Citation Nr: 18151922
Decision Date: 11/20/18	Archive Date: 11/20/18

DOCKET NO. 15-17 515
DATE:	November 20, 2018
ORDER
1. Entitlement to an effective date prior to June 3, 2013, for the grant of service connection for bilateral pes planus is denied.
2. Entitlement to an effective date prior to June 3, 2013, for the grant of service connection for right ankle osteoarthritis is denied.
3. Entitlement to an effective date prior to June 3, 2013, for the grant of service connection for left shoulder degenerative joint disease is denied.
4. Entitlement to an effective date prior to June 3, 2013, for the grant of service connection for right shoulder degenerative joint disease is denied.

REMANDED ISSUES
1. Entitlement to service connection for a musculoskeletal condition. 
2. Entitlement to a compensable rating for left foot surgical scars.
3. Entitlement to a compensable rating for erectile dysfunction.
4. Entitlement to an initial rating in excess of 20 percent for right ankle osteoarthritis.
5. Entitlement to an initial rating in excess of 10 percent for left shoulder degenerative joint disease.
6. Entitlement to an initial rating in excess of 10 percent for right shoulder degenerative joint disease.
7. Entitlement to an initial rating in excess of 50 percent for bilateral pes planus.
8. Entitlement to an initial rating in excess of 10 percent for left knee internal derangement with meniscal tears and chondromalacia.
9. Entitlement to a compensable rating for surgical scar, lower back.
10. Entitlement to an initial rating in excess of 10 percent for left ankle osteoarthritis.
11. Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease with intervertebral disc syndrome.
12. Entitlement to a rating in excess of 20 percent prior to July 20, 2014 and on and after October 1, 2014, for cervical spine degenerative disc disease with intervertebral disc syndrome.
13. Entitlement to a compensable rating or a rating in excess of 10 percent prior to August 7, 2014, and in excess of 20 percent on and after August 7, 2014, for right upper extremity radicular nerve disability.
14. Entitlement to a rating in excess of 10 percent, prior to August 7, 2014, and in excess of 30 percent on and after August 7, 2014, for left upper extremity radicular nerve disability.
15. Entitlement to a rating in excess of 10 percent prior to August 7, 2014, and in excess of 20 percent on and after August 7, 2014, right lower extremity femoral nerve disability.
16. Entitlement to a rating in excess of 10 percent, prior to August 7, 2014, and in excess of 30 percent on and after August 7, 2014, left lower extremity sciatic nerve disability.
17. Entitlement to an effective date prior to June 3, 2013, for the grant of service connection for left ankle osteoarthritis.
18. Entitlement to an effective date prior to February 22, 2014, for the grant of a separate noncompensable rating for left foot surgical scars.
19. Entitlement to an effective date prior to September 9, 2002, for the grant of service connection for cervical spine degenerative disc disease with intervertebral disc syndrome.
20. Entitlement to an effective date prior to September 9, 2002, for the grant of service connection for lumbar spine degenerative disc disease with intervertebral disc syndrome.
21. Entitlement to an earlier effective date for an uncertain aspect of surgical scar, lower back.
22. Entitlement to an effective date prior to March 19, 2010, for the grant of a separate noncompensable or 10 percent rating for right upper extremity radicular nerve disability, and an effective date prior to August 7, 2014 for the award of a 20 percent rating.
23. Entitlement to an effective date prior to March 19, 2010, for the grant of a separate 10 percent rating for left upper extremity radicular nerve disability, and an effective date prior to August 7, 2014 for the award of a 30 percent rating.
24. Entitlement to an effective date prior to March 19, 2010, for the grant of a separate 10 percent rating for right lower extremity femoral nerve disability, and an effective date prior to August 7, 2014 for the award of a 20 percent rating.
25. Entitlement to an effective date prior to March 19, 2010, for the grant of a separate 10 percent rating for left lower extremity sciatic nerve disability, and an effective date prior to August 7, 2014 for the award of a 20 percent rating.
26. Whether the May 25, 2005 rating decision that granted service connection for lumbar spine degenerative disc disease with intervertebral disc syndrome contains clear and unmistakable error as to the assigned effective date of September 9, 2002.
27. Whether the May 25, 2005 rating decision that granted service connection for cervical spine degenerative disc disease with intervertebral disc syndrome contains clear and unmistakable error as to the assigned effective of September 9, 2002.
28. Entitlement to an effective date prior to August 20, 2013, for the grant of special monthly compensation for loss of use of a creative organ.
29. Entitlement to an effective date prior to August 20, 2013, for the grant of service connection for erectile dysfunction.
30. Entitlement to an effective date prior to June 3, 2013, for the grant of Dependents’ Educational Assistance benefits.

INTRODUCTION
The Veteran served on active duty from July 1979 to June 1995.
These matters come before the Board of Veterans Appeals (Board) on appeal from several rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The adjudicative history regarding the Veteran’s appeal is complicated and lengthy; it need not be detailed here.  It is sufficient for present purposes to state that the Veteran has either adequately perfected an appeal or there is adequate basis for the Board to extend limited jurisdiction over each of the above-captioned claims.
With respect to the issue of entitlement to service connection for a musculoskeletal disability, this claim was originally denied in a December 1995 rating decision, captioned and adjudicated as “joint pain with swelling and arthritis.” The basis for the denial was that the evidence then of record did not establish the presence of “chronic joint pain swelling and arthritis…showing a chronic disability subject to service connection.” Despite receiving notice of this decision and notice of his appellate rights in February 1996, the Veteran did not perfect an appeal and the December 1995 rating decision is final.  In May 2013, the Veteran submitted a claim to reopen this issue, asserting that he had been experiencing “constant pain and stiffness.” In support of this claim, the Veteran has submitted and/or VA has received evidence demonstrating complaints of and treatment for pain in a variety of joints. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). The Board finds that this evidence is both new and material evidence sufficient to reopen the claim, especially given the recently changes in applicable law.  See Saunders v. Wilkie, 886 F. 3d 1356, 1367-68 (2018). Additional development of this claim is warranted, which will be discussed in the remand portion of the decision below.

FINDING OF FACT
The Veteran’s original claims of entitlement to service connection for bilateral pes planus, right ankle disability, right shoulder disability, and left shoulder disability were date-stamped as received on June 3, 2013.

CONCLUSIONS OF LAW
1. The criteria for an effective date prior to June 3, 2013, for the grant of service connection for bilateral pes planus have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
2. The criteria for an effective date prior to June 3, 2013, for the grant of service connection for right ankle osteoarthritis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
3. The criteria for an effective date prior to June 3, 2013, for the grant of service connection for right shoulder degenerative joint disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.
4. The criteria for an effective date prior to June 3, 2013, for the grant of service connection for left shoulder degenerative joint disease have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
In a statement dated on May 14, 2013, but date-stamped as received on received on June 3, 2013, the Veteran submitted claims of entitlement to service connection for bilateral pes planus, a right ankle disability, and right and left shoulder disabilities.
Ultimately, in a July 2014 rating decision, service connection was granted for pes planus, right foot (the scope of the already service-connected left foot disability was expanded to include pes planus); right ankle osteoarthritis; and right and left shoulder degenerative joint disease.  The RO assigned an effective date of June 3, 2013, for the grant of service connection for each of these disabilities.
Generally, the effective date for the grant of service connection will be the date of claim or the date entitlement arose, whichever is later.
In his September 2014 notice of disagreement, neither the Veteran nor his attorney provided any specific evidence or assertion in support of the claims for earlier effective dates. The same is true for the Veteran’s May 2015 substantive appeal.
Prior to June 3, 2013, the Board finds no correspondence that can be properly construed as a claim of entitlement to service connection for bilateral pes planus, a right ankle disability, and right and left shoulder disabilities.
The Veteran has not presented any assertion or evidence that the date of claim underlying the grant of service connection for these disabilities was prior to June 3, 2013. As such, the Board finds that effective dates prior to June 3, 2013, for the award of service connection for pes planus, right foot (and the expanded scope of the service-connected left foot disability to include pes planus); right ankle osteoarthritis; and right and left shoulder degenerative joint disease are not warranted.

REMAND
Musculoskeletal Disability
The specific nature of the disability for which the Veteran is seeking benefits is unclear with respect to this claim, especially given the variety of other musculoskeletal disabilities that have already been granted service connection.  Consequently, the Board finds that the RO should attempt to obtain clarification from the Veteran.  If the Veteran provides clarification, he should then be provided a VA examination pursuant to this claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159(c)(4)(i). As such, a remand to provide the Veteran the appropriate VA examination is warranted. 
Increased Rating Claims
With respect to the Veteran claims of entitlement to increased ratings for his left foot surgical scars, right ankle osteoarthritis, right and left shoulder degenerative joint disease, bilateral pes planus, and left knee internal derangement with meniscal tears and chondromalacia, the most recent VA examination to assess the severity of these disabilities occurred in April 2015.  The Board finds that the VA examinations in excess of 3 years old are too remote, and the evidence of record is otherwise insufficient, to adequately evaluate the current severity of these disabilities. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017); Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016). As such, a remand is warranted in order to provide the Veteran additional VA examinations. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991).
Left Foot Surgical Scars
In a July 2014 rating decision, the RO indicated that the Veteran’s left foot surgical scars were previously considered as noncompensable residuals of his service-connected “left foot surgery.”  For reasons unknown to the Board and unstated in the rating decision, the RO decided that the noncompensable residuals were “now being separated from the initial evaluation for [the Veteran’s] service[-]connected left foot injury residuals.”  The RO then determined that the residual left foot surgery scars were still noncompensable, and assigned an effective date of February 22, 2014 to the rating, which corresponded to a VA examination evaluating bilateral pes planus.
At the time of the July 2014 rating decision, the only anatomically relevant, service-connected left foot disability was “left foot injury with arthritis and residual exostoses status post arthrodesis.”  Presumably, this is the disability under which the left foot surgical scars were considered.  An initial 10 percent rating was assigned to this disability, effective July 1, 1995, and a 30 percent rating was assigned on and after September 9, 2002.  As just stated, the initial evaluation assigned to this disability became effective July 1, 1995. The Board is unable to reconcile this with the RO’s determination that the Veteran’s noncompensable left foot surgical scar was being separated from the “initial evaluation” for the Veteran’s service-connected left foot disability, while assigning an effective date of February 22, 2014.
Additionally, the Board is unable to ascertain the RO’s basis for separating the residual left foot surgical scars from the left foot disability, especially given that a separate noncompensable rating was assigned.
Based on the above, a remand is warranted in order for the AOJ to provide clarification as to when service connection for left foot surgical scars was granted, the effective date for that grant, and at what initial rating.  The AOJ should also provide clarification as to the date the left foot surgical scars were assigned a separate rating and the basis for that determination.
Intertwined Issues
The claims of entitlement to a compensable initial rating for erectile dysfunction, an earlier effective date for the grant of entitlement to service connection for erectile dysfunction, and an earlier effective date for the grant of special monthly compensation for loss of use of a creative organ are inextricably intertwined with the Veteran’s claims regarding his service-connected lumbar spine degenerative disc disease with intervertebral disc syndrome.  Consequently, these matters must be remand for contemporaneous consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991).
Further, with respect to the Veteran’s claim of entitlement to a compensable initial rating for erectile dysfunction, the AOJ should ascertain whether this disability is manifested by interior and/or exterior penile deformity, and rate it by analogy under 38 C.F.R. § 4.115, Diagnostic Code 7522.  See 38 C.F.R. § 4.20; Williams v. Wilkie, No. 16-3252; 2018 U.S. App. Vet. Claims LEXIS 1037 (August 7, 2018).  
The claim of entitlement to an effective date prior to June 3, 2013, for the grant of Dependents’ Educational Assistance benefits is also inextricably intertwined with the other claims remanded herein.  Eligibility for these benefits is predicated on, among other things, the effective date of a total and permanent service-connected disability rating.  Given that numerous claims for increased ratings and earlier effective dates are being remanded herein, remanding this claim is warranted for contemporaneous consideration.
Manlicon Issues
In a January 2015 rating decision, the RO granted service connection for left ankle osteoarthritis, effective June 3, 2013. The RO also granted increased ratings for the Veteran’s service-connected right upper, left upper, right lower, and left lower extremity neurological disabilities, each effective August 7, 2014; denied increased ratings for the Veteran’s lumbar spine and cervical spine degenerative disc disease with intervertebral disc syndrome (beyond a temporary total for convalescence); denied an increased rating for lower back surgical scar; and denied claims that the May 25, 2005 rating decision contained clear and unmistakable error as to the effective dates assigned for the grant of service connection for lumbar spine and cervical spine degenerative disc disease with intervertebral disc syndrome.
In May 2015, the Veteran submitted a notice of disagreement, seeking both an increased rating and an earlier effective date for his left ankle osteoarthritis, lumbar and cervical spine degenerative disc disease, lower back scar, as well as his left and right upper and left and right lower extremity neurological disabilities.  Further, the Veteran expressed disagreement with the denial of his CUE claims regarding the May 25, 2005 rating decision and the effective dates assigned therein to the grants of service connection for lumbar and cervical spine degenerative disc disease.
To date, the RO has not issued a statement of the case in response to the May 2015 notice of disagreement. See 38 C.F.R. §§ 20.200, 20.201, 20.202. Indeed, the Veteran has submitted multiple status requests since the May 2015 notice of disagreement, receiving no response or statement of the case from the RO.  As such, the Board must remand these claims in order for the AOJ to issue a statement of the case and to give the Veteran an opportunity to perfect an appeal of such claim(s) by submitting a timely substantive appeal. See Manlicon v. West, 12 Vet. App. 238 (1999).
Additionally, with respect to the Veteran’s service-connected right upper extremity radicular nerve disability, in a March 2011 rating decision, an initial 10 percent rating was assigned, effective March 19, 2010.  However, in the January 2015 rating decision that granted an increase to 20 percent, effective August 7, 2014, the Veteran’s right upper extremity radicular nerve disability is shown as being assigned a noncompensable initial rating. The Board is unable to ascertain whether the correct initial rating is a noncompensable rating or a 10 percent rating. The Board has modified the Veteran’s relevant claims to reflect the confusion regarding the correct initial rating. A remand is warranted in order for the AOJ to provide clarification. 
With respect to the Veteran’s lower back scar, service connection for left hip donor site scar was granted in a December 1995 rating decision, and a noncompensable rating was assigned thereto, effective July 1, 1995. In a January 2015 rating decision, the RO granted service connection for the Veteran’s lower back scar, combining it with the already service-connected left hip donor site scar. Despite this combination, the RO continued the noncompensable rating assigned. The Veteran subsequently submitted a timely notice of disagreement seeking an earlier effective date and an increased rating for his lower back scar, without reference to the left hip donor site scar.  Because the lower back scar was combined with the left hip donor site scar, the effective date for the noncompensable rating is July 1, 1995.  As such, it is unclear to the Board what the Veteran is seeking in regard to an earlier effective date for his “lower back scar,” and, thus, clarification should be obtained by the AOJ.
Accordingly, the case is remanded for the following action:
1. Provide clarification as to whether the initial rating assigned to the Veteran’s service-connected right upper extremity radicular nerve disability is noncompensable or 10 percent.
2. Provide clarification as to when service connection for left foot surgical scars was granted, the effective date for that grant, and at what rating. Also, provide clarification as to the effective date the left foot surgical scars were assigned a separate rating and the basis for that determination.
3. Request that the Veteran provide clarification as to what he is seeking an earlier effective date for regarding his lower back scar (which has been combined with his left hip donor site scar and assigned a noncompensable rating, effective July 1, 1995).
4. Request that the Veteran provide clarification regarding the specific disability for which he is seeking service connection with respect to his “musculoskeletal disability” claim. 
5. If clarification is obtained from the Veteran regarding his “musculoskeletal disability,” provide him with the appropriate VA examination.  The Veteran’s electronic claims file must be made available to the examiner and the examiner must specify in the report that it was contemporaneously reviewed. All pertinent symptomatology and findings must be reported. Any indicated special diagnostic tests that are deemed necessary for an accurate assessment must be conducted. The examiner should then provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s identified musculoskeletal disability was incurred in or due to his active duty. All rendered opinions must be accompanied by a thorough rationale. 
6. Provide the appropriate VA examination(s) to determine the severity of his service-connected left foot surgical scars, right ankle osteoarthritis, right and left shoulder degenerative joint disease, bilateral pes planus, and left knee internal derangement with meniscal tears and chondromalacia. All pertinent evidence of record must be made available to and reviewed by the examiner(s), and any indicated tests and studies should be performed.
Each examiner must provide accurate and fully descriptive assessments of all symptoms and must comment upon the frequency and severity of the Veteran’s symptoms in accordance with VA rating criteria. The examiner must provide all information required for rating purposes. Specifically, the examiner(s) must test and record the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.
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. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination.
There should be a complete discussion of the Veteran’s flare-ups, to include their severity, frequency, and duration; precipitating and alleviating factors; and an opinion as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups.
7. Once the above actions have been completed, the AOJ must re-adjudicate the claims (other than those listed in paragraph 8 below). If any benefit remains denied, a supplemental statement of the case must be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the appeal must be returned to the Board for further appellate review.
8. With respect to the following claims:
a)	Entitlement to an initial rating in excess of 10 percent for left ankle osteoarthritis;
b)	Entitlement to a rating in excess of 40 percent for lumbar spine degenerative disc disease with intervertebral disc syndrome.
c)	Entitlement to a rating in excess of 20 percent prior to July 20, 2014 and on and after October 1, 2014, for cervical spine degenerative disc disease with intervertebral disc syndrome.
d)	Entitlement to a compensable rating or a rating in excess of 10 percent rating prior to August 7, 2014, and in excess of 20 percent on and after August 7, 2014, for right upper extremity radicular nerve disability;
e)	Entitlement to a rating in excess of 10 percent, prior to August 7, 2014, and in excess of 30 percent on and after August 7, 2014, for left upper extremity radicular nerve disability;
f)	Entitlement to a rating in excess of 10 percent prior to August 7, 2014, and in excess of 20 percent on and after August 7, 2014, right lower extremity femoral nerve disability;
g)	Entitlement to a rating in excess of 10 percent, prior to August 7, 2014, and in excess of 30 percent on and after August 7, 2014, left lower extremity sciatic nerve disability;
h)	Entitlement to an effective date prior to September 9, 2002, for the grant of service connection for lumbar spine degenerative disc disease with intervertebral disc syndrome;
i)	Entitlement to an effective date prior to September 9, 2002, for the grant of service connection for cervical spine degenerative disc disease with intervertebral disc syndrome;
j)	Whether the May 25, 2005 rating decision that granted service connection for lumbar spine degenerative disc disease with intervertebral disc syndrome contains clear and unmistakable error as to the assigned effective date of September 9, 2002;
k)	Whether the May 25, 2005 rating decision that granted service connection for cervical spine degenerative disc disease with intervertebral disc syndrome contains clear and unmistakable error as to the assigned effective of September 9, 2002;
l)	Entitlement to an effective date prior to June 3, 2013, for the grant of service connection for left ankle osteoarthritis;
m)	Entitlement to an effective date prior to March 19, 2010 for the grant of a separate 10 percent rating for left upper extremity radicular nerve disability, and an effective date prior to August 7, 2014, for the grant of a 30 percent rating;
n)	Entitlement to an effective date prior to March 19, 2010 for the grant of a separate 10 percent rating for left lower extremity sciatic nerve disability, and an effective date prior to August 7, 2014, for the grant of a 20 percent rating;
o)	Entitlement to an effective date prior to March 19, 2010 for the grant of a separate 10 percent rating for right lower extremity femoral nerve disability, and an effective date prior to August 7, 2014, for the grant of a 20 percent rating;
p)	Entitlement to an effective date prior to March 19, 2010 for the grant of a separate noncompensable or 10 percent rating for right upper extremity radicular nerve disability, and an effective date prior to August 7, 2014, for the grant of a 20 percent rating;
q)	Entitlement to a compensable rating for surgical scar, lower back; and
r)	Entitlement to an earlier effective date for an uncertain aspect of surgical scar, lower back.
Issue the Veteran a statement of the case and notification of his appellate rights. Inform the Veteran that to vest jurisdiction over any of these issues with the Board, a timely substantive appeal must be filed. If the Veteran perfects an appeal as to any of these claims, it or they must be certified to the Board for appellate review.

 
M. H. HAWLEY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Department of Veterans Affairs