Citation Nr: 18158995 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-33 383 DATE: December 18, 2018 ORDER New and material evidence has been received to permit reopening the issue of entitlement to service connection for a left hip condition. New and material evidence has been received to permit reopening the issue of entitlement to service connection for hypertension. Entitlement to an effective date prior to April 12, 2012 for degenerative disc disease of the cervical spine is denied. Entitlement to an effective date prior to April 12, 2012 for dyshidrotic eczema is denied. Entitlement to an effective date prior to April 12, 2012 for degenerative disc disease of the lumbar and thoracic spine is denied. Entitlement to an effective date prior to April 12, 2012 for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to April 12, 2012 for hydrocele is denied. Entitlement to an effective date prior to April 12, 2012 for a right ankle sprain is denied. REMANDED Entitlement to an increased initial disability rating for PTSD is remanded. Entitlement to an increased initial disability rating for degenerative disc disease of the cervical spine is remanded. Entitlement to an initial increased disability rating for degenerative disc disease of the lumbar and thoracic spine is remanded. Entitlement to an increased initial disability rating for a right ankle sprain is remanded. Entitlement to an increased initial disability rating for hydrocele is remanded. Entitlement to an increased initial disability rating for dyshidrotic eczema is remanded. Entitlement to service connection for a left hip condition is remanded. Entitlement to service connection for a left knee condition is remanded. Entitlement to service connection for a lung condition, to include asthma and bronchitis, and to include as due to herbicide exposure, is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. In an unappealed rating decision dated in July 2008, the Regional Office (RO) denied the Veteran’s claims of entitlement to service connection for a left hip condition and hypertension. 2. The evidence received since the July 2008 rating decision relates to an unestablished fact necessary to substantiate the claims. 3. The claims for entitlement to service connection for any back condition, any skin condition, and PTSD were previously denied by the RO in a July 2008 rating decision. The Veteran did not appeal the decision, and no new relevant evidence was received by VA within one year of the July 2008 rating decision. 4. From the time of the July 2008 rating decision, VA received no communication or action indicating an intent to apply for entitlement to service connection for a cervical spine condition, a skin condition, a lumbar or thoracic spine condition, or PTSD prior to April 12, 2012. 5. The Veteran’s April 12, 2012 claim was the earliest communication VA received requesting a determination of entitlement or evidencing a belief in entitlement to a benefit in connection with the Veteran’s hydrocele and right ankle sprain. CONCLUSIONS OF LAW 1. The July 2008 rating decision, which denied entitlement to service connection for a left hip condition and hypertension, is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.302, 20.1103. 2. Evidence submitted since the July 2008 rating decision is new and material and is a basis to reopen the claims. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.12, 3.156. 3. The criteria for an effective date prior to April 12, 2012 for the grant of entitlement to service connection for degenerative disc disease of the cervical spine, dyshidrotic eczema, degenerative disc disease of the lumbar and thoracic spine, and PTSD have not been met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.400. 4. The criteria for an effective date prior to April 12, 2012 for the grant of entitlement to service connection for hydrocele and a right ankle sprain are not met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from March 1967 to May 1990. Effective Date In pertinent part, the effective date of an award of benefits is the date of receipt of the claim to reopen or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under VA regulations, a claim includes a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 1. Entitlement to an effective date prior to April 12, 2012 for degenerative disc disease of the cervical spine 2. Entitlement to an effective date prior to April 12, 2012 for dyshidrotic eczema 3. Entitlement to an effective date prior to April 12, 2012 for degenerative disc disease of the lumbar and thoracic spine 4. Entitlement to an effective date prior to April 12, 2012 for PTSD The Veteran filed an application in August 2007 claiming that VA benefits should be awarded for an upper back condition, a skin condition, and PTSD. The RO denied service connection for the Veteran’s claimed disability in July 2008. The Veteran did not appeal that decision or submit new evidence within one year of that decision. He did not contact VA regarding his claim of entitlement to service connection for any back condition, a skin condition, or PTSD until April 12, 2012, when the Veteran filed another claim. The Veteran does not make any specific contentions regarding his earlier effective date claims. However, even if entitlement had arisen prior to April 12, 2012, there is no basis for an earlier effective date because the controlling law sets the date of a grant of service connection based on a claim to reopen as the date of the claim to reopen or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, the claims for an effective date prior to April 12, 2012 for the grant of entitlement to service connection for degenerative disc disease of the cervical spine, dyshidrotic eczema, degenerative disc disease of the lumbar and thoracic spine, and PTSD must be denied. 5. Entitlement to an effective date prior to April 12, 2012 for hydrocele 6. Entitlement to an effective date prior to April 12, 2012 for a right ankle sprain The Veteran submitted his claim for service connection for extreme scrotal swelling and joint pain of the ankles, knees, and hips on April 12, 2012. There is no evidence showing an intent to file such a claim prior to that date. The Veteran does not make any specific contentions regarding his earlier effective date claims. However, even if entitlement had arisen prior to April 12, 2012, there is no basis for an earlier effective date because the controlling law sets the date of a grant of service connection as the date of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Accordingly, the claims for an effective date prior to April 12, 2012 for the grant of entitlement to service connection for hydrocele and a right ankle sprain must be denied. REASONS FOR REMAND 1. Entitlement to an increased initial disability rating for PTSD is remanded. Since the RO last considered this claim in the July 2017 rating decision, additional relevant evidence has been associated with the record on appeal, including a private Disability Benefits Questionnaire from L.W. submitted in June 2018 regarding the Veteran’s PTSD. In the cover letter submitting the evidence, the Veteran’s attorney asked that, if the Board could not grant a 70 percent disability rating based on the evidence, the Board remand the evidence for consideration by the RO. As this evidence does not, in and of itself, provide a basis for a 70 percent disability rating for PTSD, the claim will be remanded to the RO for consideration of this evidence. 2. Entitlement to an increased initial disability rating for degenerative disc disease of the cervical spine 3. Entitlement to an initial increased disability rating for degenerative disc disease of the lumbar and thoracic spine 4. Entitlement to an increased initial disability rating for a right ankle sprain 5. Entitlement to an increased initial disability rating for hydrocele 6. Entitlement to an increased initial disability rating for dyshidrotic eczema For the issues of entitlement to increased initial disability ratings for degenerative disc disease of the cervical spine, degenerative disc disease of the lumbar and thoracic spine, a right ankle sprain, hydrocele, and dyshidrotic eczema, the Veteran was last afforded VA medical examinations in December 2012. There are no treatment records for any of these conditions since 2013. Because there are no treatment records for these conditions for the past five years and his last VA medical examinations for these conditions were more than six years, ago, the Veteran should be asked to identify sources of treatment records and afforded new VA medical examinations. Given the lack of treatment records in the Veteran’s claims file and the fact that his VA medical examinations are several years old, the Board finds that a current examination would assist in the adjudication of his claims. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination) and Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (an examination too remote for rating purposes cannot be considered “contemporaneous”). 7. Entitlement to service connection for a left hip condition 8. Entitlement to service connection for a left knee condition 9. Entitlement to service connection for a lung condition, to include asthma and bronchitis, and to include as due to herbicide exposure 10. Entitlement to service connection for hypertension, to include as secondary to service-connected PTSD The Veteran has not been afforded VA medical examinations regarding his claims of entitlement to service connection for a left hip condition, left knee condition, lung condition, and hypertension. He has stated that his left hip condition and left knee condition were the result of the physical demands placed on him during his twenty-three years of active duty. He has also asserted that his claimed lung conditions, including asthma and bronchitis, are the result of his herbicide exposure during service in Vietnam. He has also stated that his hypertension is secondary to his service-connected PTSD. Given the above, the low threshold for providing a VA examination in order to obtain a medical opinion has been met in this case. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matter is REMANDED for the following action: 1. After reviewing the record in its entirety and conducting any additional evidentiary development deemed necessary, the AOJ should readjudicate the claim of entitlement to an initial increased disability rating for PTSD. If the benefits sought by the Veteran remain denied, he and his attorney must be provided a Supplemental Statement of the Case (SSOC) and an opportunity to respond. The case should then be returned to the Board, if in order. 2. Contact the Veteran and request that he identify all private and VA treatment records pertaining to care for his claimed disabilities. If the RO cannot locate all relevant federal government records, it must specifically document the attempts that were made to locate them and explain in writing why further attempts to locate or obtain any federal government records would be futile. The RO must then: (a) notify the claimant of the specific records that it was unable to obtain; (b) explain the efforts VA has made to obtain the evidence; and (c) describe any further action it will take with respect to the claim. The claimant must then be given the opportunity to respond. 3. Schedule VA compensation examinations to determine the current severity of the Veteran’s service-connected degenerative disc disease of the cervical spine, degenerative disc disease of the lumbar and thoracic spine, a right ankle sprain, hydrocele, and dyshidrotic eczema. The entire claim file, to include all electronic files, must be reviewed by the examiner. All appropriate tests and studies should be accomplished. All examination findings, along with the complete rationale for all opinions expressed, should be discussed in the examination report. 4. Schedule VA compensation examinations to determine the nature and likely etiology of any left hip condition, left knee condition, lung condition, and hypertension. The claims file, including a copy of this REMAND, should be made available to the examiner(s). All appropriate tests and studies should be conducted. After a review of the record on appeal, the examiner should respond to the following for any current left hip, left knee, and lung conditions and hypertension: Is it at least as likely as not that the Veteran’s current disability is etiologically related to his military service? Was the Veteran’s current disability manifest during service or within one year of separation from service? Is it at least as likely as not that the Veteran’s current disability was caused by or worsened beyond the natural progress of the disease by any of his service-connected disorders? The Veteran is service-connected for PTSD, degenerative disc disease of the thoracolumbar and cervical spine, left and right ankle sprains, dyshidrotic eczema, and hydrocele. Specifically, the Veteran asserts that his hypertension is caused by or worsened beyond the natural progress of the disease by his PTSD. The examiner is asked to opine on whether it is at least as likely as not that the Veteran’s current disability was caused by or worsened beyond the natural progress of the disease by his PTSD. The Veteran also asserts that his lung condition(s) were caused by his herbicide exposure while in Vietnam. The examiner is asked to opine on whether it is at least as likely as not that any current lung condition of the Veteran is etiologically related to his herbicide exposure during service in Vietnam. A complete rationale should be provided for all opinions expressed. If the VA examiner finds that he or she must resort to speculation to render the requested opinion, he or she must state, with specificity, why this would require resort to speculation. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Parke