Citation Nr: 18149011 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 15-45 694 DATE: November 8, 2018 ORDER Entitlement to an effective date prior to June 26, 2013 for a grant of service connection for cervical spine degenerative joint disease is denied. Entitlement to an effective date prior to August 26, 2010 for the assignment of a 10 percent evaluation for a service-connected right ankle disability is denied. REMANDED Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for chronic diarrhea is remanded. Entitlement to an initial rating in excess of 20 percent for cervical spine degenerative joint disease is remanded. Entitlement to an increased rating in excess of 10 percent for lumbar spine condition is remanded. FINDINGS OF FACT 1. The original claim of entitlement to service connection for a cervical spine condition was received by VA on June 26, 2013. 2. The record contains no statement, communication, or other information from the Veteran prior to June 26, 2013 which can reasonably be construed as constituting a claim of entitlement to service connection for a cervical spine condition. 3. The claim of entitlement to an increased rating for the service-connected right ankle injury was received by VA on August 26, 2010. 4. The VA examination report dated June 13, 2012 is the first factually ascertainable evidence of entitlement to a compensable rating for the Veteran’s service-connected right ankle injury. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to June 26, 2013 for the grant of service connection for cervical spine degenerative joint disease have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.157, 3.155, 3.400 (2017). 2. The criteria for an effective date prior to August 26, 2010 for the assignment of a 10 percent evaluation for a service-connected right ankle disability have not been met. 38 U.S.C. §§ 5107, 5110, 7104 (2012); 38 C.F.R. §§ 3.156, 3.400, 4.71a, Diagnostic Code 5271 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from June 1977 to February 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2012 and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In June 2013, the Veteran submitted a notice of disagreement (NOD) seeking an earlier effective date for the grant of service connection for the right ankle disability, an increased evaluation for his service-connected lumbar spine disability, and entitlement to service connection for PTSD. Then, in September 2014, he submitted a NOD seeking a higher evaluation and earlier effective date in regard to the grant of service connection for the cervical spine disability, along with entitlement to service connection for chronic diarrhea and erectile dysfunction. Subsequently, a November 2015 rating decision granted entitlement to service connection for erectile dysfunction, thereby removing the issue from appellate status. A statement of the case (SOC) was also issued in November 2015, continuing the prior findings related to an earlier effective date for the grant of service connection for right ankle injury, an increased rating for the lumbar spine disability, and entitlement to service connection for PTSD. The Veteran perfected a timely substantive appeal via VA Form 9 in December 2015. A second SOC was issued in January 2016, continuing the prior findings related to an earlier effective date for the grant of service connection for the cervical spine disability, an increased evaluation for the cervical spine disability, and entitlement to service connection for chronic diarrhea. The Veteran perfected a timely substantive appeal via VA Form 9 in February 2016. The record reflects that additional evidence was added to the claims file following the January 2016 SOC. However, the additional evidence is not relevant to the earlier effective date claims decided herein, as it relates to the current nature of the Veteran’s disabilities, but does not address the critical elements related to a determination of effective dates prior to 2013. The Board finds that adjudication of the earlier effective date claims may proceed without prejudice to the Veteran. 38 C.F.R. § 20.1304 (2017). Earlier Effective Date The Board has reviewed the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence as appropriate and focus specifically on what the evidence shows or fails to show as to the claims. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the Veteran. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2017); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to an earlier effective date for the grant of service connection for cervical spine degenerative joint disease. The Veteran asserts that an effective date earlier than June 26, 2013 is warranted for the grant of entitlement to service connection for cervical spine degenerative joint disease. In his September 2014 NOD, he argued that VA should have read his claims in 1994 and 2008 for a low back condition as encompassing the entire spine. He asserted that his service treatment records revealed frequent and consistent complaints of neck pain and stiffness. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be 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. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). Claim or application means 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 (2017). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, from a Veteran or representative, or other party, may be considered an informal claim. An informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (former 2014). After careful consideration of the record, the Board finds that the currently assigned date of June 26, 2013 for the grant of service connection for cervical spine degenerative joint disease is appropriate. The Veteran’s initial claim for service connection for this disability was received by VA on June 26, 2013, in the form of a written statement from the Veteran. A thorough review of the claims file does not show that any written communication by or on behalf of the Veteran was received at any time prior to June 26, 2013, in which he requested a determination of entitlement or evidenced a belief in entitlement to service connection for a neck condition. The record simply does not show that the Veteran filed any claim of entitlement to service connection for this disability at any point prior to June 26, 2013. Thus, an earlier effective date is not warranted for the grant of service connection for cervical spine degenerative joint disease. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). The Board acknowledges the Veteran’s contention that VA should have read his prior claims for a low back condition as encompassing the entire spine. However, the January 1995 claim referenced a back injury, with no mention of the neck. Upon VA examination in February 1996, he described low back pain. His neck was found to be within normal limits. In July 2001, he submitted a statement asserting increased low back pain since the prior evaluation, again without mention of any neck condition. Subsequent requests for increased ratings for his service-connected lumbar spine were also silent as to any neck condition. It was not until the June 2013 statement that the Veteran identified a claim of entitlement to service connection for a neck condition. It must be noted that “[t]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.” Lalonde v. West, 12 Vet. App. 377, 382 (1999). The record is to be reviewed to adjudicate all issues reasonably raised by a liberal reading of documents in the record. Solomon v. Brown, 6 Vet. App. 396, 402 (1994); EF v. Derwinski, 1 Vet. App. 324, 326 (1991); Suttmann v. Brown, 5 Vet. App. 127, 132 (1993). However, the Board is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed. Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (holding that the Board is not required to engage in ‘prognostication’ but to review issues reasonably raised by the substantive appeal). The “mere presence” of medical evidence of a condition is insufficient to establish the intent necessary for an informal claim for VA benefits. Brannon v. West, 12 Vet. App. 32, 35 (1998). Thus, without disputing the Veteran’s assertion that his medical records contained evidence of a neck condition prior to June 26, 2013, the Board finds that the evidence of record does not contain a formal or informal claim identify a neck condition prior to June 26, 2013. The legal authority governing effective dates is clear and specific, and the Board is bound by that authority. Accordingly, the Board finds that June 26, 2013, the date of receipt of the claim for service connection for cervical spine degenerative joint disease is the appropriate effective date for the award of service connection for the disability. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57. 2. Entitlement to an earlier effective date for a compensable rating for the right ankle disability. The Veteran contends that an effective date prior to August 26, 2010 is warranted for the assignment of an increased evaluation of 10 percent for his service-connected right ankle disability. In his July 2013 NOD, he asserted that he had been receiving treatment for his right ankle since 2008 and the condition had worsened prior to August 26, 2010. Generally, the effective date of a rating and award for pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after a 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 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The effective date for a claim seeking an increased rating for an already service-connected disability that is based on an original claim, or a claim for increase will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. However, the effective date may also be the earliest date as of which it is “factually ascertainable” that an increase in disability had occurred if the claim is received within one year from the date of the increase, based on a review of the entire evidence of record. 38 C.F.R. § 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997); Swanson v. West, 12 Vet. App. 442 (1999). In determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” See Hazan, 10 Vet. App. at 521. In the present case, the Veteran was originally granted entitlement to service connection for a right ankle disability in an April 1996 rating decision, evaluated as noncompensable effective February 14, 1994. Subsequently, the Veteran requested an increased rating on August 26, 2010. He underwent VA examination in conjunction with the claim in June 2012. A September 2012 rating decision granted an increased evaluation of 10 percent, effective August 26, 2010. The Veteran then submitted a NOD contesting the effective date of the increased 10 percent evaluation. After thorough review of all the evidence of record, the Board finds that the Veteran is not entitled to an effective date earlier than August 26, 2010 for the increased evaluation. While the Board may consider evidence of the severity of the Veteran’s right ankle prior to August 26, 2010, the record does not establish entitlement to the benefit sought. There is no question that the Veteran was diagnosed with a right ankle injury due to his service. However, the evidence does not reflect compensable severity of the condition until the June 2012 VA examination report. The Veteran’s right ankle disability is rated under Diagnostic Code 5271, limited motion of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under this Diagnostic Code, a 10 percent rated is warranted with moderate limitation of motion and a 20 percent rating is warranted with marked limitation of motion. Id. After thorough review of the record, the Board finds that it was first factually ascertainable that the schedular criteria for a compensable rating for service-connected asthma were met as of June 13, 2012, the date of the VA examination. Prior to that date, the evidence reflects that the Veteran was diagnosed with a right ankle condition and he experienced intermittent pain. However, the lay and medical evidence is insufficient to show that he met the schedular criteria for a compensable rating. Treatment records show pain, but the Veteran’s lower extremities were generally found to be within normal limits. While the Veteran has described a worsening prior to August 2010, the lay evidence does not provide specific factually ascertainable information to warrant an increased evaluation within a year of the claim. In fact, the Veteran’s statements relate to experiencing pain more than one year prior to the date of the increased rating claim. As noted above, the effective date may be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from the date of the increase. Accordingly, entitlement to an effective date prior to August 26, 2010 is not warranted. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57. REASONS FOR REMAND 1. Entitlement to service connection for PTSD. The Veteran contends that service connection for PTSD is warranted due to traumatic experiences in service, including deployments to Kuwait during the Persian Gulf War. In a February 2011 VA Form 21-0781, he described going on non-combat missions and assisting with disposal of human remains between October 1989 and February 1990 while on temporary duty with the 18th Infantry Regiment. In an April 2011 statement, he described deployment to Kuwait as part of a rapid response force between June 1991 and October 1991 while assigned to the 11th Signal Brigade based out of Germany. In an October 2011 memorandum, the RO documented a formal finding of lack of information required to verify the claimed stressors. A review of the Veteran’s file failed to reflect any temporary assignment to Kuwait. The RO noted that the Veteran did not arrive in Germany until September 1991. Thus, his claim was found to be inconsistent with his personnel records. In January 2016, the Veteran submitted a buddy statement from a fellow soldier who served with him in Germany. D.P. recalled that the Veteran deployed twice from Germany to Kuwait, once for approximately three months and once for approximately six months. The Veteran’s military personnel records reflect assignment to Germany from July 1984 to June 1987 and April 1990 to October 1992. Between October 1989 and February 1990, it appears that he was serving as a drill instructor at Fort Jackson, South Carolina. From April 1990 to October 1992, he was stationed in Germany in various roles. Therefore, as the Veteran was stationed in Germany between June 1991 and October 1991 and has submitted evidence in the form of a buddy statement regarding deployments, the Board finds that further development of the claimed stressor is warranted. 2. Entitlement to service connection for chronic diarrhea is remanded. The Veteran contends that the examination reports of record are inadequate. In May 2014, the Veteran underwent a VA examination. The examiner opined that the well-documented gastrointestinal issues were less likely than not related to service because they occurred long after separation. Upon further VA examination in November 2015, the examiner opined that the Veteran’s gastrointestinal issues were less likely than not proximately due to or the result of the service-connected lumbar spine condition, to include medications taken for the back pain. However, the examiner wrote in his report that the requesting facility failed to tab any evidence from any source or any document in support of the claim. His opinion was based upon finding that the Veteran had not been diagnosed with chronic constipation, only occasional constipation. The examiner did not address the established diagnosis of chronic diarrhea reflected in the Veteran’s treatment records. Neither examination of record addressed aggravation of any gastrointestinal issues by the Veteran’s service-connected lumbar spine disability. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). The Board finds that remand is warranted for further VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (holding that once VA undertakes the effort to provide an examination or obtain a medical opinion when developing a service connection claim, even if not statutorily obligated to do so, it must provide or obtain one that is adequate for purposes of the determination being made). The examiner should identify all diagnoses related to the Veteran’s gastrointestinal issues and provide an opinion regarding direct service connection as well as whether any gastrointestinal condition, to include chronic diarrhea, is secondary to or aggravated by the Veteran’s service-connected lumbar spine disability. 3. Entitlement to increased ratings for cervical spine and lumbar spine conditions is remanded. While the record contains contemporaneous VA examinations regarding the Veteran’s cervical and lumbar spine disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examinations do not contain passive range of motion measurements or pain on weight-bearing testing. Additionally, the examinations do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The matters are REMANDED for the following action: 1. Undertake appropriate action, to include contact with the JSRRC (and any other appropriate source(s)), to attempt to independently verify the occurrence of the Veteran’s alleged PTSD stressor relating to deployment to Kuwait between June 1, 1991 and October 30, 1991, in 60-day increments (in multiple requests to cover the period in question if necessary). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any diarrhea or constipation. The examiner should review the claims folder and this fact should be noted in the accompanying medical report. (a.) The examiner must opine whether any diarrhea or constipation is at least as likely as not related to an in-service injury, event, or disease. (b.) The examiner must opine whether any diarrhea or constipation is at least as likely as not (1) proximately due to the service-connected lumbar spine disability, or (2) aggravated beyond its natural progression by the service-connected lumbar spine disability. The examiner should address the effects of any medication taken by the Veteran for his service-connected lumbar spine disability. (c.) The examiner should indicate whether the Veteran has irritable bowel syndrome. 3. Schedule the Veteran for an examination of the current severity of his cervical spine and lumbar spine disabilities. (a.) The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b.) 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. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jamison, Elizabeth G.