Citation Nr: 18156081 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-40 520 DATE: December 6, 2018 ORDER An effective date earlier than January 29, 2015, for the grant of service connection for left lateral collateral ligament sprain (“left ankle disability”) is denied. Service connection for posttraumatic stress disorder (PTSD) is granted. REMANDED Entitlement to an initial disability rating higher than 10 percent for left lateral collateral ligament sprain (“left ankle disability”) is remanded. Entitlement to service connection for cervical neck condition (“neck disability”) is remanded. Entitlement to service connection for lower back condition (“low back disability”) is remanded. Entitlement to service connection for hypertension, to include as secondary to a psychiatric disorder, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran filed an informal claim in January 2015, and a formal claim for entitlement to service connection for left ankle disability in August 2015, which was granted in a November 2015 rating decision, with an assigned effective date of January 29, 2015. 2. The Veteran did not file a formal or informal claim for service connection for a left ankle disability within his first year of discharge from service; or prior to January 29, 2015. 3. The probative evidence of record illustrates that the Veteran’s PTSD is etiologically related to his military service. CONCLUSIONS OF LAW 1. The criteria to award an effective date earlier than January 29, 2015, for the grant of service connection for left ankle disability have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 2. The criteria for service connection for PTSD has been met. 38 U.S.C. §§ 1110, 1154(b), 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the Veteran initially requested a hearing in his July 2017 VA Form 9. He then withdrew his request by way of letter submitted October 2017. Effective Date The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection 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 effective date is the date of receipt of claim, or date entitlement arose, whichever is later. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the informal claim in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). If a Veteran files an application for service connection with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. See 38 U.S.C. §§ 7104, 7105 (2012). If he does not initiate an appeal within one year, or if he initiates a timely appeal and the appeal is denied, the disallowance becomes final. See 38 C.F.R. §§ 20.302, 20.1100, 20.1103 (2017). With exceptions, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 C.F.R. § 3.400(q), (r) (2017). Specifically, the effective date of an award of disability compensation based upon the submission of new and material evidence other than service department records received after final disallowance will be the date of receipt of the new claim or the date that entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii) (2017). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital admission. See Norris v. West, 12 Vet. App. 413, 417 (1999) (VA regulations provide that an informal claim for an increased disability rating “‘will’ be initiated by a report of examination or hospitalization for previously established service-connected disabilities”). In January 2015, the Veteran submitted an informal claim, in an effort to preserve his effective date for entitlement. In August 2015 he applied for service connection benefits for left ankle disability. January 29, 2015, is the date the RO received the informal claim. In a November 2015 rating decision, the RO granted service connection for left ankle disability and assigned a 0 percent disability rating with an effective date of January 29, 2015. The Veteran filed a notice of disagreement in March 2016. The Veteran contends that an earlier effective date is warranted. However, he does not provide any reasons, specifics, or details as to why he feels there should be an earlier effective date for his service-connected left ankle disability. Further, the Veteran’s attorney did not submit any argument to support the earlier effective date claim. The Veteran’s service treatment records indicate complaints of, and treatment for, left ankle pain. The earliest record showing ankle pain is dated October 2004. To the extent the Veteran contends that his service treatment records serve as an informal claim, the record is silent for any indication that the Veteran intended to file a claim for left ankle disability, until January 2015. To qualify as an informal claim, the benefit sought must be identified, describing the nature of the disability. The service treatment records notes pain in the left ankle, with a diagnosis of ankle sprain, and possible occult fracture. An intent to file a claim for left ankle disability cannot be inferred from this treatment record. Treatment for and diagnosis of a left ankle disability indicated in service treatment records are not enough to show intent to file a claim for left ankle disability. There is nothing in the record to demonstrate an informal or formal claim for left ankle disability prior to January 2015. The earliest effective date that can be granted is the date the claim was filed or the date the entitlement arose, whichever is later. Here, the record indicates that the Veteran first complained of and was treated for a left ankle disability in 2004. The earliest the Veteran could have filed a claim was May 20, 2006, one day after separation. Given that he did not file until January 2015, the latter of the two dates is January 29, 2015—the date the RO recognizes the Veteran filed his informal claim for service connection. The Board is bound by law on this matter. As no statutory or regulatory exceptions to the rule governing the effective date here is for application, there is no legal basis to grant this issue on appeal. As this issue on appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.§§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a presently existing disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for PTSD generally 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 and an in-service stressor; and (3) credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f). During the appeal period, the Veteran has been diagnosed with PTSD that conforms to the DSM-V criteria. See July and September 2015 VA psychotherapy session notes, and August 2017 private psychosocial assessment. The Veteran served in the Gulf War as a crewmember of the Multiple Launch Rocket System/High-Mobility Artillery Rockey System (MLRS/HIMARS). The Veteran’s DD 214 shows that he was awarded the National Defense Service Medal, the Global War on Terrorism Expeditionary Medal, and the Global War on Terrorism Service Medal. His military personnel records show that he was awarded the Army Achievement Medal due to his service during Operation Iraqi Freedom (OIF) as his extraordinary efforts and selfless service in combat were in keeping with the finest of military traditions and greatly contributed to victory. His enlistment examination shows that he was in good health upon entrance, with no indication of any illness. A February 2006 memorandum shows that the Veteran was referred for a mental health evaluation based on his reporting that one night prior he attempted suicide by taking sleeping pills. He also disclosed his thoughts of hurting himself, his feelings of depression since returning from OIF and his increased symptoms of depression since his sister died in a car accident. A March 2006 mental status evaluation shows that the examiner could not rule out a PTSD diagnosis, and attributed the Veteran’s psychiatric disorder to his combat experience. A memorandum regarding his separation indicates his separation was due to his PTSD diagnosis which was related to his deployment experience. The Veteran has consistently reported that he has experienced symptoms of a psychiatric disorder since service. He reported anxiety, hypervigilance, difficulty sleeping, feelings of depressed mood, irritability and lack of interest in activities with little motivation. He has described several traumas related to his combat service. He described scud attacks and witnessing a truck explode near his own vehicle. The Veteran was afforded a VA examination in November 2015. The examiner stated that the Veteran does not have a diagnosis of PTSD that conforms to DSM-V criteria, but did diagnose him with adjustment disorder with anxiety. The examiner referenced the Veteran’s stressors, stating that they are adequate to meet some of the criteria for PTSD. He opined that the Veteran’s psychiatric disorder is a result of his lack of full time employment, financial stress, and limited social support. The rationale fails to discuss the Veteran’s reporting of his combat stressors or attempted suicide in service. In an August 2017 private psychosocial assessment, the examiner diagnosed the Veteran with PTSD, conforming to DSM-V criteria. She opined that the Veteran’s PTSD diagnosis has been in place since 2006, and that his PTSD is a result of his in-service combat stressors. This evaluation was based on a clinical interview with the Veteran, and a thorough review of the voluminous record. It was performed by a licensed psychologist who wrote a detailed six-page report as a result of her evaluation of the Veteran. The Board places high probative value on this opinion. The record shows combat trauma. There is a record showing a diagnosis of PTSD under the DSM-V criteria, and VA treatment records show that the Veteran has been treated for PTSD related to his combat stressors. Although the November 2015 VA examiner concluded that the Veteran did not meet all the criteria to support a diagnosis of PTSD, the August 2017 private examiner concluded that he met all the criteria to support a current diagnosis of PTSD due to in-service stressors. The August 2017 opinion outweighs the November 2015 opinion. In addition, the service treatment records clearly show that the Veteran suffered from PTSD as a result of his combat experience. Resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran has a current diagnosis of PTSD and that his PTSD is related to his in-service combat stressors. As such, service connection is warranted. REASONS FOR REMAND Left ankle disability After a thorough review of the Veteran’s claims file, the Board has determined that additional evidentiary development is necessary prior to the adjudication of the left ankle disability claim. There is only one examination of record during the appeal period and this examination is inadequate. There are two cases from the United States Court of Appeals for Veterans’ Claims (Court) that were decided subsequent to this VA examination that discusses what constitutes an adequate examination. The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016) held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. The Court, in Sharp v. Shulkin, 29 Vet. App. 26 (2017) held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. The November 2015 examination is not in compliance with Correia, as there is no indication of testing passive motion, or non-weight-bearing. In addition, the VA examiner indicated that no flare-ups of were reported, despite functional loss being noted. As functional loss was not described in terms consistent with Sharp, a new examination is required. Neck disability, Low back disability, Hypertension VA medical treatment records indicate complaints of and treatment for neck pain and low back pain as recent as 2015. The Veteran went to the emergency room because of his neck pain. See VA medical records dated April, June, and September 2015. Service treatment records show reports of neck pain and low back pain. The Veteran has consistently reported that he fell in service and experienced the onset of low back pain and neck pain while in service. According to the VA examiner that performed the November 2015 neck (cervical condition) Disability Benefits Questionnaire (DBQ), the Veteran does not have a current neck disability, to include arthritis of the cervical spine. This examiner also opined that the neck disability was not related to the in-service injury. Part of the rationale was based on the Veteran’s reporting that his injuries from his fall in service have completely resolved. Apart from this examination report, there is nothing in the record to show that the Veteran contends or has ever contended that his injuries from the fall have completely healed. Given this and the recent medical records that show complaint of neck pain, the Board finds that another examination is needed. The November 2015 VA examiner appeared to provide a nexus opinion regarding the Veteran’s low back disability. However, the opinion reads as if it revolves around the cervical spine (neck disability) and not the lumbar spine (low back disability). In addition, a low back (lumbar condition) DBQ has not been performed. The Board finds that an examination regarding the low back disability is required. A review of the record shows a current diagnosis of hypertension and ongoing treatment for hypertension. Service treatment records indicate elevated systolic and diastolic blood pressure readings. A June 2015 VA medical record indicates a correlation between the Veteran’s hypertension and now service-connected psychiatric disorder. Whether the Veteran’s hypertension is related to service and or his psychiatric disorder in these circumstances should be the subject of a medical opinion. Lastly, there appear to be missing records. In the June 2017 statement of the case (SOC), the RO references VA treatment records from April 2015 to February 2017. Upon review of the file, these records could not be located. TDIU In the July 2016 notice of disagreement, the Veteran’s representative indicated an intent to file a claim for total disability based on individual unemployability (TDIU). In August 2016, VA mailed the Veteran a letter requesting information to substantiate the TDIU claim. This raises the issue of entitlement to TDIU. There is no VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployabilty of record. Such form provides information relevant to entitlement to TDIU. On remand, the AOJ must request that the Veteran complete this form and then adjudicate the issue of entitlement to TDIU. As the question of TDIU is part and parcel to his claim for a higher rating, the claim is already perfected to the Board via the August 2016 VA Form 9. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file any outstanding VA treatment records documenting treatment for left ankle disability, neck disability, low back disability, and hypertension—to include treatment records from April 2015 to February 2017. The Veteran should also be afforded the opportunity to identify and/or submit any outstanding private treatment records. 2. The AOJ should schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his left ankle disability. The Veteran’s electronic claims file should be made available to and reviewed by the examiner. The AOJ should ensure that the examiner provides all information required for rating purposes. The examiner is asked to specifically test the range of motion in active motion, passive motion, weight-bearing, and non-weight-bearing for this disability. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to left ankle disability alone and discuss the effect of the Veteran’s left ankle disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or whether it is due to the examiner not having the knowledge or training. Review of the entire file is required, but the examiner is requested to note and consider what was stated during the November 2015 DBQ. The Veteran has had recurrent instability and pain associated with physical therapy, he has regressed in his ability to exercise and is no longer able to run. He reported daily pain and wearing a brace. 3. Schedule an appropriate examination to determine the nature and etiology the Veteran’s neck and low back disabilities. The claims folders, including any pertinent evidence in electronic format, should be forwarded to the examiner for review. The examiner should be directed to elicit a complete history from the Veteran. A DBQ for the low back disability must be completed. It is left to discretion of the examiner as to whether a DBQ for the neck disability will be performed. Following review of the claims file and examination of the Veteran, the examiner should provide opinions regarding the following: Whether it is at least as likely as not (i.e., probability of 50 percent) that the neck disability manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include an in-service fall. Whether it is at least as likely as not (i.e., probability of 50 percent) that the low back disability manifested during active service; or is otherwise related to an event, injury, or disease incurred during active service, to include an in-service fall. The examiner is asked to provide a complete a rationale for all opinions offered. 4. Obtain a VA medical opinion from a qualified medical professional to determine the etiology of the Veteran’s hypertension. The claims file must be made available to the examiner for review, and the examiner should note that it has been reviewed in full. After reviewing the claims file, and examining the Veteran, the examiner must address the following: Offer an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s diagnosed hypertension is etiologically related to, or had its onset during, his active military service. Offer an opinion as to whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s hypertension is proximately due to or caused by his service-connected disabilities, to include his now service-connected PTSD. Offer an opinion as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran’s hypertension, was aggravated (worsened in severity beyond a natural progression) by his service-connected disabilities, to include his service-connected PTSD. The examiner is asked to provide a complete a rationale for all opinions offered. 5. Request that the Veteran complete a formal TDIU application form (VA Form 21-8940). 6. After the above development has been completed, and any additional development deemed necessary is completed, adjudicate the issue of entitlement to a TDIU to determine whether TDIU is warranted for any period on appeal. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Talamantes, Associate Counsel