Citation Nr: 18153306 Decision Date: 11/27/18 Archive Date: 11/27/18 DOCKET NO. 11-07 598 DATE: November 27, 2018 ORDER Entitlement to an effective date prior to February 10, 2006 for the grant of service connection for degenerative disc disease of the thoracolumbar spine is dismissed. Entitlement to an effective date prior to February 10, 2006 for the grant of service connection for left knee strain is dismissed. Entitlement to an effective date prior to February 10, 2006 for the grant of service connection for left and right achilles tendonitis is dismissed. Entitlement to an effective date prior to February 10, 2006 for the grant of service connection for right healed metatarsal stress fracture with metatarsalgia is dismissed. Entitlement to an effective date prior to February 15, 2008 for the grant of a 10 percent disability rating for left knee strain is dismissed. Entitlement to an effective date prior to February 15, 2008 for the grant of a 20 percent disability rating for the left and right achilles tendonitis is dismissed. Entitlement to an effective date prior to February 15, 2008 for the grant of service connection for migraine headaches is denied. Entitlement to an effective date prior to February 15, 2008 for the grant of service connection for temporomandibular joint dysfunction is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to an evaluation in excess of 30 percent for migraine headaches is remanded. Entitlement to an evaluation in excess of 0 percent for temporomandibular joint dysfunction is remanded. Entitlement to an evaluation in excess of 20 percent for right achilles tendonitis is remanded. Entitlement to an evaluation in excess of 20 percent for left achilles tendonitis is remanded. Entitlement to an evaluation in excess of 20 percent for degenerative disc disease, thoracolumbar spine, is remanded. Entitlement to an evaluation in excess of 10 percent for left knee strain is remanded. Entitlement to an evaluation in excess of 10 percent of right healed metatarsal stress fracture with metatarsalgia is remanded. Entitlement to an evaluation in excess of 0 percent from February 10, 2006 to October 28, 2011 for hypertension is remanded. Entitlement to an evaluation in excess of 20 percent from October 28, 2011 to April 25, 2013 for hypertension is remanded. Entitlement to an evaluation in excess of 10 percent from April 25, 2013 to April 21, 2018 for hypertension is remanded. Entitlement to an evaluation in excess of 40 percent from April 21, 2018 for hypertension is remanded. The application to reopen the claim for service connection for bilateral hearing loss is remanded. The application to reopen the claim for service connection for screw and dental implant is remanded. Entitlement to a temporary total rating due to convalescence for service-connected disability is remanded. FINDINGS OF FACT 1. In a November 2006 rating decision, the RO granted the claims for service connection for degenerative disc disease of the thoracolumbar spine, left knee strain, left achilles tendonitis, and right achilles tendonitis (all noncompensable), and granted a rating of 10 percent for right healed metatarsal stress fracture, effective February 10, 2006, the day following the Veteran’s discharge from active service. 2. In an April 2009 rating decision, the RO granted increased ratings for the degenerative disc disease of the spine (20 percent) and both right and left achilles tendonitis (20 percent each), effective February 15, 2008, the date of receipt of the claim for increase. 3. The Veteran did not express disagreement or submit new and material evidence within one year of notice of either the November 2006 rating decision or the April 2009 rating decision. 4. In a March 2016 rating decision, the RO granted service connection for migraine headaches and temporomandibular joint dysfunction effective February 15, 2008; the date the claim was received; there is no document in the claims file prior to that date that could be construed as a claim, formal or informal. 5. The Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The November 2006 and April 2009 rating decisions are final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 2. The criteria for entitlement to an effective date earlier than February 10, 2006 for the award of service connection for degenerative disc disease of the thoracolumbar spine, left knee strain, left achilles tendonitis and right achilles tendonitis, and right healed metatarsal stress fracture have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b) (2017). 3. The criteria for entitlement to an effective date earlier than February 15, 2008 for the increased rating of 20 percent for degenerative disc disease of the spine, right achilles tendonitis, and left achilles tendonitis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(o) (2017). 4. The criteria for an effective date prior to February 15, 2008 for migraine headaches and temporomandibular joint dysfunction have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400(b) (2017). 5. The criteria for TDIU are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2001 to February 2006 The Veteran appeared at a Board hearing in September 2012; a transcript is of record. With respect to the Board hearing, the undersigned VLJ clarified the issues on appeal, identified potential evidentiary deficits, and clarified the type of evidence that would support the Veteran’s claim. These actions complied with any duties owed during a hearing. 38 C.F.R. § 3.103. The Board remanded the claims for hypertension and TDIU in March 2013 and November 2017. Hypertension is being remanded and TDIU is granted. Therefore, discussion of compliance with the prior remand is not necessary. Effective Date 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 will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within 1 year from such date otherwise, date of receipt of claim. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). Current Federal regulations require a notice of disagreement to be on a proper form. 79 Fed. Reg. 57660, 57697 (Sep. 25, 2014) (codified at 38 C.F.R. § 19.24). In the relevant timeframe below, a claim was defined as 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). An informal claim was any communication or action indicating an intent to apply for one or more benefits. Prior 38 C.F.R. § 3.155 (a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims – formal and informal – for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Additionally, with regards to Notice of Disagreements (NOD), the version of the pertinent regulation in effect during the relevant periods here required only a written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result. 38 C.F.R. § 20.200. While special wording is not required, the Notice of Disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. Id. The Veteran’s representative filed a substantive appeal to all of the above and listed both an appeal of the rating itself and the effective date. The claims for increased ratings are addressed in the remand section. 1. – 5. Degenerative disc disease of the thoracolumbar spine, left knee strain, left achilles tendonitis, right achilles tendonitis, and right healed metatarsal stress fracture with metatarsalgia. The above captioned disabilities have been granted with an effective date the day after the Veteran left service, February 10, 2006. This was based on an application for compensation dated in February 2006. In June 2006, a rating decision granted service connection for right healed metatarsal stress fracture with metatarsalgia at 0 percent and denied entitlement to service connection for the left knee. In November 2006, a rating decision granted service connection for right and left achilles tendonitis, the left knee strain, and degenerative disc disease of the thoracolumbar spine, all at 0 percent, and granted an increased rating of 10 percent for the right healed metatarsal stress fracture. All of these were effective February 10, 2006. A notice letter was sent that same month. The Veteran did not submit a notice of disagreement and the only documents submitted in the next year involved dependents. On February 15, 2008, the Veteran submitted a claim for increased ratings for these disabilities. An April 2009 rating decision granted increased ratings for the degenerative disc disease of the spine (20 percent) and left and right achilles tendonitis (20 percent each), effective February 15, 2008. The increased rating was based on a May 2008 VA examination. The right healed metatarsal stress fracture with metatarsalgia rating was continued at 10 percent. The Veteran was notified of these decisions in May 2009. A separate rating decision in August 2009 addressed additional claims for service connection (depression, temporomandibular joint dysfunction, screw and dental implant, sleep apnea, and migraine headaches) or increased ratings (left knee strain, depression, and hypertension). This rating decision granted a 10 percent rating for the left knee effective March 25, 2009, according to the rating decision, based on outpatient VA treatment records and a June 2009 VA examination. The Veteran submitted two relevant documents labeled as Notice of Disagreement (NOD), one is dated September 2009 and another undated, both were received in October 2009. The first document states that the Veteran disagreed with the ratings for depression and hypertension and the denial of service connection for the jaw disorder, sleep apnea, and migraine headaches. Another, labeled as an addendum is more generic, but notes that it is intended as a NOD to all adjudicative determinations in the rating decision – specifically a singular decision, not rating decisions plural – and disagrees with all determinations of the regional office, alleges failure of the regional office to adjudicate claims reasonable raised by the record, and other language involving mischaracterizations of claims, obtaining medical records, etc. and requested a hearing with a Decision Review Officer. Based on these documents, the RO considered the NOD to be with the August 2009 rating decision and notified the Veteran of this in a November 2009 letter. Specifically, the NOD was for entitlement to an increased rating for depression and hypertension and service connection for the jaw disorder, sleep apnea, and migraine headaches. The Veteran also did not state he disagreed with any issues contained on the April 2009 rating decision during a September 2010 DRO hearing. The February 2011 Statement of the Case sent to the Veteran reflects this. Neither the Veteran nor the Veteran’s then representative ever indicated this determination was incorrect. The claim for an earlier effective date was filed many years afterwards. The NOD states it disagreed with a single rating decision dated in August 2009 and listed specific claims the Veteran disagreed with, and the Veteran did not disagree with the rating for the left knee at the time. Therefore, the Veteran did not submit a NOD with regards to the above captioned disabilities. The Veteran filed a claim for TDIU in October 2009 and development was undertaken regarding that claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (noting the issue of entitlement to TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather part of the initial adjudication of a claim or part of a claim for increased compensation). A June 2010 rating decision denying TDIU did list orthopedic disabilities as impacting functioning, as described in a March 2010 VA examination. However, TDIU was denied in that rating decision, a notice letter was sent that same month, and neither the Veteran nor his representative filed a written communication expressing dissatisfaction or disagreement with the rating decision. All additional evidence received prior to the expiration of the appeal period was to do with the other appealed issues and no evidence was submitted within a year of the notice letters to the above rating decisions. 38 C.F.R. § 3.156(b). In fact, a January 2010 Report of General Information specifically stated that the Veteran wanted TDIU to be his only claim and asked for any appeal of his foot claims to be cancelled, which also implies he did not intend to appeal the rating for his back. The Veteran next filed a claim for increased ratings in August 2015 for the above captioned issues, which are currently on appeal. The ratings issues are separately handled in the remand section. The Veteran filed additional claims and appealed several other claims during the period prior to August 2015, including filing a NOD. None of the above captioned appeals were included on that NOD. The evidence of record has been closely examined for a possible NOD that may have been overlooked. An NOD must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. No such document exists for these issues. Therefore, all the above rating decisions are final. 38 C.F.R. §§ 20.302, 20.1103 (2017). Once a decision becomes final, there are only two exceptions to the rule of finality of VA decisions, challenges based on clear and unmistakable error (CUE) in a prior, final decision and reopened claims based on new and material evidence. Neither exception has been raised by the record or argued here. The Board does not have jurisdiction to adjudicate in the first instance assertions of CUE in RO decisions. See Jarrell v. Nicholson, 20 Vet. App. 326, 334 (2006) (en banc) (assertion of CUE in an RO decision must first be presented to and decided by the RO before the Board has jurisdiction to decide the matter). No CUE has been alleged and CUE is not before the Board. This is also not a situation where a claim has been reopened based on new and material evidence. Instead, the RO granted compensation, made decisions regarding both the date of the award and the rating, and those decisions became final. Once a decision on a claim becomes final, it cannot be challenged through a freestanding claim for entitlement to an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Knowles v. Shinseki, 571 F.3d 1167 (Fed. Cir. 2009) (rejecting a freestanding finality claim). In other words, a claimant is not entitled to subsequently make an earlier effective date claim after a prior final denial was not properly appealed. To this extent, the appeals are dismissed. 6. & 7. Migraine headaches and temporomandibular joint dysfunction The Veteran filed a claim for service connection for migraine headaches and temporomandibular joint dysfunction on February 15, 2008. These claims were denied in August 2009 and the Veteran appealed to the Board. The Board remanded in March 2013 for additional development. After the development was completed, a March 2016 rating decision granted service connection, with a rating of 30 percent for migraine headaches and 0 percent for the temporomandibular joint dysfunction, with an effective date of February 15, 2008. The Veteran’s representative filed a NOD in April 2016, disagreeing with both the date and the rating. The Veteran had filed a prior application for disability compensation in February 2006, but this application neither mentions migraines or a jaw issue. There are no other written documents requesting service connection until February 15, 2008, either informally or formally. The Board cannot identify any communication or action indicating an intent to apply for service connection prior to the assigned effective date. There are sporadic notations of general headaches in service and post-service treatment records, including headaches due to service-connected hypertension. However, according to medical treatment records and an April 2013 VA examination, the Veteran’s current migraines are secondary to the temporomandibular joint dysfunction, which was not claimed as due to service until February 2008. While the Veteran was pursuing other claims during the time at issue, he did not file a claim for migraines or a jaw issue in earlier submissions. Thus, there was no informal or formal claim prior to February 2008. The current date for the grant of service connection is the date of receipt of the claims. Despite the Veteran’s argument that the effective dates should be earlier, for the foregoing reasons, the date cannot be any earlier than the date he filed the claim for disability compensation for the jaw and migraine headaches. The preponderance of the evidence is against the claims for an earlier effective date and they must be denied. 8. TDIU The Veteran contends his service connected disabilities render him unemployable. TDIU can be awarded where the scheduler rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R § 4.16. Provided that if there is only one disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran is currently rated at 70 percent for depression. The Veteran has additional disabilities, with the relevant disabilities for TDIU being migraine headaches, rated at 30 percent, and degenerative disc disease of the thoracolumbar spine, rated at 20 percent. The Veteran’s depression manifested with symptoms such as depressed mood, anxiety, chronic sleep impairment, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. See April 2013 VA examination. This examination specifically reported the Veteran had symptoms including suicidal thoughts and serious impairment in social and occupational functioning, including no friends and being unable to keep a job. VA treatment records report the Veteran stopped working due to depression symptoms, stopped going to college classes due to depression-related concentration problems, and has been unable to look for work due to depression. A note in May 2010 reported the Veteran had lost 10 jobs since service due to excessive medical issues (including back pain and headaches), which are service-connected. This includes being fired from one job due to excessive medical appointments related to his service-connected migraine headaches. There are multiple reports in the medical evidence that the Veteran is prone to extreme anger and is potentially violent due to depression, with anger and rage disproportionate to the situation, and has memory impairment, including forgetting names, commonly misplacing items, and becoming confused and frustrated with simple tasks, such as grocery shopping. A private opinion dated in March 2017, received in September 2018, also concluded it was likely that the Veteran’s psychological symptoms would preclude employment. This opinion reports, along with the above mentioned symptoms, that the Veteran had near-continuous panic or depression affecting the ability to function in dependently, appropriately and effectively; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; neglect of personal appearance and hygiene; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The Veteran additionally had paranoia. The private opinion states the Veteran’s wife assists him with activities of daily living and manages his finances. The private opinion reports the Veteran struggled with basic information, was isolated and withdrawn, and would be unable to keep a job. In sum, the Veteran would be unable to secure or follow a substantially gainful occupation. The Veteran’s difficulty with concentration and memory, inability to get along with others due to mood disturbance, poor interpersonal skills, difficulty in processing basic information, potential violence, and paranoia would preclude substantially gainful employment. The Veteran additionally had an inability to stay employed due to a variety of medical disabilities which are service-connected, including back pain and headaches, causing him to take time off work for medical treatment. Given the above, the Board finds entitlement to TDIU is warranted. REASONS FOR REMAND The claims for an increased rating for (1) temporomandibular joint dysfunction, (2) migraine headaches, (3) hypertension, (4) degenerative disc disease of the thoracolumbar spine, (5) bilateral achilles tendonitis, (6) right healed metatarsal stress fracture with metatarsalgia, and (7) left knee strain; the application to reopen the claim for service connection for (8) bilateral hearing loss and (9) dental claim (claimed as screw and dental implant); and (10) a claim for a temporary total evaluation because of treatment for a service-connected disability are remanded. The Veteran identified outstanding treatments records in an email in August 2018. Specifically, he listed treatment at military hospitals or clinics from Tripler AMC, Hawaii dated from 2012 to 2013 (records dated from October 2010 to January 2012 have been obtained) and Fort Hood, Texas from 2013 to the present. In August 2018, the Veteran’s representative submitted this list with VA authorization forms and requested these records be considered when processing the Veteran’s claims. While any medical treatment during the period on appeal may be relevant for ratings purposes, the Board also is remanding hearing loss, the dental claim, and the temporary total evaluation as these were denied either because no disability was shown or, for the temporary total evaluation, because there was no evidence of convalescence. Additional treatment records could clarify these matters and these issues are remanded as well. It appears these documents were sent to the VA Private Medical Records Retrieval Center. That entity informed the RO that the request had been received, but the request did not meet the criteria for action under their guidelines and the request was rejected due to incomplete private health provider (PHP) information. However, these records would appear to be federal government records, as treatment was at a U.S. military base. Neither the representative nor the Veteran have been informed of this. The record does not reflect any other attempts were made to obtain these records, nor that VA determined these records either did not exist or that attempts to secure these records would be futile. Additionally, the knee is rated based on limitation of motion. A new examination is necessary pursuant to Correia v. McDonald, 28 Vet. App. 158, 168. The bilateral achilles tendonitis has the highest rating for limitation of motion without ankylosis and further examination is not required at this time. The matters are REMANDED for the following action: 1. Inform the Veteran and his representative that the August 2018 VA Forms were rejected as containing incomplete information. Provide any updated/complete forms in order for VA to obtain these treatment records. It appears these records are located at a military hospital or clinic and proper procedures should be followed. 2. Schedule the Veteran for an examination of the left knee for compliance with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016). The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner should be asked to note any additional functional loss, including in terms of additional degrees of limitation of motion (to the extent feasible) due to any weakened movement, excess fatigability, incoordination, or pain on use. If flare-ups are noted, the examiner should likewise be asked to note any additional functional limitation resulting from flare-ups, including in terms of any additional degrees of limitation of motion (to the extent feasible). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Yoffe, Associate Counsel