Citation Nr: 18147829 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-26 082 DATE: November 6, 2018 ORDER Entitlement to an effective date prior to October 25, 2014 for service connection for migraines, sinusitis, gastroesophageal reflux disease (GERD), allergic rhinitis, reactive airways dysfunction syndrome, and a deep and nonlinear scar of the left knee is denied. Entitlement to a total rating based on individual unemployability due to service connected disabilities (TDIU) is granted. REMANDED Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) is remanded. Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. Entitlement to an initial rating in excess of 30 percent for chronic sinusitis is remanded. Entitlement to an initial rating in excess of 10 percent for allergic rhinitis is remanded. Entitlement to rating in excess of 10 percent for the residuals of a hamate bone fracture of the right hand is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee is remanded. Entitlement to an initial rating in excess of 10 percent for instability of left knee is remanded. Entitlement to a rating in excess of 10 percent for tinnitus is remanded. Entitlement to an initial rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to an initial compensable rating for reactive airways dysfunction syndrome is remanded. Entitlement to an initial compensable rating for a deep and nonlinear scar is remanded. Entitlement to a compensable rating for a scar of the left knee is remanded. Entitlement to a compensable rating for a scar of the right hand is remanded. Entitlement to an effective date prior to October 25, 2014 for a 10 percent rating for the residuals of a hamate bone fracture of the right hand is remanded. Entitlement to an effective date prior to October 25, 2014 for service connection for instability of the left knee is remanded. Entitlement to an effective date prior to July 31, 2012 for service connection for PTSD, tinnitus, hearing loss, degenerative joint disease of the left knee, the residuals of a hamate bone fracture of the right hand, a scar of the right hand, and a left knee scar is remanded. FINDINGS OF FACT 1. The initial claim for service connection for migraines, sinusitis, GERD, allergic rhinitis, reactive airways dysfunction syndrome, and a deep and nonlinear scar of the left knee was received on October 25, 2014, which is more than one year after the Veteran’s discharge from service. 2. The Veteran’s service-connected PTSD has been rated as 50 percent disabling and a combined 90 percent rating has been in effect for the entire appeal period. 3. Uncontroverted medical opinions find that the Veteran’s service-connected disabilities prevent him from obtaining and maintaining gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to October 25, 2014 for service connection for migraines, sinusitis, GERD, allergic rhinitis, reactive airways dysfunction syndrome, and a deep and nonlinear scar of the left knee have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). 2. The criteria for a total rating based on individual unemployability due to service-connected disabilities have been met. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In his August 2015 Notice of Disagreement, the Veteran states that he is appealing the June 2015 decision. He checked the boxes to indicate that he disagreed with both the initial evaluations and the effective dates assigned to his service-connected migraines, sinusitis, GERD, allergic rhinitis, reactive airways dysfunction syndrome, and deep and nonlinear scar of the left knee. The June 2015 rating decision also increased the evaluation for the Veteran’s residuals of a hamate bone fracture of the right hand to 10 percent, and on his VA Form 21-0958 Notice of Disagreement he checked the boxes to show he disagreed with both the evaluation and the effective date of the increase. Although the April 2016 Statement of the Case did not list the claims for earlier effective dates separately, a review of this document shows that entitlement to earlier effective dates was considered in the reasons and bases section. The May 2016 Substantive Appeal clearly includes appeals for entitlement to earlier effective dates for each of these disabilities. Therefore, the matter of entitlement to an effective date prior to October 25, 2014 for service connection for migraines, sinusitis, GERD, allergic rhinitis, reactive airways dysfunction syndrome, and deep and nonlinear scar of the left knee is before the Board, and will be considered as a separate issue. The matter of entitlement to an effective date prior to October 25, 2014 for the 10 percent rating for the residuals of a hamate bone fracture of the right hand is also before the Board, but will be considered as a separate issue in the Remand section at the end of this decision. Effective Dates prior to October 25, 2014 for Service Connection As previously noted, entitlement to service connection for migraines, sinusitis, GERD, allergic rhinitis, reactive airways dysfunction syndrome, and a deep and nonlinear scar of the left knee was granted in a June 2015 rating decision. An effective date of October 25, 2014 was assigned for each of these disabilities. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This case involves dates prior to March 24, 2015, so the regulations in place prior to that date are applicable and are referred to in this section. A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2014). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant’s behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a) (2014). In this case, the Veteran was discharged from active service in January 1995. He did not submit any claim for compensation until an informal claim was received on July 31, 2012, which was followed by a VA Form 21-526EZ on August 9, 2012. However, neither of these forms requested service connection for migraines, sinusitis, GERD, allergic rhinitis, reactive airways dysfunction syndrome, or a deep and nonlinear scar of the left knee. Furthermore, a review of the claims file does not reveal any other communication from the Veteran that can be construed as a claim for service connection for these disabilities. The Veteran submitted another VA Form 21-526EZ on October 25, 2014. On this occasion, he claimed service connection for migraines, sinusitis, GERD, allergic rhinitis, and reactive airways dysfunction syndrome. He also claimed an increased rating for his left knee disability. The June 2015 rating decision granted entitlement to service connection for migraines, sinusitis, GERD, allergic rhinitis, and reactive airways dysfunction syndrome. A separate rating for a deep and nonlinear scar of the left knee was also assigned. The Veteran’s claim was received more than a year after his discharge from active service. Therefore, it follows that the effective date for these disabilities can be no earlier than the date of receipt of the claim. That date was October 25, 2014, which is also the effective date of service connection that is currently assigned. Therefore, entitlement to an earlier effective date for service connection for migraines, sinusitis, GERD, allergic rhinitis, reactive airways dysfunction syndrome, or a deep and nonlinear scar of the left knee is not warranted. TDIU The Veteran contends that his service connected disabilities combine to prevent him from obtaining and maintaining gainful employment. TDIU may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The record demonstrates that the Veteran has met the schedular criteria for consideration of TDIU from the date of his October 25, 2014 claim. His service connected disabilities include PTSD, evaluated as 50 percent disabling; chronic sinusitis, and migraines; each evaluated as 30 percent disabling; left knee degenerative joint disease, tinnitus, residuals of a hamate bone fracture of the right hand, left knee instability, allergic rhinitis, and GERD, each evaluated as 10 percent disabling; and bilateral hearing loss, reactive airways dysfunction syndrome, a left knee scar, a deep and nonlinear left knee scar, and a right hand scar, each evaluated as noncompensable. The Veteran has been in receipt of a combined evaluation of 90 percent from October 25, 2014. These ratings clearly meet the criteria of 38 C.F.R. § 4.16(a). The remaining question concerns whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not warrant assignment of a TDIU alone as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. See Van Hoose, 4 Vet. App. at 363. Thus, the central question is "whether the [V]eteran's service connected disabilities alone are of sufficient severity to produce unemployability," and not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363. The evidence includes an August 2016 VA Form Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire completed by the Veteran’s private psychologist. This states that the Veteran stopped working at a VA hospital in 2014, and notes he is in receipt of Social Security Disability benefits. The examiner opined that the Veteran’s PTSD prevented him from sustaining any form of gainful employment. In an attached written statement, the examiner added that Veteran’s service connected PTSD was aggravated by his other medical conditions and precludes him from sustaining any substantial gainful employment since the date of his October 25, 2014 claim. An additional opinion from a private medical doctor dated September 2016 is in the claims file. The doctor reviewed the Veteran’s medical records and discussed the effects of his hearing loss, sinusitis, GERD, left knee disabilities, migraines, and PTSD. The doctor interviewed the Veteran, who described the occupational impairment that results from many of his service connected disabilities. The examiner opined that based on the interview, record review, and his experience, the Veteran would be unable to maintain substantial gainful employment due to his service connected disabilities and the side effects of his medication taken for those conditions. Finally, a second September 2016 opinion from a vocational consultant notes that the examiner had reviewed his entire medical record. The examiner concluded that the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his PTSD and other service connected disabilities, and that the record supports this finding as far back as the date of filing. Based on these three opinions, the Board finds that the Veteran’s service connected disabilities combine to prevent him from obtaining and maintaining gainful employment. There is no competent opinion that suggest otherwise, and entitlement to TDIU is established. REASONS FOR REMAND Entitlement to service connection for a right knee disability. Entitlement to service connection for sleep apnea. Entitlement to service connection for hypertension. Entitlement to a rating in excess of 50 percent for PTSD. Entitlement to an initial rating in excess of 30 percent for migraine headaches. Entitlement to an initial rating in excess of 30 percent for chronic sinusitis. Entitlement to an initial rating in excess of 10 percent for allergic rhinitis. Entitlement to rating in excess of 10 percent for the residuals of a hamate bone fracture of the right hand. Entitlement to a rating in excess of 10 percent for degenerative joint disease of the left knee. Entitlement to a rating in excess of 10 percent for tinnitus. Entitlement to an initial rating in excess of 10 percent for GERD. Entitlement to a compensable rating for bilateral hearing loss. Entitlement to an initial compensable rating for reactive airways dysfunction syndrome. Entitlement to an initial compensable rating for a deep and nonlinear scar. Entitlement to a compensable rating for a scar of the left knee. Entitlement to a compensable rating for a scar of the right hand. Entitlement to an effective date prior to October 25, 2014 for a 10 percent rating for the residuals of a hamate bone fracture of the right hand. In the August 2016 VA Form Review Post Traumatic Stress Disorder (PTSD) Disability Benefits Questionnaire completed by the Veteran’s private psychologist, he states that the Veteran stopped working at a VA hospital in 2014 due to his medical conditions, and adds that he is receiving Social Security Disability benefits. The Board notes that VA has a duty to obtain all relevant records in the custody of a Federal agency. 38 C.F.R. § 3.159(c)(2). As there may be Social Security Administration (SSA) records relevant to the claims for service connection and increased ratings that have not been obtained, remand is required to obtain them. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The claim for an effective date prior to October 25, 2014 for the 10 percent rating for the residuals of a hamate bone fracture of the right hand is included in this remand, as medical records dated within the one year prior to receipt of the claim may provide a potential basis for an earlier effective date. 38 C.F.R. § 3.400(o)(2); 38 C.F.R. § 3.57(b). An attempt should also be made to obtain all current VA treatment records pertaining to the Veteran’s service connected disabilities as well as those for which service connection has been claimed. Regarding the Veteran’s claim for service connection for a right knee disability, he was provided a VA examination in June 2015. The examiner opined that his current right knee disability was less likely than not incurred in or caused by active service. The rationale stated that the Veteran did not have an indication of a right knee disability during service, and the indications of such a disability apparently began after service. However, the service treatment records show that the Veteran was seen for knee complaints in June 1992. Although he was first seen for left knee pain and swelling, his right knee also had a slight loss of range of motion, and quadriceps and hamstring strength was only 4/5. The assessment was right knee pain. The Board is unable to determine the significance, if any, of these findings to the Veteran’s current right knee disability. The June 2015 examination report should be returned to the examiner in order to obtain an addendum opinion that addresses the June 1992 record. Entitlement to an effective date prior to July 31, 2012 for service connection for PTSD, tinnitus, hearing loss, degenerative joint disease of the left knee, the residuals of a hamate bone fracture of the right hand, a scar of the right hand, and a left knee scar. Entitlement to service connection for PTSD, tinnitus, hearing loss, degenerative joint disease of the left knee, the residuals of a hamate bone fracture of the right hand, a scar of the right hand, and a left knee scar was granted in a February 2013 rating decision. An effective date of August 9, 2012 was assigned for each of these disabilities. The Veteran was notified of this decision in a February 2013 letter. In April 2013, the Veteran’s previous representative submitted a letter to the Regional Office (RO) in which he included a copy of the February 2013 rating decision “inviting claim for earlier effective date”. A second letter was submitted in October 2013, which included the hand-written addendum “for earlier effective date consideration”. In March 2014, a new rating decision was issued which determined there had been clear and unmistakable error in February 2013 rating decision in the assignment of the effective dates. A new effective date of July 31, 2012 was assigned for the Veteran’s PTSD, tinnitus, hearing loss, degenerative joint disease of the left knee, the residuals of a hamate bone fracture of the right hand, a scar of the right hand, and a left knee scar. In the Veteran’s August 2015 Notice of Disagreement, he includes the disabilities of PTSD, tinnitus, hearing loss, degenerative joint disease of the left knee, the residuals of a hamate bone fracture of the right hand, a scar of the right hand, and a left knee scar. He also checks the boxes stating that his area of disagreement includes the effective date for each of these disabilities. Subsequently, an April 2015 Deferred Rating indicates that the Veteran was to be informed that his Notice of Disagreement with the effective dates for these disabilities could not be accepted, as it was not filed within a year of the February 2013 notification letter. Under the regulations in effect in 2013, a written communication from a claimant or his or her representative expressing satisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a Notice of Disagreement. Special wording was not required. 38 C.F.R. § 20.201 (2012). The Notice of Disagreement was to be filed within a year of the notification of a decision. 38 C.F.R. § 20.302 (2012). The Board finds that either the February 2013 letter or the October 2013 letter from the Veteran’s representative would qualify as a Notice of Disagreement. Although the March 2014 rating decision granted an earlier effective date, there was no indication from the Veteran that he was satisfied with that decision or that his Notice of Disagreement was withdrawn. As it is clear from the Deferred Rating that no additional action would otherwise be taken on the Notice of Disagreement, these claims must be remanded for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Entitlement to an initial rating in excess of 10 percent for instability of left knee. Entitlement to an effective date prior to October 25, 2014 for service connection for instability of the left knee. During the course of this appeal, an April 2016 rating decision granted entitlement to service connection for left knee instability. A 10 percent evaluation was assigned effective from October 25, 2014. In June 2016, the Veteran submitted a VA Form 21-0958 Notice of Disagreement. His left knee disability was listed as an issue, and he checked the box indicating that he disagreed with both the effective date of the award and the evaluation. There is nothing in the claims file or in the VA electronic record system that indicates development is continuing for these claims or that issuance of a Statement of the Case is pending. Therefore, as with the earlier effective date claims that were previously addressed, these claims must be remanded for the issuance of a statement of the case. See Manlincon, 12 Vet. App. at 240-41. The matters are REMANDED for the following actions: 1. Obtain from the SSA records pertinent to any claim made by the Veteran for disability benefits, including the medical records relied upon concerning that claim. 2. Obtain the Veteran’s VA treatment records for the period from 2015 to the Present. 3. Return the June 2015 examination report and right knee opinion to the examiner for an addendum opinion. She should be requested to review the June 1992 service treatment record that showed reduced range of motion of the right knee and reduced muscle strength. Afterwards, the examiner should opine whether it is as likely as not that the Veteran’s right knee disability was incurred due to service. The potential significance of the June 1992 service treatment record should be discussed in the rationale that supports the addendum opinion. 4. Send the Veteran and his representative a Statement of the Case that addresses the issues of entitlement to an effective date prior to July 31, 2012 for service connection for PTSD, tinnitus, hearing loss, degenerative joint disease of the left knee, the residuals of a hamate bone fracture of the right hand, a scar of the right hand, and a left knee scar. The issues of entitlement to an initial rating in excess of 10 percent for instability of the left knee and entitlement to an effective date prior to October 25, 2014 for service connection for instability of the left knee must also be addressed. If, and only if, the Veteran perfects an appeal by submitting a timely VA Form 9 for any or all of these issues, they should be returned to the Board for further appellate consideration. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel