Citation Nr: 18136239 Decision Date: 09/19/18 Archive Date: 09/18/18 DOCKET NO. 15-46 863 DATE: September 19, 2018 ORDER Entitlement to service connection for a left wrist strain is granted. Entitlement to an effective date earlier than October 21, 2012 for the assignment of service connection for radiculopathy of the upper left extremity is denied. Entitlement to an effective date earlier than October 21, 2012 for the assignment of service connection for radiculopathy of the upper right extremity is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder is remanded. Entitlement to a disability rating of 10 percent for a ganglion cyst of the right wrist is remanded. Entitlement to a disability rating in excess of 20 percent prior to October 7, 2015 and in excess of 10 percent thereafter for a cervical spine condition is remanded. Entitlement to a disability rating in excess of 10 percent prior to December 9, 2014 and in excess of 30 percent thereafter for migraines is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the upper right extremity is remanded. Entitlement to a compensable disability rating for a right knee condition is remanded. Entitlement to an effective date earlier than December 21, 2011 for the grant of service connection for migraines is remanded. FINDINGS OF FACT 1. The Veteran has a current diagnosis of a left wrist strain, and the Veteran began to manifest it within one year of separation of service. 2. It is not medically ascertainable that the Veteran began to manifest radiculopathy of the upper left extremity prior to October 21, 2012. 3. It is not medically ascertainable that the Veteran began to manifest radiculopathy of the upper right extremity prior to October 21, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a left wrist strain have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.309 (2018). 2. The criteria for entitlement to an effective date earlier than October 21, 2012 for the assignment of service connection for radiculopathy of the upper left extremity have not been met. 38 U.S.C. §§ 501, 7105(d) (2012); 38 C.F.R. §§ 3.156, 3.400(q), 20.201 (2018). 3. The criteria for entitlement to an effective date earlier than October 21, 2012 for the assignment of service connection for radiculopathy of the upper right extremity have not been met. 38 U.S.C. §§ 501, 7105(d) (2012); 38 C.F.R. §§ 3.156, 3.400(q), 20.201 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2007 to December 2011. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri made in March 2013 and December 2015 ; and a July 2013 decision of the RO in Sioux Falls, South Dakota. The Veteran was notified of his right to a personal hearing before the Board, but the Veteran declined. The Board notes that’s the issue of entitlement to a pension was previous perfected to the Board, but, in June 2016, the Veteran’s claim for entitlement to a pension was granted. As the Veteran has been granted his full prayer of relief, the Board shall not address this issue any further. The Board also notes that the Veteran filed a notice of disagreement (NOD) in March 2016 claiming that he was entitled to earlier effective dates for the assignment of service connection for a ganglion cyst of the right wrist and a cervical spine disorder. Unfortunately, the Veteran’s NOD was untimely, because the Veteran was initially assigned and notified of the effective dates for both conditions more than a year prior to the receipt of the NOD. Therefore, the Board shall not address those issues any further. Finally, the Board notes that the Veteran filed a NOD in July 2018 claiming that he was entitled to an earlier effective date for recognition that his parents were dependents. The Veterans Appeals Control and Locator System (VACOLS) indicates that the RO is aware of and currently developing the Veteran’s claim. Therefore, the Board shall not extend special jurisdiction to remand the issue for the issuance of a statement of the case at this time. Manlincon v. West, 12 Vet. App. 238 (1999). 1. Entitlement to service connection for a left wrist strain At issue is whether the Veteran is entitled to service connection for a left wrist strain. The Board notes that the issue was previously characterized as entitlement to service connection for a ganglion cyst of the left wrist. The Veteran underwent a VA examination in June 2012. The Veteran was not diagnosed with a ganglion cyst of the left wrist, but the Veteran was diagnosed with a left wrist strain and the date of the diagnosis was listed as June 2012. Although the Veteran does not have a diagnosis of the left wrist condition originally applied for, the Veteran’s diagnosed left wrist strain is within the scope of the Veteran’s claim. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Moreover, the Veteran manifested a chronic condition within one year of separation of service, and, as such, entitlement to service connection is granted. 38 C.F.R. §§ 3.307, 3.309. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). 2. Entitlement to an effective date earlier than October 21, 2012 for the assignment of service connection for radiculopathy of the bilateral upper extremities. At issue is whether the Veteran is entitled to an effective date earlier than October 21, 2012 for the assignment of service connection of radiculopathy of the bilateral upper extremities. Unfortunately, the weight of the evidence does not establish that the Veteran is entitled to an earlier effective date. The Veteran’s claim for service connection for radiculopathy of the bilateral upper extremities arose as an associated objective neurological abnormality caused by the Veteran’s previously service-connected cervical spine disorder. The Veteran first filed for service connection for a cervical spine condition in January 2012. In March 2012, the RO granted service connection and assigned a disability rating of 20 percent effective the day after separation from service. The Veteran appealed his initial disability rating. During the pendency of the appeal, the Veteran was assigned disability ratings of 20 percent effective October 21, 2012 for radiculopathy of the bilateral upper extremities. The Veteran appealed his initial disability ratings for radiculopathy of the bilateral upper extremities. The Veteran underwent a VA examination in March 2012. The examiner indicated that the Veteran did not manifest any radicular pain or any other signs or symptoms due to radiculopathy. The Record is silent until a treatment record dated October 21, 2012 indicating that the Veteran had a diagnosis of cervical radiculopathy. The Veteran’s treatment records indicate that the Veteran continued to manifest radiculopathy of the bilateral upper extremities thereafter. The Veteran underwent another VA examination in October 2015. The examiner diagnosed the Veteran with radiculopathy of the upper extremities. The weight of the evidence indicates that the Veteran is not entitled to an effective date earlier than October 21, 2012. As late as March 2012, a VA examiner found that the Veteran did not have a diagnosis of radiculopathy. The record is then silent until October 21, 2012, when the Veteran sought treatment for and was diagnosed with cervical radiculopathy. The record does not contain an earlier diagnosis of cervical radiculopathy or radiculopathy of the bilateral upper extremities. Therefore, it is not medically ascertainable that the Veteran began to manifest a diagnosis of cervical radiculopathy earlier than October 21, 2012. Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to an effective date earlier than October 21, 2012 for the assignment of service connection for radiculopathy of the bilateral upper extremities. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to an effective date earlier than October 21, 2012 for the assignment of service connection radiculopathy of the bilateral upper extremities is denied REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder is remanded. The Veteran contends that he is entitled to service connection for an acquired psychiatric disorder. Since his most recent VA examination, the Veteran has submitted multiple pieces of medical literature which he contends demonstrates that he is entitled to service connection. Therefore, remand is necessary in order to evaluate the medical significance, if any, of the medical literature submitted by the Veteran. 2. Entitlement to a disability rating of 10 percent for a ganglion cyst of the right wrist is remanded. The Veteran contends that he is entitled to an increased disability rating for a ganglion cyst of the right wrist. The Veteran last underwent a VA examination in October 2015. Although VA examinations do not necessary go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board’s evaluation of the claimed disability to be a fully formed one. Barr v. Nicholson, 21 Vet. App. 303 (2007). As years have passed since the most recent VA examination, remand is necessary to determine the current severity of the Veteran’s claimed disability. 3. Entitlement to a disability rating in excess of 20 percent prior to October 7, 2015 and in excess of 10 percent thereafter for a cervical spine condition is remanded. The Veteran contends that he is entitled to an increased disability rating for a cervical spine condition. The Veteran last underwent a VA examination in October 2015. Although VA examinations do not necessary go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board’s evaluation of the claimed disability to be a fully formed one. See Barr. As years have passed since the most recent VA examination, remand is necessary to determine the current severity of the Veteran’s claimed disability. 4. Entitlement to a disability rating in excess of 10 percent prior to December 9, 2014 and in excess of 30 percent thereafter for migraines is remanded. The Veteran contends that he is entitled to an increased disability rating for migraines. The Veteran last underwent a VA examination in October 2015. Although VA examinations do not necessary go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board’s evaluation of the claimed disability to be a fully formed one. See Barr. As years have passed since the most recent VA examination, remand is necessary to determine the current severity of the Veteran’s claimed disability. 5. entitlement to a disability rating in excess of 20 percent for radiculopathy of the left upper extremity is remanded. The Veteran contends that he is entitled to an increased disability rating for radiculopathy of the left upper extremity. The Veteran last underwent a VA examination in October 2015. Although VA examinations do not necessary go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board’s evaluation of the claimed disability to be a fully formed one. See Barr. As years have passed since the most recent VA examination, remand is necessary to determine the current severity of the Veteran’s claimed disability. 6. Entitlement to a disability rating in excess of 20 percent for radiculopathy of the upper right extremity is remanded. The Veteran contends that he is entitled to an increased disability rating for radiculopathy of the upper right extremity. The Veteran last underwent a VA examination in October 2015. Although VA examinations do not necessary go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board’s evaluation of the claimed disability to be a fully formed one. See Barr. As years have passed since the most recent VA examination, remand is necessary to determine the current severity of the Veteran’s claimed disability. 7. Entitlement to a compensable disability rating for a right knee condition is remanded. The Veteran contends that he is entitled to an increased disability rating for a right knee condition. The Veteran last underwent a VA examination in October 2015. Although VA examinations do not necessary go stale due to the mere passage of time, adequate examinations must be sufficiently detailed for the Board’s evaluation of the claimed disability to be a fully formed one. See Barr. As years have passed since the most recent VA examination, remand is necessary to determine the current severity of the Veteran’s claimed disability. 8. Entitlement to an effective date earlier than December 21, 2011 for the grant of service connection for migraines is remanded. The Veteran filed a timely NOD in March 2016 challenging an effective date assigned for migraines as well as number of issues. In May 2016, the RO issued a SOC responsive to the other issues raised in the March 2016 NOD, but the RO has not issued a SOC responsive to the specific issue of entitlement to an earlier effective date for the assignment of service connection for migraines. Therefore, this matter must be remanded for an SOC. See Manlincon. The matters are REMANDED for the following action: 1. Arrange to provide the Veteran with a VA examination in order to answer the following questions: (a.) Is it at least as likely as not (50 percent or more) that a medical nexus exists between an in-service incurrence and a current diagnosis of an acquired psychiatric disorder? Why or why not? (b.) Is it at least as likely as not (50 percent or more) that a current diagnosis is of an acquired psychiatric disorder is proximately due to or aggravated by any of the Veteran’s previously service-connected disabilities. (c.) Please discuss the medical significance, if any, of the medical literature submitted in support of the Veteran’s claim including: i. Peter C. Britton, Paige C. Ouimette, & Robert M. Bossarte, The effect of depression on the association between military service and life satisfaction, Springer Science+Business Media B.V. (January 28, 2012); ii. Craig J. Bryan, Chad E. Morrow, Neysa Etienne, & Bobbie Ray-Sannerud, Guilt, Shame, And Suicidal Ideation In A Military Outpatient Clinical Sample, Depression And Anxiety 30:55-60 (2013); iii. Glenys Dore, Katherine Mills, Robin Murray, Maree Teesson, & Philippa Farrugia, Post-traumatic stress disorder, depression and suicidality in inpatients with substance use disorders, Drug and Alcohol Review (May 2012); iv. Amanda Hall, Steven Kamper, Chris Maher, Jane Latimer, Manuela Ferreira, & Michael Nicholas, Symptoms of depression and stress mediate the effect of pain on disability, Pain 152, 1044-1051 (2011); v. Kurt Kroenke, Jingwei Wu, Matthew Bair, Erin Krebs, Teresa Damush, & Wanzhu Tu, Reciprocal Relationship Between Pain and Depression: A 12-Month Longitudinal Analysis in Primary Care, The Journal of Pain, Vol. 12, No. 9 (September); vi. Margot De Waal, Ingrid Arnold, Just Eekhof, & Albert Van Hemert, Somatoform disorders in general practice Prevalence, functional impairment and comorbidity with anxiety and depressive disorders, British Journal Psychiatry 184, 470-476 (2004); vii. Ronald Kessler, Wai Chiu, Olga Dmier, Ellen Walters, Prevalence, Severity, and Comorbidity of Twele-month DSM-IV Disorders in the National Comorbidity Survey Replication (NCS-R), Arch Gen Psychiatry. 62(6): 617-627 June 2005; viii. Ronald Kessler, et al, Development of Lifetime Comorbidity in the World Health Organization World Mental Health Surveys, Arch Gen Psychiatry 68(1):90-100 2011; ix. Gregory Miller, Edith Chen, & Steve Cole, Health Psychology Developing Biologically Plausible Models Linking the Social World and Physical Health, Annu. Rev. Psychol. 2009. 60:601-24; x. Andrea N. Niles, Halina J. Dour, Annette L. Stanton, Peter Roy-Byrne, Murray Stein, Greer Sullivan, Cathy Sherbourne, Raphael Rose, & Michelle Craske, Anxiety and depressive symptoms and medical illness among adults with anxiety disorders, Journal of Psychosomatic Research 78 (2015) 109-115; xi. Elizbeth Savoca & Robert Rosenheck, The Civilian Labor Market Experiences of Vietnam-Era Veterans: The Influence of Psychiatric Disorders, J. Mental Health Policy Econ. 3 199-207 (2000); xii. K.M. Scott, et al, Depression – anxiety relationships with chronic physical conditions: Results from the World Mental Health Surveys, Journal of Affective Disorders 103 (2007) 113-120. 2. Arrange to provide the Veteran with a VA examination in order to determine the current severity of the Veteran’s cervical spine disorder and associated objective neurological abnormalities to include radiculopathy of the bilateral upper extremities. 3. Arrange to provide the Veteran with a VA examination in order to determine the current severity of the Veteran’s right knee condition. 4. Arrange to provide the Veteran with a VA examination in order to determine the current severity of the Veteran’s right wrist condition. 5. Arrange to provide the Veteran with a VA examination in order to determine the current severity of the Veteran’s migraines. 6. Then, readjudicate the Veteran’s claims for entitlement to service connection for an acquired psychiatric disorder and entitlement to increased disability ratings for a cervical spine condition, radiculopathy of the bilateral upper extremities, the right wrist, the right knee, and migraines. If the benefits sought are not granted, provide the Veteran and his representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto before returning the case to the Board, if in order. 7. Issue a statement of the case in response to the Veteran’s claim for entitlement to an effective date earlier than December 21, 2011 for the grant of service connection for migraines and allow the Veteran an appropriate time to perfect the issue to the Board. Do not return the issue to the Board if the Veteran does not file a timely substantive appeal to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD David R. Seaton, Associate Counsel