Citation Nr: 20021975 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 19-12 412 DATE: March 31, 2020 ORDER Entitlement to an earlier effective date than April 8, 2010 for the grant of service connection for syringomyelia of the thoracic spine with myelopathy and degenerative disc disease (thoracic spine condition) is denied. Entitlement to an earlier effective date than April 8, 2010 for the grant of service connection for Brown-Sequard syndrome of the right lower extremity is denied. Entitlement to an earlier effective date than April 8, 2010 for the grant of service connection for Brown-Sequard syndrome of the left lower extremity is denied. Entitlement to an earlier effective date than April 8, 2010 for the grant of service connection for residual scars, status post laminectomy is denied. REMANDED In addition, entitlement to the following are remanded to the agency of original jurisdiction (AOJ) for additional development: entitlement to service connection for a right shoulder condition; entitlement to an initial rating in excess of 10 percent for a thoracic spine condition; entitlement to an initial rating in excess of 20 percent for Brown-Sequard syndrome of the right lower extremity; entitlement to an initial rating in excess of 20 percent for Brown-Sequard syndrome of the left lower extremity; entitlement to an initial compensable rating for residual scars, status post laminectomy; entitlement to an initial compensable rating for left foot pes planus, hallux valgus and degenerative joint disease first metatarsal phalangeal joint (claimed as left foot injury); and entitlement to a total disability rating based upon unemployability (TDIU). FINDINGS OF FACT 1. The record does not demonstrate that the Veteran filed a formal or informal claim to reopen his previously denied claim for service connection for a thoracic spine condition prior to April 8, 2010. 2. The Veteran’s service-connected Brown-Sequard syndrome of the bilateral lower extremities and residual scar conditions are associated with the Veteran’s service-connected thoracic spine condition. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than April 8, 2010 for service connection for a thoracic spine condition have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 2. The criteria for entitlement to an effective date earlier than April 8, 2010 for service connection for Brown-Sequard syndrome of the right lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 3. The criteria for entitlement to an effective date earlier than April 8, 2010 for service connection for Brown-Sequard syndrome of the left lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 4. The criteria for entitlement to an effective date earlier than April 8, 2010 for service connection for residual scars, status post laminectomy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Navy from July 1961 to July 1965, from October 1965 to September 1968, and from December 1968 to April 1986. The Veteran’s claims were most recently before the Board in October 2017 wherein the Veteran’s claim for service connection for a back disorder was reopened and granted. The issues of entitlement to service connection for a right shoulder disability and entitlement to a TDIU were remanded for additional development. The Board also remanded the issue of entitlement to service connection for herpes; this claim for service connection was later granted in April 2019. Thus, it is no longer on appeal. Thereafter, through a December 2017 rating decision, a rating decision implementing the Board’s grant of service connection for a thoracic spine condition was issued, establishing an evaluation of 10 percent effective April 8, 2010. Further, related to this, service connection was granted for Brown-Sequard syndrome of the bilateral lower extremities with an evaluation of 10 percent for the left lower extremity, and noncompensable for the right lower extremity, both effective April 8, 2010. The Veteran was also granted service connection for a residual scar, with a noncompensable evaluation effective April 8, 2010. The Veteran appealed the initial ratings and effective dates for each of these issues. In an April 2019 rating decision, the rating for Brown-Sequard syndrome of the left lower extremity was increased to 20 percent, and of the right lower extremity to 10 percent, still effective April 8, 2010. In a December 2019 brief to the Board, the Veteran’s representative waived AOJ review of recently submitted evidence. Therefore, the Board may review this evidence in the first instance. Effective Date 1. Entitlement to an earlier effective date than April 8, 2010 for the grant of service connection for a thoracic spine condition 2. Entitlement to an earlier effective date than April 8, 2010 for the grant of service connection for Brown-Sequard syndrome of the right lower extremity 3. Entitlement to an earlier effective date than April 8, 2010 for the grant of service connection for Brown-Sequard syndrome of the left lower extremity 4. Entitlement to an earlier effective date than April 8, 2010 for the grant of service connection for residual scars, status post laminectomy The Veteran asserts that he is entitled to an earlier effective date for the grant of service connection for a thoracic spine condition, Brown-Sequard syndrome of the bilateral lower extremities, and a residual scar. However, the Veteran has not advanced any specific argument as to why. In general, the effective date is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. §§ 5110 (a); 38 C.F.R. § 3.400. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110 (a). Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The claim would be considered final. 38 C.F.R. § 3.156. The regulation governing effective dates for service connection claims is clear: the effective date is the date of receipt of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400 (b)(2)(i). The date of receipt of the Veteran’s formal claim to reopen his claim for service connection for a spine condition is April 8, 2010. The Veteran’s Brown-Sequard syndrome of the bilateral lower extremities and a residual scar conditions are related to the thoracic spine condition. In the October 2017 remand, the Board found that the February 1987 rating decision on the Veteran’s back claim was final and reopened the Veteran’s claim. The Board cannot locate any earlier applications for these benefits that are not connected to final rating decisions. Therefore, the criteria for an earlier effective date for the grant of service connection for a thoracic spine condition, Brown-Sequard syndrome of the bilateral lower extremities, and a residual scar have not been met. Thus, the claims are denied. REASONS FOR REMAND Preliminarily, the Board notes that the October 2017 remand directed the AOJ to obtain VA medical center records, an updated VA examination for the Veteran’s right shoulder, and to develop the claim for entitlement to a TDIU. As part of the remand, the AOJ was required to obtain records from Sunrise and Hollywood Community-Based Outpatient Clinics (CBOC). No records from these facilities were found, but records from Pembroke Pines CBOC were obtained. All together, the records from the VA medical centers and CBOC total just under 100 pages; for 13 years of treatment, that record seems undersized. The Board further notes that while these three VA treatment centers are in close proximity to each other, the Veteran specifically identified that he received treatment from Sunrise and Hollywood CBOC. Thus, another attempt to obtain these records is required and, if no records exist, to associate a negative response with the file. 5. Entitlement to service connection for a right shoulder condition. Pursuant to the October 2017 remand, the Veteran appeared for a VA examination for his right shoulder. After a review of the record and an in-person examination of the Veteran, the examiner stated that the Veteran’s right shoulder condition was less likely than not related to service. However, upon review of the examiner’s rationale, it is unclear how the examiner arrived at this conclusion. On one hand, the examiner states that the Veteran did not seek medical care for a right shoulder injury during service. However, the examiner also states that during the period on appeal, the Veteran did not report shoulder complaints. Given that there is a need to locate extant records from Sunrise and Hollywood CBOC, the Board finds that a remand for an addendum opinion is required to address any new records and to clarify the exact reasoning for why service connection is not warranted. Should the examiner find that the Veteran does not have a diagnosis related to his right shoulder for any of the period on appeal (since July 2013), the examiner should address whether there is any functional impairment resulting from the Veteran’s right shoulder, even if there may be no formal diagnosis. Undiagnosed pain can be so debilitating that it can result in functional impairment. See Saunders v. Wilkie, 886 F.3d 1356 (2018) (where the evidence shows that symptoms reach the level of a functional impairment of earning capacity, a disability for VA compensation purposes exists, even if there is no underlying diagnosis). 6. Entitlement to an initial rating in excess of 10 percent for a thoracic spine condition is remanded. 7. Entitlement to an initial rating in excess of 20 percent for Brown-Sequard syndrome of the right lower extremity is remanded. 8. Entitlement to an initial rating in excess of 10 percent for Brown-Sequard syndrome of the left lower extremity is remanded. 9. Entitlement to an initial compensable rating for residual scars, status post laminectomy is remanded. The Veteran was last afforded a VA examination in connection to his thoracic spine and related conditions in November 2017. Through an affidavit dated September 2019, the Veteran asserted that his back condition had worsened. Given this and need to obtain outstanding VA treatment records, a remand is warranted for an updated examination for his thoracic spine condition and the disabilities that are related to it. 10. Entitlement to an initial compensable rating for a left foot injury is remanded. The Veteran applied for service connection for a left foot disability in April 2010. It was initially denied, and the Veteran appealed. However, in a December 2013 rating decision, the claim was granted, and an initial non-compensable rating was established. The Veteran appealed the initial rating with a January 2014 notice of disagreement, and after the January 2015 statement of the case, he perfected his appeal by way of a February 2015 VA Form 9. It was certified to the Board in a March 2015 VA Form 8. Unfortunately, the appeal was not addressed in the Board’s October 2017 decision. Also, the Board finds no evidence of withdrawal of the appeal. Therefore, it remains to be decided. The Veteran and his representative should be put on notice by the AOJ through a supplemental statement of the case that the issue is on appeal and the opportunity to submit additional evidence related to this issue. To the extent that the representative has submitted a waiver of AOJ review for evidence submitted since the last statement of the case for the Veteran’s left foot (January 2015), the Board finds that the waiver is only applicable to the issues that the Veteran was notified were currently on appeal. 11. Entitlement to a TDIU is remanded. Finally, because a decision on the above issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to a TDIU is also required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from all sources for the period from November 2017 to the present. 2. Obtain all of the Veteran’s treatment records from Sunrise and Hollywood Community-Based Outpatient Clinics (CBOC). If no records exist, a negative response should be associated with the file. 3. Obtain a supplemental opinion from an appropriate clinician regarding whether the Veteran’s right shoulder condition is at least as likely as not related to service. An in-person examination is not required unless deemed necessary and appropriate by the clinician. The clinician should identify any diagnoses related to the Veteran’s right shoulder for the period on appeal (since July 2013) and clearly specify the relationship of any diagnosis and the Veteran’s service. The clinician is advised that in some instances, pain alone can qualify as a disability for VA purposes; however, to do so, it must amount to a functional impairment of earning capacity. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected thoracic spine condition. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected Brown-Sequard syndrome of his bilateral lower extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. Further, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected scar, status post-laminectomy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 7. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the issues of an increased initial rating for a left foot disability and the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. M. Hitchcock 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.