Citation Nr: 19131237 Decision Date: 04/22/19 Archive Date: 04/22/19 DOCKET NO. 17-48 036A DATE: April 22, 2019 ORDER Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for bilateral plantar fasciitis is denied. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for patellofemoral syndrome of the left knee is denied. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for patellofemoral syndrome of the right knee is denied. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for a right wrist sprain is denied. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for residuals of a traumatic brain injury (TBI) with post concussive headaches is denied. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for a cervical strain is denied. REMANDED Entitlement to service connection for a disability manifested by chest pain is remanded. Entitlement to an initial evaluation in excess of 10 percent for a service-connected right wrist sprain is remanded. Entitlement to an initial compensable evaluation for a service-connected cervical strain, is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected patellofemoral syndrome of the left knee is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected patellofemoral syndrome of the right knee is remanded. Entitlement to an increased initial evaluation for service-connected bilateral plantar fasciitis, evaluated noncompensably (zero percent) disabling prior to July 15, 2017, and 30 percent disabling, thereafter, is remanded. Entitlement to an initial evaluation in excess of 10 percent for service-connected residuals of a TBI with post concussive headaches prior to July 15, 2017. Entitlement to a compensable evaluation for service-connected residuals of a TBI other than post concussive headaches after July 15, 2017. Entitlement to an evaluation in excess of 50 percent for service-connected post concussive headaches associated with a TBI after July 15, 2017. Entitlement to an increased initial evaluation for service-connected PTSD, evaluated 50 percent disabling prior to July 21, 2016, and 70 percent disabling, thereafter, is remanded. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran separated from active duty on July 12, 2013. 2. Service connection for bilateral plantar fasciitis, patellofemoral syndrome of both knees, PTSD, a right wrist sprain, residuals of a TBI with post concussive headaches, and a cervical strain, was established effective from July 13, 2013. 3. The law precludes receipt of VA compensations while serving on active duty. CONCLUSION OF LAW The assignment of an effective date prior to July 13, 2013, for the grants of service connection for bilateral plantar fasciitis, patellofemoral syndrome of both knees, PTSD, a right wrist sprain, residuals of a TBI with post concussive headaches, and a cervical strain, is precluded by law. 38 U.S.C. § 5304 (c) (West 2002); 38 C.F.R. §§ 3.501, 3.654, 3.700 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 2006 to July 2013 This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, that adjudicated several claims filed by the Veteran prior to his separation from active duty as a part of VA’s Benefits Delivery upon Discharge (BDD) program. The Veteran expressed timely disagreement with many of the determinations within that decision, and the present appeal ensued. Unfortunately, a June 2017 deferred rating decision reflects that the Veteran’s timely Notice of Disagreement, filed in August 2014, was “never recognized and processed” for nearly three years. During the pendency of the Veteran’s appeal, original jurisdiction was transferred to the RO in Seattle, Washington, from where it was certified to, and received by, the Board. In an August 2017 Decision Review Officer (DRO) decision, the Agency of Original Jurisdiction (AOJ) partially granted many of the Veteran’s claims seeking increased evaluations. These partial allowances resulted "staged" initial evaluations regarding many of the issues on appeal and did not represent a full grant of any benefit sought. As such, the issues remain in appellate jurisdiction before the Board and have been recharacterized as stated on the title page of this decision. See Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In the August 2017 DRO decision, the AOJ also granted the Veteran’s appeal to establish service connection for a lumbosacral strain. Although the Veteran’s private attorney subsequently expressed disagreement with the AOJ’s denial of service connection for this disability, VA has not received a formal Notice of Disagreement concerning the downstream staged initial evaluation or assigned effective dates. As such, this issue is not in appellate status. Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997). After the AOJ certified the Veteran’s appeal to the Board, his private attorney submitted additional evidence directly to the Board which was accompanied by a waiver of initial consideration of such by the AOJ. In light of the waiver, the Board may consider this evidence in the first instance. Clarification of issues on appeal In the September 2013 rating decision, the AOJ established service connection for residuals of a TBI with post concussive headaches and assigned an initial 10 percent evaluation for this combined disability. In the August 2017 DRO decision, the AOJ determined that, as of July 15, 2017, a separate 50 percent evaluation for post concussive headaches was warranted and the initial evaluation for residuals of a TBI was reduced to noncompensably disabling. The staging and bifurcation of this initial evaluation resulted in three separate issues, all of which are properly before the Board. Further, the issue of entitlement to TDIU has been raised during the pendency of the Veteran’s appeal seeking increased initial evaluations and is properly before the Board. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). While the AOJ concluded in the August 2017 DRO decision that such a claim was moot after July 15, 2017, due to the assignment of a combined 100 percent evaluation, this determination is contrary to the Court’s holdings that VA has the duty to maximize the benefits available to the Veteran. Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). As such, the issue is in appellate status throughout the entirety of the appeal. Effective Dates 1. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for bilateral plantar fasciitis 2. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for patellofemoral syndrome of the left knee 3. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for patellofemoral syndrome of the right knee 4. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for PTSD 5. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for a right wrist sprain 6. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for residuals of a TBI with post concussive headaches 7. Entitlement to an effective date prior to July 13, 2013, for the grant of service connection for a cervical strain The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. 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 latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection 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. Under 38 C.F.R. § 3.400(b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 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. 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 issues in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s 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 claimant, 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). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). A report of VA examination or hospitalization can be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b)(1) (in effect prior to March 24, 2015). The provisions of this regulation apply only when such reports relate to examination or treatment of a disability for which service connection has previously been established, or when a formal claim for compensation has been disallowed for the reason that the service-connected disability is not compensable in degree. The law precludes receipt of VA compensation while on active duty. See 38 U.S.C. § 5304 (c) (West 2002); 38 C.F.R. §§ 3.501, 3.654, 3.700 (2017) (providing that VA compensation will be discontinued for any period for which the veteran received active service pay). Analysis The Veteran seeks effective dates earlier than July 13, 2013, for the awards of service connection for bilateral plantar fasciitis, patellofemoral syndrome of both knees, PTSD, a right wrist sprain, residuals of a TBI with post concussive headaches, and a cervical strain. However, neither the Veteran nor his private attorney has stated a theory for his asserted entitlement. Review of the July 2014 Notice of Disagreement reflects that the Veteran may have checked the boxes for the reasons for disagreement indiscriminately, as evidenced by the fact that he also disagreed with the effective date and initial evaluation of disabilities for which service connection was denied. With all issues listed in the July 2014 Notice of Disagreement, he checked all available boxes, to include those not pertinent to some of the disabilities denied, simply stating that he was seeking “maximum benefits.” Regardless of the above facts, the Board concludes that these issues must be denied as a matter of law. It is uncontroverted that the Veteran was separated from active duty on July 12, 2013, and the AOJ assigned July 13, 2013, – the day after his service separation – as the effective date of these awards, as the service connection claims were filed prior to the Veteran’s service separation. As the law clearly precludes receipt of VA compensation while on active duty, these issues must be denied as a matter of law. See 38 U.S.C. § 5304 (c) (West 2002); 38 C.F.R. §§ 3.501, 3.654, 3.700 (2017). REASONS FOR REMAND 1. Entitlement to service connection for a disability manifested by chest pain is remanded. 2. Entitlement to an initial evaluation in excess of 10 percent for a service-connected right wrist sprain is remanded. 3. Entitlement to an initial compensable evaluation for a service-connected cervical strain, is remanded. 4. Entitlement to an initial evaluation in excess of 10 percent for service-connected patellofemoral syndrome of the left knee is remanded. 5. Entitlement to an initial evaluation in excess of 10 percent for service-connected patellofemoral syndrome of the right knee is remanded. 6. Entitlement to an increased initial evaluation for service-connected bilateral plantar fasciitis, evaluated noncompensably (zero percent) disabling prior to July 15, 2017, and 30 percent disabling, thereafter, is remanded. 7. Entitlement to an initial evaluation in excess of 10 percent for service-connected residuals of a TBI with post concussive headaches prior to July 15, 2017. 8. Entitlement to a compensable evaluation for service-connected residuals of a TBI other than post concussive headaches after July 15, 2017. 9. Entitlement to an evaluation in excess of 50 percent for service-connected post concussive headaches associated with a TBI after July 15, 2017. 10. Entitlement to an increased initial evaluation for service-connected PTSD, evaluated 50 percent disabling prior to July 21, 2016, and 70 percent disabling, thereafter, is remanded. 11. Entitlement to a total evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Initially, the Board observes that the record for review is incomplete. Specifically, while a November 2018 submission from the Veteran’s private attorney alludes to his receipt of disability benefits from the Social Security Administration (SSA), the Veteran’s file is devoid of any decision from the SSA or the records on which such a decision is based. These records would likely impact all of the disabilities at issue before the Board, and thus, a remand is necessary to ensure that the record for review is complete. 38 U.S.C. § 5107(a); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Also, the Veteran’s claim to establish service connection for a disability manifested by chest pain has been denied throughout the pendency of the appeal for a lack of a diagnosed disability. However, the United States Court of Appeals for the Federal Circuit recently held in Saunders v. Wilkie, 886 F.3d 1356, that where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. The Board finds that this holding is pertinent to the Veteran’s case, as the August 2013 VA examination report confirms that, while no chest or heart disability was identified, the Veteran experiences chest pain. In light of this recent legal development, additional VA examination and medical opinions should be sought. Further, evidence received by the Board since certification of the appeal reflects that many of the Veteran’s service-connected disabilities have worsened since the most recent VA examination were conducted in July 2017, especially his PTSD. In light of this evidence, the necessary evidentiary development described above, and the passage of time since the July 2017 VA examinations, the Board concludes that the Veteran must be provided contemporaneous VA examinations to determine the frequency and severity of the manifestations of his service-connected disabilities and their impact, collectively and individually, on his employment. Finally, so that the examiners are fully apprised of the most complete and updated medical evidence pertaining to the Veteran's disability picture, updated private and VA treatment records should be sought, obtained, and associated with the file. The matters are REMANDED for the following actions: 1. The AOJ must obtain and associate with the file all updated records of VA treatment from the VA Medical Center (VAMC) in Spokane, Washington, and all associated facilities dated after October 10, 2018. 2. The AOJ must contact the Veteran and request that he complete a release for outstanding private treatment records pertinent to the disabilities remanded herein. In these releases, the Veteran should provide a time period in which he was treated at each facility identified. The AOJ should then obtain the records identified by the Veteran. All records obtained should be associated with the Veteran's file. If any identified and requested records are not available, or if the search for any such records otherwise yields negative results, that fact should clearly be documented in the file, and the Veteran should be informed in writing. 3. The AOJ must obtain and associate with the file any decision concerning the Veteran’s disability benefits from the Social Security Administration (SSA), to include the treatment records on which that decision was based. If the search for such records has negative results, the claims file must be properly documented as to the unavailability of these records. 4. Thereafter, the AOJ must request that the Veteran be scheduled for appropriate VA examinations to determine the nature and etiology of his disability manifested by chest pain, and to evaluate his service-connected bilateral plantar fasciitis, patellofemoral syndrome of both knees, PTSD, right wrist sprain, residuals of a TBI (after July 15, 2017), post concussive headaches (after July 15, 2017), and cervical strain. The complete electronic record must be made available to, and reviewed by, the VA examiner(s) prior to conducting the examination(s). All necessary tests and studies should be conducted. The examiner(s) must describe the frequency and severity of all manifestations of the Veteran's service-connected bilateral plantar fasciitis, patellofemoral syndrome of both knees, PTSD, right wrist sprain, residuals of a TBI (after July 15, 2017), post concussive headaches (after July 15, 2017), and cervical strain. The examiner is requested to provide a statement concerning the impact of the Veteran’s service-connected disabilities on his employability since July 13, 2013. Please note that this statement must consider the effects of the Veteran’s service-connected disabilities both alone and also in concert. Thereafter, the examiner is requested to address the following: a. Identify all chest and/or heart disabilities present during the appeal period (since July 13, 2013). b. For each disability identified in part (a) provide an opinion as to whether such is at least as likely as not proximately due to or the result of any incident of the Veteran’s service, to specifically include his in-service reports of chest pain. c. If the Veteran's reported chest pain is not found to be a manifestation of any disability, please describe the functional impairment resulting from the Veteran's chest pain. In doing so, the examiner is requested, to the extent possible, to describe any and all effects of the Veteran's chest pain on his ability to bend, twist, and stoop. If the examiner(s) cannot provide an opinion without resorting to mere speculation, this should be so stated along with supporting rationale. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question. 5. Thereafter, the AOJ must readjudicate the Veteran’s appeal in light of the entirety of the record. If any benefit is not granted to the fullest extent, the Veteran and his private attorney must be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Scott W. Dale, Counsel