Citation Nr: 1807183	
Decision Date: 02/05/18    Archive Date: 02/14/18

DOCKET NO.  14-14 631	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUES

1. Entitlement to an initial rating higher than 10 percent for right (dominant) thumb disability, status post-operative.

2. Entitlement to an initial rating higher than 10 percent for left ankle disability.

3. Entitlement to an effective date earlier than December 20, 2013 for grant of service connection for associated peripheral neuropathy, right thumb.

4. Entitlement to service connection for an acquired mental disorder, to include anxiety reaction.

5. Entitlement to service connection for allergic vasomotor rhinitis (claimed as sinus condition), including as due to an undiagnosed illness (UI).

6. Entitlement to service connection for headaches, including as due to allergic vasomotor rhinitis and an UI.

7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities.


REPRESENTATION

Appellant represented by:	Jodee C. Kayton, Attorney


ATTORNEY FOR THE BOARD

W.T. Snyder, Counsel


INTRODUCTION

As member of the Mississippi Army National Guard (MSARNG), the Veteran had active duty training from January 2009 to May 2009, and mobilized active service from May 2009 to March 2010. His active service included a tour of duty in Iraq. 

This appeal to the Board of Veterans' Appeals (Board) arose from rating decision of a Department of Veterans' Affairs (VA) Regional Office (RO). A March 2011 rating decision granted entitlement to service connection for the right thumb and left ankle disabilities, and assigned initial ratings of 10-percent each; and, entitlement to service connection for the purpose of establishing eligibility for medical treatment, all effective in March 2010. The March 2011 rating decision also denied entitlement to service connection for anxiety disorder, vasomotor rhinitis, and headaches. An August 2014 rating decision granted service connection for associated peripheral neuropathy, right upper extremity (right thumb), and assigned an initial 20-percent rating, effective December 20, 2013. The Veteran perfected separate appeals of the determinations of the March 2011 rating decision and the effective date of the grant of service connection for the peripheral neuropathy.

The Veteran's claim for service connection for an acquired mental disorder is deemed to encompass all psychiatric diagnoses. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). Hence, the Board has styled the issues of the case as reflected on the title page.

A February 2013 rating decision granted service connection for a lumbar spine disability and gastroesophageal reflux disease (GERD) and assigned initial ratings of 10 percent and noncompensable, respectively. It also denied entitlement to service connection for carpal tunnel syndrome (CTS), depression, bipolar disorder, and sleep problems; and, denied entitlement to a temporary total rating for purposes of convalescence from right thumb surgery. There is no indication in the claims file that the Veteran appealed any facet of the February 2013 rating decision, to include the initial ratings of the lumbar spine and GERD disabilities. Correspondence from the Veteran to the RO on the right thumb surgery reflected that the Veteran requested examinations of the right thumb in conjunction with the appealed initial rating and, as a pro se correspondence read liberally, reflected no intent to appeal the temporary total denial. See 38 C.F.R. § 20.201 (2017); 04/26/2013 VA Form 
21-4138; 12/20/2013 VA Form 21-0820). Hence, those issues are note before the Board and will not be addressed in the decision below. See Grantham v. Brown, 
114 F.3d 1156 (Fed. Cir. 1997). The Board notes that the Veteran's attorney's brief to the Board does not assert that the denial of temporary total rating was appealed, but argues that related evidence shows that the Veteran was unable to work for part of the rating period on appeal. (06/06/2016 Third Party Correspondence, p. 3 et seq) Hence, the Board will view it in that light.

The Veteran's Substantive Appeal from the March 2011 rating decision reflects that he requested a Board hearing at the RO. (04/24/2014 VA Form 9.) In correspondence dated in October 2015 and February 2016, the Veteran, through his attorney, withdrew the request for a hearing. (10/06/2015 Correspondence; 02/17/2016 Third Party Correspondence) Hence, the hearing request was properly withdrawn. See 38 C.F.R. § 20.702(e) (2017).


The issues of entitlement to higher initial ratings of the right thumb and left ankle, and entitlement to a TDIU; and the service connection claims are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

The evidence is at least in equipoise that the right thumb associated neuropathy was noted at the March 2010 VA examination.


CONCLUSION OF LAW

The criteria for an effective date of March 22, 2010 for grant of service connection for peripheral neuropathy, right thumb, have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duty to Notify and Assist

As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Further, the Board's decision is fully favorable to the Veteran. Hence, there is no need to discuss VA's compliance with its duty to assist.

Legal Requirements

Generally, the effective date of an award based on an original claim, or a claim reopened after final adjudication, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C. § 5110(a). Except as otherwise provided, the effective date of an 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 C.F.R. § 3.400.

For disability compensation awarded on the basis of direct service connection, the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Separation from service means separation under conditions other than dishonorable from continuous active service which extended from the date the disability was incurred or aggravated. 38 C.F.R. § 3.400(b)(1)(ii)(B)(2).  

Discussion

As noted earlier, the August 2014 rating decision assigned an effective date of December 20, 2013. The grant was based on the findings at a VA examination. (07/24/2014 C&P Exam) Citing 38 C.F.R. § 3.400, the RO assigned that effective date based on the Veteran's informal claim, Report of General Information, of entitlement to service connection for CTS as secondary to the service-connected right thumb disability. (12/20/2013 VA Form 21-0820) The Board, however, agrees with the Veteran's attorney that the evidence of record supports an earlier effective date.

The March 2010 hand examination report reflects that the sensory examination revealed decreased sensation at the tip of the right thumb which the examiner described as subjective and dependent on the Veteran's report. Pain sensation was intact. Palpation in the area of the median nerve revealed some mild discomfort when the Phalen's test was done. The examiner noted that X-rays were read as having shown thickening of the soft tissue. The examiner noted that the decreased sensation may have represented CTS. (03/11/2010 VA Examination, p. 4)

Upon initial adjudication of the Veteran's claim, the RO determined that the Veteran should be invited to submit a claim for CTS. (03/29/2011 Rating Decision-Codesheet, p. 2) The letter that notified the Veteran of the March 2011 rating decision noted the examination findings and the examiner's opinion and included forms for a supplemental claim. (03/30/2011 Notification, p. 2) The February 2013 rating decision that denied service connection for CTS noted that there was no evidence of a confirmed diagnosis of CTS, and that the Veteran failed to report for an examination scheduled in conjunction with the claim. 

Additional examinations were arranged in conjunction with the Veteran's appeal of the initial rating of the right thumb. A July 2014 hand examination report reflected that the examiner included in the diagnoses of record a digital nerve neuropathy diagnosed by neurology in June 2014. The examiner referenced an outpatient entry that noted neurotic pain and opined that the hand specialist possibly meant neuropathic pain instead of neurotic pain. (07/24/2014 C&P Exam, p. 2; see 08/06/2014 LCMD CAPRI, 1st Entry, p. 2) The June 2014 peripheral nerve examination report reflects that the examiner noted a diagnosis of right thumb digital nerve neuropathy as of the day of the examination. (08/26/2014 C&P Exam, p. 1)

The evidence of record is clear that the decreased sensation of the right thumb was noted at the March 2010 examination. The Veteran should not be penalized because the examiner misdiagnosed, or mislabeled, the etiology as CTS. The Board notes the documentation that the Veteran failed to report for certain examinations, but it also reflects that the Veteran exerted reasonable efforts to get them rescheduled. 
As noted earlier, the VA received the Veteran's initial claim of entitlement to service connection for the right thumb prior to his release from active service. As a result, the March 2011 rating decision assigned effective dates in March 2010, the month the Veteran was demobilized from active service. Since the right thumb peripheral neuropathy is associated with the right thumb injury, and the symptomatology was in fact noted at the March 2010 joints examination, the Board finds that an effective date of March 22, 2010 is in order. 38 C.F.R. §§ 3.102, 3.400(b)(2).

ORDER

An effective date of March 22, 2010 for grant of service connection for peripheral neuropathy of the right upper extremity, radial and median nerves, associated with right thumb sprain is granted, subject to the law and regulations governing the award of monetary benefits.


REMAND

All of the reports of the orthopedic examinations of the Veteran's right thumb and the left ankle reflect that the examiners noted that they could not estimate the Veteran's functional loss during flare-ups or due to use over time except by speculation. This omission renders the examinations inadequate for appellate review purposes. See Sharp v. Shulkin, 29 Vet. App. 26, 36 (2017) (stating that a medical opinion that "cannot be provided without resort to speculation" is adequate when it is "clear that [it] is predicated on a lack of knowledge among the 'medical community at large' and not the insufficient knowledge of the specific examiner") (quoting Jones v. Shinseki, 23Vet. App. 382 (2010)). The Board notes that the attorney did not specifically reference Sharp in her brief, but she did argue the sufficiency of the assessment of the DeLuca factors. See, e.g., 08/24/17 Third Party Correspondence, at 6; see DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995). Hence, the Board finds that the omission is not waived due to this argument. Cf. Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.").

As noted, the March 2011 rating decision granted eligibility for treatment for a mental disorder diagnosed within one year of active service but denied entitlement to service connection for anxiety reaction. The basis of the denial was failure to report for an examination. See 38 C.F.R. § 3.655(b). The documentation in the claims file reflects that the Veteran informed the RO that he did not receive the notice of the examination, he asked that it be rescheduled, and he stated that he would report. For reasons not apparent from the record, a mental examination was not rescheduled. The Board finds that the documentation shows good cause for not reporting, and that another examination should be scheduled.

The VA general examination report reflects that the Veteran reported flares of allergic reactions while based in Iraq which he associated with exposure to sand and burn pits. He never reported his symptoms to superiors or sought treatment. The examiner also noted that the Veteran reported a childhood history of receiving allergy shots when in grade school until about age 12. The shots were for seasonally-related sneezing, frontal head discomfort, and intermittent runny nose. The examiner referenced the ENT examination report and diagnosed seasonal rhinitis with sinus-related headaches. The examiner opined that the disorder existed prior to active service, and that it was not appreciably exacerbated during deployment. (Emphasis added) (04/02/2010 VA Examination, p. 2, 4) The ENT examination report reflects that the examination revealed a severe deviation of the nasal septum with severe obstruction from the deviation; and, a significant allergic vasomotor rhinitis. The Veteran denied any prior nasal trauma. The examiner noted that the combination of the two were causing the Veteran to have almost total obstruction of the nasal cavity bilaterally. The examiner opined that it was very likely that the Veteran's headaches were associated with the severe nasal septal deformity with impingement into the turbinate causing Sluder's headaches (see https://medical-dictionary.thefreedictionary.com/Sluder+headache). The examiner did not opine on any nexus with the Veteran's active service.

First, the Board notes that the Veteran underwent a physical examination in June 2009 as part of his mobilization. The examination report reflects that he was found physically fit for deployment. The Veteran denied any significant medical history, and no medical disorder was noted. (02/21/2014 STR-Medical-Photocopy, 2nd Entry, p. 20, 25, 56) Hence, the Veteran is deemed to have been in sound condition at the time of his mobilization. See Smith v. Shinseki, 24 Vet. App. 40, 45 (2010); see also 38 C.F.R. § 3.304. Thus, the examiner who conducted the general examination rendered the opinion under an incorrect legal standard. The correct legal standard is that a preexisting disorder must be shown by clear and unmistakable evidence. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Hence, further development is indicated.

The Board finds that the TDIU matter is intertwined with the initial rating claims.

Accordingly, the case is REMANDED for the following action:

1. Obtain all relevant treatment records generated since issuance of the Supplemental Statement of the Case (SSOC) are obtained and added to the claims file.

2. After the above is complete, return the claims file to the examiner(s) who conducted the left ankle and right thumb joints examinations. Ask the examiner to provide the passive range of motion values from the examinations if they were in fact recorded. Further, the examiners are requested to specifically address the extent, if any, of functional loss of use of the left ankle and right thumb due to pain/painful motion, weakness or premature fatigability, incoordination, limited or excess movement, etc., including at times when the Veteran's symptoms are most prevalent - such as during flare-ups or prolonged use. If possible, these findings should be portrayed in terms of degrees of additional loss of motion. Moreover, should the examiners maintain that they cannot do so without resorting to speculation, they must explain why this is so; recent case law holds that mere lack of occasion to observe the joint during a flare-up is an insufficient basis for finding it speculative to respond.

3. Return the file to the examiner who conducted the April 2010 ENT examination. Ask the examiner to opine whether there is at least a 50-percent probability that the Veteran's deviated septum had onset in active service or is otherwise causally connected to active service? 

If the answer is, Yes, is there at least a 50-percent probability that the Veteran's headaches are caused by the deviated septum? 

If not, is there at least a 50-percent probability that the Veteran's deviated septum chronically worsens his headaches disorder?

Ask the examiner to reference the April 2010 general examination report, wherein the examiner diagnosed seasonal rhinitis. 

Ask the ENT examiner to explain whether seasonal rhinitis is the same as allergic vasomotor rhinitis? If the answer is, Yes, is there clear and unmistakable evidence that it existed prior to the Veteran's service? If so, did it increase in severity during the Veteran's active service? If it increased in severity during the Veteran's active service, was any increase clearly and unmistakably due to the natural progression of the disorder? If the answer is, No, is there at least a 50-percent probability that the Veteran's headaches disorder is caused by the seasonal rhinitis? If the answer is, Yes, is there at least a 50-percent probability that the seasonal rhinitis chronically worsens the headaches disorder?

The examiner should be advised that clear and unmistakable evidence means evidence that is undebatable.


If the examiner opines that allergic vasomotor rhinitis is a separate disorder from seasonal rhinitis, is there at least a 50-percent probability that it had onset during the Veteran's active service, or is otherwise causally connected to his active service? If so, is there at least a 50-percent probability that the Veteran's headaches disorder is caused by the allergic vasomotor rhinitis? If not, is there at least a 50-percent probability that the vasomotor rhinitis chronically worsens the headaches disorder?

The ENT examiner is advised that a full explanation must be given for all opinions provided. If the examiner renders a positive nexus opinion on the basis of a chronically worsening the headaches, please provide a baseline of aggravation in terms of a percentage.

4. If the examiners from #2 and/or #3 are no longer available, then have a similarly qualified examiner answer provide responses as requested in the above directives.

5. Arrange an examination of the Veteran by an appropriate mental health examiner. Ask the examiner to identify all acquired mental disorders shown by the evidence of record, to include anxiety reaction. Ask the examiner to opine whether there is at least a 50-percent probability that any currently diagnosed acquired mental disorder had onset in active service, or is otherwise causally connected to the Veteran's active service?

The examiner must provide a full explanation for all opinions provided.

6. After the above is complete, readjudicate the issues on appeal, to include whether the Veteran was unable to obtain and maintain substantially gainful employment during any part of the rating period (after assigned any ratings). If the decision remains in any way adverse to the Veteran, issue him and his representative an SSOC and then return the case to the Board, if all is in order.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).




______________________________________________
Paul Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs