Citation Nr: 18156234 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 16-58 401A DATE: December 7, 2018 ORDER An effective date prior to March 7, 2011, for a 10 percent rating for right hip strain, is dismissed. An effective date prior to March 7, 2011, for a noncompensable rating for left 5th digit for hammer toe, is dismissed. An effective date prior to March 7, 2011, for a noncompensable rating for right 5th digit for hammer toe, is dismissed. An effective date prior to March 7, 2011, for a noncompensable rating for tinea pedis, is dismissed. An effective date prior to June 27, 2014, for the award of service connection for tinnitus, is denied. An effective date prior to June 27, 2014, for the award of service connection for left shoulder arthritis with strain, is denied. An effective date prior to June 27, 2014, for a 50 percent rating for bilateral plantar fasciitis with pes planus, is denied. A rating in excess of 50 percent for bilateral plantar fasciitis with pes planus is denied. An initial rating in excess of 10 percent for tinnitus is denied. A compensable rating for arthroplasty of the left 5th digit for hammer toe is denied. A compensable rating for arthroplasty of the right 5th digit for hammer toe is denied. A compensable rating for tinea pedis is denied. New and material evidence having been received, a previously denied claim of service connection for a right shoulder disorder is reopened; the appeal is granted to this extent only. New and material evidence having been received, a previously denied claim of service connection for an upper neck disorder is reopened; the appeal is granted to this extent only. REMANDED An initial rating in excess of 20 percent for left shoulder arthritis with strain is remanded. A rating in excess of 10 percent for right hip strain is remanded. Service connection for a right shoulder disorder is remanded. Service connection for an upper neck disorder is remanded. Service connection for a psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. Service connection for headaches is remanded. FINDINGS OF FACT 1. The claims for earlier effective dates for pertaining to right hip strain, left and right 5th digit hammer toes, and tinea pedis, are freestanding earlier effective date claims. 2. Service connection for tinnitus and left shoulder arthritis was awarded effective June 27, 2014, the date on which the Veteran filed his claim. 3. The 50 percent rating for bilateral plantar fasciitis with pes planus was awarded effective June 27, 2014, the date on which he filed his claim for increase, and there is no factually ascertainable date within 1 year prior to June 27, 2014 on which an increase in severity of the disability occurred. 4. The Veteran’s 50 percent rating for bilateral plantar fasciitis with pes planus is the highest schedular rating available. 5. The Veteran’s 10 percent rating for tinnitus is the highest schedular rating available. 6. The Veteran’s only toes affected by hammer toe are his left and right 5th digit for which there is no compensable rating. 7. The Veteran’s tinea pedis affects less than 5 percent of total body area and no exposed body area and has not required topical or other treatment for control. CONCLUSIONS OF LAW 1. The Board does not have jurisdiction over the freestanding claims for earlier effective dates for right hip strain, left and right 5th digit hammer toes, and tinea pedis. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 2. The criteria for an earlier effective date than June 27, 2014, for the awards of service connection for tinnitus and left shoulder arthritis with strain, are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; 38 C.F.R. § 3.155 (2014). 3. The criteria for an earlier effective date for a 50 percent rating for bilateral plantar fasciitis with pes planus are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400; 38 C.F.R. §§ 3.155, 3.157 (2014). 4. The criteria for a rating in excess of 50 percent for bilateral plantar fasciitis with pes planus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5276. 5. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, DC 6260. 6. The criteria for a compensable rating for left 5th digit hammer toe have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5282. 7. The criteria for a compensable rating for right 5th digit hammer toe have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, DC 5282. 8. The criteria for a compensable rating for tinea pedis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 34.118, DCs 7806, 7813. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1996 to April 2000. The case is on appeal from an April 2015 rating decision. Additional evidence has been received since a November 2016 statement of the case (SOC) was issued. In July 2018, the Veteran’s representative waived initial RO consideration of additional evidence that was submitted. See 38 C.F.R. § 20.1304(c). Although the Board is remanding some claims for additional development, remand is not necessary for the claims being decided below as there is no reasonable possibility that further assistance would substantiate the claims. See 38 C.F.R. § 3.159(d). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Earlier Effective Dates Relevant to the Veteran’s claims, unless specifically provided otherwise, the effective date for a grant of service connection is the later of the date on which the claim was received or on which entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For non-initial increased rating claims, the increase is effective the earliest date on which it is ascertainable based on all evidence of record that an increase in disability occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2); see also Gaston v. Shinseki, 605 F.3d 979, 983-84 (Fed. Cir. 2010); Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); see 38 C.F.R. § 3.155. Although VA has amended the claims filing process to require the filing of proper standard forms, the “informal claim” provisions are for proper application given the time period in which the Veteran’s claims were filed.   1. An effective date prior to March 7, 2011 for a noncompensable rating for left 5th digit for hammer toe. 2. An effective date prior to March 7, 2011 for a noncompensable rating for right 5th digit for hammer toe. 3. An effective date prior to March 7, 2011 for a 10 percent rating for right hip strain. 4. An effective date prior to March 7, 2011 for a compensable rating for tinea pedis. In a July 2015 notice of disagreement (NOD), the Veteran checked the box for disagreement with the area of the effective date of the award regarding right hip strain, left 5th digit for hammer toe, right 5th digit for hammer toe, and tinea pedis. However, service connection was granted previously for these conditions in February 2012 (right hip strain) and July 2012 rating decisions (left and right 5th digit hammer toes, and tinea pedis). The effective date for the awards was established as March 7, 2011. Although the April 2014 rating decision listed tinea pedis as a condition for which service connection was newly granted, it had in fact already been granted in the July 2012 rating decision. Thus, it had the effect of continuing the rating for the condition rather than granting service connection. The Board cannot adjudicate these earlier effective date claims as no new award was granted with an effective date. As such, they represent freestanding claims for earlier effective dates, which are not permitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). These claims for earlier effective dates are therefore dismissed for lack of jurisdiction. See 38 U.S.C. § 7105(d)(5). This is so even if an SOC has not been issued on the matter. Cf. 38 C.F.R. § 19.9(c).   5. An effective date prior to June 27, 2014, for the award of service connection for tinnitus. 6. An effective date prior to June 27, 2014, for the award of service connection for left shoulder arthritis with strain. The April 2015 NOD also appealed the effective dates assigned for the award of service connection for tinnitus and left shoulder arthritis with strain. The Veteran’s attorney has not made any specific contentions with regard to these effective dates. The Veteran’s claims of service connection for tinnitus and a left shoulder condition were received on June 27, 2014, which is the assigned effective date. There are no indications of any earlier claims for these conditions, including informal claims under prior 38 C.F.R. § 3.155. There was an earlier set of claims, but they pertained to different conditions. Furthermore, the claim was not within one year of separation from service. Therefore, by law, no earlier effective date is possible, and earlier effective dates for the awards of service connection for tinnitus and left shoulder arthritis with strain are not warranted. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 7. An effective date prior to June 27, 2014, for a 50 percent rating for bilateral plantar fasciitis with pes planus. The June 27, 2014 effective date for the 50 percent rating for bilateral plantar fasciitis is also the date that the Veteran’s increased rating claim was filed for this condition. No specific contention has been set forth as to why the effective date should be earlier. While the Veteran reported worsening of his condition over time at the April 2015 VA foot examination, the evidence of record does not reveal a factually ascertainable date on which an increase in severity of the condition occurred within the one year look back period prior to the filing of the claim. There are also no indications of an informal claim, to include as part of any report of examination or hospitalization. See 38 C.F.R. §§ 3.155, 3.157 (2014). Therefore, an earlier effective date for the 50 percent rating for bilateral plantar fasciitis with pes planus is not warranted. Increased Ratings Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 8. A rating in excess of 50 percent for bilateral plantar fasciitis with pes planus. The April 2015 rating decision increased the Veteran’s rating for bilateral plantar fasciitis with pes planus from zero to 50 percent for the entire rating period. This was primarily based on the results of an April 2015 VA examination of his feet. The Veteran’s plantar fasciitis with pes planus is rated under 38 C.F.R. § 4.71a, DC 5276 and the 50 percent rating is already the highest schedular rating available. Specifically, the 50 percent rating contemplates bilateral flatfeet, pronounced; marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthotic shoes. The July 2015 NOD included this issue. The Veteran’s representative has not argued with any specificity the reasons why a higher rating is warranted. As the Veteran is already in receipt of the highest schedular rating available and there is no expressly raised contention, or one reasonably raised by the record, a rating in excess of 50 percent for bilateral plantar fasciitis with pes planus is not warranted.   9. An initial rating in excess of 10 percent for tinnitus. The April 2015 rating decision granted service connection for the Veteran’s tinnitus and assigned an initial 10 percent rating for the entire rating period. This was primarily based on the results of an April 2015 VA examination. The Veteran’s tinnitus is rated under 38 C.F.R. § 4.87, DC 6260 and the 10 percent rating is already the highest schedular rating available. A maximum 10 percent rating is warranted for recurrent tinnitus. This includes whether it is perceived in both ears. See Note 2. Similar to above, the July 2015 NOD included this issue. The Veteran’s representative has not argued with any specificity the reasons why a higher rating is warranted. As the Veteran is already in receipt of the highest schedular rating available and there is no expressly raised contention, or one reasonably raised by the record, a rating in excess of 10 percent for tinnitus is not warranted. 10. A compensable rating for arthroplasty of the left 5th digit for hammer toe. 11. A compensable rating for arthroplasty of the right 5th digit for hammer toe. The April 2015 rating decision continued a zero percent rating for right and left 5th digit hammer toe. This was primarily based on the results of an April 2015 VA examination that showed the Veteran had hammer toes for both 5th digits, which is consistent with the April 2011 VA examination for when service connection was first granted. The Veteran’s hammer toe conditions are rated under 38 C.F.R. § 4.71a, DC 5282 and a noncompensable (zero percent) rating is warranted for single toes. Only when all toes have hammer toes (without claw foot) is the maximum 10 percent rating warranted. Id. The Veteran is service connected for the two hammer toes. The evidence does not show that all toes have hammer toes as a result of the service-connected conditions. There was an indication of associated non-painful, stable scarring of less than 39 square centimeters in area for which the Veteran is separately rated under 38 C.F.R. § 4.118, DC 7805. Similar to above, the July 2015 NOD included these issues. The Veteran’s representative has not argued with any specificity the reasons why a higher rating is warranted. As the Veteran is already in receipt of the correct rating available for single hammer toes and there is no expressly raised contention, or one reasonably raised by the record, a compensable rating for both left and right 5th digit hammer toes is not warranted. 12. A compensable rating for tinea pedis. Although the April 2015 rating decision indicated service connection was being granted for tinea pedis, service connection was already in effect as an earlier July 2012 rating decision granted service connection for tinea pedis. Thus, the April 2015 rating decision instead had the effect of continuing the noncompensable (zero percent) rating. Tinea pedis is rated under 38 C.F.R. § 4.118, DC 7813. DC 7813 directs VA to rate under DCs 7800-7806 as appropriate. Most relevant to this case is DC 7806, pursuant to which a noncompensable rating is warranted when less than 5 percent of the entire body or less than 5 percent of exposed area is affected, and; no more than topical therapy is required during the past 12-month period. A 10 percent rating is warranted when there is at least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is warranted when there is 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period. More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period warrants a 60 percent rating. The Veteran was afforded a VA examination of his tinea pedis in April 2015. The Veteran has not used topical or oral medication for control in the previous year. None of the exposed body area and less than 5 percent of total body area were said to be affected by tinea pedis. Appearance was reported as tinea pedis slightly hyperkeratotic lesions of the feet. No other significant findings were reported, including scarring. Based on the VA examination and other evidence of record, the Board finds that the Veteran’s tinea pedis affects less than 5 percent of total body area and no exposed body area and has not required topical or other treatment for control. Further, no scarring related to tinea pedis was noted on examination, thus ratings under DCs 7800-7805 are not applicable. The Board notes that the rating criteria for evaluating the skin were amended effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018). The pertinent rating criteria are similar in nature and do not result in any change in the Veteran’s rating. The July 2015 NOD included this issue. The Veteran’s representative has not argued with any specificity the reasons why a higher rating is warranted. As the evidence does not show that the criteria for a higher rating are met, and as there is no expressly raised contention, or one reasonably raised by the record, a compensable rating for tine pedis is not warranted.   Petitions to Reopen 13. Whether new and material evidence has been received to reopen a previously denied claim of service connection for a right shoulder disorder. 14. Whether new and material evidence has been submitted to reopen a previously denied claim of service connection for an upper neck disorder. By a July 2012 rating decision, claims of service connection for a right shoulder and upper neck disorder were denied. The Veteran was notified of the decision by letter later that month, which was mailed to the then current mailing address of record. Thereafter, nothing further regarding the claim was received until the present claim to reopen in June 2014. No new evidence or notice of disagreement was received by VA within one year of the issuance of the July 2012 rating decision. As the Veteran did not appeal the decision, that rating decision is final. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Board finds that new and material evidence has been submitted to reopen the claims. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). VA treatment records reveal on-going treatment for neck pain. Further, at an August 2013 VA appointment, the Veteran has related both neck and shoulder pain onset during service. This is new and material evidence sufficient to reopen the previously denied service connection claims. REASONS FOR REMAND 1. An initial rating in excess of 20 percent for left shoulder arthritis with strain. 2. A rating in excess of 10 percent for right hip strain. As to the left shoulder claim, service connection was granted in the April 2015 rating decision with the assignment of an initial 10 percent rating. Thereafter, in a November 2016 rating decision, the RO increased the initial rating to 20 percent. The issue has been recharacterized in light of this increase. In Correia v. McDonald, the United States Court of Appeals for Veterans Claims (the Court) held that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint. Further, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that an examiner should typically provide a rational for any an opinion that he is unable to give an opinion without resort to mere speculation. The Veteran was afforded VA examinations of his left shoulder and right hip in April 2015. Testing for passive range of motion and pain on nonweight-bearing was not conducted. With regard to flare-ups of the left shoulder and right hip, the examiner stated that, though pain and lack of endurance cause functional loss during a flare-up, he was unable to estimate in terms of degrees of range of motion additional functional loss because the Veteran was not experiencing a flare-up at the time of examination. This is similar to the rationale the Court rejected in Sharp. Therefore, new VA examinations are warranted. 3. Service connection for a right shoulder disorder is remanded. 4. Service connection for an upper neck disorder is remanded. As noted above, the Veteran’s claims of service connection for right shoulder strain and an upper neck condition have been reopened. An August 2013 VA treatment record notes his report that pain had onset in 1997 after being tackled during a football game. This indicates that the Veteran’s claimed right shoulder and upper neck disorders may be related to an in-service injury. The Veteran has not yet been afforded a VA examination of his neck. Further, a shoulder examination is necessary in connection with the Veteran’s left should rating claim. Therefore, an examination should be conducted on remand with medical opinions. See McLendon v. Nicholson, 20 Vet. App. 79 (2006).   5. Service connection for a psychiatric disorder, to include PTSD. Pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009), the Board has recharacterized this claim more broadly as one for service connection for a psychiatric disorder, to include PTSD. The Veteran asserts that he has diagnoses for generalized anxiety disorder with posttraumatic and depressive features, PTSD, delusional; tetrahydrocannabinol (THC) dependency and THC induced psychotic disorder. The Board notes THC may more commonly be referred to as marijuana or a byproduct thereof. Specifically, the Veteran claims that his PTSD relates to seeing an unidentified flying object (UFO) in service. In March 2000, the Veteran was evaluated with an isolated incident of drug abuse, but found to be psychologically fit for full duty. After service, in March 2013, the Veteran has had a diagnosis depressive disorder not otherwise specified with recurrent psychosis. He stated that he saw a UFO in the desert during service. Because he spoke about it, he states he was physically attacked by other marines and let go from the military. A February 2014 VA treatment record also notes memory and concentration impairment due to traumatic brain injury. A February 2015 VA treatment record states that the Veteran’s symptoms are likely related to his on-going use of marijuana and other psychoactive substances. In July 2018, the Veteran submitted two lay statements, one from his sister and another from a friend. Both note a change in the Veteran’s behavior after service. For instance, his sister noted that, while outgoing prior to service, when he came home he isolated himself from family and friends. His friend noted that the Veteran became consumed with hallucinations of UFOs. The Veteran submitted a June 2018 opinion from Dr. Cady who opined that generalized anxiety disorder more likely than not began in the miliary. He stated that the Veteran’s PTSD features are most likely caused from delusions that started during service as opposed to a traumatic event. Dr. Cady also states that the Veteran’s generalized anxiety disorder has been permanently aggravated by his service-connected disabilities. He also notes that the Veteran has self-medicated with marijuana since a football injury in 1997 during service. Direct service connection may be granted when a disability was incurred in the line of duty. 38 C.F.R. § 3.301(a). Notably, drug abuse is not considered to have occurred in the line of duty. See 38 C.F.R. § 3.301(d) (stating that “[A]n injury or disease incurred during active military, naval, or air service shall not be deemed to have been incurred in line of duty if such injury or disease was the result of the abuse of alcohol or drugs by the person on whose service benefits are claimed).” Thus, service connection is unavailable for any primary drug abuse itself. See Allen v. Principi, 237 F.3d 1368, 1381 (Fed. Cir. 2001). Based on the Veteran’s reports of “self-medication” during service, the Board finds that the Veteran’s marijuana use was habitual, not isolated. Further, Dr. Cady’s opinion regarding direct service connection fails to address the Veteran’s habitual marijuana use. In fact, the medical evidence of record indicates that delusions may be related to marijuana use. See February 2015 VA Treatment Record. To say that delusions began during service without addressing the Veteran’s drug use and the VA bar on service connection for such use is insufficient for adjudicating the claim. Dr. Cady notes that physical symptoms are an integral component of co-occurring depression and anxiety. He also noted literature supportive of a strong association between veterans with tinnitus and hearing loss problems and mental health problems due to impairment in lifestyle, emotional difficulties, sleep disturbance, headaches, and concentration problems. Dr. Cady, however, never related this evidence to the Veteran. For instance, it is unclear from Dr. Cady’s review of the literature whether mental health disorder cause other ailments or whether other ailments cause mental health disorders. Further, Dr. Cady does not cite evidence that the Veteran’s specific case. Rather, he notes only a strong, though general, association between the two. What is also needed is a medical opinion as to secondary service connection for this Veteran. Therefore, another VA psychiatric examination is warranted for this claim to address these theories and evidence. See McLendon, 20 Vet. App. at 79. 6. Service connection for headaches. The Veteran contends that his headaches were caused or aggravated by his psychiatric disorder, or other service-connected disability. He cites several medical studies in support of the connection. This claim is intertwined with his claim of service connection for a psychiatric disorder that is being remanded. A VA examination addressing the Veteran’s contentions regarding his headaches claim is also warranted. See McLendon, 20 Vet. App. at 79. The matters are REMANDED for the following action: 1. Schedule the Veteran for VA examinations of his left shoulder and right hip conditions to assess the current severity of the conditions. Testing should be conducted for range of motion on active and passive motion and for pain in weight-bearing and nonweight-bearing. With regard to flare-ups, the examiner should estimate the additional limitation to range of motion if the examination is not conducted during a flare-up. If this cannot be accomplished, it should be explained why this is so. 2. Schedule the Veteran for a VA examination in connection with his right shoulder and upper neck claims. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran has a current right shoulder disorder and/or upper neck disorder that had its onset during, or is otherwise related to, service, to include a 1997 football injury. A complete rationale should be provided for any opinion rendered. 3. Schedule the Veteran for a VA mental health examination in connection with his psychiatric disorder claim. Identify the Veteran’s current psychiatric disorder(s). If PTSD is not diagnosed, it should be explained why this is so. For any substance abuse disorder, it should be explained if the disorder is primary or secondary in nature. If PTSD is diagnosed, provide an opinion as to whether it is at least as likely as not due to a stressor during service. For any other diagnosed psychiatric disorder that is not a primary substance abuse disorder, provide an opinion as to whether it is at least as likely as not that the psychiatric disorder had its onset during, or is otherwise related to, service. Also, provide an opinion as to whether any diagnosed psychiatric disorder was at least as likely as not caused or aggravated by service-connected disability, to include tinnitus. “Aggravation” is an increase in severity beyond the natural progress of the disease or temporary flare-up. A complete rationale should be provided for any opinion rendered. Such rationale should address the literature cited by Dr. Cady in his July 2018 opinion and apply any medical principles in literature to the Veteran’s case. 4. Schedule the Veteran for a VA examination in connection with his headaches claim. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s headaches had their onset during, or are otherwise related to, service. If not, the examiner should also provide an opinion as to whether it is at least as likely as not that the Veteran’s headaches were caused or aggravated by service-connected disability, to include a psychiatric disorder (if service connected) and tinnitus. A complete rationale should be provided for any opinion rendered. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George