Citation Nr: 18154283 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 16-11 190A DATE: November 29, 2018 ORDER Whether new and material evidence has been received to reopen service connection for a lumbosacral spine disability is granted. Entitlement to a compensable initial rating for irritable bowel syndrome is granted. Entitlement to an effective date prior to July 31, 2012 for the award of increased rating to 10 percent for bilateral degenerative arthritis of the great toes is denied. REMANDED Entitlement to service connection for a lumbosacral spine disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to service connection for a left knee disability is remanded. FINDINGS OF FACT 1. In an August 1999 rating decision, the RO denied the Veteran service connection for a low back disability. The Veteran did not perfect a timely appeal of this decision. 2. Records received since the August 1999 rating decision contain evidence not previously considered that suggests a nexus between the claimed low back disability and a service-connected disability. 3. The Veteran’s irritable bowel syndrome results in frequent episodes of bowel disturbance with abdominal distress. 4. A formal claim for an increased rating for a bilateral great toe disability was received on July 31, 2012; no other unadjudicated increased rating claim is of record. CONCLUSIONS OF LAW 1. The August 1999 rating decision denying service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence received since the August 1999 rating decision is new and material and the claim of entitlement to service connection for a low back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 3. The criteria for entitlement to a compensable initial rating of 10 percent for irritable bowel syndrome have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.114, Diagnostic Code 7319. 4. The criteria for an effective date earlier than July 31, 2012 for a 10 percent rating for bilateral degenerative arthritis of the great toes have not been met. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1995 to May 1998. The Board notes the Veteran has, in her various written statements, alleged clear and unmistakable error in a prior August 31, 1999 rating decision which granted service connection and a noncompensable initial ratings for left and right great toe conditions. Specifically, she and her representative have alleged that this rating decision contains clear and unmistakable error in its failure to award compensable initial ratings for these disabilities. As this issue has yet to be adjudicated by the regional office (RO), the agency of original jurisdiction, it is not currently before the Board, and is instead referred back to the RO for further adjudication. 1. Whether new and material evidence has been received to reopen service connection for a lumbosacral spine disability The Veteran seeks to reopen service connection for a low back disability. A service connection claim for low back pain was previously and finally denied in an August 1999 rating decision, and the Veteran contends she has submitted new and material evidence since that time. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed to the Board and remained denied, may not be reopened and allowed. 38 U.S.C. §§ 7104, 7105(c), (d)(3); 38 C.F.R. §§ 20.1100, 20.1103. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted “is a legal nullity.” Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). Historically, the Veteran was denied service connection for low back pain within an August 1999 rating decision. The RO found the Veteran’s mechanical low back pain was unrelated to any disease, injury, or other incident of service. The Veteran did file a timely notice of disagreement regarding this determination but, upon receipt of a statement of the case, failed to file a timely substantive appeal; thus, this rating decision became final. 38 U.S.C. § 7105. Since the prior final denial of the claim in August 1999, recent evidentiary submissions have included private treatment records and the Veteran’s own contentions. Specifically, the Veteran submitted an August 2013 statement from a private chiropractor, B.H.G., D.C., who examined the Veteran on several occasions beginning in 2013. Upon examination of the Veteran, Dr. G. diagnosed chronic lumbosacral radicular syndrome which was related to service-connected bilateral degenerative arthritis of the great toes, according to Dr. G. Having reviewed the evidentiary submissions since August 1999, the Board finds that new and material evidence to reopen service connection for a low back disability has been received. Specifically, Dr. G.’s statement suggests the claimed disability is due to or the result of service-connected disabilities. Such a nexus was neither raised nor considered at the time of the prior August 1999 denial. This evidence is new, in that it was not of record at the time of the prior final denial. It is also not cumulative and redundant of evidence already of record, and is material, as this evidence suggests a nexus between the claimed disability and service-connected disabilities, the lack of evidence of which was the basis of the prior final denial of service connection. Therefore, this claim is reopened. 2. Entitlement to a compensable initial rating for irritable bowel syndrome The Veteran seeks a compensable initial rating for service-connected irritable bowel syndrome. She contends this disability has worsened, and a higher evaluation is warranted. Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In adjudicating disability rating claims, the level of disability in all periods since the effective date of the grant of service connection must be taken into account, to include the possibility that a staged rating may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1998). As such, the Board will consider whether staged ratings are appropriate to the pending appeals. In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. The Veteran’s irritable bowel syndrome is rated as noncompensable under Diagnostic Code (DC) 7319. Under DC 7319, mild symptoms characterized by disturbances of the bowel function with occasional episodes of abdominal distress warrant a noncompensable initial rating. A 10 percent rating is warranted for moderate symptoms including frequent episodes of bowel disturbance with abdominal distress. Severe symptoms, such as diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress warrant the highest rating of 30 percent. After considering the totality of the record, the evidence more nearly approximates the criteria for a disability rating of 10 percent. The Veteran has displayed symptoms of frequent episodes of bowel disturbance with abdominal distress as would warrant such a rating. Private outpatient treatment records reflected that the Veteran has experienced intermittent abdominal distress and chronic constipation unrelieved by medication or other treatments. She has not, however, experienced any unintentional weight loss or malnutrition. The Veteran also underwent a VA examination in November 2016 for her irritable bowel syndrome. At that time her symptoms were noted to include recurrent constipation with occasional diarrhea. She used medication to treat her irritable bowel syndrome. These episodes were noted to occur on an occasional basis. Overall, moderate symptoms characterized by frequent episodes of bowel disturbance with abdominal distress have been approximated. The Veteran has consistently described abdominal pain and frequent constipation. She is followed by a physician and takes several medications for this condition. Based on these findings, the Board finds a compensable initial rating of 10 percent is warranted for the Veteran’s irritable bowel syndrome. The Board further finds, however, that the next higher evaluation of 30 percent is not warranted for this disability. According to the November 2016 VA examination report, the Veteran’s irritable bowel syndrome does not result in constant abdominal distress. Likewise, the private and VA outpatient treatment records do not reflect constant abdominal distress resulting from this disability. As such, the Board finds the preponderance of the evidence to be against a 30 percent rating at any time during the pendency of this appeal. The Board has also considered entitlement to an increased rating under other criteria for gastrointestinal disabilities. 38 C.F.R. § 4.114 sets forth that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348 will not be combined with each other. A single rating will be assigned under the Diagnostic Code which represents the predominant disability picture, with elevation to the next higher rating where the severity of the overall disability warrants such rating. The Board finds that the evidence does not support a rating in excess of 10 percent based upon another Diagnostic Code pertaining to abdominal disabilities. As discussed above, the predominant manifestations of the irritable bowel syndrome are frequent constipation with abdominal distress. The evidence of record does not reflect a hernia or hernia-like symptoms such as pain, vomiting, material weight loss, and hematemesis or melena. There also is no showing of ulcerative colitis as is rated under Diagnostic Code 7323. Diagnostic Code 7332 provides for higher ratings for loss of anal sphincter control or occasional involuntary bowel movements requiring the wearing of a pad; this is neither alleged nor shown in this instance. Therefore, the other Diagnostic Codes regarding abdominal conditions do not afford a basis for the assignment of an initial rating higher than 10 percent in the absence of a showing of the symptoms or findings discussed. See 38 C.F.R. § 4.114, Diagnostic Codes 7301, 7304, 7305, 7306, 7307, 7332. In short, the Board has considered rating the service-connected disability under other possibly applicable diagnostic codes found at 38 C.F.R. § 4.114 (containing the schedule for rating disorders of the digestive system), but finds none applicable that would grant the Veteran a higher disability rating. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In conclusion, the preponderance of the evidence supports an increased initial rating, to 10 percent and no higher, for the Veteran’s irritable bowel syndrome. As a preponderance of the evidence is against the award of an increased rating in excess of 10 percent, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). 3. Entitlement to an effective date prior to July 31, 2012 for the award of increased rating to 10 percent for bilateral degenerative arthritis of the great toes The Veteran asserts an effective date prior to July 31, 2012, for the award of an increased rating, to 10 percent, for her bilateral degenerative arthritis of the great toes is warranted. She asserts that since she has had a similar level of disability since service separation, an effective date back to May 1998 is warranted. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1) (2016). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. §§ 3.157(b)(1); 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400. If the increase occurred after the date of the claim, the effective date is the date of increase. Id. The Board notes that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply and are cited below. In determining an effective date for an award of increased compensation, VA must make two essential determinations. It must determine when a claim for increased compensation was received, and when a factually ascertainable increase in disability occurred. With respect to the first determination, 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. § 3.151(a). Any communication or action indicating intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. 38 C.F.R. § 3.155(a). When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c). Further, under certain circumstances, reports of examination or hospitalization may be accepted as an informal claim for benefits. See 38 C.F.R. § 3.157. VA must look to all communications from a claimant that may be interpreted as applications or claims – formal and informal – for increased benefits and is requested to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196 (1992). In the present case, the facts are as follows: In an August 1999 rating decision, service connection for right and left great toe conditions (later reclassified as osteoarthritis of the first metatarsal-phalangeal and first interphalangeal joints of the left and right toes) was granted. A noncompensable initial disability rating was assigned, effective May 16, 1998. The Veteran was informed that same month of this determination. A timely appeal of this initial rating determination was received in August 2000, and the Veteran was provided a September 2000 statement of the case. Thereafter, a timely substantive appeal was not received, and the August 1999 rating decision became final. See 38 U.S.C. § 7105. On July 31, 2012, the Veteran filed a formal increased rating claim for her great toes disability. In a March 2016 rating decision, a compensable rating of 10 percent for this disability was assigned, effective July 31, 2012. The Veteran responded by filing a timely notice of disagreement regarding this effective date, and was subsequently sent a statement of the case on this issue. She then filed a timely VA Form 9, perfecting his appeal of this issue. Review of the record does not indicate an unadjudicated formal or informal claim for an increased rating was received prior to July 31, 2012 for the Veteran’s bilateral great toes disability. As a result, the July 31, 2012 claim constitutes the most recent pending increased rating claim for the service-connected great toes disability. An effective date prior to July 31, 2012, is therefore not warranted for the award of an increased rating to 10 percent, as July 31, 2012 represents the date of receipt of the pending increased rating claim. As noted above, the effective date for an increased rating for disability compensation in this case is to be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In this case, the Veteran underwent VA examinations of her feet in November 2012, within a year prior to the July 2012 claim, and January 2016. As these examinations took place after receipt of the claim on appeal, an earlier effective date is not warranted based on a factually ascertainable increase in disability occurring within a year prior to receipt of the July 31, 2012 claim. The Veteran has also pointed to prior medical evidence which she contends establishes entitlement to a higher evaluation for many years prior to July 2012, but, insomuch as this evidence may suggest entitlement to a higher evaluation, the July 2012 formal claim was not received within a year thereafter. The Board acknowledges that in limited circumstances, such as the presence of clear and unmistakable error (CUE), the finality of a VA adjudication may be attacked. See 38 C.F.R. § 3.105(e). In the present case, the Veteran has alleged clear and unmistakable error in the August 1999 rating decision granting her service connection and a noncompensable initial rating; however, this claim is a separate issue which has yet to be formally adjudicated by the RO and is not current before the Board. As long as the August 1999 rating decision remains final, an effective date for a 10 percent rating prior to July 31, 2012 is precluded by the finality of that rating decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision as free-standing claims for earlier effective dates vitiate the rule of finality). Based on the above, the Board finds that the evidence of record reveals that a formal claim for an increased rating for the service-connected bilateral toe disability was received on July 30, 2012, and the earliest factually ascertainable date that the Veteran was entitled to a higher disability rating is subsequent to that date. For these reasons, an effective date earlier than July 31, 2012 for the award of a 10 percent rating for bilateral degenerative arthritis of the great toes is not warranted. 38 U.S.C. § 5110(b)(2); 3.400(o)(2). REASONS FOR REMAND 1. Entitlement to service connection for a lumbosacral spine disability is remanded. 2. Entitlement to service connection for a cervical spine disability is remanded. The Veteran seeks service connection for disabilities of the cervical and lumbosacral spine. She asserts, in part, that her service-connected bilateral great toe disabilities have caused or aggravated disabilities of the low back and neck. While the Veteran was afforded November 2012 and January 2016 VA examinations and opinions, these opinions did not address the alleged aggravation. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Therefore, a remand to address the theory of secondary service connection based on aggravation is necessary. 3. Entitlement to service connection for a right knee disability is remanded. 4. Entitlement to service connection for a left knee disability is remanded. The Veteran seeks service connection for disabilities of the bilateral knees. She asserts, in part, that her service-connected bilateral great toe disabilities have caused or aggravated disabilities of the bilateral knees. While the Veteran was afforded a May 2016 VA examination and opinion, this opinion did not address the alleged aggravation. Moreover, the May 2016 addressed only the Veteran’s right knee, without discussion of any left knee disability and the etiology thereof. When VA undertakes to either provide an examination or to obtain an opinion, it must ensure that the examination or opinion is adequate. Id. Therefore, a remand to address the theory of secondary service connection based on aggravation is necessary. The matters are REMANDED for the following action: 1. Forward the claims file to the VA physician who examined her in November 2012 and January 2016, if available. If not, a competent expert in orthopedic disabilities may be substituted. After review of the entire record, the examiner is requested to provide an opinion, with complete rationale, as to the following: Is it “at least as likely as not” (50 percent or greater probability) that any current disabilities of cervical spine, lumbosacral spine, or bilateral knees are due to or the result of, or aggravated by the service-connected bilateral degenerative arthritis of the great toes, to include any altering of the Veteran’s gait? (In this context, “aggravation” is defined as a permanent increase in disability beyond the natural progress of the disorder.) If the examiner determines the Veteran does not have current disabilities of the cervical or lumbosacral spine or bilateral knees, the examiner must point to clinical findings supporting such a diagnosis. The medical rationale for any opinions expressed must be provided. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel