Citation Nr: 18149064 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-45 106 DATE: November 8, 2018 ORDER Entitlement to service connection for depressive disorder is granted. Entitlement to an effective date prior to May 10, 2012 for the grant of service connection for right lower extremity radiculopathy is dismissed. Entitlement to an effective date prior to May 10, 2012 for the grant of service connection for left lower extremity radiculopathy is dismissed. Entitlement to an effective date prior to May 10, 2012 for the grant of an increased rating of 20 percent for left shoulder strain is dismissed. Entitlement to an effective date prior to May 10, 2012 for the grant of an increased rating of 20 percent for right shoulder strain is dismissed. Entitlement to an effective date prior to May 10, 2012 for the grant of an increased rating of 20 percent for lumbosacral strain with lumbar degenerative joint disease (lumbar spine disability) is dismissed. REMANDED Entitlement to an increased rating for a lumbar spine disability in excess of 20 percent is remanded. Entitlement to an increased rating in excess of 10 percent for cervical strain is remanded. Entitlement to an increased rating in excess of 20 percent for right shoulder strain is remanded. Entitlement to an increased rating in excess of 20 percent for left shoulder strain is remanded. Entitlement to an increased rating in excess of 10 percent disabling for right knee patellofemoral pain syndrome is remanded. Entitlement to an increased rating in excess of 10 percent for left knee patellofemoral pain syndrome is remanded. Entitlement to an increased rating in excess of 10 percent for left ankle sprain is remanded. Entitlement to an increased rating in excess of 10 percent for right lower extremity radiculopathy is remanded. Entitlement to an increased rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an effective date prior to August 16, 2006 for the grant of service connection for left ankle sprain is remanded. Entitlement to an effective date prior to August 16, 2006 for the grant of service connection for right knee patellofemoral pain syndrome is remanded. Entitlement to an effective date prior to August 16, 2006 for the grant of service connection for cervical strain is remanded. Entitlement to an effective date prior to May 10, 2012 for the grant of an increased rating of 10 percent for left knee patellofemoral pain syndrome is remanded. FINDINGS OF FACT 1. The evidence is in equipoise that the Veteran has depressive disorder caused by his service-connected disabilities. 2. An October 2013 rating decision granted service connection for right and left lower extremity radiculopathy, effective May 10, 2012, and an increased rating of 20 percent for a lumbar spine disability, effective May 10, 2012; the ratings for the issues of right and left shoulder strain were continued. The Veteran was notified of that decision in correspondence issued that same month. The Veteran did not submit a notice of disagreement (NOD) within one year of the decision and, while new evidence was receiving within one year, it was not material. Thus, the October 2013 rating decision became final. 3. The October 2014 rating decision did not grant service connection or an increased rating for any issue adjudicated; thus, there was no award with an effective date assigned. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for depressive disorder have been met. 38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2017). 2. The criteria for an effective date prior to May 10, 2012 for the grant of service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a), 7105 (2012); 38 C.F.R. §§ 3.159, 3.400, 20.302 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. The criteria for an effective date prior to May 10, 2012 for the grant of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a), 7105 (2012); 38 C.F.R. §§ 3.159, 3.400, 20.302 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 4. The criteria for entitlement to an effective date prior to May 10, 2012 for the grant of an increased rating of 20 percent for left shoulder strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a), 7105 (2012); 38 C.F.R. §§ 3.159, 3.400, 20.302 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 5. The criteria for entitlement to an effective date prior to May 10, 2012 for the grant of an increased rating of 20 percent for right shoulder strain have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a), 7105 (2012); 38 C.F.R. §§ 3.159, 3.400, 20.302 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 6. The criteria for entitlement to an effective date prior to May 10, 2012 for the grant of an increased rating of 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110(a), 7105 (2012); 38 C.F.R. §§ 3.159, 3.400, 20.302 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2002 to August 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA). 1. Entitlement to service connection for a psychological disorder. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) a service-connected disability; and (3) that the current disability was either caused or aggravated by the service-connected disability. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995). In September 2015, a private psychologist, Dr. H. Henderson-Galligan, diagnosed depressive disorder and opined that it was more likely than not that the Veteran’s disorder was due to his service-connected disabilities. She stated that there was a body of literature detailing the connection between medical issues and psychological disorders and that such patients become disabled due to the holistic effect of medical psychological disturbances. See September 2015 private evaluation. An October 2016 VA examiner diagnosed adjustment disorder with anxiety and depressed mood and opined it was less likely than not such disorder was related to the Veteran’s service-connected disabilities because his symptoms presented only within the past year and are associated with multiple psychosocial stressors including marital conflict, family conflict, interpersonal conflict and poor coping strategies. See October 2016 VA examination. The two opinions of record are contradictory, but are each given equal weight. Thus, the evidence is in equipoise that the Veteran has depressive disorder caused by his service-connected disabilities, and service connection is warranted. 2. Effective date issues. In an October 2013 rating decision, the Veteran was granted service connection for right and left lower extremity radiculopathy, effective May 10, 2012, and was awarded an increase rating of 20 percent for his lumbar spine disability; the ratings for his right and left shoulder strain were continued. He was notified of that decision in correspondence issued that same month. The Veteran did not submit an NOD within one year of the decision. While new evidence in the form of VA examinations and VA treatment records were received within one year, such evidence is not considered material because it was not related to an unestablished fact necessary to substantiate the claim (as that evidence does not warrant a grant of an increased rating). Thus, the October 2013 rating decision became final, absent a finding of clear and unmistakable error (CUE). In December 2013, the Veteran notified VA that he wished to submit a claim for an increased rating for his shoulder disabilities and spine disability. See December 2013 correspondence. An October 2014 rating decision denied increasing any ratings for the Veteran’s shoulder disabilities, lower extremity radiculopathy disabilities, and spine disability. See October 2014 rating decision. In a December 2014 NOD, the Veteran appealed the “Effective Date of Award” for these issues. In light of the finality of the October 2013 rating decision, and that there were no new effective dates assigned in the October 2014 rating decision, there can be no disagreement with the effective date noted for these issues in that rating decision and the Board is left, essentially, with a claim for an earlier effective date based on the previously assigned, or a free-standing claim. Moreover, legally, there cannot be a free-standing claim for an earlier effective date, and once an effective date has become final, a Veteran’s only recourse is to have the final decision revised on the grounds of CUE. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In this case, because the October 2013 rating decision became final, alteration of the effective dates in that decision can only occur by means of a motion for revision based on CUE. See 38 U.S.C. § 5109A (2012); 38 C.F.R. § 3.105(a) (2017). No such motion has been filed, nor have any of the Veteran’s written statements contained specific allegations of error in fact or law in the October 2013 rating decision, as required for a CUE motion. 38 C.F.R. § 3.105 (2017); see Fugo v. Brown, 6 Vet. App. 40, 44 (1993) (stating that if a Veteran “wishes to reasonably raise CUE there must be some degree of specificity as to what the alleged error is”). The proper disposition of a free-standing claim for an earlier effective date is dismissal. Rudd, 20 Vet. App. at 300. The Board is authorized to dismiss any appeal that fails to allege an error of fact or law. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.302. Accordingly, these issues must be dismissed. REASONS FOR REMAND 1. Entitlement to increased ratings for right and left shoulder strain, right and left knee patellofemoral pain syndrome, left ankle sprain, a lumbar spine disability, and cervical strain are remanded. VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the VA examinations of record do not fully comport with the requirements of Correia. See September 2014, October 2016, and January 2017 VA examinations. Thus, remand is necessary for new VA examinations. 2. Entitlement to increased ratings for right and left lower extremity radiculopathy are remanded. These issues are inextricably intertwined with the issue of entitlement to an increased rating for a lumbar spine disability. As a result, they must be remanded as well. 3. Entitlement to an effective date prior to August 16, 2006 for the grants of service connection for left ankle sprain, right knee patellofemoral pain syndrome, and cervical strain and prior to May 10, 2012 for the grant of an increased rating of 10 percent for left knee patellofemoral pain syndrome are remanded. The Veteran’s December 2014 NOD expressed disagreement with effective dates related to the issues of entitlement to increased ratings for cervical strain, right and left knee patellofemoral pain syndrome, and left ankle sprain adjudicated in the October 2014 rating decision on appeal. That decision did not grant service connection nor an increased rating for those issues; instead it continued the ratings previously assigned. Nonetheless, remand for these issues is necessary pursuant to Manlincon v. West, 12 Vet. App. 238 (1999) because a statement of the case (SOC) has not been issued. The Board has interpreted the Veteran’s disagreement to be with the effective dates assigned for the grants of service connection for cervical strain, left ankle sprain, and right knee patellofemoral pain syndrome because there have been no increased ratings assigned after service connection was granted; it has interpreted the Veteran’s disagreement to be with the effective date of an increased rating of 10 percent assigned for left knee patellofemoral pain syndrome, as that is the most recent effective date adjudication of record. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from September 2014 to the present. 2. After the above development is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected lumbar spine, cervical spine, bilateral knee, bilateral shoulder, and left ankle disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements must be included for active and passive motion, and weight-bearing and non-weight-bearing circumstances, and, if possible, with range of motion measurements of the opposite undamaged joint (if applicable). If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 3. Send the Veteran and his representative an SOC that addresses entitlement to an effective date prior to August 16, 2006 for the grants of service connection for left ankle sprain, right knee patellofemoral pain syndrome, and cervical strain, and entitlement to an effective date prior to May 10, 2012 for the grant of an increased rating of 10 percent for left knee patellofemoral pain syndrome. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration as appropriate. 4. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Sandler, Associate Counsel