Citation Nr: 18147620 Decision Date: 11/06/18 Archive Date: 11/05/18 DOCKET NO. 17-02 111 DATE: November 6, 2018 ORDER Entitlement to an effective date of October 1, 2010, but no earlier, for the grant of service connection for eczema and tinea versicolor associated with rashes is granted. Entitlement to an effective date of October 1, 2010, but no earlier, for the grant of service connection for a testicular hydrocele is granted. Entitlement to an effective date of October 1, 2010, but no earlier, for the grant of service connection for degenerative disc disease of the lumbar spine is granted. Entitlement to an effective date of October 1, 2010, but no earlier, for the grant of service connection for sinusitis is granted. REMANDED Entitlement to an increased initial evaluation for service-connected degenerative disc disease of the lumbar spine, evaluated 20 percent disabling prior to January 25, 2016, and 40 percent disabling, thereafter, is remanded. Entitlement to an effective date prior to January 26, 2015, for the assignment of a 30 percent evaluation for service-connected headaches of an unspecified nature is remanded. Entitlement to an effective date prior to January 26, 2015, for the assignment of a 10 percent evaluation for service-connected seasonal allergic rhinitis is remanded. FINDINGS OF FACT 1. Prior to his separation from active duty, the Veteran filed claims to establish service connection for several disabilities, including sinusitis, eczema, a low back disability, and a testicular hydrocele, as part of the Benefits Delivery at Discharge Program (BDD) program. 2. In a May 2011 rating decision, the AOJ denied the Veteran's claims to establish service connection for sinusitis, eczema, a low back disability, and a testicular hydrocele; the Veteran did not appeal that decision, nor was any new and material evidence submitted within the appeal period. 3. On November 7, 2012, the Veteran filed a petition to reopen his previously-denied claim to establish service connection for a low back disability. 4. In a December 2013 rating decision, the AOJ reopened the Veteran’s previously-denied claim to establish service connection for a low back disability, denied such on the merits, and the Veteran initiated an appeal. 5. On January 26, 2015, the Veteran filed several claims seeking VA disability benefits for several disabilities, but eczema, tinea versicolor, sinusitis, and a testicular hydrocele were not among them. 6. In April 2015, the Veteran filed many claims seeking to establish VA disability benefits, and petitions to reopen his previously-denied claims to establish service connection for eczema, sinusitis, and a testicular hydrocele, were among them. 7. In support of his petitions to reopen the previously-denied claims to establish service connection for sinusitis, eczema, a low back disability, and a testicular hydrocele, the Veteran submitted to the AOJ service department records that are relevant to these disabilities and were extant, but not associated with the file, at the time of the May 2011 rating decision. 8. In a September 2016 DRO decision, the AOJ established service connection for a low back disability, effective from November 7, 2012. 9. In an October 2015 rating decision, the AOJ established service connection for eczema and tinea versicolor associated with rashes, sinusitis, and a testicular hydrocele, effective from January 26, 2015. 10. The criteria to establish service connection for sinusitis, eczema and tinea versicolor associated with rashes, degenerative disc disease of the lumbar spine, and a testicular hydrocele were met prior to the Veteran’s separation from service and at the time of the May 2011 rating decision. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 1, 2010, for the award of service connection for eczema and tinea versicolor associated with rashes are met. 38 U.S.C. § 5110 (West 2002); 38 C.F.R. §§ 3.156 (c), 3.400 (2017). 2. The criteria for an effective date of October 1, 2010, for the award of service connection for degenerative disc disease of the lumbar spine are met. 38 U.S.C. § 5110 (West 2002); 38 C.F.R. §§ 3.156 (c), 3.400 (2017). 3. The criteria for an effective date of October 1, 2010, for the award of service connection for sinusitis are met. 38 U.S.C. § 5110 (West 2002); 38 C.F.R. §§ 3.156 (c), 3.400 (2017). 4. 1The criteria for an effective date of October 1, 2010, for the award of service connection for a testicular hydrocele are met. 38 U.S.C. § 5110 (West 2002); 38 C.F.R. §§ 3.156 (c), 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty in the United States Army from November 1988 to September 2010, to include service in the Southwest Asia theater of operations during the Persian Gulf War. He is in receipt of a Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from a September 2015 Decision Review Officer (DRO) decision and October 2015 rating decision of the Department of Veterans Affairs (VA) Regional Offices (ROs) in Winston-Salem, North Carolina, and Montgomery, Alabama, respectively. As the Veteran’s claims, and the Board’s dispositions thereof, are highly dependent on the complex procedural history of the Veteran’s appeal, the Board concludes that a brief recitation of pertinent facts is necessary. In July 2010, prior to his separation from active duty, the Veteran filed claims to establish service connection for several disabilities as part of the BDD program. Among the disabilities claimed by the Veteran were a low back disability, eczema, a testicular hydrocele, sinusitis, allergic rhinitis, and migraine headaches. The Agency of Original Jurisdiction (AOJ) undertook development of these claims, to include completion of VA examinations in August 2010, prior to the Veteran’s separation from active duty. In a May 2011 rating decision, the AOJ denied the Veteran’s claims to establish service connection for a low back disability, eczema, a testicular hydrocele, and sinusitis, and established service connection for headaches of an unspecified nature (claimed as migraine headaches) and seasonal allergic rhinitis; noncompensable (zero percent) initial evaluations were assigned, effective from October 1, 2010 – the day after the Veteran’s separation from active duty. The Veteran did not express disagreement with these determinations or submit new and material evidence during the appeal period, and thus, the May 2011 rating decision became final with respect to the denials of service connection and the downstream elements of the allowances – assignment of the initial evaluations and effective dates. 38 U.S.C. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2017); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011). On November 7, 2012, the Veteran filed several claims, including a petition to reopen his previously-denied claim to establish service connection for a low back disability, along with copies of his service treatment records which were not of record at the time of the May 2011 rating decision. In a December 2013 rating decision, the AOJ, among other determinations, reopened the Veteran’s low back claim and denied it on the merits. The Veteran expressed timely disagreement with the denial of his low back claim in July 2014, and yet, filed a new claim seeking the same benefits in August 2014. On January 26, 2015, the Veteran submitted a statement to VA which the AOJ interpreted as claims seeking to establish service connection for a low back disability (although this issue was already in appellate status) and increased evaluations for his service-connected headache disability and seasonal allergic rhinitis, among other disabilities. In April 2015 and June 2015, the Veteran filed 35 separate claims for VA disability benefits, which included several issues already in development and/or appellate jurisdiction. Again, the Veteran submitted service treatment records and service personnel records with these claims that were not of record at the time of the prior rating decisions. In the September 2015 DRO decision, the AOJ granted the Veteran’s claim to establish service connection for a low back disability; a 20 percent initial evaluation was assigned, effective from November 7, 2012 – the date that the AOJ received the Veteran’s petition to reopen the previously-denied claim for this disability. As this represented a full grant of the benefits sought, the appeal of this issue was abrogated. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In the October 2015 rating decision, the RO in Montgomery, Alabama, granted the Veteran’s claims to establish service connection for eczema and tinea versicolor associated with rashes, sinusitis, and a testicular hydrocele, and partially granted the Veteran’s claims seeking increased evaluations for his service-connected seasonal allergic rhinitis and headache disability; the noncompensable evaluations were increased to 10 percent and 30 percent, respectively. All awards assigned in this rating decision were assigned effective January 26, 2015– the date that the AOJ received the Veteran’s claims seeking increased ratings; however, the Board observes that the issues seeking service connection were not received by the AOJ until April 2015 and June 2015. In December 2015, the Veteran filed Formal Notices of Disagreement with the downstream issues that are currently before the Board. In statements accompanying these filings, the Veteran noted his submission of pertinent service records with the petitions to reopen these previously-denied claims and asserted that, under 38 C.F.R. § 3.156 (c), the finality of the prior denials of these issues should be overcome – allowing for the assignment of an effective date of October 1, 2010 (the day following his separation from service), for all awards. In November 2016, the Veteran was provided a Statement of the Case (SOC) readjudicating the issues seeking earlier effective dates for the grants of service connection for sinusitis, a testicular hydrocele, and eczema and tinea versicolor associated with rashes, and the effective dates of the increased evaluations assigned for his service-connected headache disability and seasonal allergic rhinitis. The Board observes that the Veteran’s assertions concerning his submission of service department records subsequent to the prior final denial of his initial claims and the provisions of 38 C.F.R. § 3.156 (c) were not discussed in this readjudication. The record before the Board includes a December 2016 DRO decision from an unnamed RO which states that “A[n] SOC accompanies this decision,” although the Veteran was not provided an SOC in December 2016. The Narrative and Codesheet sections of this DRO decision do not identify what issue(s) are readjudicated therein; however, the Board notes that the Codesheet section reflects that the initial evaluation for the Veteran’s service-connected degenerative disc disease of the lumbar spine had been increased from 20 percent to 40 percent, effective from January 25, 2016. This document provides no explanation for this increase or otherwise notes that this issue, or any other, had been readjudicated. Further, it is unclear whether the Veteran was provided this DRO decision or notice thereof, as there is no correspondence from VA to the Veteran or his accredited representative notifying them that this readjudication and resulting partial allowance had taken place. In January 2017, the Veteran perfected an appeal to the Board regarding the 5 issues seeking earlier effective dates that were readjudicated in the November 2016 SOC. Again, in support of his appeal of these issues, he noted his submission of pertinent service records after the prior denials of these claims, cited to 38 C.F.R. § 3.156 (c), and asserted that the effective date for all awards should be October 1, 2010. It appears that jurisdiction of these appealed issues was transferred to the RO in Winston-Salem, North Carolina at some point during the pendency of the appeal, as that station certified these issues to the Board in March 2017. Later in March 2017, the Veteran was sent an SOC dated in December 2016 which readjudicated the issues seeking an earlier effective date for the grant of service connection for the Veteran’s service-connected degenerative disc disease of the lumbar spine and an increased initial evaluation for this disability, partially granting the latter; the 20 percent initial evaluation was increased to 40 percent, effective from January 25, 2016 – the date of the most recent VA spine examination. It is unclear why this readjudication was provided to the Veteran 4 months after promulgation or whether the Veteran was also provided the December 2016 DRO decision in March 2017. Nonetheless, the partial allowance created a “staged” initial evaluation for this service-connected disability, but did not represent a full grant of the benefits on appeal, and thus, the issue remains in appellate status and has been recharacterized as stated on the title page. See Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In May 2017, the Veteran perfected an appeal to the Board regarding the issues readjudicated in the December 2016 SOC. The Board notes that this substantive appeal is timely since the December 2016 SOC was not provided to the Veteran until March 2017. In a statement accompanying his May 2017 substantive appeal, the Veteran requested that the AOJ consider whether the RO in Winston-Salem, North Carolina, committed Clear and Unmistakable Error (CUE) in adjudicating his initial claims in the May 2011 rating decision. The AOJ certified these issues to the Board in July 2017 without addressing this request. Preliminary matter The Board has considered the Veteran’s May 2017 assertion that the May 2011 rating decision contained CUE and the propriety of referring such claims to the AOJ for initial development and adjudication. However, this is unnecessary regarding the issues seeking earlier effective dates for the Veteran’s low back disability, skin disability, and testicular hydrocele, because, as discussed below, the Board is granting these issues to the fullest extent under the regulations pertaining to earlier effective dates for previously-denied claims to establish service connection, rendering further development and readjudication under a separate theory of entitlement moot. The Veteran is not prejudiced by this conclusion. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Referred Issues As noted above, in a statement accompanying the Veteran’s May 2017 substantive appeal, he asserted that the RO in Winston-Salem, North Carolina, committed CUE in the adjudication of his initial claims in the May 2011 rating decision. Unlike the issues seeking earlier effective dates for the grants of service connection, discussed above, findings of CUE in the May 2011 rating decision’s assignment of noncompensable evaluations for the Veteran’s service-connected seasonal allergic rhinitis and/or headache disability may, if granted, allow for larger awards than the regulations pertaining to effective dates for increased evaluations. As such, the issues of (1) whether the May 2011 rating decision contains CUE in the assignment of a noncompensable initial evaluation for service-connected headaches of an unspecified nature and (2) whether the May 2011 rating decision contains CUE in the assignment of a noncompensable initial evaluation for service-connected seasonal allergic allergies are REFERRED to the AOJ for development and adjudication in the first instance. 38 C.F.R. § 19.9 (b) (2017). Effective Date Initially, deficiencies in VA’s duties to notify and assist the Veteran would not impact the outcome of the issues decided herein, as the resolutions turn on the law as applied to the undisputed facts. See Mason v. Principi, 16 Vet. App. 129, 132 (2002). Regardless, all issues decided by the Board in this decision are being granted to the fullest extent, so any deficiency in these duties would amount to harmless error. 38 C.F.R. § 20.1102 (2017); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a) (2002); 38 C.F.R. §§ 3.400 (2017). The effective date for disability compensation for direct service connection will be the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service; otherwise, date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1) (2002); 38 C.F.R. § 3.400 (b)(2) (2017). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the particular claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. If relevant service department records are associated with the file at any time after VA issues a decision on a claim, VA will reconsider the previous claim, notwithstanding the requirements that new and material evidence be submitted. 38 C.F.R. § 3.156 (c)(1) (2017). Relevant service department records include service records related to a claimed in-service event, injury or disease. See 38 C.F.R. § .156 (c)(1)(i). This provision does not apply to records that VA could not have obtained when it decided the claim because the records did not exist at that time or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156 (c)(2) (2017). If service connection is eventually granted, reconsideration of a claim under this section preserves an effective date of the date entitlement arose or the date VA received the previously decided claim, whichever is later. 38 C.F.R. § 3.156 (c)(3) (2017). 1. Entitlement to an effective date prior to January 26, 2015, for the grant of service connection for eczema and tinea versicolor associated with rashes 2. Entitlement to an effective date prior to January 26, 2015, for the grant of service connection for a testicular hydrocele 3. Entitlement to an effective date prior to January 26, 2015, for the grant of service connection for sinusitis 4. Entitlement to an effective date prior to November 7, 2012, for the grant of service connection for degenerative disc disease of the lumbar spine Because analysis of these issues includes application of identical laws to similar facts, the Board will discuss them together in the interest of economy. For the reasons set forth below, the Board finds that entitlement to an effective date of October 1, 2010, for the grants of service connection for these disabilities is warranted. The factual and procedural history have been recounted above. Pertinently, in the May 2011 rating decision, the AOJ denied the Veteran’s claims because of a lack of diagnoses of chronic disabilities. Critically, in the September 2016 DRO decision and October 2015 rating decision, the AOJ stated that service connection for these disabilities was warranted based, in part, on the service treatment and personnel records that the Veteran submitted with his petitions to reopen that were extant, but not of record at the time of the initial prior final denials of these issues in the May 2011 rating decision. Since the service treatment and personnel records are relevant service department records under 38 C.F.R. § 3.156 (c)(1), the previous May 2011 rating decision must be reconsidered regarding the issues denied therein. See 38 C.F.R. § 3.156 (c) (2017). As conceded by the AOJ in the September 2015 and October 2015 rating decisions that established service connection for these disabilities, the service treatment records submitted by the Veteran reflected continuous reports of, and treatment for, sinusitis, eczema and tinea versicolor associated with rashes, a low back disability, and a testicular hydrocele, during and since service, including during the initial post-service year. In light of above, the Board concludes that the most probative evidence reflects that the criteria to establish service connection for sinusitis, eczema and tinea versicolor associated with rashes, a low back disability, and a testicular hydrocele, were met when the Veteran filed his initial claim for service connection – prior to his separation from service. As per the September 2015 DRO decision and October 2015 rating decision, these facts are not disputed by the AOJ. In such cases, the effective date of such an award must be set on the day after the Veteran’s separation from service – October 1, 2010. 38 C.F.R. § 3.400(b)(2)(i). This is a full grant of the benefits sought on appeal regarding these issues. REASONS FOR REMAND 1. Entitlement to an increased initial evaluation for service-connected degenerative disc disease of the lumbar spine, evaluated 20 percent disabling prior to January 25, 2016, and 40 percent disabling, thereafter is remanded. Initially, the Board notes that this issue is inextricably intertwined with the implementation of the Board’s allowance of an earlier effective date for the award of service connection for this disability. In sum, the Board cannot assess the propriety of the initial evaluation for this disability while such has not been assigned for the period between October 1, 2010, and November 6, 2012. Further, the Board concludes that the most recent VA spine examination is inadequate for the purpose of readjudicating this issue. Specifically, while the January 2016 VA examination report reflects that the Veteran experiences multiple flare-ups of low back symptoms per week, and such result in additional limitation of motion due to pain, this additional functional loss is not quantified. As such, a remand for a contemporaneous and adequate VA spine examination is necessary. Sharp v. Shulkin, 29 Vet. App 26, 34 (2017). So that the examiner is fully apprised of the Veteran’s complete disability picture, updated VA and private treatment records relevant to the issues remanded by the Board must be sought, obtained, and associated with the file. 2. Entitlement to an effective date prior to January 26, 2015, for the assignment of a 30 percent evaluation for service-connected headaches of an unspecified nature is remanded. 3. Entitlement to an effective date prior to January 26, 2015, for the assignment of a 10 percent evaluation for service-connected seasonal allergic rhinitis is remanded. The Board must defer readjudication of these issues, as they are intertwined with the outcomes of the CUE claims that the Board referred to the AOJ in the Introduction. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment from the VAMC in Fayetteville, North Carolina, and all associated facilities, dated after February 21, 2017. 2. The AOJ must request that the Veteran identify the names, addresses, and approximate dates of treatment for all of the non-VA health care providers who have treated him for the disabilities subject to the issues being remanded. After securing appropriate release(s) from the Veteran, the AOJ must make two attempts to obtain any identified private treatment records which are not already associated with the file or make a formal finding that a second request for such records would be futile. The Veteran must be notified of the results of the record requests. If records are not received from any source, follow the notification procedures of 38 C.F.R. § 3.159(e). 3. Thereafter, the AOJ must request that the Veteran be scheduled for an appropriate VA examination to evaluate his service-connected low back disability. The complete electronic record must be made available to, and reviewed by, the VA examiner prior to conducting the examination. All necessary studies and tests should be conducted. The examiner must describe the frequency and severity of the manifestations of the Veteran’s service-connected low back disability. *To the degree possible, it would be helpful to schedule the Veteran for a VA examination during a flare-up of his service-connected low back disability. If it is necessary to undertake separate examinations, this should be accomplished. *In addition to the information requested by the standard DBQ relating to disabilities of the thoracolumbar spine, the examiner must specifically address the following: - Provide findings for limitation of motion (expressed in degrees) for flexion and extension of the Veteran’s low back during a flare-up of symptoms, currently and retrospectively. In doing so, please review the prior VA examination reports, and based on the information therein, provide the requested findings (limitation of flexion and extension of the low back during any flare-ups) for each examination undertaken during the pendency of the appeal. - Provide a retrospective medical evaluation concerning the frequency and severity of the Veteran’s low back symptoms from October 1, 2010, to November 6, 2012, to include during a flare-up of low back symptoms. Chotta v. Peake, 22 Vet. App. 80 (2008). If the examiner cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 4. Thereafter, the AOJ must implement the Board’s allowance of October 1, 2010, as the effective date for the award of service connection for degenerative disc disease of the lumbar spine, to include assigning an initial evaluation for this disability. 5. Thereafter, the AOJ must fully develop and adjudicate the following claims, including any resulting appeal(s): a. Whether the May 2011 rating decision contains CUE in the assignment of a noncompensable initial evaluation for service-connected headaches of an unspecified nature; and b. Whether the May 2011 rating decision contains CUE in the assignment of a noncompensable initial evaluation for service-connected seasonal allergic allergies. 6. Thereafter, the AOJ must readjudicate the issues remaining on appeal. If any benefit is not granted to the fullest extent, the Veteran and his accredited representative must be furnished with a SSOC and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel