoms and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should: (a.) Identify any disability manifested by right shoulder pain and state whether it is at least as likely as not (50 percent probability or greater) that it arose during service or is otherwise related to service, to include his service in the Persian Gulf. (b.) If there is no diagnosis to account for the Veteran’s right shoulder symptoms, the examiner should indicate whether there are objective indications of disability and whether such indications represent an undiagnosed illness consistent with service in the Persian Gulf. If the examiner finds that any variance in range of motion is normal for the Veteran based on his age and body habitus, please explain why. 5. After records development is completed, the Veteran should be afforded a VA Persian Gulf War examination to determine the nature of his right and left hip and to obtain an opinion as to whether such are possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should: (a.) Identify any disability manifested by right or left hip pain and state whether it is at least as likely as not (50 percent probability or greater) that it arose during service or is otherwise related to service, to include his service in the Persian Gulf. In so opining, the examiner should address the November 6, 2012 x-ray noting that the Veteran had an area in his right proximal femur that was likely a benign bone island. If the examiner finds that any variance in range of motion is normal for the Veteran based on his age and body habitus, please explain why. (b.) If there is no diagnosis to account for the Veteran’s right or left hip symptoms, the examiner should indicate whether there are objective indications of disability and whether such indications represent an undiagnosed illness consistent with service in the Persian Gulf. 6. After records development is completed, the Veteran should be afforded a VA Persian Gulf War examination to determine the nature of his gastrointestinal symptoms and to obtain an opinion as to whether such is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted and the results reported. Following review of the claims file and examination of the Veteran, the examiner should: (a.) Identify any disability manifested by gastrointestinal symptoms, including frequent bowel movements and abdominal pain, and state whether it is at least as likely as not (50 percent probability or greater) that it arose during service or is otherwise related to service, to include his service in the Persian Gulf. (b.) If there is no diagnosis to account for the Veteran’s gastrointestinal symptoms, the examiner should indicate whether there are objective indications of disability and whether such indications represent an undiagnosed illness consistent with service in the Persian Gulf. A rationale for all opinions expressed should be provided. 7. Schedule the Veteran for a VA knee examination to determine the current severity of the Veteran’s right and left knee RPS. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s right and left knee RPS should be reported. The examiner should also detail the functional impact of the Veteran’s service-connected right and left knee RPS, to include addressing the Veteran’s sitting, standing, and walking limitations, if any. 8. Schedule the Veteran for a VA thoracolumbar spine examination to determine the current severity of the Veteran’s thoracic scoliosis. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the thoracic scoliosis should be reported. The examiner should also detail the functional impact of the Veteran’s service-connected thoracic scoliosis, to include addressing the Veteran’s sitting, standing, and walking limitations, if any. 9. Schedule the Veteran for a VA PTSD examination to determine the current severity of the Veteran’s PTSD. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the PTSD should be reported. 10. Schedule the Veteran for a VA cervical spine examination to determine the current severity of the Veteran’s cervical spine DDD. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the cervical spine DDD should be reported. The examiner should also detail the functional impact of the Veteran’s service-connected thoracic scoliosis, to include addressing the Veteran’s sitting, standing, and walking limitations, if any. 11. Schedule the Veteran for a VA respiratory conditions examination to determine the current severity of the Veteran’s asthma. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s asthma should be reported. 12. Schedule the Veteran for a VA sinus conditions examination to determine the current severity of the Veteran’s allergic rhinitis and sinusitis. The claims file should be reviewed by the examiner. All necessary tests should be performed and the results reported. All symptomatology associated with the Veteran’s allergic rhinitis and sinusitis should be reported. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Anderson