Citation Nr: 19196308 Decision Date: 12/26/19 Archive Date: 12/26/19 DOCKET NO. 18-49 688 DATE: December 26, 2019 ORDER Entitlement to an effective date of August 14, 2012, but no earlier, for the award of service connection for hepatitis C is granted, subject to the regulations governing the payment of monetary awards. Entitlement to an effective date of August 14, 2012, but no earlier, for the award of service connection for cirrhosis is granted, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for low back condition is remanded. Entitlement to service connection for neck condition is remanded. Entitlement to service connection for left knee condition is remanded. Entitlement to service connection for right knee condition is remanded. Entitlement to service connection for left hand condition is remanded. Entitlement to service connection for right hand condition is remanded. Entitlement to service connection for left ankle condition is remanded. Entitlement to service connection for right ankle condition is remanded. Entitlement to an initial rating in excess of 10 percent for hepatitis C is remanded. Entitlement to an initial rating in excess of 10 percent for cirrhosis is remanded. FINDING OF FACT VA received an informal claim of entitlement to service connection for a liver condition on August 14, 2012. CONCLUSIONS OF LAW 1. The criteria for an effective date of August 14, 2012, but no earlier, for the award of service connection for hepatitis C are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400. 2. The criteria for an effective date of August 14, 2012, but no earlier, for the award of service connection for cirrhosis are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from November 1969 to February 1972. These matters are before the Board of Veterans’ Appeals (Board) on appeal from a September 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Following the August 2018 statement of the case, VA added additional medical evidence to the Veteran’s file in November and December 2019. Pertinent evidence is initially reviewed by the agency of original jurisdiction (AOJ). Additional pertinent evidence that becomes available after the RO’s statement of the case but prior to certification to the Board is to be addressed in an additional supplemental statement of the case. 38 C.F.R. §§ 19.31(b), 19.37(a). After certification to the Board, such evidence must be referred to the AOJ for initial review. 38 C.F.R. § 20.1304(c). Exceptions are when the Veteran or his representative waives this review right, or when the Board grants the benefit being sought in full. Id. In the Veteran’s case, the additional evidence is not pertinent to the Veteran’s earlier effective date claims before the Board as the medical evidence added in November and December 2019 only goes back to July 2015 and does not retroactively speak to the period prior to March 28, 2014, the effective date of the Veteran’s earlier effective date claims currently before the Board. In addition, as the Veteran’s claims of entitlement to service connection and increased rating claims are being remanded to the AOJ for further development, the AOJ will have an opportunity to review any pertinent evidence obtained after the August 2018 statement of the case. Lastly, the Board acknowledges that in October 2019, the Veteran submitted a VA Form 21-0958, Notice of Disagreement (NOD), with an August 2018 rating decision (notice of which was sent in October 2018) that awarded service connection for verruca vulgaris claimed as skin condition with a noncompensable rating, effective June 1, 2015. The Board’s review of the claims file reveals that the AOJ is in the process of taking action on this NOD. As such, the Board will not take any further action on the matter, and it will only be before the Board if the Veteran timely files a substantive appeal after a statement of the case is issued.   Earlier Effective Date Claims 1. Entitlement to an effective date of August 14, 2012, but no earlier, for the award of service connection for hepatitis C is granted. 2. Entitlement to an effective date August 14, 2012, but no earlier, for the award of service connection for cirrhosis is granted. The Veteran and his attorney generally contend the Veteran is entitled to an effective date prior to March 28, 2014 for his service-connected hepatitis C and cirrhosis. See VA Form 21-0958, Notice of Disagreement (NOD), dated November 20, 2015. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation or for a reopened claim for benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. In this case, however, the applicable regulations are those prior to the revision, as this claim was pending prior to March 24, 2015. As such, the Board will apply the regulations effective prior to March 24, 2015 regarding defining a claim. A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. For VA compensation purposes, a “claim” is defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action indicating an intent to apply for one or more benefits, and identifying the benefit sought from a claimant, his or her authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris. See 38 C.F.R. § 3.155(a). 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 after 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(b). Thus, 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). VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Secondary service connection is granted for a “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a). “When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition.” 38 C.F.R. § 3.310(a). The “plain meaning of th[is] regulation is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations.” Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). Building on Roper, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a requirement that a secondary condition ‘be considered a part of [an] original condition’ does not, in our view, establish that the original condition and the secondary condition must receive identical effective dates.” Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). “Indeed, a per se rule requiring identical effective dates for primary and secondary conditions would be illogical, given that secondary conditions may not arise until years after the onset of the original condition.” Id. The Federal Circuit concluded that “the effective date for secondary conditions is governed by [38 C.F.R. §] 3.400, which establishes the effective date as the ‘date of receipt of claim, or [the] date entitlement arose, whichever is later.’” Id. The Federal Circuit explained: “[T]his result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards. Section 5110(a) provides generally that ‘[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.’ The statute contains no exception to this rule for a claim.” Id. at 1370; see Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017). Turning to the Veteran’s earlier effective date claims, the RO originally denied the Veteran’s claim of entitlement to service connection for a liver condition in a September 2013 rating decision. The RO sent the Veteran notification of the decision on September 13, 2013. The RO enclosed a VA Form 21-0958, Notice of Disagreement with the September 2013 notification letter, and the RO informed the Veteran that he had one year from the date of the September 13, 2013 letter to appeal the decision. The Board notes that the Veteran’s first contact with VA following the September 2013 rating decision was a VA Form 21-4138, Statement in Support of Claim received by VA on March 28, 2014, which reflects “[r]equest service connection for hepatitis C and hypertension.” In the March 2014 statement, the Veteran gave no indication that he disagreed with the September 2013 rating decision that denied in part service connection for a liver condition. The Board acknowledges that prior to March 24, 2015, any written communication from a claimant or his or her representative expressing dissatisfaction or disagreement with an adjudicative determination by the AOJ and a desire to contest the result will constitute a notice of disagreement. 38 C.F.R. § 20.201 (2014). As the Veteran expressed no dissatisfaction or disagreement with the September 2013 rating decision in the March 2014 statement, the March 2014 statement does not constitute a NOD. However, a review of the record illustrates that the Veteran submitted new and material evidence within the one-year period following the September 2013 rating decision. In an April 2014 statement, within the one-year appeal period following the September 2013 rating decision, the Veteran indicated that he was having his medical problems when he was in the service and that his liver enzymes were elevated. The RO reopened the Veteran’s claim of entitlement to service connection for hepatitis C in a June 2014 rating decision and denied the claim on the merits. However, the September 2013 rating decision did not become final since new and material evidence was submitted during the one-year appeal period. See 38 C.F.R. § 3.156(b). Therefore, the Veteran’s claims for liver conditions, which included hepatitis C and cirrhosis, remained pending from the September 2013 rating decision, which did not become final. Thus, to determine the appropriate effective date for the Veteran’s claims, the Veteran’s first intent to apply for benefits for a liver condition must be determined. A review of the record illustrates that the Veteran’s first contact with VA reflecting an intent to apply for benefits for a liver condition was on August 14, 2012. In a statement received by VA on August 14, 2012, the Veteran indicated he has had problems with his liver since service. A VA Form 21-0820, Report of General Information, dated February 4, 2013, illustrates that the Veteran wanted to make sure his claim for an increased rating for his service-connected epididymitis included a claim for a liver condition. VA received the Veteran’s claim for an increased rating for his service-connected epididymitis on December 28, 2011. The documents submitted with the December 2011 claim for an increased rating for epididymitis contain no mention of a liver condition or an intent to apply for benefits for a liver condition. Thus, the Board concludes that August 14, 2012, the date the Veteran first contacted VA with an intent to apply for benefits for a liver condition is the date of the Veteran’s claim. See 38 C.F.R. § 3.155(b). The Board acknowledges that following the February 4, 2013 contact with the Veteran, the date the RO was made aware of the Veteran’s informal claim, the RO did not send the Veteran an application form to the Veteran for execution per VA policy under the claim rules effective prior March 24, 2015. Instead, the RO sent a letter to the Veteran in April 2013 informing him that his claim was amended to include the claim of entitlement to service connection for a liver condition received February 4, 2013. Therefore, no formal claim form was necessary as the RO accepted the February 4, 2013 claim as a claim of service connection for a liver condition. In addition, as discussed in the preceding paragraph, a review of the record illustrates the Veteran’s first contact with VA reflecting an intent to apply for benefits for a liver condition was in the statement received by VA on August 14, 2012. Prior to the receipt of the Veteran’s informal claim on August 14, 2012, there was no correspondence reflecting an intent to apply for benefits for a liver condition. There is no indication VA received a statement, either orally or via written communication, that indicated an intent to file a claim, prior to August 14, 2012. Therefore, August 14, 2012 is the earliest date that a communication was received expressing an intent to apply for benefits for a liver condition.  The Board notes that the Veteran has been awarded service connection for two conditions related to his liver. In the September 2015 rating decision, the RO awarded service connection for hepatitis C, and the RO awarded service connection for cirrhosis as secondary to his service-connected hepatitis C. As indicated, the RO awarded both claims effective March 28, 2014. As is noted above, in adjudicating the effective date for the Veteran’s cirrhosis the Board is not bound by the effective date for the Veteran’s hepatitis C. However, the record illustrates that the appropriate effective date for the Veteran’s cirrhosis, as secondary to his hepatitis C, is also August 14, 2012, the date the Veteran first expressed an intent to apply for service connection for a liver condition. In addition, the Board notes that the exact date on which entitlement arose need not be ascertained in order to conclude that the August 14, 2012 date selected herein is the earliest possible effective date with regards to the claims of service connection for hepatitis C and cirrhosis. Even if entitlement arose prior to August 14, 2012, as is indicated by the Veteran’s August 2012 statement, then the date of claim would be the later of the two, and hence the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). In sum, the Board finds that the legally correct date of the grant of service connection for hepatitis C and cirrhosis is August 14, 2012, the date VA first received the Veteran’s informal claim seeking entitlement to service connection for a liver condition. As such, the Veteran’s claim is granted to that extent.   REASONS FOR REMAND 1. Entitlement to service connection for low back condition is remanded. 2. Entitlement to service connection for neck condition is remanded. 3. Entitlement to service connection for left knee condition is remanded. 4. Entitlement to service connection for right knee condition is remanded. 5. Entitlement to service connection for left hand condition is remanded. 6. Entitlement to service connection for right hand condition is remanded. The Veteran attended VA examinations in July 2018 for an evaluation of the above conditions. Following the examinations, the VA examiner opined that the Veteran’s low back, neck, left and right knee, and left and right hand conditions are less likely than not proximately due to or the result of the Veteran’s service-connected hepatitis C and cirrhosis. Per VA regulations, service connection may be granted for a disability that is “proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310. Additionally, any increase in severity of a nonservice-connected disease (i.e., aggravation) that is proximately due to or the result of a service-connected disease will be service-connected. The July 2018 VA opinion does not address whether the Veteran’s service-connected hepatitis C and/or cirrhosis have aggravated the Veteran’s low back, neck, left and right knee, or left and right hand conditions. Thus, an additional VA opinion is necessary to adequately evaluate the etiology of these conditions. The Board acknowledges that Dr. A.A., a private physician, opined in October 2017 that it is as likely as not that the Veteran’s low back, neck, left and right knee, and left and right hand conditions were incurred in service or secondary to his service-connected hepatitis C. Aside from listing medical evidence for each of the Veteran’s conditions, including in-service treatment notes, Dr. A.A. provided no rationale in support of her opinion relating the Veteran’s current conditions to his service. Therefore, the opinion pertaining to direct service connection is insufficient given the lack of rationale supporting the opinion. Regarding her opinion relating the Veteran’s conditions to his service-connected hepatitis C, although Dr. A.A. submitted medical literature indicating a relationship between hepatitis C and musculoskeletal pain, she did not provide an explanation discussing these articles in relationship to the Veteran’s claimed disabilities. Upon remand, the VA medical expert will be requested to address this medical literature. In addition, regarding the Veteran’s low back and neck claims, in a July 2015 statement, the Veteran identified relevant outstanding private treatment records from a chiropractor (Dr. G.). The Veteran reported he received treatment from the chiropractor on four occasions from September 2010 to December 2010. A remand is required to allow VA to obtain authorization and request these records. 7. Entitlement to service connection for left ankle condition is remanded. 8. Entitlement to service connection for right ankle condition is remanded. The Veteran most recently attended a VA examination in July 2018 for an evaluation of his left and right ankle conditions. The VA examination report reflects no diagnosis of a left or right ankle condition. Furthermore, the VA examination report reflects no reports of pain. Therefore, the VA examiner provided no opinion as to the etiology of the Veteran’s ankle conditions. However, the Veteran attended a VA examination in July 2015 where the VA examiner diagnosed the Veteran with bilateral calcaneal spurs. Furthermore, the VA examiner noted the Veteran had pain with range of motion bilaterally. The VA examiner also indicated that his ankle impacts his job as a security officer because of prolonged walking when he does rounds. In addition, VA treatment notes from March 2015 to November 2017 reflect that the Veteran reported having pain in his ankles. Therefore, as it is unclear from the record whether the Veteran has a left and/or right ankle condition, the claims are remanded to afford a VA examiner the opportunity to opine as to clarify any diagnosis of the Veteran’s left and right ankles, and if diagnoses are not identified, then to determine if pain alone results in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that if pain alone results in functional impairment, even if there is no identified underlying diagnosis, such pain can constitute a disability). The Board acknowledges that Dr. A.A., opined in October 2017 that it is as likely as not that the Veteran’s ankle conditions were incurred in service or secondary to his service-connected hepatitis C. As is noted in the preceding paragraph, it is unclear from the record whether the Veteran has current left or right ankle conditions. In addressing the medical evidence, the most recent medical evidence Dr. A.A. listed for the Veteran’s ankle conditions is a September 2000 treatment record indicating right ankle pain. Therefore, as it is unclear from the record whether the Veteran has a current left and/or right ankle condition, a remand for an additional VA examination is necessary. 9. Entitlement to an initial rating in excess of 10 percent for hepatitis C is remanded. 10. Entitlement to an initial rating in excess of 10 percent for cirrhosis is remanded. The Veteran most recently underwent a VA examination for an evaluation of his liver conditions in July 2015, prior to the award of service connection for hepatitis C and cirrhosis. The July 2015 VA examination report reflects the Veteran had no right upper quadrant pain and intermittent abdominal pain. However, a VA treatment note in March 2017 reflects the Veteran reported severe abdominal pain. In addition, a September 2019 VA treatment note reflects the Veteran reported waxing/waning sharp lower abdominal pain. Given the evidence of potential worsening of the Veteran’s liver conditions since the July 2015 VA examination and the need for more current findings necessary to rate the Veteran’s hepatitis C and cirrhosis, a new examination is needed. The matters are REMANDED for the following actions: 1. With any needed assistance from the Veteran, including securing from him a VA Form 21-4142 (Authorization and Consent to Release Information to VA) for each identified provider, including the chiropractor identified in his statement received in July 2015, obtain all records of the Veteran’s treatment for the issues listed in this remand during the period of the claims. Obtain and associate with the Veteran’s electronic record VA records from December 2019 to the present. If any of the records requested are unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159(e). 2. After completing the development requested in item 1, obtain a medical opinion from an appropriate medical professional for the Veteran’s low back, neck, left and right knee, and left and right hand conditions. If the medical professional determines that an in-person examination is needed in order to answer the questions posed, then such should be scheduled. After reviewing the claims file, the medical professional should address the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s low back, neck, left and right knee, and/or left and right hand conditions are related or attributable to his military service? (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s low back, neck, left and right knee, and/or left and right hand conditions are caused by his service-connected liver conditions (hepatitis C and cirrhosis)? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s low back, neck, left and right knee, and/or left and right hand conditions are aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected liver conditions (hepatitis C and cirrhosis)? In answering these questions, the medical professional is asked to specifically address the medical literature submitted by Dr. A.A. and received by VA in February 2018 indicating a relationship between hepatitis C and musculoskeletal pain. If the Veteran’s low back, neck, left and right knee, and/or left and right hand conditions have been aggravated by his service-connected liver conditions, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The medical professional must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the medical professional cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.   3. After completing the development requested in item 1, provide the Veteran an appropriate VA examination to determine the nature, extent, and etiology of the Veteran’s left and right ankle conditions. The electronic claims file must be made available to the examiner for review in connection with the examination. All indicated tests should be conducted, and the reports of any such studies incorporated into the examination reports to be associated with the claims file. After reviewing the claims file, the examiner should address the following: (a.) Does the Veteran have a diagnosis of any left and/or right ankle condition or any symptoms, such as pain, that cause functional impairment? In answering this question, the VA examiner is asked to specifically address the July 2015 VA examination report that reflects a diagnosis of bilateral calcaneal spurs. (b.) For any diagnosed left and/or right ankle condition or any functional impairment from ankle pain or reduced range of motion, is it at least as likely as not (50 percent or greater probability) that such is related or attributable to his military service? (c.) Is it at least as likely as not (50 percent or greater probability) that any diagnosed left and/or right ankle condition or any functional impairment from ankle pain or reduced range of motion is caused by his service-connected liver conditions (hepatitis C and cirrhosis)? (d.) Is it at least as likely as not (50 percent or greater probability) that any left and/or right ankle condition or any functional impairment from ankle pain or reduced range of motion is aggravated (i.e., any increase in the severity beyond its natural progression) by his service-connected liver conditions (hepatitis C and cirrhosis)? In answering these questions, the examiner is asked to specifically address the medical literature submitted by Dr. A.A. and received by VA in February 2018 indicating a relationship between hepatitis C and musculoskeletal pain. If the Veteran’s diagnosed left and/or right ankle condition or any functional impairment from ankle pain or reduced range of motion has been aggravated by his service-connected liver conditions, the medical professional should also indicate the extent of such aggravation by identifying the baseline level of disability. This may be ascertained by the medical evidence of record and also by the Veteran’s statements as to the nature, severity, and frequency of his observable symptoms over time. The examiner must fully explain the rationale for any opinion, with citation to supporting clinical data/lay statements, as deemed appropriate. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why an opinion cannot be made without resorting to speculation.   4. After completing the development requested in item 1, schedule the Veteran for an appropriate VA examination to evaluate the severity of the Veteran’s hepatitis C and cirrhosis. The entire claims file should be made available to the examiner in conjunction with this request. All testing deemed necessary to rate the disabilities under the applicable rating criteria must be conducted and the results reported in detail. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Breitbach, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.