Citation Nr: 18149587 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 15-06 559 DATE: November 9, 2018 ORDER Entitlement to service connection for hammertoes of the right foot is denied. Entitlement to service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an earlier effective date than March 23, 2015, for a grant of service connection for radiculopathy of the left upper extremity is denied. REMANDED Entitlement to service connection for a dental disability for purposes of Department of Veterans Affairs (VA) outpatient treatment only is remanded. Entitlement to service connection for a bilateral eye disability is remanded. Entitlement to service connection for hepatitis C is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include persistent depressive disorder, is remanded. Entitlement to an initial compensable rating for residuals of a fifth metacarpal transverse fracture is remanded. Entitlement to an initial rating greater than 10 percent for a cervical spine disability is remanded. Entitlement to an initial rating greater than 10 percent for a left ankle disability is remanded. Entitlement to an initial rating greater than 30 percent for radiculopathy of the left upper extremity is remanded. Entitlement to an initial rating greater than 20 percent for radiculopathy of the right upper extremity is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran does not experience any current disability due to his claimed hammertoes of the right foot which could be attributed to active service. 2. The record evidence shows that the Veteran does not meet the diagnostic criteria for a valid diagnosis of PTSD which could be attributed to active service. 3. The record evidence shows that the Veteran’s original claim of service connection for radiculopathy of the left upper extremity was included on a VA Form 21-256EZ which was date-stamped as electronically received by the Agency of Original Jurisdiction (AOJ) on March 23, 2015. 4. In the currently appealed rating decision dated on July 2, 2015, the AOJ granted, in pertinent part, the Veteran’s claim of service connection for radiculopathy of the left upper extremity, assigning a 30 percent rating effective March 23, 2015. 5. In statements on a VA Form 21-0958, “Notice Of Disagreement,” date-stamped as electronically received by the AOJ on February 26, 2016, the Veteran disagreed with the effective date assigned for the grant of service connection for radiculopathy of the left upper extremity. 6. The record evidence does not indicate that, prior to March 23, 2015, the Veteran filed a formal or informal claim of service connection for radiculopathy of the left upper extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hammertoes of the right foot have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 2. The criteria for entitlement to service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.304 (2017). 3. The criteria for entitlement to an earlier effective date than March 23, 2015, for a grant of service connection for radiculopathy of the left upper extremity have not been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1999 to September 2001. The Veteran appointed his attorney to represent him before VA by filing a completed VA Form 21-22a at the AOJ in January 2014. Information obtained by VA from the Social Security Administration (SSA) in October 2018 indicates that the Veteran currently is incarcerated in state prison in Massachusetts following a felony conviction. Although he requested a videoconference Board hearing when he perfected a timely appeal on his currently appealed claims, the Veteran failed to report for this hearing when it was scheduled at the AOJ in October 2018. Thus, his hearing request is deemed satisfied. See 38 C.F.R. § 20.704 (2017). Service Connection The Veteran contends that he incurred hammertoes of the right foot and PTSD during active service. He specifically contends that he was verbally and physically assaulted by fellow service members and this caused or contributed to his claimed PTSD. 1. Entitlement to service connection for hammertoes of the right foot and for PTSD The Board finds that the preponderance of the evidence is against granting the Veteran’s claims of service connection for hammertoes of the right foot and for PTSD. The Veteran essentially contends that he incurred both of these disabilities during active service and experienced continuous disability since his service separation. The record evidence does not support his assertions regarding the existence of any current disability due to his claimed hammertoes of the right foot or PTSD which could be attributed to active service. It shows instead that the Veteran does not experience any current disability due to either of these claimed disabilities which is attributable to active service. For example, the Veteran’s available service treatment records show no complaints of or treatment for hammertoes of the right foot or for PTSD at any time during his 2 years of active service. The Board notes that the absence of contemporaneous records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (finding lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). The post-service evidence also does not support granting the Veteran’s claims of service connection for hammertoes of the right foot and for PTSD. Contrary to the Veteran’s assertions, it shows instead that he does not experience any current disability due to either of these claimed disabilities which is attributable to active service or any incident of service. In a September 2013 VA Form 21-0781a, the Veteran asserted that he had been verbally and physically assaulted by members of his active service unit “including my squad leader” and was “pushed around because of my size and verbally attacked for not doing things right.” He also asserted that “these forms of abuse have caused me to have dreams about being downgraded and feeling like less of a man.” The Board finds it highly significant that a review of the Veteran’s voluminous post-service VA outpatient treatment records shows complaints of and treatment for hammertoes of the left foot. On VA PTSD Disability Benefits Questionnaire (DBQ) in November 2014, the Veteran’s complaints included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The VA examiner reviewed the Veteran’s electronic claims file, including his service treatment records and post-service VA treatment records. A history of multiple substance abuse was noted. The Veteran reported an in-service stressor of being “a victim of physical abuse” included being targeted by several sergeants during a road march. The VA examiner stated that this reported in-service stressor did not meet Criterion A for a valid diagnosis of PTSD. This examiner also stated that the Veteran was “[s]ubdued [and] appears depressed.” Mental status examination of the Veteran showed he was appropriately dressed and groomed with “no unusual behaviors noted.” The Veteran reported 5 hours of sleep per night and had “friends he sees regularly.” He denied compulsive behaviors or manic episodes and reported dating the same person for 1.5 years and being in a “good” relationship. The VA examiner concluded that the Veteran’s symptoms did not meet the diagnostic criteria for a valid diagnosis of PTSD. This examiner opined that it was less likely than not that the Veteran’s claimed PTSD is related to active service. The rationale for this opinion was that the Veteran did not meet the diagnostic criteria for a diagnosis of PTSD “because the claimed in service stressor is not described as severe enough to meet PTSD stressor criteria.” A service connection claim must be accompanied by evidence which establishes that the claimant currently has a disability. Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection is not warranted in the absence of proof of current disability. The Board has considered whether the Veteran experienced hammertoes of the right foot or PTSD at any time during the pendency of this appeal. Service connection may be granted if there is a disability at some point during the claim even if it later resolves or becomes asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007). In this case, there is no evidence – other than the Veteran’s lay assertions – that he experiences any current disability due to either his claimed hammertoes of the right foot or his claimed PTSD which could be attributed to active service. The Board again finds it highly significant that the Veteran’s voluminous VA outpatient treatment records show only complaints of and treatment for hammertoes of the left foot and not the right foot. More importantly, the November 2014 VA examiner specifically opined that it was less likely than not that the Veteran’s claimed PTSD was related to active service. This opinion was fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to service connection for hammertoes of the right foot or for PTSD. In summary, the Board finds that service connection for hammertoes of the right foot and for PTSD is not warranted. 2. Entitlement to an earlier effective date than March 23, 2015, for a grant of service connection for radiculopathy of the left upper extremity The Board finally finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to an earlier effective date than March 23, 2015, for the grant of service connection for radiculopathy of the left upper extremity. Despite the Veteran’s assertions to the contrary, the record evidence does not indicate that he filed a formal or informal service connection claim for radiculopathy of the left upper extremity prior to March 23, 2015. It shows instead that his original service connection claim for radiculopathy of the left upper extremity was not received by the AOJ until March 23, 2015, when he submitted a VA Form 21-526EZ in which he requested service connection for this disability. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. It is not clear from a review of the record evidence what earlier effective date for a grant of service connection for radiculopathy of the left upper extremity the Veteran considers appropriate. Nevertheless, the record evidence does not support granting an earlier effective date than March 23, 2015, for service connection for radiculopathy of the left upper extremity. It shows instead that, prior to receipt of his formal service connection claim for radiculopathy of the left upper extremity on March 23, 2015, the record evidence does not show any intent to file a formal or informal claim for this disability. A review of the record evidence shows instead that, prior to this date, the Veteran sought VA disability compensation for multiple disabilities, to include radiculopathy of the right upper extremity. In the currently appealed rating decision dated on July 2, 2015, the AOJ granted, in pertinent part, the Veteran’s claim of service connection for radiculopathy of the left upper extremity, assigning a 30 percent rating effective March 23, 2015. The AOJ essentially concluded that November 7, 2013, was the appropriate effective date for the grant of service connection for radiculopathy of the left upper extremity because that was the date that VA received the Veteran’s claim. As noted above, in statements on a VA Form 21-0958, “Notice Of Disagreement,” date-stamped as electronically received by the AOJ on February 26, 2016, the Veteran disagreed with the effective date assigned for the grant of service connection for radiculopathy of the left upper extremity. The Board observes here that the effective date for service connection claims generally will be the day following separation from active service or date entitlement arose if the claim is filed within one year of discharge from service; otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). Despite the Veteran’s assertions to the contrary, the record evidence does not indicate an intent to file a service connection claim for radiculopathy of the left upper extremity prior to March 23, 2015, when VA received his formal claim for this disability. It is undisputed that this service connection claim was not filed within 1 year of his discharge from active service in September 2001 (or by September 2002). Instead, the March 23, 2015, VA Form 21-256EZ constituted his formal service connection claim for radiculopathy of the left upper extremity, filed almost 14 years after his service separation. In other words, the date of receipt of the Veteran’s formal service connection claim for radiculopathy of the left upper extremity is March 23, 2015. The evidence otherwise does not suggest an intent to file a service connection claim for radiculopathy of the left upper extremity prior to this date. In summary, the Board finds that the criteria for an earlier effective date than March 23, 2015, for the grant of service connection for radiculopathy of the left upper extremity have not been met. REASONS FOR REMAND The Board again notes that the record evidence indicates that the Veteran currently is incarcerated in state prison in Massachusetts following a felony conviction. Accordingly, the AOJ is advised to coordinate scheduling of appropriate VA examinations (as discussed below) with the relevant state prison authorities. The Board reminds the AOJ that VA’s duty to assist includes providing an examination where necessary. 1. Entitlement to service connection for a dental disability for purposes of VA outpatient treatment only is remanded. The Board notes initially that service connection for dental disabilities is limited to the provision of VA outpatient treatment only. The Board also notes that a review of the Veteran’s voluminous post-service VA outpatient treatment records shows ongoing complaints of and treatment for a dental disability. To date, however, the Veteran has not been scheduled for appropriate examination to determine the nature and etiology of his claimed dental disability. Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate examination to determine his entitlement to service connection for a dental disability for purposes of VA outpatient treatment only. 2. Entitlement to service connection for a bilateral eye disability, hepatitis C, and for erectile dysfunction is remanded. The Veteran also contends that he experiences current bilateral eye disability, hepatitis C, and erectile dysfunction which is attributable to active service. The Board notes that a review of the Veteran’s voluminous post-service VA outpatient treatment records shows ongoing complaints of and treatment for a bilateral eye disability, hepatitis C, and erectile dysfunction. To date, however, the Veteran has not been scheduled for appropriate examination to determine the nature and etiology of each of these claimed disabilities. Thus, the Board finds that, on remand, the Veteran should be scheduled for appropriate examinations to determine the nature and etiology of his claimed bilateral eye disability, hepatitis C, and erectile dysfunction. 3. Entitlement to service connection for an acquired psychiatric disability other than PTSD, to include persistent depressive disorder, is remanded. The Board acknowledges that, on VA PTSD DBQ in November 2014, the Veteran was diagnosed as having persistent depressive disorder. The Board also acknowledges that, following this examination, the VA examiner who conducted opined that the Veteran’s persistent depressive disorder “is not clearly related to his military service.” Although this opinion was fully supported, the Board is unable to determine whether the November 2014 VA examiner concluded that it was more likely than not or less likely than not that the Veteran’s persistent depressive disorder is related to active service. Accordingly, the Board finds that, on remand, the November 2014 VA PTSD DBQ should be returned to the VA examiner who completed or another appropriate clinician in order to obtain an addendum opinion which addresses whether it is at least as likely as not that the Veteran’s persistent depressive disorder is related to active service or any incident of service. 4. Entitlement to an initial compensable rating for residuals of a fifth metacarpal transverse fracture, an initial rating greater than 10 percent for a cervical spine disability, and to an initial rating greater than 10 percent for a left ankle disability is remanded. The Board acknowledges that the Veteran’s service-connected residuals of a fifth metacarpal transverse fracture were examined most recently in April 2013. The Board next acknowledges that the Veteran’s service-connected cervical spine disability was examined most recently in June 2015. The Board finally acknowledges that the Veteran’s service-connected left ankle disability was examined most recently in November 2014. Following these examinations, the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the hand, cervical spine, and left ankle, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. A review of the record evidence shows that the Veteran’s most recent VA examinations for residuals of a fifth metacarpal transverse fracture, cervical spine disability, and for a left ankle disability did not comply with Correia. For example, there is no indication in these examinations whether the ranges of motion obtained are active or passive or in weight-bearing or non-weight-bearing. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for updated VA examinations to determine the current nature and severity of his service-connected residuals of a fifth metacarpal transverse fracture, service-connected cervical spine disability, and service-connected left ankle disability. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). 5. Entitlement to an initial rating greater than 30 percent for radiculopathy of the left upper extremity and to an initial rating greater than 20 percent for radiculopathy of the right upper extremity is remanded. The Veteran finally contends that his service-connected radiculopathy of the bilateral lower extremities is more disabling than currently (and initially) evaluated in each of his lower extremities. The Board acknowledges that the Veteran was examined most recently for radiculopathy of the bilateral lower extremities in June 2015. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination in June 2015, the Board finds that, on remand, he should be scheduled for an updated VA examination to determine the current nature and severity of his service-connected radiculopathy of the left upper extremity and his service-connected radiculopathy of the right upper extremity. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology of any dental disability. The claims file should be provided for review. Because the Veteran currently is incarcerated in state prison, make appropriate arrangements with the relevant state prison authorities in order for the Veteran to report for this examination, if possible. If, and only if, the Veteran fails to report for this examination, then a copy of the examination notice letter should be associated with the claims file. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a dental disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a dental disability, alone, is insufficient rationale for a medical nexus opinion. 2. Schedule the Veteran for an examination to determine the nature and etiology of any bilateral eye disability. The claims file should be provided for review. Because the Veteran currently is incarcerated in state prison, make appropriate arrangements with the relevant state prison authorities in order for the Veteran to report for this examination, if possible. If, and only if, the Veteran fails to report for this examination, then a copy of the examination notice letter should be associated with the claims file. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that a bilateral eye disability, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner should provide a separate opinion and rationale for each of the Veteran’s eyes. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for a bilateral eye disability, alone, is insufficient rationale for a medical nexus opinion. 3. Schedule the Veteran for an examination to determine the nature and etiology of any hepatitis C. The claims file should be provided for review. Because the Veteran currently is incarcerated in state prison, make appropriate arrangements with the relevant state prison authorities in order for the Veteran to report for this examination, if possible. If, and only if, the Veteran fails to report for this examination, then a copy of the examination notice letter should be associated with the claims file. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that hepatitis C, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for hepatitis C, alone, is insufficient rationale for a medical nexus opinion. 4. Schedule the Veteran for an examination to determine the nature and etiology of any erectile dysfunction. The claims file should be provided for review. Because the Veteran currently is incarcerated in state prison, make appropriate arrangements with the relevant state prison authorities in order for the Veteran to report for this examination, if possible. If, and only if, the Veteran fails to report for this examination, then a copy of the examination notice letter should be associated with the claims file. The examiner is asked to state whether it is at least as likely as not (i.e., a 50 percent or greater probability) that erectile dysfunction, if diagnosed, is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The examiner is advised that the absence of contemporaneous records showing complaints of or treatment for erectile dysfunction, alone, is insufficient rationale for a medical nexus opinion. 5. Send the November 2014 VA PTSD DBQ to the VA examiner who completed it or another appropriate clinician for an addendum opinion. In the addendum opinion, the November 2014 VA PTSD DBQ examiner or another appropriate clinician is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that any acquired psychiatric disability other than PTSD, to include persistent depressive disorder, currently experienced by the Veteran is related to active service or any incident of service. A rationale also should be provided for any opinions expressed. The November 2014 VA examiner or another appropriate clinician is advised that the absence of contemporaneous records showing complaints of or treatment for any acquired psychiatric disability other than PTSD, to include persistent depressive disorder, alone, is insufficient rationale for a medical nexus opinion. 6. Schedule the Veteran for updated VA examination to determine the current nature and severity of his service-connected residuals of a fifth metacarpal transverse fracture. Because the Veteran currently is incarcerated in state prison, make appropriate arrangements with the relevant state prison authorities in order for the Veteran to report for this examination, if possible. If, and only if, the Veteran fails to report for this examination, then a copy of the examination notice letter should be associated with the claims file. 7. Schedule the Veteran for updated VA examination to determine the current nature and severity of his service-connected cervical spine disability. Because the Veteran currently is incarcerated in state prison, make appropriate arrangements with the relevant state prison authorities in order for the Veteran to report for this examination, if possible. If, and only if, the Veteran fails to report for this examination, then a copy of the examination notice letter should be associated with the claims file. 8. Schedule the Veteran for updated VA examination to determine the current nature and severity of his service-connected left ankle disability. Because the Veteran currently is incarcerated in state prison, make appropriate arrangements with the relevant state prison authorities in order for the Veteran to report for this examination, if possible. If, and only if, the Veteran fails to report for this examination, then a copy of the examination notice letter should be associated with the claims file. 9. Schedule the Veteran for updated VA examination to determine the current nature and severity of his service-connected radiculopathy of the left upper extremity and service-connected radiculopathy of the right upper extremity. Because the Veteran currently is incarcerated in state prison, make appropriate arrangements with the relevant state prison authorities in order for the Veteran to report for this examination, if possible. If, and only if, the Veteran fails to report for this examination, then a copy of the examination notice letter should be associated with the claims file. 10. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel