Citation Nr: 1809015	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  07-19 281	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania


THE ISSUES

1.  Entitlement to an effective date earlier than December 23, 2015 for the award of service connection for a degenerative disc disease (DDD) of the cervical spine. 

2.  Entitlement to service connection for right leg, hamstring tendon harvest associated with right knee condition.

3.  Entitlement to an initial increased evaluation for adult acne with scarring of the head, face, neck, arms, legs, and torso, and 1 painful right face/cheek scar currently rated as 10 percent disabling prior to March 23, 2017, and 30 percent disabling from that date, to include on an extra-schedular basis.


REPRESENTATION

Veteran represented by:	Disabled American Veterans



ATTORNEY FOR THE BOARD

L. Crohe, Counsel


INTRODUCTION

The Veteran served on active duty from May 1985 to March 2005. 

This case comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. 

For the issues pertinent to this appeal, the Board will summarize the relevant procedural history.

Acne - Initial Rating

In an October 2005 rating decision, the RO granted service connection for acne and assigned a noncompensable evaluation, effective April 1, 2005.  

In a March 2011 rating decision, the RO increased the initial evaluation for adult acne to 10 percent disabling, effective April 1, 2005.  

In a November 2013 rating decision, the RO granted entitlement to service connection for adult acne with scarring of the arms, legs and torso (not of the head, face, or neck); and adult acne with scarring of the head, face and neck (not of the body) (previously rated under Diagnostic Code (DC) 7828) and assigned noncompensable and 10 percent evaluations, respectively, effective October 31, 2012.  

In a September 2015 decision, the Board remanded the Veteran's initial rating claim for acne for an updated VA examination.

In January 2017, the RO granted service connection for a painful right face/cheek scar, and rated it with other service-connected scars that are not the subject of this appeal.

In a June 2017 rating decision, a RO increased the rating for adult acne from 10 percent disabling to 30 percent disabling, effective March 23, 2017, and incorporated within the rating consideration of the painful right face/cheek scar referenced immediately above.  In doing so, the RO discontinued the separate evaluations for adult acne with scarring of the head, face and neck under DC 7800, adult acne with scarring of the arms, legs, and torso under DC 7802, and the right face/cheek scar under DC 7804.  The RO combined them under DC 7828 and characterized the issue as adult scarring of the head, face, neck, legs, and torso, and 1 painful right face/cheek scar.  

The propriety of these assigned ratings remain at issue.

Cervical Spine - Effective Date

In a June 2016 rating decision, the RO granted, inter alia, service connection for DDD of the cervical spine and assigned a 20 percent evaluation, effective December 23, 2015.  The Veteran has perfected an appeal as to the assigned effective date for the award of service connection.  

Right Leg Hamstring Tendon Harvest - Service Connection

In a September 2015 decision, the Board remanded the Veteran's service connection claim for disability caused by a right leg hamstring tendon harvest so that the agency of original jurisdiction (AOJ) could issue a Statement of the Case (SOC) per the holding in Manlincon v. West, 12 Vet. App. 238 (1999).  In a January 2017 rating decision, the RO granted entitlement to service connection for a "painful scar, harvest site, s/p right ACL surgery" and considered this award to be a full grant of the benefit sought on appeal.  The Veteran has since argued that   although the January 2017 rating decision referenced "harvest site" as part of his scar award, the RO still had not addressed the claimed disability regarding "Right leg, hamstring tendon harvest associated with right knee condition."  To date, the RO has not issued a Statement of the Case (SOC) addressing this issue, and it must be remanded again below.  See Manlincon v. West, 12 Vet. App. 238 (1999).

Other matters

In its September 2015 decision, the Board also remanded service-connection claims for right lower extremity spot numbness, and for scars, status post right knee ACL reconstructive surgery.  Both of these claims were granted by the RO in a January 2017 rating decision, and they are no longer in appellate status.

In September 2015, the Board also remanded initial rating claims for bilateral otitis externa and bilateral otitis media so that the AOJ could issue an SOC addressing both issues.  In a February 2016 rating decision, the RO granted the maximum schedular rating for otitis externa effective for the entirety of the appeal period.  The RO subsequently issued a SOC as to the otitis media claim in January 2017.  The Veteran filed a timely substantive appeal, but then withdrew this issue from appellate status in a March 8, 2017 Statement in Support of Claim.  Thus these two issues are also no longer in appellate status.  

The Veteran's increased rating claim for acne and his service-connection claim for disability due to a right leg tendon harvest are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  A claim for entitlement to service connection for a cervical spine disability was received by VA on December 23, 2015.

2.  No document that can be construed as a claim for entitlement to service connection for a cervical spine disability was received by VA prior to December 23, 2015.
CONCLUSION OF LAW

The criteria for entitlement to an effective date earlier than December 23, 2015, for the grant of service connection for DDD of the cervical spine have not been met.  38 U.S.C. §§ 5107, 5110 (West 2012); 38 C.F.R. §§ 3.155, 3.157 (in effect prior to March 24, 2015), 3.102, 3.400 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found, but cannot be earlier than the date of receipt of the claim for the compensation that was granted.  38 U.S.C. § 5110(a).  The effective date of an award of disability compensation to a veteran is the day following separation from service if the claim for compensation was received within one year of separation.  38 U.S.C. § 5110(b)(1).  See also 38 C.F.R. § 3.400 (b)(2)(i) (effective date for claim for disability compensation is date of receipt of claim or date entitlement arose, whichever is later, unless filed within a year of separation).

The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the Veteran and his representative allege that the Veteran's claim arose or was filed prior to that date, the Board will consider the regulations in effect prior to March 24, 2015.

When determining the effective date of an award of compensation benefits, the Board is required to review all the communications in the file, after the last final disallowance of the claim, which could be interpreted to be a formal or informal claim for benefits.  See, e.g., Servello v. Derwinski, 3 Vet. App. 196, 198-99 (1992); Lalonde v. West, 12 Vet. App. 377, 380-381 (1999).
Under the former regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim.  38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015).

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 also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed.Cir.2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed.Cir.1999) (noting that even an informal claim must be in writing); Brannon v. West, 12 Vet.App. 32, 35 (1998).

The Veteran seeks entitlement to an effective date earlier than December 23, 2015, for the grant of service connection for DDD of the cervical spine. 

Historically, the Veteran was separated from service on March 2005.  On December 23, 2015, VA received the Veteran's claim of entitlement to service connection for a cervical spine disability.  In a June 2016 rating decision, the Veteran was granted service connection for DDD of the cervical spine, effective December 23, 2015, the date of his claim for service connection.  In September 2016, the Veteran appealed the assigned effective date. 

Initially, the Board notes that there is no evidence or allegation that the Veteran filed a claim for service connection for any cervical spine disability within one year of service discharge.  Therefore, assignment of an effective date back to the day following service discharge is not possible.  See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). 

Entitlement likely arose earlier than the established effective date, as VA has determined that the current neck disability is directly related to the Veteran's service.  Accordingly, the case turns on the date of receipt of the Veteran's claim as the effective date is the later of these two aspects of the claim.

The Board notes that at the time the Veteran submitted his claim for a cervical spine disability on December 23, 2015, in accompanying correspondence, the Veteran's representative noted that their office submitted a VA Form 21-526EZ requesting service connection for a cervical condition, that was received by the VA on April 15, 2014 and was shown in VBMS, but was never addressed.  On review of the record, on the VA Form 21-526EZ received in April 2014, the Veteran specifically identified a new claim for right clavicle (arthritis), and an increased rating claim for torn superior labrum, s/p SLAP repair, right shoulder, and a temporary total disability rating.  In a subsequent June 2016 rating decision, the RO considered osteoarthritis of the right clavicle as part of the right shoulder issue (claimed as right shoulder numbness) and increased the rating to 20 percent, effective April 16, 2014.   

Additionally, in email correspondence between the Veteran and his representative dated on December 8, 2015, the Veteran indicated that he was concerned that the (September 2015) Board decision (granting service connection for DDD of the thoracolumbar spine) made no reference to his mild DDD at C2-3 and C5-6.  In response, the Veteran's representative informed the Veteran that the mild DDD at C2-3 and C5-6 would have no effect on a back evaluation because it is a cervical (neck) condition.  The Veteran responded that having never been advised that his DDD at C2-3 and C5-6 was not part of the spine, he "never specifically claimed a cervical (neck) condition, but [he] believes[s] the evidence of record supports an implied claim."  He asked the representative, "How do I fix this?"  The Veteran's representative advised him that he would need to fill out a VA Form 21-526EZ.  Subsequently, on December 23, 2015, VA received a VAF 21-526EZ identifying a claim for service connection for a neck disability.  The Board finds that the evidence does not show that he submitted a claim for service connection for a cervical spine disability prior to December 23, 2015.   

In regards to an implied claim, the Board finds that the evidence of record dated prior to December 23, 2015, does not constitute a claim.  Indeed, prior to December 23, 2015, the evidence of record includes the Veteran's statements, private treatment records from M. Hospital associated with the claims file in April 2014 documenting cervical spine diagnoses and complaints of chronic neck pain, and multiple service connection claims for disabilities other than the cervical spine, including for which service connection was granted (such as allergic rhinitis, adult acne with scarring, tinnitus, left knee condition, asthma, several different scars, torn superior labrum, s/p SLAP repair, right shoulder with osteoarthritis of the right clavicle (claimed as right arm numbness), hemorrhoids, bilateral otitis media and externa, right knee, DDD of thoracolumbar spine, and numbness of skin around right knee).

The Board finds that the medical evidence pertaining to a neck disability does not constitute a claim.  It is well established that the mere presence of medical evidence does not establish an intent to seek service connection.  See Brannon v. West, 12 Vet. App. 32, 34-35 (1998) (holding that the mere receipt of medical records could not be construed as an informal claim); see also Criswell v. Nicholson, 20 Vet. App. 501, 503 (2006) ("[W]here there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised.").  Moreover, the Board notes that the provisions of former 38 C.F.R. § 3.157, which provide that a report of examination or hospitalization may be accepted as an informal claim for an increased rating or claim to reopen, are not applicable as the claim at issue is one for service connection.

The Board finds that the Veteran's correspondence related to his DDD of the thoracolumbar spine, torn superior labrum, s/p SLAP repair, right shoulder with osteoarthritis of the right clavicle (claimed as right arm numbness), and other service connection claims do not constitute a service connection claim for a cervical spine disability as they do not identify that such benefits are sought.  It was not until after the Board granted service connection for DDD of the thoracolumbar spine in September 2015, that the Veteran reached out to his representative and indicated that he believed that his cervical spine disability was part of his thoracolumbar spine disability and that he never filed a claim for a cervical spine disorder.  The Veteran's representative advised the Veteran that his cervical spine disability was separate from his thoracolumbar spine disability and that the Veteran would have to file a VA Form 21-526EZ, which the Veteran did in December 2015.  Accordingly, the December 23, 2015 VAF 21-526EZ is the earliest correspondence with VA that can be construed as a service connection claim for a cervical spine disability.  See Brokowski, 23 Vet. App. 79.

For the foregoing reasons, the preponderance of the evidence is against the claim for entitlement to an effective date earlier than December 23, 2015, for the grant of service connection for DDD of the cervical spine.  The benefit of the doubt doctrine is therefore not for application and the claim must be denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.


ORDER

An effective date earlier than December 23, 2015, for the grant of service connection for DDD of the cervical spine, is denied.


REMAND

Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's reopened and remaining claims so that he is afforded every possible consideration.  See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159.

First, with respect to the Veteran's right leg claim, in a November 2013 rating decision, the RO denied service connection for right leg hamstring tendon harvest and in April 2014, the Veteran submitted a notice of disagreement with this decision.  In September 2015, the Board remanded the Veteran's claim for right leg hamstring tendon harvest to provide the Veteran with a SOC in accordance with Manlincon, 12 Vet. App. 238, 240-41 (1999).  Although a subsequent January 2017 rating decision referenced "harvest site" as part of his scar rating, in a March 2017 statement, the Veteran claimed that the RO still had not addressed the disability regarding "Right leg, hamstring tendon harvest associated with right knee condition."  To date, the RO has not substantially complied with the remand directives and provided the Veteran with an SOC in response to his NOD.  See Stegall, 11 Vet. App. 268, 271 (1998) and Manlincon, 12 Vet. App. 238, 240-41 (1999).  On remand, such should be achieved.

With respect to acne, in a July 2015 written statement, the Veteran indicated that his service-connected skin disability was more severe than most recent VA examination (in June 2013) represents.  As a result, in September 2015, the Board remanded the Veteran's acne claim to afford the Veteran an updated VA skin examination.  The Veteran was not afforded this examination until March 2017.  In the meantime, the RO granted several service-connection awards for scars in a January 2017 rating decision.  Most scars contemplated were not related to acne, although one painful right face/cheek scar was indeed granted as secondary to acne.  

At the March 2017 skin diseases disability benefits questionnaire (DBQ), the examiner reported that because the recent January 2017 rating decision was made only three months ago and the Veteran's scars had not changed since that decision, a new evaluation of the scars was not performed today.  However, the examiner reported that there was, in fact, a progression of the Veteran's symptoms over time.  When asked to provide the measurements of any related scars found on examination for any scar of the head, face, or neck and submit color photographs, the examiner did not provide measurements or color photographs and restated that a new evaluation of the scars was not done on the current examination.  

The examiner did report that the Veteran had deep cystic acne that affected more than 40 percent of his total body area and more than 40 percent of his exposed area (hands, face, and neck), but also added that these scars had been reported to VA and a new evaluation of the scars was not performed today.  Furthermore, although the examiner indicated that the Veteran's skin conditions caused scarring and/or disfigurement, the examiner did not clarify what type of disfigurement, if any, and merely responded that the scars were on his face, chest, back, arms, and legs.  In the prior remand, the Board specifically asked the AOJ to ensure that the examiner provided all information required for rating purposes.  However, in light of the incomplete information provided by the March 2017 examiner, the Board does not find substantial compliance with its previous remand instructions, and a new VA examination is necessary.  

On the new examination, the examiner should render specific findings with respect to the existence and extent of any lesions, scars, or other manifestations associated with the Veteran's adult acne with scarring of the head, face, neck, arms, legs, and torso, and 1 painful right face/cheek scar and distinguish all manifestations, to the extent possible, from other service-connected scars.  While the Board recognizes that the recent 30 percent evaluation is the maximum schedular evaluation that can be assigned for deep acne of affecting 40 percent or more of the face and neck under DC 7828, any additional manifestations could possibly result in a rating under another Diagnostic Code or result in referral for extraschedular consideration.  

While on remand, VA should obtain any outstanding pertinent private treatment records.

Accordingly, the case is REMANDED for the following action:

1.  After securing any necessary authorization, obtain any 
private treatment records as the Veteran may identify as relevant to his claim.

2.  Arrange for the Veteran to undergo a VA skin 
examination, to be performed by an appropriate VA medical examiner, to assess the current symptoms and severity of the Veteran's adult acne with scarring of the head, face, neck, arms, legs, and torso, and 1 painful right face/cheek scar.  The entire claims file must be made available to the individual designated to examine the Veteran and the designated examiner must review the entire claims file in conjunction with the examination.

All necessary tests and studies should be performed.  Current unretouched photographs should also be taken and associated with the claims folder.  The examiner should render specific findings with respect to the existence and extent of any lesions, scars, or other manifestations associated with the Veteran's adult acne with scarring of the head, face, neck, arms, legs, and torso, and 1 painful right face/cheek scar and distinguish to the extent possible from other service-connected scars, to include opinions as to the following:

(a) The examiner should describe any acne present and associated scarring (i.e., whether papules, superficial cysts, pus-filled cysts), and indicate the location of each acne and associated scarring occurrence, whether it is deep or superficial, and whether or not it affects 40 percent or more of the face and neck.

(b) The examiner should note the size of the exposed and unexposed area affected by the Veteran's adult acne and any associated scars in square inches or square centimeters.

(c) The examiner should also indicate whether any associated scar is unstable or painful; deep or superficial; and linear or nonlinear.  

(d) The examiner should address whether or not the Veteran's acne and associated scars or scarring is manifested by any of the following characteristics of disfigurement: (1) scars that are five inches or more (13 centimeters or more) in length; (2) scars that are at least one-quarter inch (0.6 centimeters) wide at the widest part; (3) surface contour of the scar is elevated or depressed on palpation; (4) scars that are adherent to the underlying tissue; (5) skin is hypopigmented or hyperpigmented in an area exceeding six square inches (39 square centimeters); (6) skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 square centimeters); (7) underlying soft tissue is missing in an area exceeding six square inches (39 square centimeters); (8) skin is indurated or inflexible in an area exceeding six square inches (39 square centimeters)?

(e) The examiner should describe each medication used for adult acne and any associated scars or scarring (i.e., whether the medication is topical, corticosteroid, etc.), and the duration for which each medication is required during the past 12-month period.

(f) The examiner should comment upon the impact, if any, the Veteran's acne with associated scars or scarring has on his activities of daily living and/or occupational functioning.

3. The Veteran must be provided a SOC addressing the 
Veteran's service-connection claim for right leg, hamstring tendon harvest associated with right knee condition.  The Veteran should be informed of the requirements to perfect an appeal with respect to this issue.  

4. Re-adjudicate the claim for an initial increased 
evaluation for adult acne with scarring of the head, face, neck, arms, legs, and torso, and 1 painful right face/cheek scar, to include consideration on an extraschedular basis.  If the issue remains denied, issue an appropriate Supplemental Statement of the Case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

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 (West 2012).




______________________________________________
V. Chiappetta
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs