Citation Nr: 18151579 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-41 289 DATE: November 20, 2018 ORDER 1. Entitlement to an effective date prior to April 30, 2010, for the award of service connection for hypertension is denied. 2. Entitlement to an effective date prior to January 11, 2012, for the award of service connection for left lower extremity lumbar radiculopathy is denied. 3. Entitlement to an effective date earlier than January 11, 2012, for the award of service connection for right lower extremity lumbar radiculopathy is denied. REMANDED 4. Entitlement to service connection for a left hip disorder is remanded. 5. Entitlement to service connection for a right hip disorder is remanded. 6. Entitlement to service connection for a left knee disorder is remanded. 7. Entitlement to service connection for a right knee disorder is remanded. 8. Entitlement to service connection for left upper extremity neuropathy is remanded. 9. Entitlement to service connection for right upper extremity neuropathy is remanded. 10. Entitlement to service connection for left upper extremity radiculopathy is remanded. 11. Entitlement to service connection for right upper extremity radiculopathy is remanded. 12. Entitlement to service connection for left lower extremity neuropathy is remanded. 13. Entitlement to service connection for right lower extremity neuropathy is remanded. 14. Entitlement to service connection for a cervical spine disorder is remanded. 15. Entitlement to a rating in excess of 20 percent for dorsal and lumbar spine strain is remanded. 16. Entitlement to a rating in excess of 10 percent for left lower extremity lumbar radiculopathy is remanded. 17. Entitlement to a rating in excess of 10 percent for right lower extremity lumbar radiculopathy is remanded. 18. Entitlement to a rating in excess of 50 percent for adjustment disorder is remanded. 19. Entitlement to a rating in excess of 10 percent for hypertension is remanded. FINDINGS OF FACT 1. The Veteran was first shown to have a diagnosis of hypertension on April 30, 2010. 2. The Veteran’s left and right lower extremity lumbar radiculopathy was first shown on January 11, 2012 diagnostic studies. CONCLUSIONS OF LAW 1. An effective date earlier than April 30, 2010, for the grant of service connection for hypertension is not warranted. 38 U.S.C. 5110; 38 C.F.R. 3.400. 2. An effective date earlier than January 11, 2012, for the grant of service connection for left lower extremity lumbar radiculopathy is not warranted. 38 U.S.C. 5110; 38 C.F.R. 3.400. 3. An effective date earlier than January 11, 2012, for the grant of service connection for right lower extremity lumbar radiculopathy have not been met. 38 U.S.C. 5110; 38 C.F.R. 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty for training from January 1995 to May 1995, and on active duty from October 1996 to June 2000 (from which discharge was under other than honorable conditions) and from December 2008 to November 2009 (from which discharge was honorable). These matters are before the Board of Veterans’ Appeals (Board) on appeal of March 2011 and December 2013 rating decisions. The Veteran had requested a Travel Board hearing before the Board. In August 2018 correspondence in response to a request for clarification of the hearing request, the Veteran’s attorney stated that did not want a hearing before the Board. A DD Form 214 for the Veteran’s period of service from October 1996 to June 2000 indicates that his discharge from that service was under other than honorable conditions. A July 2018 VA letter to the Veteran advises him that the matter of the character of his discharge from that period of service is pending consideration and advised him of the evidence he could submit in the matter, and of his right to a hearing in the matter. An agency of original jurisdiction (AOJ) determination is not yet shown to have been made in the matter, and the Board does not how have jurisdiction in the matter. The earlier effective date claims and the claims for increased ratings are not impacted by the pending character of discharge determination (as the disabilities are already service-connected). Effective Dates of Service Connection Awards Generally, the effective date of an award of disability compensation based on an original claim 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. If the claim for service connection is received within one year of a veteran’s discharge from service, the effective date of an award of service connection will be the day following discharge from service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400 (b)(2); see also Wright v. Gober, 10 Vet. App. 343, 347 (1997) (holding that § 5110(b)(1) “applies only to those awards of disability compensation actually based on a claim filed within one year after the veteran’s separation”). Otherwise, the effective date will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2). A “claim” is defined as a formal or informal communication, in writing, requesting a determination of entitlement, or evidencing a belief in entitlement to a benefit and VA is required to identify and act on informal claims for benefits. 38 C.F.R. §§ 3.1(p), 3.155(a); see also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Pursuant to 38 C.F.R. § 3.155, any communication or action indicating intent to apply for one or more VA benefits, including statements from a veteran’s duly authorized representative, 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 Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). 1. Entitlement to an effective date earlier than April 30, 2010, for the grant of service connection for hypertension On May 17, 2010, VA received the Veteran’s claim for an increased rating for his service-connected dorsal and lumbar spine disorder (and several service connection claims-not specifically including hypertension). VA treatment records first show a diagnosis of hypertension on April 30, 2010. The AOJ sua sponte granted service connection for hypertension (in a March 2011 rating decision), effective date of April 30, 2010. The effective date of an award of service connection is the date of receipt of the claim or the date entitlement arose, whichever is the later [emphasis added]. 38 C.F.R. § 3.400. Service connection for hypertension was not awarded pursuant to a claim by the Veteran seeking service connection for that disability; he had not filed such a claim. It was awarded sua sponte by the AOJ based on a review of the Veteran’s record. Because there was not claim filed, the effective date of the award is governed by when entitlement arose. Because a threshold requirement for substantiating a claim of service connection is competent evidence that the Veteran has the disability in question (see 38 U.S.C. § 1110), there can be no entitlement of service connection for a disability before the disability is shown to exist. Here, the first evidence that the Veteran had a diagnosis of hypertension was on April 30, 2010, and that is when entitlement arose. Governing law and regulation do not authorize an earlier effective date for the award of service connection. The law is dispositive in this matter, and the appeal seeking an earlier effective date must be denied. 2. Entitlement to an effective date earlier than January 11, 2012, for the grants of service connection for left and right lower extremity lumbar radiculopathy The Veteran’s attorney argues that an effective date of November 29, 2009 (the day following the Veteran’s discharge from active duty service), should be assigned for the awards of service connection for bilateral lower extremity radiculopathy, as he has consistently complained of radicular symptoms since service. VA received the Veteran’s claim for service connection for radiculopathy of both legs on May 17, 2010. An April 2011 VA electrodiagnostic study found no electrophysiological evidence of lumbar radiculopathy. Thereafter, private electromyography (EMG) on January 11, 2012 confirmed diagnoses of right and left lower extremity radiculopathy. Service connection for right and left lower extremity radiculopathy was granted effective from the date of the January 11, 2012 that first showed the Veteran had such disabilities. As was not above, the effective date for the award of service connection based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is the later [emphasis added]. 38 C.F.R. § 3.400. The diagnosis of a disability that is a neurological manifestation of another already service-connected disability (as here with lower extremity as manifestations of a low back disability) is a complex medical question beyond the scope of common knowledge or capability of establishment by lay observation. It requires medical expertise (informed by diagnostic studies). See Jandreau v. Nicholson, 492 F.3d. 1372 (Fed. Cir. 2007). Thus, while the Veteran is competent to report he had perceived radiating symptoms from his service-connected low back disability, he is not competent to establish by his own opinion that he has throughout since service had underlying lower extremity neurological pathology to account for the symptoms. Here, after the Veteran filed a claim seeking service connection for lower extremity radiculopathy, April 2011 VA diagnostic studies specific for such disability did not find it shown. Therefore, while a claim of service connection for bilateral lower extremity radiculopathy had been filed, entitlement to service connection for such disabilities was not shown. It was not until a January 11, 2012 EMG that the diagnosis of lower extremity lumbar radiculopathy was established (and entitlement arose); the Veteran has not presented any evidence to the contrary, and has not alleged that such evidence exists. Accordingly, the Board finds an effective date earlier than January 11, 2012, the date entitlement arose, for the award of service connection for bilateral lower extremity lumbar radiculopathy is not warranted, and that the appeal in the matter must be denied. REASONS FOR REMAND 1. Entitlement to service connection for left and right hip disorders, left and right knee disorders, left and right upper extremity neuropathy, left and right upper extremity radiculopathy, left and right lower extremity neuropathy and a cervical spine disorder is remanded. The service connection issues on appeal before the Board are inextricably intertwined with the matter of the character of discharge for the Veteran’s service from October 1996 to June 2000. Any grant of service connection for a disability related to an illness, injury, or event from during an active period of service presupposes that the applicable period of service is of a character under which such benefits may be awarded. As a determination in the matter is pending before the AOJ, the Board’s consideration of the appeals in these matters must be deferred. See Harris v. Derwinski, 1 Vet. App. 180, 183(1991). Furthermore, some clarification of the neurological disability service connection claims pending is necessary. The rating decision that denied service connection for bilateral upper and lower extremity neuropathy discussed those 4 issues using the same verbiage as the claims of service connection for radiculopathy (which have been granted in part, for lower extremity radiculopathy, and denied in part, for upper extremity radiculopathy). The disabilities were characterized in the discussions as “radiculopathy and neuropathy” interchangeably, and the codesheets list all upper extremity neurological disabilities under Code 8516 and all lower extremity neurological disabilities under Code 8520. Consequently, the question arises whether the claims for radiculopathy and neuropathy are for separate and distinct disabilities or for the same disabilities variously characterized (in which case the claims should be merged). 2. Entitlement to ratings in excess of 20 percent for dorsal and lumbar spine strain and in excess of 10 percent, each, for left and right lumbar radiculopathy is remanded. The January 2016 supplemental statement of the case (SSOC) noted that the evidence considered included a December 17, 2015 Disability Benefits Questionnaire (DBQ) examination of the back. A review of the electronic claims file, to include the VA treatment records found the notation “you may not view this completed C&P DBQ back (thoracolumbar spine) conditions.” As the report of this examination is pertinent evidence, it must be obtained and associated with the claims file. Moreover, in June 2018 written argument, the Veteran’s attorney stated that these disabilities have increased in severity since the December 2015 VA examination. A remand for a contemporaneous examination is necessary. 3. Entitlement to a rating in excess of 50 percent for adjustment disorder is remanded. The Veteran was last afforded a VA psychiatric examination in January 2013. In June 2018 written argument, the Veteran’s attorney cited to a February 2017 VA treatment record suggesting a worsening of psychiatric symptoms, and requested a contemporaneous examination. A remand for such examination is necessary. 4. Entitlement to a rating in excess of 10 percent for hypertension is remanded. A Statement of the Case (SOC) in this matter was issued in June 2017. Thereafter, a May 2018 VA hypertension examination report was associated with the Veteran’s claims file. It was not submitted by the Veteran, and he has not waived AOJ consideration of such evidence. Accordingly, the claim must be returned to the AOJ for its initial consideration of the May 2018 hypertension examination report, and issuance of a Supplemental Statement of the Case (SSOC). The matters are REMANDED for the following: 1. Upon determining the character of the Veteran’s discharge for his service from October 1996 to June 2000 and his eligibility for VA compensation benefits based on that period of service, readjudicate the service connection claims on appeal considering the determination. The SSOC in these matters should also include (upon clarification by the Veteran/his attorney and if necessary by appreciate medical providers) an explanation whether the claims of service connection for upper and lower extremity radiculopathy and neuropathy represent claims of service connection for separate and distinct neurological manifestations of spine disability or claims for upper and lower extremity neurological manifestations of lumbar/dorsal spine disability, however diagnosed (in which case they should be merged to avoid to avoid needless duplicate consideration). 2. Obtain for the record the report of the Veteran’s December 2015 DBQ spine examination. 3. Arrange for the Veteran to be examined by an appropriate clinician to determine the current severity of his service-connected dorsal and lumbar spine strain and radiculopathy of the left and right lower extremities. The Veteran’s electronic claims file must be reviewed by the examiner. The examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of all symptoms (and related impairment of function) of the dorsal and lumbar spine strain and the left and right lower extremity radiculopathy. The examiner should consider the Veteran’s reports of flare ups and portray any related functional loss in terms of additional range of motion loss. If a finding sought cannot be made, the examiner must explain why that is so. All opinions must include complete rationale. 4. Arrange for a psychiatric evaluation of the Veteran to assess the severity of his service-connected adjustment disorder. The examiner should review the Veteran’s electronic claims file and identify all manifestations of the adjustment disorder found (on examination and interview) or shown by record, in particular any symptoms listed in the schedular rating criteria for ratings for psychiatric disability above 50 percent (or any other symptoms of equivalent found that are not listed in the schedular rating criteria). The examiner should describe the impact the psychiatric disability has on the Veteran’s occupational and social functioning. All opinions must include rationale 5. Readjudicate the claim of entitlement to a rating in excess of 10 percent for hypertension considering all additional evidence received since the issuance of the June 2017 SOC, to specifically include the report of a May 2018 hypertension examination. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Henriquez, Counsel