Citation Nr: 1808454	
Decision Date: 02/09/18    Archive Date: 02/20/18

DOCKET NO.  16-46 814	)	DATE
	)
	)

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



THE ISSUES

1.  Entitlement to an effective date earlier than May 29, 2014 for service connection for tinnitus.

2.  Entitlement to a rating in excess of 10 percent for tinnitus.

3. Entitlement to an effective date earlier than May 29, 2014 for service connection for irritable bowel syndrome (IBS).  

4.  Entitlement to an initial compensable rating for IBS.  

5.  Whether new and material evidence has been received to reopen the claim of service connection for a left shoulder disability.  

6.  Entitlement to a rating in excess of 10 percent for hypertension.  

7.  Entitlement to a rating in excess of 10 percent for degenerative joint disease of the lumbar spine.  

8.  Entitlement to an effective date earlier than May 29, 2014, for the 10 percent evaluation for degenerative joint disease of the lumbar spine.

9.  Entitlement to service connection for a left shoulder disability.

10.  Entitlement to service connection for a gastrointestinal (GI) disability to include gastroesophageal reflux disease (GERD) and Barrett's esophagus.

11.  Entitlement to service connection for a cervical spine disability.

12.  Entitlement to service connection for a left hip disability.

13.  Entitlement to service connection for a right hip disability.

14.  Entitlement to service connection for a left knee disability.

15.  Entitlement to service connection for a right knee disability.

16.  Entitlement to service connection for nonmalignant thyroid nodular disease to include as a result of exposure to ionizing radiation.  

17.  Entitlement to service connection for residuals of skin cancer to include as a result of exposure to ionizing radiation

18.  Entitlement to service connection for bilateral hearing loss.

19.  Entitlement to a rating in excess of 30 percent for unspecified anxiety disorder.  

20.  Entitlement to an effective date earlier than May 29, 2014, for the 30 percent evaluation granted for unspecified anxiety disorder.  



ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from February 1961 to October 1981.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from decisions of the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA).  

The United States Court of Appeals for Veterans Claims (Court) has held that the scope of a claim includes any disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record.  Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009); Brokowski v. Shinseki, 23 Vet. App. 79 (2009).  Therefore, the issue of service connection for GERD has been recharacterized as indicated on the front page of this decision.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (2012).

The issues number 4, and 9 through 20 listed on the front page of this decision addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  On May 29, 2014, a claim of service connection for tinnitus was received from the Veteran.

2.  A December 2015 rating decision granted service connection for tinnitus and assigned a 10 percent rating effective May 31, 2014; that effective date was thereafter amended to May 29, 2014, the date of receipt of the claim.

3.  There is no evidence establishing an informal or formal claim of service connection for tinnitus prior to May 29, 2014; medical records dated prior to that time do not constitute informal claims for compensation for tinnitus because service connection was not in effect for tinnitus.

4.  The Veteran's service-connected bilateral tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260.  

5.  Within a year of service, the Veteran filed a claim of service connection for a GI disability.  

6.  A January 1983 rating decision denied service connection for a GI disability; the Veteran perfected an appeal; in a February 1985 decision, the Board remanded this issue, but it was never returned to the Board for adjudication on appeal.  

7.  The appropriate effective date for service connection for IBS is November 1, 1981, the day after his discharge from service.  

8.  In a January 1983 rating decision, the RO denied service connection for a left shoulder disability; the Veteran did not appeal.

9.  Evidence submitted since the RO's January 1983 decision, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim of service connection for a left shoulder disability, and therefore raises a reasonable possibility of substantiating the claim.

10.  The Veteran failed to report for his August 2, 2016 VA hypertension and low back examinations scheduled by VA in conjunction with his increased rating claims and good cause for his failure to report has not been shown.

11.  In a February 1983 rating decision, service connection for low back pain was granted and a noncompensable rating was assigned from November 1, 1981.  

12.  In February 1985, the Board denied an appeal for an increased rating for low back disability.

13.  On May 29, 2014, a claim for an increased rating for low back disability was received.

14.  A December 2015 rating decision granted an increased rating of 10 percent for low back disability effective May 31, 2014;  that effective date was thereafter amended to May 29, 2014, the date of the claim.  

15.  There was no formal or informal claim for an increased rating for the low back disability prior to May 29, 20140 nor is there any evidence of treatment showing an increase in severity within the year preceding May 29, 2014, thus, it is not factually ascertainable that the Veteran's low back disability was 10 percent disabling prior to May 29, 2014.


CONCLUSIONS OF LAW

1.  The criteria for an effective date prior to May 29, 2014, for the grant of service connection for tinnitus have not been met.  38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.157, 3.155, 3.400 (2014-2017).

2.  There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus.  38 U.S.C. §1155 (2012); 38 C.F.R. §4.87, Part 4, Diagnostic Code 6260 (2017).   

3.  The  criteria for an effective date of November 1, 1981 for service connection for IBS have been met.  38 U.S.C. § 5110(a), (b)(1) (2012); 38 .F.R. § 3.400 (2017).

4.  The RO's January 1983 rating decision which denied service connection for a left shoulder disability is final.  38 U.S.C. § 7105 (2012).

5.  New and material evidence has been received since the RO's January 1983 rating decision; thus, the claim of service connection for a left shoulder disability s reopened.  38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2017).

6.  The claim for entitlement to an increased rating for hypertension is denied as a matter of law.  38 C.F.R. § 3.655 (2017).

7.  The claim for entitlement to an increased rating for degenerative joint disease of the lumbar spine is denied as a matter of law.  38 C.F.R. § 3.655 (2017).

8.  The criteria for an effective date prior to May 29, 2014, for the grant of a 10 percent rating for degenerative joint disease of the lumbar spine have not been met.  38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA) 

Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  38 C.F.R. § 3.159.  Here, the Veteran was provided with the relevant notice and information.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).  VA also has a duty to assist the Veteran in obtaining potentially relevant records, and providing an examination or medical opinion when necessary to make a decision on the claim and all appropriate development was undertaken in this case.  The Board notes that VA's duty to assist the Veteran includes obtaining the Veteran's service treatment records (STRs).  The Veteran maintains that there are missing records particularly from when he was stationed in Canada.  It is unclear if all of the STRs have been obtained, but VA has made the appropriate requests for those records.  Because there may be some missing records, VA has a heightened duty to consider the applicability of the benefit-of-the-doubt rule and to assist the Veteran in developing the claim, and to explain the reasons and bases for its decision.  See Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991).  However, there is no presumption for granting any of the claims.  See Russo v. Brown, 9 Vet. App. 46 (1996).  VA made all appropriate efforts with regard to the Veteran's claims that are decided herein.  

Preliminary Matter

The Veteran's current claim was marked May 31, 2014.  However, the RO has indicated that it was electronically received on May 29, 2014 and the Board accepts that assessment.  Thus, the current claim for the disabilities on appeal was received on May 29, 2014.

Tinnitus Effective Date and Rating

The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110.  Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C. § 5110(a).  The effective date of an award of disability compensation to a veteran shall be the day following the date of a veteran's discharge or release if application therefor is received within one year from such date of discharge or release.  38 U.S.C.  5110(a), (b)(1).

With regard to a "claim," the applicable regulations have changed.  Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary.  See 79 Fed. Reg. 57,660 (Sept. 25, 2014).  This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2).  These amendments are only applicable with respect to claims and appeals filed on or after March 24, 2015, but this claim was received prior to that date  Thus, the directives in effect prior to those changes must be considered.  In that regard, a specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101(a).  A "claim" is defined broadly to include 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, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought.  See 38 C.F.R. § 3.155(a); Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court's precedents and public policies underlying the statutory scheme).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

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.  An application is defined as 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice).

Further, once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can be accepted as an informal claim for benefits.  The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim.  These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination.  38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a).  

Thus, medical records dated prior to May 29, 2014 do not constitute informal claims for compensation for tinnitus since service connection was not in effect for tinnitus.

The Veteran seeks an effective date earlier than May 29, 2014 for entitlement to service connection tinnitus with an assigned 10 percent rating (as addressed below).

Based on a careful review of the record, the Board finds that a claim for service connection for tinnitus was not received by VA prior to May 29, 2014.

The Veteran was discharged from service in October 1981.  The Veteran submitted an original claim for VA compensation benefits in November 1981, but the Veteran did not express any intent to claim service connection for tinnitus at that time.  The claim for service connection for tinnitus was not received until the current claim on May 29, 2014.  A December 2015 rating decision granted service connection for tinnitus and assigned an effective date of May 31, 2014; however, as previously noted, the Board thereafter accepted that the claim was originally received on May 29, 2014 and amended the effective date to that date.  

As there was no communication or submission of evidence from the Veteran evincing intent to apply for entitlement to service connection for tinnitus prior to May 29, 2014, an earlier effective date is not warranted.  Thus, an earlier effective date based on a prior, pending, unadjudicated claim is unavailable.  Therefore, under the laws and regulations pertaining to effective dates, May 29, 2014 is the appropriate effective date for the grant of entitlement to entitlement to service connection for tinnitus.  

With regard to the rating for tinnitus, the RO assigned a 10 percent rating from May 29, 2014.  

Disability evaluations are determined by the application of a Schedule of Rating Disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 13, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head.  38 C.F.R. § 4.87, Diagnostic Code 6260, note 2..  As noted, the Veteran's claim was filed May 29, 2014 and service connection for tinnitus was established effective that date.

Historically, in Smith v. Nicholson, 19 Vet. App. 63, 78, (2005) the Court held that the pre-1999 and pre-June 13, 2003 versions of Diagnostic Code 6260 required the assignment of dual ratings for bilateral tinnitus.  VA appealed this decision to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and stayed the adjudication of tinnitus rating cases.  In Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), the Federal Circuit concluded that the Court erred in not deferring to the VA's interpretation of its own regulations, 38 C.F.R. § 4.25(b) and Diagnostic Code 6260, which limits a veteran to a single disability rating for tinnitus, regardless whether the tinnitus is unilateral or bilateral.  Subsequently, the stay of adjudication of tinnitus rating cases was lifted.

In this case, the Veteran's claim was filed in 2014; thus the pre-June 2003 version of Diagnostic Code 6260 does not apply.  In any event, it is now settled that the version of Diagnostic Code 6260 in effect prior to June 2003 as well as the current regulation precludes an evaluation in excess of a single 10-percent for tinnitus.  

Therefore, the claim for a higher rating for tinnitus, whether the Veteran seeks higher than 10 percent in one ear, or separate 10 percent ratings for each ear must be denied under Diagnostic Code 6260.  As the disposition of this claim is based on the law, and not the facts of the case, the claim must be denied based on a lack of entitlement under the law.  See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  

Effective Date for Service Connection for IBS

With regard to service connection for IBS, the Veteran claimed service connection for a GI disorder in his original November 1981 claim.  A January 1983 rating decision denied the claim.  The Veteran thereafter perfected an appeal.  In a February 1985 decision, the Board remanded this issue.  It appears that subsequent to the remand, the issue was never returned to the Board and the appeal was dropped.  When the Veteran filed his current claim on May 29, 2014, the claim of service connection was again processed and eventually granted in a January 2016 rating decision.  The RO assigned the effective date as of May 29, 2014 which was the date of the recent claim.  In conjunction with the claim, the Veteran had been examined in December 2015.  The VA examiner indicated the following.  The Veteran's spastic colitis condition (which was noted in service) is now better characterized as IBS.  This is a natural progression of the spastic colitis and not a new diagnosis.  It is more likely than not that the Veteran's IBS started while he was on active duty in 1976 and was previously characterized as "spastic colitis".  The Veteran's previous diagnosis of acute spastic colitis is at least as likely as not continue to his current diagnosis of IBS.  The STRs show that the Veteran had multiple visits and hospitalizations for constipation, diarrhea, abdominal pain, and spastic colitis in service.  The Veteran has had ongoing symptoms since his service dates. 

The Board finds that the appropriate effective date is the day following the date of a veteran's discharge or release if application therefor is received within one year from such date of discharge or release or November 1, 1981, as was the case here.  38 U.S.C.  5110(a), (b)(1).  As noted, the Veteran had a pending appeal from that time which was never properly returned to the Board post-remand.  This is the earliest date possible to grant an effective date of service connection.  With regard to the appropriate rating, that matter is addressed in the remand portion of this decision.  

New and Material Evidence for Service Connection for Left Shoulder Disability

In a January 1983 rating decision, the RO denied service connection for a left shoulder disability on the basis that although left shoulder pain was reported, 
x-rays were negative and there was no current disability.  A notice of disagreement was not received within the subsequent one-year period nor was pertinent evidence received.  Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011).  Therefore, the RO's January 1983 rating decision is final.  38 U.S.C. § 7105.

Prior unappealed decisions are final.  However, a claim will be reopened and the former disposition reviewed if new and material evidence is presented or secured with respect to the claim which has been disallowed.  38 U.S.C. § 5108; 38 C.F.R. § 3.156(a).  The Court has held that, when "new and material evidence" is presented or secured with respect to a previously and finally disallowed claim, VA must reopen the claim.  Manio v. Derwinski, 1 Vet. App. 140, 145 (1991).

New evidence means existing evidence not previously submitted to agency decisionmakers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).  According to the Court, the pertinent VA law requires that in order to reopen a previously and finally disallowed claim, there must be new and material evidence presented or secured since the time that the claim was finally disallowed on any basis.  Evans v. Brown, 9 Vet. App. 273 (1996).  

In conjunction with the current claim, the Veteran has asserted that he has both arthritis and skin cancer of the left shoulder.

For the purpose of establishing whether new and material evidence has been submitted, the truthfulness of evidence is presumed, unless the evidence is inherently incredible or consists of statements which are beyond the competence of the person(s) making them.  See Justus v. Principi, 3 Vet. App. 510, 513 (1992); Meyer v. Brown, 9 Vet. App. 425, 429 (1996); King v. Brown, 5 Vet. App. 19, 21 (1993); but see Duran v. Brown, 7 Vet. App. 216 (1994) ("Justus does not require the Secretary [of VA] to consider the patently incredible to be credible").  Furthermore, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has indicated that evidence may be considered new and material if it contributes to a more complete picture of the circumstances surrounding the origin of a veteran's injury or disability, even where it will not eventually convince the Board to grant the claim.  Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998).

In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  The Court stated that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Id. at 118.  Thus, pursuant to Shade, evidence is new if it has not been previously submitted to agency decisionmakers and is material if, when considered with the evidence of record, it would at least trigger VA's duty to assist by providing a medical opinion, which might raise a reasonable possibility of substantiating the claim.  In other words, the Court indicated that the post-VCAA version of 38 C.F.R. § 3.156(a) establishes a low threshold for reopening a claim, one that does not require that a claimant submit a medical opinion to reopen a claim.  Rather, if there is newly submitted evidence of current disability which in connection with the prior evidence, raises a reasonable possibility of substantiating the claim, and the element of a nexus could be established by providing a VA examination, the claim may be reopened.  This then triggers VA's duty to assist in providing the claimant with a VA examination.  

The Board finds that the new contentions regarding the Veteran's claimed left shoulder disability are sufficient to reopen the claim of service connection and trigger the duty to assist for a VA examination.  New and material evidence has been received since the RO's January 1983 decision; thus, the claim of service connection for a left shoulder disability is reopened.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156.


Increased Ratings for Hypertension and Lumbar Degenerative Disc Disease

Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  The Veteran's entire history is reviewed when making disability evaluations.  See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. At 126.  Hart appears to extend Fenderson to all increased rating claims.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed.  See 38 C.F.R. § 4.14.  A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity."  Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155).  This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14.  However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes.  See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993).

The Veteran was scheduled for VA examinations for his hypertension and low back disability on August 2, 2016, but indicated that he did not wish to be examined and failed to report for those examinations although he attended an unrelated examination for another disability.

Under 38 C.F.R. § 3.655 (a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655 (b) or (c) as appropriate.  38 C.F.R. § 3.655 (b) applies to original or reopened claims or claims for increase, while 38 C.F.R. § 3.655 (c) applies to running awards, when the issue is continuing entitlement.  More specifically, when a claimant fails to report for a scheduled medical examination, without good cause, a claim for an increase shall be denied without review of the evidence of record.  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member.  See 38 C.F.R. § 3.655.

In this case, the claims on appeal are not the original claims for compensation as contemplated by the operative VA regulations.  Rather, the claims are increased rating claims.  The Veteran reported to the VA Veterans Evaluation Services personnel that he did not wish to have the hypertension and back examinations.  Thus, the Board is satisfied that he received notice and failed to report to the scheduled VA examinations without good cause as no reason was provided and he was able to report to the other examination, as noted.  Therefore, the increased rating claims on appeal must be denied as a matter of law.  See Sabonis.


Earlier Effective Date for Increased Rating for Degenerative Joint Disease of the Lumbar Spine

The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.  If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable."  If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim.  38 C.F.R. § 3.400(o)(1)(2).  The Federal Circuit has reaffirmed that "the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim."  Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010).

A January 1983 rating decision granted service connection for low back pain and assigned a noncompensable rating.  Subsequently, the Veteran appealed his noncompensable rating to the Board which denied the appeal in February 1985.  

On May 29, 2014, the claim for an increased rating was received.  In conjunction with the claim, the Veteran was afforded a VA examination in November 2015.  In a December 2015 rating decision, an increased rating of 10 percent was granted from May 31, 2014, which was later amended to May 29, 2014.  

There was no formal or informal claim for an increased rating dated after the Board's February 1985 denial and prior to May 29, 2014, nor is there any evidence of VA treatment showing an increase in severity within the year preceding May 29, 2014, thus, it is not factually ascertainable that the Veteran's low back disability was 10 percent disabling prior to May 29, 2014.  An effective date before May 29, 2014, the date of the current claim, is not warranted.  The preponderance of the evidence is against the claim and there is no doubt to be resolved.  38 U.S.C. § 5107(b).


ORDER

An effective date prior to May 29, 2014, for the grant of service connection for tinnitus is denied.

A rating in excess of 10 percent for bilateral tinnitus is denied.  

An effective date of November 1, 1981 for service connection for IBS is granted.

The application to reopen the claim of service connection for a left shoulder disability is granted.  

An increased rating for hypertension is denied.

An increased rating for degenerative joint disease of the lumbar spine is denied.

An effective date prior to May 29, 2014, for the grant of a 10 percent rating for degenerative joint disease of the lumbar spine is denied.


REMAND

IBS

As noted, the Board has granted an effective date of service connection of November 1, 1981.  With regard to the appropriate rating, the assigned noncompensable rating was based essentially on current findings of no symptoms.  However, on the recent October 2016 evaluation, the examiner noted that the Veteran had diarrhea and alternating diarrhea with constipation in the past, but not currently.  The Board finds that an examination with a retroactive opinion is needed.  Then, the RO must consider the rating since the newly assigned effective date.

Left Shoulder

The Board has reopened the claim of service connection for a left shoulder disability.  The Veteran should now be afforded a VA examination and opinion to determine if any current left shoulder disability is etiologically related to service.  

GI/GERD/Barrett's Esophagus

As noted above, the STRs reveal that the Veteran was treated for GI symptoms and spastic colitis.  He was not diagnosed with another GI disorder.  On his post-service October 1982 examination, he had no epigastric tenderness or tenderness any place else.  The examiner noted that the Veteran was not taking any medication.  He was not diagnosed as having GERD nor did he report any symptoms.  More recent private records document diagnoses of GERD and Barrett's Esophagus beginning in 2006 as shown by the appropriate GI testing.  

The Veteran was afforded a VA examination in November 2015.  The examiner noted that GERD was less likely than not related to service because the STRs are silent for a diagnosis of GERD and the Veteran did not seek treatment for GERD in military.  

The Board notes that while the Veteran was afforded a VA examination and an opinion was provided, inservice treatment and diagnosis is not required to establish service connection per 38 C.F.R. § 3.303(d); thus, the medical opinion is insufficient and an addendum is needed.  Also, all GI conditions should be considered per Clemons.  

It should be noted that the February 1985 Board remand characterized the issue on appeal as entitlement to service connection for chronic GI disability, including spastic colitis, which was later determined, as indicated above, to encompass IBS.  The Board included all GI disability, so the RO should consider this issue as having been pending since that appeal.  


Cervical Spine, Hips, and Knees 

The Veteran contends that he has current disabilities which are etiologically related to service, but he has not been examined.  He asserts that there are missing service records; however, as noted, efforts have already been made to secure all records.  Nonetheless, the Board finds that a VA examination should be conducted.  

Thyroid Nodular Disease and Skin Cancer

These claims have been considered on the basis that they resulted from exposure to ionizing radiation and on a direct basis per Combee v. Brown, 34 F.3d 1039 (Fed Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a Veteran from establishing service connection with proof of actual direct causation).  The RO developed the claims per directives pertaining to claimed radiation exposure, determining that although the Veteran had some exposure to nuclear weaponry, the Veteran's claimed exposure was insufficient to constitute a "radiation risk activity."  However, with regard to direct service connection, the Veteran was not afforded a VA examination nor was a medical opinion obtained.  This action should be taken on remand.  

Bilateral Hearing Loss

Similar to the claim of service connection for IBS, the Board remanded the issue of service connection for hearing loss in a February 1985 decision, following a perfected appeal from a January 1983 rating decision that had denied the claim.  It appears that subsequent to the remand, the issue was never returned to the Board and the appeal was dropped until the Veteran again raised the issue years later.  The RO has considered this claim as a new and material issue appeal, but service connection for hearing loss is on appeal from the original claim and should be adjudicated as such.  


Higher Rating and Earlier Effective Date for Rating for 
Unspecified Anxiety Disorder

The Veteran submitted a DBQ medical evaluation dated in October 2016 which post-dated the VA examination, but, as noted by the RO, was incomplete.  As such, the Board finds that the Veteran should be afforded a current and complete DBQ medical examination.  The Board recognizes that the Veteran reported that he had PTSD on this examination, but a VA examiner should attempt to determine what symptoms, if possible, are due to the unspecified anxiety disorder.  If the examiner cannot disassociate the unspecified anxiety disorder from any other coexisting psychiatric disability, the symptoms should be attributed to the unspecified anxiety disorder for rating purposes.  See Mittleider v. West, 11 Vet. App. 181, 182 (1998).  The outcome of the rating issue may impact the effective date issue, so that matter is deferred.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Schedule the Veteran for a VA GI examination to determine the nature and extent of his service-connected IBS and to determine if he has any other GI disorder which is attributable to service, including GERD and Barrett's esophagus.  The examiner should review the record prior to examination.  

The examiner must provide a retrospective opinion as to the severity of his service-connected IBS symptomatology since November 1, 1983, if possible.  The examiner should also be provided with the rating criteria as it has existed throughout the pendency of the claim.  

The examiner should also provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any other current GI disorder, including GERD and Barrett's esophagus, had its clinical onset during service or is otherwise related to any in-service disease, event, or injury.  

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.  

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of any current left shoulder, cervical spine, bilateral hip, bilateral knee, thyroid nodular disease and skin cancer disabilities.  Any indicated tests should be accomplished.  The examiner should review the record prior to examination.  

The examiner should specifically identify all current left shoulder, cervical spine, bilateral hip, bilateral knee, thyroid and skin cancer disabilities.  

The examiner should then provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that any current left shoulder, cervical spine, bilateral hip, bilateral knee, thyroid nodular disease and skin cancer disabilities had its clinical onset during service or is otherwise related to any in-service disease, event, or injury, or if arthritis or cancer was manifest in the initial post-service year.  The examiner should address the Veteran's exposure to radiation in service and the likelihood that the Veteran's thyroid disease and/or skin cancer (or any other claimed disability) is proximately caused by such exposure.  

The examiner should provide a complete rationale for all opinions expressed and conclusions reached.  

3.  Schedule the Veteran for a VA psychiatric examination to determine the nature and extent of his service-connected unspecified anxiety disorder.  The examiner should review the record prior to examination.  The examination should be performed in accordance with the Disability Benefits Questionnaire (DBQ) for mental health disorders.  The DBQ should be filled out completely as relevant.  If there is a coexisting psychiatric disorder(s) in addition to the unspecified anxiety disorder, the examiner should attempt to determine what symptoms, if possible, are due to the unspecified anxiety disorder.  

All findings, conclusions, and opinions must be supported by a clear rationale.

4.  Review the medical opinions obtained above to ensure that the remand directives have been accomplished.  If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry.

5.  Readjudicate the claims on appeal in light of all of the evidence of record.  With regard to the service connection for hearing loss and GI claims, the RO should consider them as having been pending since the original denials of service connection.  Likewise, the higher rating claim for IBS has also been pending, as noted above.

If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto.  

The Veteran has the right to submit additional evidence and argument on the matter or 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).




S. L. Kennedy
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs