Citation Nr: 18155704 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 16-00 769 DATE: December 6, 2018 ORDER Entitlement to an effective date prior to January 13, 2016 for a 50 percent evaluation for pes planus of the bilateral feet is denied. Entitlement to an effective date prior to January 13, 2016 for a 40 percent evaluation for left lower extremity radiculopathy is denied. Entitlement to an effective date prior to January 13, 2016 for the grant of service connection for right lower extremity sciatic nerve radiculopathy is denied. Entitlement to an effective date prior to January 15, 2016 for the grant of service connection for right knee condition is denied. Entitlement to an effective date prior to January 15, 2016 for the grant of service connection for left knee condition is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to an initial compensable evaluation for pseudofolliculitis barbae (PFB) is remanded. Entitlement to service connection for an acquired psychiatric disorder (other than PTSD), to include attention deficit hyperactivity disorder (ADHD), adjustment disorder, and bipolar disorder is remanded Entitlement to service connection for bunions is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A claim for an increased evaluation for bilateral pes planus and left lower extremity radiculopathy was received on January 13, 2016; it is not factually ascertainable that an increase in either disability occurred in the one-year period prior to January 13, 2016. 2. A claim for service connection for right lower extremity sciatic nerve radiculopathy was received on January 13, 2016. 3. An intent to file a claim for entitlement to service connection for right and left knee conditions was received on January 15, 2016. 4. There is no competent and credible evidence indicating a diagnosis of PTSD. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to January 13, 2016 for a 50 percent rating for bilateral pes planus have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 2. The criteria for an effective date prior to January 13, 2016 for a 40 percent rating for left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400. 3. The criteria for an effective date prior to January 13, 2016 for service connection of right lower extremity sciatic nerve radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 4. The criteria for an effective date prior to January 15, 2016 for service connection of right knee condition have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 5. The criteria for entitlement to an earlier effective date prior to January 15, 2016 for service connection of left knee condition have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. 6. The criteria for service connection for PTSD have not been met. 38 U.S.C. § 1101, 1110; 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2002 to January 2006, with reserve service in the Air National Guard from May 2012 to August 2012. These matters come to the Board of Veterans’ Appeals (Board) on appeal from June 2014, August 2015, and June 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In his substantive appeal (VA Form 9), the Veteran requested a hearing before the Board. A hearing was scheduled for October 5, 2018, but the Veteran did not appear. Notice of the hearing was sent to the address listed by the Veteran on his VA Form 9, and there is no indication that any correspondence to that address was returned as undeliverable. Upon being contacted by VA in September 2018, the Veteran stated that he was willing and able to attend the scheduled hearing. As the Board received no request for postponement or good cause for the Veteran’s failure to appear, the hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d). Claims for service connection for psychiatric disorders may encompass claims for service connection for all diagnosed psychiatric disorders. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Accordingly, the Board has recharacterized the issue on appeal. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Generally, service connection requires (1) the existence of a present disability; (2) in-service incurrence or aggravation of an injury or disease; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection for PTSD requires (1) “medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); (2) a link, established by medical evidence, between current symptoms an in-service stressor; and (3) credible supporting evidence that the in-service stressor occurred.” 38 C.F.R. § 3.304(f). Service Connection for PTSD The Veteran contends that he has PTSD as a result of responding to a mid-air aircraft crash in service and a motor vehicle accident. There is documentation in his service records commending him for his assistance with the aircraft crash. The Board finds that the Veteran has not been diagnosed with PTSD. The Veteran’s service treatment records reveal no diagnosis of PTSD, and no diagnosis of PTSD is apparent in the Veteran’s post-service treatment records. Furthermore, a March 2014 addendum opinion indicates there was no clear evidence for a diagnosis of PTSD. A VA opinion made earlier that month only provided a tentative diagnosis of PTSD without a review of the Veteran’s claims file. In the absence of proof of a current diagnosis of PTSD, service connection for that disability cannot be established. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Thus, the Board finds that the preponderance of the competent medical evidence is against the claim, and service connection for PTSD is denied. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. With regard to the award of an increased rating for compensation, the effective date shall be the earliest date that it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The increase in disability must have occurred during the one-year period prior to the date of the Veteran’s claim in order to receive the benefit of an earlier effective date. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). Earlier Effective Date for an Increased Evaluation for Bilateral Pes Planus and Left Lower Extremity Radiculopathy The Veteran contends that an effective date earlier than January 13, 2016, for the grant of increased ratings for bilateral pes planus and left lower extremity radiculopathy, is warranted. He contends that the effective date should be 2013, the date that he filed his original claim for service connection for these conditions. The Veteran originally filed a disability claim that was received on July 2013 for a low back condition. A June 2014 rating decision granted service connection for left lower extremity radiculopathy, as secondary to low back condition, with a 10 percent evaluation effective August 31, 2012. The RO also denied service connection for bilateral pes planus. This decision with regard to left lower extremity radiculopathy is final, as the Veteran did not file a notice of disagreement (NOD) within a year of the decision. In July 2014, the Veteran filed an NOD with regard to the issue of service connection for bilateral pes planus. Subsequently, the Veteran filed a claim for increased evaluations of left lower extremity radiculopathy that was received on February 23, 2015. An August 2015 rating decision denied an increased evaluation for the condition. This decision is final, as the Veteran did not file an NOD within a year of the decision. Service connection for bilateral pes planus was granted with a 30 percent evaluation, effective May 15, 2014, by an October 2015 rating decision. The Veteran again filed a claim for increased evaluations of left lower extremity radiculopathy, peripheral neuropathy, and bilateral pes planus that was received on January 13, 2016. A June 2016 rating decision increased the evaluation of left lower extremity radiculopathy to 40 percent, effective January 13, 2016 and increased the evaluation of bilateral pes planus to 50 percent, effective January 13, 2016. These increases were based on VA examinations dated March 2016. Contrary to the Veteran’s assertions, the evaluations of 50 and 40 percent disabling for bilateral pes planus and left lower extremity, respectively, cannot be assigned an effective date of July 2013 (i.e., the date of his initial claim for service connection), because, as discussed previously, this decision is final. For the Veteran to be entitled to an earlier effective date, he must show one is warranted through 38 C.F.R. § 3.400(o). As noted earlier, for claims of entitlement to 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 one year from such date; otherwise, the effective date is the date of receipt of the claim or date increase is shown whichever is later. Thus, the question turns to whether increases in disability for bilateral pes planus and left lower extremity had occurred during the one year prior to January 13, 2016, the date of the Veteran’s increased ratings claim. The evidence of record during the year prior to January 13, 2016 does not render it factually ascertainable that an increase in either disability had occurred during that time. There is no medical evidence of record with regard to left lower extremity radiculopathy one year prior to January 13, 2016. A July 2015 foot conditions VA examination documents pain, manipulation, and swelling on use of the feet, which also accentuated the pain; decreased longitudinal arch height, marked deformity, and marked pronation of both feet; weight-bearing line that fell over or medial to the great toe of both feet; and “inward” bowing of the Achilles tendon of both feet. The veteran used arch supports that improved his condition. The examiner found that the Veteran’s bilateral pes planus limited his ability to perform physical labor. This evidence does not reflect a worsening of the Veteran’s symptoms but instead reflects symptoms contemplated under the criteria of a 30 percent evaluation for bilateral pes planus under Diagnostic Code 5276, as the Veteran did not exhibit extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. See 38 C.F.R. § 4.71a, Diagnostic Code 5276. Therefore, because VA first received the Veteran’s claim for increased ratings of left lower extremity radiculopathy and bilateral pes planus on January 13, 2016 and it is not factually ascertainable an increase in either disability had occurred a year prior to January 13, 2016, the Veteran is not entitled to effective dates prior to January 13, 2016. As a preponderance of the evidence is against entitlement to earlier effective dates for these claims, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b). Earlier Effective Date for Service Connection for Right Lower Extremity Sciatic Nerve Radiculopathy The June 2016 rating decision granted service connection for right lower extremity sciatic nerve radiculopathy (claimed as peripheral neuropathy, acute and subacute), as secondary to service-connected low back disorder, with a 40 percent evaluation. The RO assigned an effective date of January 13, 2016, the date VA received the Veteran’s claim. The Board notes that, as of September 23, 2002, the rating criteria for disabilities of the spine included a provision to provide separate disability ratings for neurological abnormalities associated with a service-connected spine disability. As the Veteran’s service-connected low back disorder was granted under 38 C.F.R. § 4.71a, Diagnostic Code 5242, the RO provided a separate disability rating for right lower extremity sciatic nerve radiculopathy on a secondary basis. Upon review of the record, the Board finds that there is no indication that the Veteran intended to seek compensation for the pain radiating from his back into his right lower extremity prior to January 13, 2016. It should be noted the Veteran was provided a VA spine examination in March 2014 and the examiner indicated the right lower extremity was not affected by radiculopathy. Involvement of the Veteran’s sciatic nerve of the right lower extremity was not shown until a March 2016 VA spine examination. As noted above, in general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). In this case, the Board concludes that January 13, 2016 is the proper effective date for the grant of service connection for right lower extremity sciatic nerve radiculopathy. This is the date that VA received his claim. As a preponderance of the evidence is against entitlement to an earlier effective date for this claim, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b). Earlier Effective Date for Service Connection for Bilateral Knee Conditions The Veteran originally filed a disability claim that was received on July 2013 for bilateral knee conditions. A June 2014 rating decision denied service connection for bilateral knee conditions and the Veteran filed an NOD. Although a statement of the case (SOC) was issued in June 2015, this decision is final, as the Veteran did not file a VA Form 9. The Board notes that VA received an intent to file for entitlement to service connection for right and left knee conditions on January 15, 2016. The Veteran’s actual claim was filed on January 19, 2016. The Veteran was awarded service connection for left and right knee conditions with separate evaluations of 10 percent, effective January 15, 2016, by a June 2016 rating decision. The law is clear that the effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q), (r). Accordingly, the Board concludes that January 15, 2016 is the proper effective date for the grant of service connection for right and left knee conditions. This is the date that VA received his intent to file a claim. As a preponderance of the evidence is against entitlement to an earlier effective date for these claims, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Service Connection for Bunions VA has a duty to provide an examination when the record lacks evidence to decide the Veteran’s claim and there is evidence of (1) a current disability, (2) an in-service event, injury, or disease, and (3) some indication that the claimed disability may be associated with the established event, injury, or disease. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). In light of imaging scans, dated July 2015, showing slightly increasing, moderate bunions of the right foot, as well as his credible statements of in-service foot injury and ongoing symptomatology, the Board finds that the Veteran should be scheduled for a VA examination for an etiology opinion regarding his bunions. Service Connection for an Acquired Psychiatric Disorder A July 2015 VA medical opinion found that the Veteran’s ADHD and adjustment disorder appeared to be present prior to military service and that his symptoms of adjustment disorder were not exacerbated by active military service. The examiner offered no further explanation and an addendum opinion was sought in August 2015 for clarification. The examiner again found that adjustment disorder was not aggravated by active duty service and based this on the Veteran’s description of stressors. The examiner also found that the Veteran’s ADHD preexisted active duty service, but was not aggravated by active duty service. A Veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304. Accordingly, the Veteran is presumed to be sound with regard to psychiatric disorders because they were not noted at entry. To rebut the presumption of soundness, VA must show that clear and unmistakable evidence demonstrates both that the Veteran’s disease or disability pre-existed his service and that it was not aggravated by his service. Id. Here, in providing the requested medical opinion, the VA examiners neither provided an etiology opinion with regard to the Veteran’s previously diagnosed bipolar disorder nor did the examiners apply the correct legal standard (clear and unmistakable evidence) when opining that the Veteran’s adjustment disorder and ADHD pre-existed service and were not aggravated by his service. As such, a new opinion is required for all of the Veteran’s psychiatric disorders. Initial Compensable Evaluation for PFB In light of the Veteran’s July 2018 statement of worsening, a new VA examination to address the current severity of his PFB should be obtained on remand. TDIU Further, because a decision on the remanded service connection claims and initial rating claim could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant medical records and associate them with the claims file. 2. After undertaking the development listed above to the extent possible, schedule the Veteran for an exam to assess the nature and severity of his PFB. 3. Schedule the Veteran for a VA examination to address the nature and etiology of any acquired psychiatric disorders, to include ADHD, adjustment disorder, and bipolar disorder. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. Any indicated studies should be performed. Based on the examination results and review of the record, the examiner must identify all psychiatric disabilities present during the pendency of the appeal and proximate thereto. The examiner must identify all current psychiatric disorders. If any previously diagnosed disorder is no longer present, the examiner must provide an explanation. The examiner should answer the following questions: (a) Does the evidence of record clearly and unmistakably show that the Veteran’s psychiatric disorders, to include ADHD, adjustment disorder, and bipolar disorder, were contracted prior to service? (b) If any psychiatric disorder is found to have preexisted service, does the evidence clearly and unmistakably show that it was not aggravated by the Veteran’s active military service? (c) If it is the examiner’s opinion that there is no clear and unmistakable evidence that any preexisting psychiatric disorder was not aggravated by service, the Veteran is presumed sound at service entrance, and the question becomes one of direct service connection. In this case, the VA physician is requested to answer: Is at least as likely as not (a 50 percent or greater probability) that the Veteran’s acquired psychiatric disability had its onset during active service, or is otherwise related to active service? Rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. Finally, schedule the Veteran for a VA examination to determine the nature and etiology of his bunion condition. The entire claims file must be reviewed by the examiner in conjunction with the examination. The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any currently diagnosed bunion condition is related to the Veteran’s active military service. The examiner should cite to the medical and competent lay evidence of record and explain the rationale for the opinion given. M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel