Citation Nr: 20006445 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 17-26 134 DATE: January 27, 2020 ORDER Entitlement to an effective date earlier than August 4, 2016 for a 20 percent rating for a service-connected cervical spine disorder is denied. Entitlement to an effective date earlier than August 4, 2016 for the grant of service connection for radiculopathy of the right upper extremity (lower radicular group) is denied. Beginning December 11, 2018, entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. Entitlement to service connection for pseudofolliculitis barbae (PFB) is granted. REMANDED Entitlement to a compensable evaluation for decreased flexion of the left hip is remanded. Entitlement to an evaluation higher than 10 percent for decreased extension of the left hip is remanded. Entitlement to a higher evaluation for cervical spine disease, evaluated as 10 percent prior to August 4, 2016 and 20 percent thereafter, is remanded. Entitlement to a higher evaluation than 20 percent for radiculopathy of the right upper extremity (lower radicular group) is remanded. Entitlement to a higher evaluation than 10 percent prior to February 13, 2019 and a compensable evaluation beginning February 13, 2019 for left fifth metacarpal is remanded. Entitlement to a compensable evaluation for gastritis is remanded. Entitlement to a compensable evaluation for deep vein thrombosis is remanded. Entitlement to service connection for ulcers is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for pelvic tilt is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to a TDIU for the period prior to December 11, 2018 is remanded. FINDINGS OF FACT 1. It is not factually ascertainable that the Veteran’s cervical spine disability increased in severity within a year proceeding the August 4, 2016 application for TDIU. 2. On August 4, 2016, the Veteran filed an application for unemployability based on, in part, a cervical spine disability; there is no communication prior to this date which may be considered a claim for service connection for radiculopathy. 3. The Veteran was in receipt of VA disability compensation for service connection for cervical spine disability, radiculopathy, right knee disability, right thumb disability, left hip extension disability, left hip flexion disability, little finger disability, index finger disability, and long finger disability, with a combined evaluation of 70 percent disabling from December 11, 2018. 4. Beginning December 11, 2018, the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment. 5. Resolving reasonable doubt in the Veteran’s favor, the Veteran has a current diagnosis of PFB that began during service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than August 4, 2016 for a 20 percent evaluation for a cervical spine disability have not been met. 38 U.S.C. §§ 5103, 5103A, 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.400 (2019). 2. The criteria for an effective date prior to August 4, 2016, for the grant of service connection for radiculopathy of the right upper extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). 3. Beginning December 11, 2018, the criteria for a TDIU were met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25 (2019). 4. The criteria for service connection for PFB are met. 38 U.S.C. §§ 1110, 1111, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1972 to August 1975, from May 2002 to January 2003, from April 2006 to November 2007. The Veteran also served in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. This case was most recently before the Board in October 2017. It was remanded for further development. It is now before the Board for adjudication. Effective Dates Section 5110(a), title 38, United States Code, provides that “[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim...of compensation...shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” In cases involving direct service connection, 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). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, March 17, 2015, 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, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. 38 U.S.C. § 5101 (a) (West 2014); 38 C.F.R. § 3.151 (a) (2014). An informal claim may be any communication or action indicating intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002); 38 C.F.R. §§ 3.1 (p), 3.155(a) (2014). An informal claim must be written, and it must identify the benefit being sought. Although a claimant need not identify the benefit sought “with specificity,” some intent on the part of the veteran to seek benefits must be demonstrated. The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a veteran’s claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to “determine all potential claims raised by the evidence, applying all relevant laws and regulations,” and extends to giving a sympathetic reading to all pro se pleadings of record. However, the 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). 1. Entitlement to an effective date earlier than August 4, 2016 for the grant of an increased rating of 20 percent service connection for a cervical spine disorder is denied. The Board observes that thorough review of the record reveals no definitive indication of worsening of the Veteran’s cervical spine disability in the year prior to his filing of an application for TDIU on August 4, 2016. None of the medical evidence of record in the year prior to August 4, 2016 addresses the Veteran’s neck disability with the level of specificity to support a finding that an increase in severity occurred during that period. An October 2015 VA treatment record noted mildly reduced rotation of motion of the neck. Thus, it cannot be stated that an increase in severity of the Veteran’s cervical spine disability was factually ascertainable in the one-year period prior to the Veteran’s August 4, 2016 TDIU application. Thus, under the law, an effective date earlier than August 4, 2016 is not warranted. 2. Entitlement to an effective date earlier than August 4, 2016 for the grant of service connection for radiculopathy of the right upper extremity (lower radicular group) is denied. Entitlement to service connection was granted for radiculopathy on August 4, 2016. This is the date that the Veteran filed an application for TDIU. By way of background, the AOJ granted service connection for a cervical spine disease in October 2010, but the AOJ denied service-connection for a bone spur of the neck. In a November 2010, the Veteran filed a notice of disagreement with the October 2010 decision and specially alleged that service connection was warranted for several disabilities, including a bone spur of the neck. The Veteran did not disagree with the evaluation assigned for the cervical spine disability. This decision is therefore considered final. In July 2012, the Veteran filed a claim for a higher evaluation for cervical spine disease among other disabilities. The AOJ denied a higher evaluation for a cervical spine disability in February 2013. The Veteran did not appeal this decision. On August 4, 2016, the Veteran filed an application for unemployability and claimed that he was unable to secure substantially gainful occupation due his service-connected disabilities, including his cervical spine disability. During the subsequent Neck Disability Benefits Questionnaire, the examiner diagnosed radiculopathy of the right upper extremity noting treatment records diagnosing radiculopathy possibly since February 2016. The pertinent and undisputed facts in this case are that the Veteran submitted a claim of entitlement to TDIU on August 4, 2016. Later when radiculopathy was noted during the DBQ, the AOJ assigned an effective date of August 4, 2016 for radiculopathy. There is no indication in the record of a claim prior to the one received by VA in August 2016. Prior claims for a cervical spine disability had previously been adjudicated and those decision are considered final. Under the law, the earliest effective date and the appropriate effective date for the grant of service connection for radiculopathy is August 4, 2016. 3. Beginning December 11, 2018, entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Beginning December 11, 2018, the Veteran’s combined disability evaluation meets the schedular requirement under 38 C.F.R. § 4.16 for consideration of a TDIU. Although no single disability evaluation is evaluated as at least 40 percent disabling, his cervical spine disability and radiculopathy will be considered one disability as they are a result of a common etiology. Having reviewed the record, the Board has determined that a TDIU is warranted from December 11, 2018. In his August 2016 Application for Increased Compensation Based on Unemployability, the Veteran reported that he last worked full-time in December 2012. Social Security records show only marginal employment since 2012 and no income in 2014. The Veteran has been receiving Social Security Disability Insurance payments since September 27, 2012. The Veteran has an Associate degree in Aviation Technology. In a September 2018 TDIU Vocational Assessment Report, the vocational rehabilitation consultant opined that it is at least as likely as not that the Veteran has been unable to secure and follow substantially gainful employment due to service-connected cervical spine, left hip and right knee disabilities in any occupation to include sedentary unskilled employment since he last worked in 2012. The consultant explained that employers will not allow employees to take the number of unscheduled breaks that the Veteran would require as a result of his pain from his cervical spine, left hip and right knee. The Veteran also experiences fatigue and difficulty concentrating due to pain from his service-connected conditions. Such restrictions combined with interruptions in concentration due to pain and fatigue will result in a significant amount of time off task and will reduce work productivity. The consultant noted a July 2016 statement by the Veteran where he notes that after 20 minutes of using the computer, the stiffness and discomfort just becomes too much for him to be able to concentrate on whatever he was working on. The consultant went on to say that time off tasks, inability to concentrate, and lack of productivity would not be tolerated by any employer, even at the sedentary, unskilled level. The January 2019 examiner noted that the cervical spine disability impacted his ability to work in that he would have difficulty with strenuous activity involving heavy lifting or repetitive neck movement. A January 2019 examiner noted that the Veteran hip and knee disabilities would impact his or her ability to perform occupational tasks. The Veteran would have difficulty walking or standing for long periods of time without rest. He ambulates with a cane. He has difficulty going up and down stairs. The Veteran’s last job was working on aircrafts. He was responsible for troubleshooting electronic issues. He had to climb up and down ladders, bend down and crawl on his hands and knees to assess the aircraft. See Veteran’s statement dated in July 2016. In weighing the lay and medical evidence of record, the Board finds that the evidence is in relative balance as to whether the Veteran has been rendered unable to obtain and maintain a substantially gainful occupation as the result of his service-connected disabilities. As such, entitlement to TDIU is warranted beginning December 11, 2018. 4. Entitlement to service connection for PFB is granted. Service connection means that a Veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge when the evidence shows that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Entitlement to service connection is established when the following elements are satisfied: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004)); see 38 C.F.R. § 3.303 (a). The Veteran claims that his PFB is related to his military service. The Veteran has a current diagnosis of PFB. See March 2010 VA examination. A September 2015 photograph notes that the Veteran continues to have difficulty with PFB. As to a causal relationship or “medical nexus” between the current disability and the disease or injury incurred or aggravated during service, there a few opinions included in the record. The September 2010 physician found that the Veteran’s PFB began after his first period of service but before his second period of service. The physician found that it was not aggravated by his second period of service. The Veteran explained that he did not shave prior entering service at the age of 19. He noted that he was able to stop shaving while in the Navy as they allowed for a neatly trimmed beard after basic training. He explains that this is why there is no record of his condition during his first period of service. In March 2018, a dermatologist opined that it was at least as likely as not that the PFB incurred in service. The dermatologist opined that PFB more often develops during the earlier years of a man’s life as androgen becomes less dominant. He further noted that this might explain his developing lesions at age 19 and the absence of lesions upon an examination in 2015. The AOJ found this opinion speculative. The Board disagrees. The dermatologist’s opinion is that it at least as likely as not that the Veteran’s PFB is related to service. This is not speculative. The dermatologist only uses the word “might” in his rationale. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran’s current PFB began during service. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for PFB is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a compensable evaluation for decreased flexion of the left hip is remanded. 2. Entitlement to an evaluation higher than 10 percent for decreased extension of the left hip is remanded. 3. Entitlement to a higher evaluation for cervical spine disease, evaluated as 10 percent prior to August 4, 2016 and 20 percent thereafter, is remanded. 4. Entitlement to a higher evaluation than 20 percent for radiculopathy of the right upper extremity (lower radicular group) is remanded. 5. Entitlement to a higher evaluation than 10 percent prior to February 13, 2019 and a compensable evaluation beginning February 13, 2019 for left fifth metacarpal is remanded. 6. Entitlement to a compensable evaluation for gastritis is remanded. 7. Entitlement to a compensable evaluation for deep vein thrombosis is remanded. 8. Entitlement to service connection for ulcers is remanded. 9. Entitlement to service connection for asthma is remanded. 10. Entitlement to service connection for pelvic tilt is remanded. The Veteran has been receiving Social Security Disability Insurance since September 27, 2012. Records associated with SSDI have not been obtained. The Social Security decision that is of record mentions deep vein thrombosis, cervical spine, bilateral knees, and fingers of right hand. The Board finds that these records are needed prior to adjudication of his claims as potentially relevant records could be included in these records. 11. Entitlement to service connection for a psychiatric disability, to include posttraumatic stress disorder (PTSD), is remanded. The Veteran has not been afforded a psychiatric examination to determine if his psychiatric disorder is related to his military service. An examination is needed prior to adjudicating his claim. 12. Entitlement to service connection for migraine headaches is remanded. The Veteran was afforded an examination for his headaches in October 2015. The examiner noted that cervicalgia can certainly exacerbate migraines. The examiner also noted that the Veteran’s neck pain pre-dated the onset of his migraines, so he was unable to determine to what degree, if any, his neck pain exacerbates his headache disorder. The Board finds that an addendum opinion is needed as to whether the Veteran’s neck disability aggravates his migraine disorder. 13. Entitlement to service connection for a left knee disorder is remanded. The Veteran was afforded an examination for his left knee in July 2018 and an opinion was obtained. The examiner noted that if there was no direct cause and effect on the knee, then there was no medical support to state it causes any aggravation nor permanent worsening of the opposite knee. The examiner appears to find that the left knee was not aggravated by his right knee disorder because there was no causation. Causation and aggravation are separate questions under the law. Two separate opinions are needed that include separate rationales prior to adjudication of his claim for service connection for the left knee. 14. Entitlement to TDIU for the period prior to December 11, 2018 is remanded. Further development and adjudication of the Veteran’s claim for increase may provide evidence in support of his claim for a TDIU for the period prior to December 11, 2018. The Board has therefore concluded that it would be inappropriate at this juncture to enter a final determination on that issue. See Henderson v. West, 12 Vet. App. 11 (1998), citing Harris v. Derwinski, 1 Vet. App. 180 (1991). Furthermore, the Veteran currently does not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) for the period prior to December 11, 2018. If after further development of the Veteran’s service-connected disabilities the Veteran still does not meet the schedular requirement, the Veteran’s claim for TDIU is referred to VA’s Director of Compensation Services for extraschedular consideration. As an aside, the Board has granted service connection for PFB. The AOJ has not had an opportunity to evaluate this disability. If the Veteran’s schedular evaluation meets 38 C.F.R. § 4.16 (a) prior to December 11, 2018, entitlement to TDIU may be granted earlier than December 11, 2018 because the evidence shows that he has been unemployable due to service-connected disabilities since 2012. The matters are REMANDED for the following action: 1. After the Veteran’s reported stressors have been developed, schedule the Veteran for a psychiatric examination to determine the nature and etiology of any posttraumatic stress disorder (PTSD). If the Veteran is diagnosed with PTSD, the examiner must explain how the diagnostic criteria are met and opine whether it is at least as likely as not related to a verified in-service stressor. If any other acquired psychiatric disorders are diagnosed, the examiner must opine whether each diagnosed disorder is at least as likely as not related to an in-service injury, event, or disease. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s migraine disorder is at least as likely as not related to his service-connected multilevel cervical disc disease. The examiner must also state whether his headache disorder is aggravated beyond its natural progression by service-connected cervical disc disease. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left knee disability is at least as likely as not related to his service-connected right knee disability. The examiner must also state whether his left knee disorder is aggravated beyond its natural progression by service-connected right knee disorder. Separate rationales are needed for each opinion. 4. Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration for the period prior to December 11, 2018. 5. Readjudicate the Veteran’s claims, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his attorney should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Tahirih S. Samadani, 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.