Citation Nr: 18149396 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-12 248A DATE: November 9, 2018 ORDER An effective date of March 14, 2007 for the assignment of a 70 percent rating for the service-connected posttraumatic stress disorder (PTSD) and depressive disorder is granted. An effective date prior to April 26, 2013, for the grant of service connection for diabetes mellitus is denied. An effective date prior to June 11, 2014, for the grant of service connection for peripheral neuropathy of the left upper extremity is denied. An effective date prior to June 11, 2014, for the grant of service connection for peripheral neuropathy of the right upper extremity is denied. An effective date prior to November 15, 2001, for the grant of service connection for peripheral neuropathy of the left lower extremity is denied. An effective date prior to November 15, 2001, for the grant of service connection for peripheral neuropathy of the right lower extremity is denied. REMANDED The issue of entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity is remanded. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right upper extremity is remanded. The issue of entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. The issue of entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. The issue of entitlement to a compensable rating for hypertension is remanded. The issue of entitlement to a compensable rating for headaches prior to October 2, 2013, and a rating in excess of 10 percent from October 2, 2013 is remanded The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to a rating in excess of 30 percent for the service-connected PTSD was received on March 14, 2007. 2. The Veteran first demonstrated objective manifestations of diabetes mellitus on April 26, 2013. 3. In his application for TDIU received on June 11, 2014 the Veteran asserted that his service-connected PTSD and popliteal nerve damage disabilities prevented him from securing or following any substantially gainful occupation. 4. Viewed as a claim for entitlement to an increased rating, an April 2015 Report of VA examination documents initial diagnosis of peripheral neuropathy of the bilateral upper extremities. 5. The Veteran was properly advised of his appellate rights to disagree with a December 24, 2013 rating action, but he did not appeal this decision. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 14, 2007, for the assignment of a 70 percent rating for the service-connected PTSD and depressive disorder have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 2. The criteria for an effective date prior to April 26, 2013, for the grant of service connection for diabetes mellitus have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 3. The criteria for an effective date prior to June 11, 2014, for the grant of service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 4. The criteria for an effective date prior to June 11, 2014, for the grant of service connection for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 5. The legal criteria for an effective date prior to November 15, 2001, for the grant of service connection for the service-connected peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.400, 20.302, 20.1103 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 6. The legal criteria for an effective date prior to November 15, 2001, for the grant of service connection for the service-connected peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 5110, 7105 (2012); 38 C.F.R. §§ 3.400, 20.302, 20.1103 (2017); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1971 to September 1974. The current claims on appeal come before the Board of Veterans’ Appeals (Board) on appeal from August 2009, June 2013, July 2015 and November 2015 rating decisions issued by the RO. The issues of entitlement to a compensable rating for senile cataracts on both eyes and entitlement to an effective date prior to December 4, 2014, for the grant of service connection for senile cataracts on both eyes have been perfected, but not yet certified to the Board. The Board’s review of the claims file reveals that the Agency of Original Jurisdiction (AOJ) is still taking action on these issues. The Board will not act on these claims at this time, but they will be the subject of a subsequent Board decision, if otherwise in order. This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Effective Date Unless otherwise specified, 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 is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400. The effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d 1351 (Fed. Cir. 1999). 1. Entitlement to an effective date earlier than April 16, 2009, for the assignment of a 70 percent rating for the service-connected posttraumatic stress disorder (PTSD) and depressive disorder In a May 2006 rating decision, the RO granted service connection for PTSD and assigned a 30 percent rating effective December 22, 2004 (the day his claim was received). He filed a claim for an increased rating for his PTSD in June 2006. In an October 2006 rating decision, the RO denied the Veteran’s claim for entitlement to a rating in excess of 30 percent for the PTSD. The Veteran’s claim for an increased rating for his service-connected PTSD was received on March 14, 2007. A June 2009 Report of VA examination documents that on mental status examination, the Veteran’s orientation was within normal limits and his appearance, hygiene and behavior were appropriate. He maintained good eye contact during the examination. His affect and mood were manifested by mood swings ranging from depression to irritability. His communication and speech were within normal limits. He demonstrated an impaired attention and/or focus and he had to be redirected repeatedly through the examination. He had panic attacks that occurred less than once per week. He did not trust others. There were no reports of a history of delusions or hallucination and no delusions or hallucinations were observed on examination. Obsessional rituals were absent. His thought processes were impaired and manifested by a slowness of thought and difficulty understanding directions. Judgment and abstract thinking were not impaired. His memory was impaired and manifested by moderate problems with retention of highly learned materials and forgetfulness. He had passive thoughts of death and some thoughts of harming himself; however, he had no intent to act on the thoughts. The examiner commented that the Veteran had difficulty establishing and maintaining effective work/school and social relationships because of his mental illness. Further, the Veteran had difficulty maintaining effective family role functioning because of his mental illness. He demonstrated an intermittent inability to perform recreation or leisurely pursuits because of his mental illness. He had no difficulty with physical health and had no difficulty understanding commands. The examiner concluded that the Veteran appeared to pose some threat of danger or injury to himself but it was not acute and required continued psychiatric and psychologic care. The examiner determined that the Veteran’s prognosis for his psychiatric condition was poor and his symptoms were chronic. In the appealed August 2009 rating decision, the RO, assigned an increased 70 percent rating for the PTSD effective April 16, 2009. The Veteran appeals the effective date assigned for the increased 70 percent rating. The June 2009 VA examination demonstrates that Veteran had difficulty establishing and maintaining effective work/school and social relationships; had difficulty maintaining effective family role functioning; and, demonstrated an intermittent inability to perform recreation or leisurely pursuits because of his PTSD. Further, the Veteran appeared to pose some threat of danger or injury to himself, requiring continued psychiatric and psychologic care. Based on the totality of this evidence, the AOJ increased the rating for the service-connected PTSD disease to 70 percent. Given the Veteran has continuously been prosecuting his claim since March 14, 2007, an effective date of March 14, 2007, for the assignment of the increased 70 percent rating for the PTSD is warranted. To that extent, the appeal is allowed. 2. Entitlement to an effective date prior to April 26, 2013, for the grant of service connection for diabetes mellitus On November 15, 2001, the Veteran’s request to reopen his claim for service connection for diabetes was received. An April 1985 private treatment record reflects that the Veteran had an abnormal glucose tolerance test. His fasting result was 96. After half an hour, his test result was 173; after one hour his test result was 193; after two hours his test result was 126; and, after three hours his test result was 56. The impression was chemical diabetes and the examiner recommended that the Veteran be started on a restricted diet (1500 calorie diabetic diet). The March 2002 Report of VA examination documents that although the Veteran gave a history of diabetes mellitus, there was no evidence of a current disability. The July 2009 Report of VA examination documents that there was no confirmed diagnosis of diabetes mellitus. The May 2013 Report of VA examination reflects the examiner’s explanation that the criteria for diagnosis of diabetes mellitus by the American Diabetic Association (ADA) was fasting plasma glucose equal to 126 mg/dl; or, symptoms such as polyuria, polydipsia, unexplained weight loss and a random plasma glucose equal to 200 mg/dl; or, plasma glucose equal to 200mg/dl two hours after a 75g glucose load; or, AlC equal to 6.5 percent. The examiner noted that glucose testing results in treatment records in April 1985, 1986, July 1995, February 2002, November 2003, April 2005, February 2006, August 2006, November 2006, October 2007, September 2008, July 2009, March 2010, September 2010, April 2011 and October 2012 did not meet the ADA criteria for diagnosis of diabetes mellitus. Further, AlC results in treatment records dated in April 2003, November 2003, February 2006, October 2007, July 2009 and April 2012 did not meet the ADA criteria for diagnosis of diabetes mellitus. The examiner noted that a treatment record dated April 26, 2013 documents that the Veteran’s glucose test result was 128mg/dl. This test result met the ADA criteria for a diagnosis of diabetes mellitus. The RO granted service connection in June 2013 and assigned the appropriate effective date of April 26, 2013. Effective dates are generally determined by the date of receipt of a claim or the date entitlement arose, whichever is later and here, no exceptions to the general rule are applicable. April 26, 2013, represents the date entitlement arose and is later than date of receipt of the claim (November 15, 2001). 38 U.S.C. § 5110(a). There is no doubt to be resolved. The claim on appeal is denied. 3. Entitlement to an effective date prior to June 11, 2014, for the grant of service connection for peripheral neuropathy of the left and right upper extremities The Veteran’s reopened claim for compensation for peripheral neuropathy was received on November 15, 2001. Effectuating a December 2013 Board decision granting service connection for peripheral neuropathy, in December 2013 the RO granted service connection for peripheral neuropathy of the left and right lower extremities only. The March 2002 Report of VA peripheral nerves examination documents the Veteran’s complaints, in pertinent part, of intermittent numbness/tingling involving both hands, worse on the left. He reported that the paresthesias occasionally radiated to the left forearm. He stated that his hands, especially the left, felt weak with worsening paresthesias. He reported no baseline hand weakness or difficulties with fine motor tasks. Objectively, motor strength examination was normal in the bilateral upper extremities. Sensory examination was normal in the bilateral upper extremities. There was no diagnosis of a neuropathy of the upper extremities. The November 2003 Report of VA peripheral nerves examination documents the Veteran’s complaint, in pertinent part, of intermittent tingling sensation in the left arm and hand. He rarely experienced such sensation in his right hand. The symptoms were improved by shaking the hands and rest. On objective examination, he had no motor deficits. On sensory examination of the hands, there were no deficits on pinprick examination, light touch or vibration. Proprioception was normal. There was no diagnosis of a neuropathy of the upper extremities. The July 2009 Report of VA diabetes examination reflects that examination of the right and left upper extremity was normal. There was no diagnosis of a neuropathy of the upper extremities. The August 2011 Report of VA peripheral nerves examination reflects that sensory examination in the upper extremities was intact by monofilament testing. The Veteran did not have peripheral neuropathy of the upper extremities. In June 2014, the Veteran filed an application for entitlement to a TDIU rating, essentially asserting that, in pertinent part, he had peripheral neuropathy of the left and right upper extremities that prevented him from securing and following a substantially gainful occupation. The April 2015 Report of VA diabetic sensor-motor peripheral neuropathy documents that the Veteran has been diagnosed, in pertinent part, with mild peripheral neuropathy, predominantly painful sensory. The Veteran had documented mild incomplete paralysis of the radial nerve, median nerve and ulnar nerve of the left and right upper extremities. The RO granted service connection in July 2015 and assigned the effective date of June 11, 2014. Effective dates are generally determined by the date of receipt of a claim and here, no exceptions to the general rule are applicable. June 11, 2014, represents the earliest possible date of receipt of a claim supported by a confirmed diagnosis of peripheral neuropathy of the left and right upper extremities. 38 U.S.C. § 5110(a). There is no doubt to be resolved. The claim on appeal is denied. 4. Entitlement to an effective date prior to November 15, 2001, for the grant of service connection for peripheral neuropathy of the left and right lower extremities The Veteran’s reopened claim for compensation for peripheral neuropathy was received on November 15, 2001. Effectuating a December 2013 Board decision granting service connection for peripheral neuropathy, in December 2013 the RO granted service connection for peripheral neuropathy of the left and right lower extremities and assigned a 10 percent rating for each extremity effective November 15, 2001. The Veteran was notified of the decision by a letter dated February 5, 2014. The Veteran did not appeal this decision. In June 2014, the Veteran filed an application for entitlement to a TDIU rating, essentially asserting that was entitled to a rating in excess of 10 percent for his service-connected peripheral neuropathy of the left and right lower extremities. In the July 2015 rating decision, the RO denied the Veteran’s claims for entitlement to ratings in excess of 10 percent. In his September 2015 Notice of Disagreement (NOD), the Veteran asserted, in pertinent part, that he was entitled to an earlier effective date for the grant of service connection for his peripheral neuropathy of the left and right lower extremities. The appeal lacks legal merit. The effective dates for the grant of service connection for peripheral neuropathy of the left and right lower extremities were assigned in a December 2013 rating decision. The Veteran did not appeal and that decision is final. He may not now challenge the effective date as that would be a freestanding claim for an earlier effective date. Case law emphasizes that once there is a relevant final decision on an issue, there cannot be a “freestanding claim” for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006); see Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005); Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002) (en banc); see also Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). The Court has held that in a case where the law, as opposed to the facts, is dispositive of the claim, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or the lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law). REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left upper extremity is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected peripheral neuropathy of the left upper extremity. 2. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right upper extremity is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected peripheral neuropathy of the right upper extremity. 3. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected peripheral neuropathy of the left lower extremity. 4. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected peripheral neuropathy of the right lower extremity. 5. Entitlement to a compensable rating for hypertension is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected hypertension. 6. Entitlement to a compensable rating for headaches prior to October 2, 2013, and a rating in excess of 10 percent from October 2, 2013 is remanded. Remand is required to afford the Veteran VA examination to determine the current severity of the service-connected headaches. 7. Entitlement to a TDIU is remanded. The claim for a TDIU rating is inextricably intertwined with these claims for increased ratings and the Board will defer the issue until the requested development below has been completed. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assist in determining the nature and severity of the peripheral neuropathy of the left and right upper and lower extremities. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation, including any pertinent nerve conduction studies, should be accomplished and all clinical findings should be reported in detail. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran’s peripheral neuropathy of the left and right upper and lower extremities; however, his or her attention is drawn to the following: *VA examination report of April 2015 reflects the Veteran’s complaint of numbness, tingling and burning sensations involving the feet and distal calves and numbness and tingling involving both hands, worse on the left. He experienced mild paresthesias and/or dysesthesias of the right and left upper extremities and moderate paresthesias and/or dysesthesias of the right and left lower extremities. He experienced mild numbness of the right and left upper and lower extremities. The examiner documented that the Veteran had mild, incomplete paralysis of the radial nerve, median nerve and ulnar nerve of the right and left upper extremities. Mild, incomplete paralysis of the sciatic nerve of the right and left lower extremities was also documented. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 2. Schedule the Veteran for a VA examination to assist in determining the nature and severity of the hypertension. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran’s hypertension; however, his or her attention is drawn to the following: *VA examination report of March 2002 documents that the Veteran’s blood pressure reading was 160/100. *VA examination report of August 2011 documents blood pressure readings of 118/68, 120/70 and 116/70. *VA examination report of February 2014 documents blood pressure readings of 120/80, 124/78 and 120/80. *VA examination report of April 2015 documents blood pressure readings of 123/78, 111/71 and 123/75. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. 3. Schedule the Veteran for a VA examination to evaluate the current severity and manifestations of his headaches. The entire claims file should be made available to, and be reviewed by, the VA examiner. All appropriate tests, studies, and consultation should be accomplished and all clinical findings should be reported in detail with a full description of the Veteran’s headache disability, including frequency and severity of headaches (i.e., if such headaches are productive of prostrating attacks and the frequency of such attacks) and the impact of the headaches on the Veteran’s economic adaptability. As indicated above, the examiner should review the record in conjunction with commenting on the severity of the Veteran’s migraine headaches; however, his or her attention is drawn to the following: *VA examination report of August 2011 documents the Veteran’s complaint of intermittent pounding headaches on the frontal head with radiation to the back. The Veteran reported that the frequency of his headaches was once every few months. His headache pain attacks were not prostrating and ordinary activity was possible. *VA examination report of October 2013 documents the Veteran’s complaint of frontal or occipital headaches. He described the intensity of his headaches as moderate to severe. His headaches were manifested by blurred vision, photophobia and phonophobia. His headaches lasted a day in duration and he experienced prostrating attacks of headaches one to two times per month. The examiner indicated that the Veteran had characteristic prostrating attacks of headache pain that occurred more frequently than once per month. THE EXAMINER IS ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND/OR THE EXAMINER HAS EXPERTISE IS NOT SUFFICIENT TO FIND THAT THE EXAMINATION IS SUFFICIENT. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Jackson, Counsel