Citation Nr: 18150835 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-18 803 DATE: November 15, 2018 ORDER An effective date of December 12, 2011, but no earlier, for the grant of service connection for left upper extremity radiculopathy, is granted. An effective date prior to September 26, 2012, for the grant of service connection for major depressive disorder, is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for major depressive disorder is remanded. Entitlement to a rating in excess of 40 percent for the lumbar spine disability, status-post diskectomy, is remanded. Entitlement to a rating in excess of 10 percent for degenerative joint diseases of the cervical spine prior to January 28, 2014, and in excess of 20 percent thereafter, is remanded. Entitlement to a rating in excess of 20 percent for left upper extremity radiculopathy is remanded. Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s claim for left upper extremity radiculopathy was constructively received by VA at the same time as his December 12, 2011 claim for an increased rating for his service-connected cervical spine disability. 2. VA received the Veteran’s initial claim for service connection for depression on September 26, 2012; no claim of service connection for a psychiatric disorder was received prior to that date. CONCLUSIONS OF LAW 1. The criteria for an effective date of December 12, 2011, for the award service connection for left upper extremity radiculopathy, are met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 2. The criteria for the assignment of an effective date prior to September 26, 2012, for the grant of service connection for major depressive disorder, are not met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1977, and from September 1986 to November 1989. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from the June 2011, July 2012, and April 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for a TDIU is part of an initial rating claim when such claim is expressly raised by the veteran or reasonably raised by the record. The Veteran’s representative has specifically raised the issue of entitlement to a TDIU. See August 2016 and January 2017 written briefs. Thus, the issue of entitlement to a TDIU has been raised in connection with his increased rating claims. In both written briefs, the Veteran’s representative also provided a waiver of consideration of evidence by the RO. Laws and Analysis for Earlier Effective Date Claims In general, the effective date of an award based on an original claim for benefits is based on the filing of a claim for such benefits. 38 U.S.C. § 5110; 38 C.F.R. § 3.151. See Wells v. Derwinski, 3 Vet. App. 307 (1992). Benefits are generally awarded based on the date of receipt of the claim (emphasis added). 38 C.F.R. §§ 3.1 (r), 3.400. Specifically, with respect to service connection granted on a direct basis, governing regulation provides that the effective date will be the day following separation from active service or the date entitlement arose, if the claim was received within one year after separation from active duty; otherwise the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). All effective date determinations must be based upon the facts found, unless otherwise specifically provided. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. § 3.400. Prior to March 24, 2015, VA recognized formal and informal claims. [Effective March 24, 2015, VA amended its rules as to what constitutes a claim for benefits; claims are now required to be submitted on a specific claim form, prescribed by the Secretary, and available online or at the local RO.] A claim is 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). A formal claim is the use of the appropriate designated VA form to seek specific benefits. 38 C.F.R. § 3.151 (a). Any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (a). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). However, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, “the claimant must submit a written document identifying the benefit and expressing some intent to seek it”). See also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Effective Date for Left Upper Extremity Radiculopathy The Veteran filed the current appeal for an increased disability rating for his cervical spine disability on December 12, 2011. The effective date for an increased rating is the later of date of receipt of the claim or the date entitlement arose. 38 C.F.R. § 3.400 (o)(1) (2017). Notably, neurological disabilities associated with a spine disability are to be separately evaluated under the appropriate diagnostic codes under the Rating Schedule for thoracolumbar spine disabilities. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). VA treatment records include a September 2012 physical therapy note where the Veteran reported “radiation” of pain to the lower and upper back. During the January 2014 VA examination, the examiner specifically indicated that the Veteran had “mild” radiculopathy of the left upper extremity. Notably, the examiner referenced a June 2006 MRI report of the cervical spine, which indicated that the Veteran was seen for cervical radiculopathy symptoms to the right shoulder. The impression noted was bilateral neural foraminal narrowing due to degenerative changes at C6-7. Further, the examiner noted that, although the Veteran reported symptoms in both arms, objective findings only confirmed radiculopathy associated with IVDS in the left arm. The Board finds that the grant of service connection for left upper extremity radiculopathy was part and parcel of the Veteran’s claim for an increased rating for his cervical spine disability. The Veteran has consistently reported radicular symptoms since he filed his increased rating claim. His report of symptoms are credible and consistent with the subsequent medical findings. As such, when the Veteran filed his claim for an increased rating for his cervical spine disability on December 12, 2011, that became the date of receipt for his claim of service connection for radiculopathy. Accordingly, an effective date of December 12, 2011, for the grant of service connection for left upper extremity radiculopathy is granted. An earlier date is not warranted. Effective Date for Depressive Disorder The Veteran’s initial claim for service connection for depression was in the form of a statement (informal claim) with a date of September 26, 2012, typed at the bottom of the statement. In an April 2015 rating decision, the RO granted service connection for depressive disorder, effective September 26, 2012, the date VA received the Veteran’s claim for service connection. A review of the remaining evidence of record does not show any other correspondence by the Veteran that may be construed as a formal or informal claim for service connection for a psychiatric disorder prior to September 26, 2012. The Veteran has not provided any lay evidence as to why he believes the effective date should be prior to September 2012. See e. g., June 2016 notice of disagreement. In sum, and as noted above, the effective date of an evaluation and award of compensation on an original claim for compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2). The evidence of record indicates that the Veteran’s claim was received on September 26, 2012, but no earlier. With regard to the date entitlement arose, the record shows that the Veteran’s depression was present prior to the receipt of the claim in September 2012. See July 2012 VA nursing admission note (Veteran reported depression). As such, the effective date of the evaluation will be the date of receipt of claim, which is later than the date entitlement to service connection for depression arose. 38 C.F.R. 3.400 (b)(2). Accordingly, entitlement to earlier effective date for the grant of service connection for depressive disorder is not warranted. The preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b); see Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Records Initially, the Board observes that in 2016, the Veteran’s attorney sent 2012 records from the Social Security Administration (SSA) including a Request for Reconsideration and a Disability Report. It was noted that the Veteran had intended to pursue his SSA appeal to the next level of the appeals process. There is no indication in the record as to the outcome of his appeal nor are there any subsequent SSA records. As any such records may be pertinent to the present claim, the Veteran’s SSA records, if available, should be obtained and associated with the claims file. See Murincsak v. Derwinski, 2 Vet. App. 363, 370-72 (1992); Collier v. Derwinski, 1 Vet. App. 413, 417 (1991); see also Quartuccio v. Principi, 16 Vet. App. 183, 187-88 (2002) (stating that "the possibility that the SSA records could contain relevant evidence... cannot be foreclosed absent a review of those records."). Additionally, any outstanding VA medical evidence should be associated with the Veteran’s claims file. Rating for Depressive Disorder The Veteran maintains that his psychiatric disability is more severe than what is contemplated by the currently assigned 30 percent evaluation. The Veteran was afforded a VA psychiatric examination in October 2014. A diagnosis of unspecified depressive disorder was confirmed. During the evaluation, the Veteran reported having been married for 13 years. The Veteran reported having few friends and indicated that he generally was uncomfortable when engaging with other people—which is why the Veteran stated that he had stopped attending church. The Veteran also stated that, although he wanted to work, he was physically disabled and was unable to perform his duties. Current symptoms were noted to include depressed mood, anxiety, sleep impairment, and disturbance of motivation and mood. Upon mental status examination, the Veteran’s mood was depressed and the Veteran became briefly tearful on occasion. The Veteran denied suicidal or homicidal ideation. The examiner further indicated that the Veteran’s depressive symptoms were a result of his deteriorating physical health, including back pain. The Veteran reported increased isolation as a result of problems walking and decreased involvement in hobbies and activities. Subsequent VA treatment records include September 2016 VA mental health notes. At that time, the Veteran stated that he was having difficulty adjusting to being weaned off opiate medication. As a result, the Veteran reported significant increased in pain and reduction in activities. The Veteran also reported to an “increase in depressive and anxiety level as a result.” The Veteran was last afforded a VA psychiatric examination for compensation purposes in 2014, over four years ago. As it appears the Veteran’s service-connected psychiatric disability symptoms (to include depression and anxiety) have worsened since the last examination, the Veteran should be afforded a new VA examination to obtain a current assessment as to severity of the disability. Ratings for Lumbar Spine, Cervical Spine, and Radiculopathy Disabilities The Veteran was awarded a 100 percent disability rating for surgical convalescence for the period from November 1, 2010, to October 1, 2011. See August 2011 rating decision. In a July 2012 rating decision (currently on appeal), the RO granted a 40 percent rating for the Veteran’s lumbar spine disability beginning October 1, 2011. The Veteran filed a notice of disagreement with the July 2012 rating decision in May 2013. The Veteran specifically indicated that he was seeking a rating in excess of 40 percent. Under the General Rating Formula, a higher 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Alternatively, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes provides a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. The Veteran was last afforded a VA lumbar spine examination in April 2012 for compensation purposes, over 6 years ago. At that time, the examiner did not indicate whether the Veteran had ankylosis of the spine. Further, although the examiner indicated that the Veteran’s lumbar spine disability resulted in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, this may have included consideration of the Veteran’s period of convalescence (which has already been considered in the 100 percent temporary rating). There is also no evidence in the record supporting a finding that the Veteran was prescribed bedrest by a physician for his lumbar spine disability beginning October 1, 2011. For these reasons, the Board finds that clarification is required regarding the severity of the Veteran’s lumbar spine disability beginning October 1, 2011. Regarding the cervical spine, the Veteran was last afforded a VA examination in January 2014, more than four years ago. Subsequent VA treatment records in September 2016 indicated that the Veteran was being weaned off opiate mediation. At that time, the Veteran reported “significant increase” in pain, which the Board finds could reasonably include the Veteran’s neck pain and associated functional impairment. The Board finds that a current VA examination is required to assist in determining the severity of the Veteran’s cervical spine disability and associated left upper extremity radiculopathy disability. TDIU As indicated, a claim for a TDIU has been raised by the record. The Veteran has not been provided with the Veterans Claims Assistance Act (VCAA) notice requirement for a TDIU claim. Therefore, on remand, the AOJ should send the Veteran proper notice, afford him the opportunity to file a formal claim for TDIU, and then adjudicate this matter in the first instance to avoid any prejudice to him. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Moreover, the issue of entitlement to a TDIU is intertwined with the claims being remanded. See Harris v. Derwinski, 1 Vet. App 180, 183 (1991). Thus, adjudication of the TDIU claim is deferred. The matters are REMANDED for the following actions: 1. Obtain from SSA all records pertaining to the Veteran’s claim for disability benefits, if any, including copies of all medical records considered in deciding any claim. If the records are not available, that should be documented in the record. 2. Obtain any outstanding VA treatment records since December 2016 and associate them with the electronic claims file. 3. Send the Veteran the proper VCAA notice that advises him about what is needed to substantiate a claim for a TDIU. In addition, ask the Veteran to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 4. Then, schedule the Veteran for a VA mental health examination to: (a) determine the current extent and severity of his service-connected depressive disorder. The claims file and a copy of this remand must be made available to and reviewed by the examiner prior to the requested examination. All necessary tests should be conducted, and (b) determine whether the Veteran’s service-connected depressive disorder causes any functional impairment that may affect his ability to function and perform tasks in a work or work-like setting. 5. Schedule the Veteran for a VA medical examination to determine the current severity of the lumbar spine disability. The claims folder must be made available for review and the examiner must indicate that a review was conducted. Any indicated tests and studies must be completed. The examiner must address the following: (a.) State whether the Veteran has unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of entire spine. (b.) Indicate whether the Veteran has had any incapacitating episodes due to intervertebral disc syndrome since October 2, 2011. If so, state whether they have resulted in a total duration of at least 6 weeks during the past 12 months. ** An incapacitating episode is defined as “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” (c.) Determine whether the Veteran’s service-connected lumbar spine disability causes any functional impairment that may affect his ability to function and perform tasks in a work or work-like setting. 6. Schedule the Veteran for VA medical examination(s) to determine the current severity of the cervical spine disability and any associated neurological disabilities, to include the service-connected left upper extremity radiculopathy. In assessing the severity of the disabilities, also determine whether the Veteran’s service-connected cervical spine disability and left upper radiculopathy cause any functional impairment that may affect his ability to function and perform tasks in a work or work-like setting. The claims folder must be made available for review and the examiner must indicate that a review was conducted. Any indicated tests and studies must be completed. (Continued on the next page)   7. Then, readjudicate the remanded issues on appeal, including the derivative TDIU claim. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel