Citation Nr: 20042376 Decision Date: 06/23/20 Archive Date: 06/23/20 DOCKET NO. 19-35 402 DATE: June 23, 2020 ORDER Entitlement to an effective date earlier than August 1, 2013 for the assignment of a 30 percent rating for comminuted fracture of the right foot navicular and tarsal cuboid is denied. A 10 percent rating, though no higher, is granted for a painful surgical scar on the right foot effective from August 1, 2013, subject to the statutes and regulations governing the payment of compensation. New and material evidence has not been received to reopen a claim of entitlement to service connection for a renal/genitourinary disorder; the petition to reopen this claim is denied. New and material evidence has not been received to reopen a claim of entitlement to service connection for left ear hearing loss disability; the petition to reopen this claim is denied. But there is new and material evidence to reopen a claim of entitlement to service connection for a left ankle disability, so the petition to reopen this claim is granted. Entitlement to service connection for right ear hearing loss disability is denied.   REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to a rating higher than 70 percent prior to July 24, 2017 for posttraumatic stress disorder (PTSD) with major depressive disorder (MDD) is remanded. FINDINGS OF FACT 1. The Veteran already has the earliest possible effective date for the grant of the 30 percent rating for his right foot disability of a comminuted fracture affecting the navicular and tarsal cuboid because it is the same date as the effective date for the grant of service connection for this disability – that being the day after his separation from service. 2. It is just as likely as not he has had a painful, surgical scar on his right foot since the effective date of service connection for this scar, meaning since the day following his separation from service. 3. A prior regional office (RO) decision in October 2015 considered and denied his claim of entitlement to service connection for a renal disability. He did not, in response, submit new and material evidence within one year of receiving notification of that decision or appeal that decision to the Board, so that decision became final and binding based on the evidence then of record. 4. Additional evidence since submitted or otherwise obtained, when considered with the record as a whole, does not raise a reasonable possibility of substantiating this claim for service connection for a renal disability. 5. A prior RO decision in January 2014 considered and denied his claim of entitlement to service connection for left ear hearing loss disability. He did not, in response, submit new and material evidence within one year of receiving notification of that decision or appeal that decision to the Board, so that decision became final and binding based on the evidence then of record. 6. Additional evidence since submitted or otherwise obtained, when considered with the record as a whole, does not raise a reasonable possibility of substantiating this claim for service connection for left ear hearing loss disability. 7. A prior RO decision in May 2014 considered and denied his claim of entitlement to service connection for a left ankle disability. He did not, in response, submit new and material evidence within one year of receiving notification of that decision or appeal that decision to the Board, so that decision became final and binding based on the evidence then of record. 8. But additional evidence since submitted or otherwise obtained, when considered with the record as a whole, is not cumulative or redundant of the evidence on file at the time of that last prior final and binding denial of this claim for service connection for a left ankle disability and raises a reasonable possibility of substantiating this claim. 9. The Veteran does not have sufficient hearing loss in his right ear to be considered a ratable disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than August 1, 2013 for the grant of a 30 percent rating for a right foot disability involving a comminuted fracture of the navicular and tarsal cuboid. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. But the criteria have been met since August 1, 2013, for a 10 percent rating, though no higher, for a painful surgical scar on the right foot. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC/Code) 7804. 3. Evidence received since the last final and binding denials of the claims of entitlement to service connection for a left ear hearing loss disability and a renal (genitourinary) disability is not new and material; consequently, these claims are not reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302, 20.1103. 4. But evidence received since the last final and binding denial of the claim of entitlement to service connection for a left ankle disability is new and material; consequently, this claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302, 20.1103. 5. The criteria are not met for entitlement to service connection for right ear hearing loss disability. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has an additional claim for a total disability rating based on individual unemployability (TDIU) that will be the subject of a separate decision. A Social Security Administration (SSA) record lists the Veteran’s impairments that were considered when this other Federal agency determined he is disabled. The record does not suggest there may be other SSA records relevant to his VA claims that are being decided versus remanded. VA's duty to assist is limited to obtaining “relevant” SSA records. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Thus, the Board does not need to obtain other SSA records prior to adjudicating these VA claims that are being decided, whereas those requiring further development, instead, are being remanded. When adjudicating his claims, the Board has given the Veteran the benefit of the doubt when warranted – meaning whenever the evidence supports his claims are is in relative balance (equipoise), for versus against his claims. However, when the preponderance of the evidence is against his claims, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).   Earlier Effective Date 1. Entitlement to an effective date earlier than August 1, 2013 for the assignment of a 30 percent rating for a comminuted fracture of the right foot navicular and tarsal cuboid Ratings (from 0 percent, i.e., noncompensable to 100 percent) are assigned for periods during which a disability is service connected. An award of direct service connection will be effective on the day following separation from active military service or the date on which entitlement arose – if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the appellant's claim or the date on which entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran separated from service on July 31, 2013. In a July 2017 rating decision, the RO granted a rating of 30 percent for his right foot disability retroactively effective from August 1, 2013, under DC 5284, so back to the day following his separation from service. On his VA Form 9, Substantive Appeal to the Board, he contended that he is entitled to an “earlier effective date for the 30%”. But, quite simply, no earlier effective date is possible since his existing effective date is the first day after he separated from service. The Veteran already has the earliest possible effective date for the grant of the 30 percent rating because it is the same date as the effective date for the grant of service connection for his right foot disability, i.e., the day after his separation from service. As such, this appeal for an earlier effective date for the grant of this rating is without legal merit and must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive, the claim should be denied, or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law).   Increased Rating 2. Entitlement to an increased rating for the scar on the right foot from the surgery As already indicated, the Veteran separated from service on July 31, 2013. In a January 2014 rating decision, the RO granted him service connection for this scar on his right foot as a residual of the surgery he had undergone to treat his service-connected right foot disability. The RO assigned an initial 0 percent (noncompensable) rating for this postoperative scar retroactively effective from August 1, 2013, under DC 7805, so back to the day following his separation from service. He was sent a letter concerning that decision later in January 2014. In January 2015, the Veteran contacted VA’s Inquiry Routing & Information System (IRIS) and indicated he had not received notification of a decision on his right foot disability but had received notifications regarding his other disabilities. However, the Board sees that the January 2014 notice did indeed inform him of VA’s decision regarding his right foot disability, along with the decisions concerning his other disabilities, including this residual scar. IRIS notations dated on February 2, 2015 reflect that he requested to reopen his claim for compensation for right foot pain. In May 2015, the RO re-adjudicated the scar rating and denied an increased rating. In his June 2015 Notice of Disagreement (NOD), on VA Form 21-0958, he requested a higher 10 percent rating for his right foot residual scar. And, in a July 2017 rating decision, the RO granted a higher 10 percent rating for the right foot scar as of May 2, 2014 (i.e., as of the date of a VA examination) under a different DC (DC 7804 rather than DC 7805). On his VA Form 9, Substantive Appeal to the Board, the Veteran requested “an increased evaluation prior to 5/2/2014 in excess of 10% right foot painful surgical scar.” Disability Benefits Questionnaires (DBQs) dated in September 2013, so prior to that May 2, 2014 effective date for this higher 10 percent rating, show the Veteran had a 10 cm x .2 cm scar on the lateral portion of his right ankle. It was noted that the scar was not painful or unstable. The report of the subsequent May 2, 2014 VA examination conversely indicates the scar “is sometimes painful”. That May 2014 VA examination was within one year of the January 2014 rating decision initially granting service connection for this scar and initially rating it as 0-percent disabling (i.e., noncompensable). For claims like this one which are adjudicated under VA’s “legacy system”, new and material evidence received prior to expiration of the appeal period will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. See 38 C.F.R. § 3.156. It is not possible to ascertain the actual date on which the Veteran’s scar became painful. See DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (holding that “entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition” (citing 38 U.S.C. § 5110(a)); Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (holding that “it is the information in a medical opinion, and not the date the medical opinion was provided that is relevant when assigning an effective date”). Therefore, when giving him the benefit of the doubt, the Board finds that the Veteran is entitled to the higher 10 percent rating – though no greater – for the post-surgical scar on his right foot effective from the date of service connection for this disability, so as of August 1, 2013. In his pleadings and other arguments, he has indicated that he is satisfied or content with the higher 10 percent rating for this scar disability, despite the unusual wording on his VA Form 9 suggesting otherwise. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). In essence, he would like this higher 10 percent rating for the entirety of the appeal period, which is being granted since the Board is making this higher 10 percent rating retroactive to August 1, 2013, so back to the day following his separation from service. There is no probative (meaning competent and credible) evidence that an even higher evaluation is warranted because the evidence does not support a finding of three or four scars that are unstable or painful, a scar that causes limitation of motion or other consequent impairment, a scar that is deep, nonlinear, and at least six square inches in size, or a scar covering an area greater than 144 square inches.   New and Material Evidence A finally decided claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New evidence means evidence not previously submitted to agency decision makers. Material evidence means evidence that relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a); see also Shade v. Shinseki, 24 Vet. App. 110, 117-120 (2010). 3. Petition to reopen the claim of entitlement to service connection for a renal/genitourinary disability In a prior October 2015 decision that the Veteran did not appeal, the RO denied his claim for service connection for a renal disability. At the time of that prior denial, the evidence of record included his service treatment records (STRs) showing he had denied a kidney stone or blood in his urine on multiple Reports of Medical History in February 1997, July 1999, August 1999, May 2002, August 2005, September 2009, and October 2010. The claims file also included a September 2013 General Medical DBQ showing he did not have a genitourinary disorder (including kidney/renal disease) in contrast with an April 2015 Touchstone Imaging record conversely showing he had been experiencing severe right upper quadrant pain for two months and that a CT scan of his abdomen had revealed a small left renal cyst, among other findings. There has been no new evidence added to the record since that last final and binding denial of this claim tending to show that it is as likely as not that the Veteran has a renal/genitourinary disability owing to his military service – meaning that was directly incurred during his service, or that manifested to a compensable degree within a year of his discharge from service to, in turn, warrant presuming it was incurred during his service, or that was otherwise caused or aggravated by his service – including caused or aggravated by a service-connected disability to warrant concluding it is secondarily related to his service.   Thus, despite the “low” threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), new and material evidence has not been received, so this claim is not reopened. 4. Petition to reopen the claim of entitlement to service connection for left ear hearing loss disability In a prior January 2014 decision that the Veteran did not appeal, the RO denied his claim for service connection for a left ear hearing loss disability. At the time of that prior denial, the evidence of record included his STRs and a September 2013 DBQ. The September 2013 DBQ reflects that he reported having difficulty hearing with background noises present, also that he has to turn the television and telephone volumes up to hear, and that he was exposed to very loud noises while in service, which is why he believes he now has hearing loss in his left ear. His hearing acuity upon testing revealed that the relevant puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 LEFT 15 15 15 15 15 On the basis of those results, the Veteran’s puretone threshold average for his left ear was recorded as 15 decibels. His speech recognition ability was 98 percent for his left ear using the Maryland CNC speech recognition test. Based on those results, he did not have a ratable hearing loss disability for VA compensation purposes. For VA compensation purposes, impaired hearing will be considered a ratable disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (Hz) is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Quite simply, the Veteran did not evidence sufficient hearing loss in his left ear to meet these threshold minimum requirements of this governing VA regulation. Moreover, because he did not, for all intents and purposes there was no current left ear hearing loss disability to, in turn, relate or attribute to his military service, including to any noise trauma he had sustained during the course of his service. The Board acknowledges the Veteran’s contention that he has difficulty with hearing, and he is competent to describe impaired hearing, which is within the realm of his personal experience. 38 C.F.R. § 3.159(a). See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Nonetheless, determining whether a ratable hearing loss disability exists, as defined by 38 C.F.R. § 3.385, is not a simple lay determination because the diagnosis is based on the results of audiology testing, which is an objective measure of hearing impairment. For this reason, a ratable hearing loss disability according to 38 C.F.R. § 3.385 is not a condition according to case law that has been found to be capable of lay observation. Whether lay versus medical evidence is needed to support a claim is determined on a case-by-case, i.e., fact specific, basis and dependent on the type of condition being claimed. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). This VA regulation considers objective medical data, including in certain specified frequencies, based on the results of an actual hearing evaluation. Hence, as a layman, the Veteran simply is not competent to credibly state that he has a level of impaired hearing meeting the legal standards of a ratable hearing loss disability for the purpose of VA disability compensation according to 38 C.F.R. § 3.385. No competent evidence has been added to the claims file since the January 2014 rating decision tending to indicate the Veteran has sufficient hearing loss in his left ear to, in turn, be considered a ratable disability by VA compensation standards, again, meaning sufficient to satisfy the threshold minimum requirements of § 3.385. Moreover, while it is true that VA adjudicators must presume that new evidence is credible when determining whether it also is material and, therefore, reason to reopen a claim, this is not true if the assertion is beyond the competence of the person making it. See Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510, 513 (1992). Thus, this claim is not reopened. 5. Petition to reopen the claim of entitlement to service connection for a left ankle disability In a prior May 2014 decision that the Veteran did not appeal, the RO denied his claim for service connection for a left ankle disability. At the time of that denial, the evidence of record included his STRs and a September 2013 DBQ. The September 2013 DBQ notes a diagnosis of a left ankle strain in 2011, so during his service, and his contention of constant daily pain ever since. But the examiner found that it was less likely than not that the Veteran’s then current left ankle pain was incurred during his service, conversely finding there was no documentation of a left ankle condition while in service and, therefore, his then current disability was not related to his service. In 2017, the Veteran filed a petition to reopen this claim and stated that he knows that his left ankle disability is due to the musculoskeletal deficiencies and physical compensation required because of surgeries owing to his service-connected right foot disability. Essentially, the Veteran raised a new theory of entitlement (secondary service connection) to reopen his claim. A new theory of entitlement does not, on its face, constitute new and material evidence unless evidence supporting the new theory of entitlement is itself new and material. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008); Ashford v. Brown, 10 Vet. App. 120, 123 (1997). Here, though, the Veteran has some medical training, also newly received evidence reflects that he has, at times, had an antalgic gait, and newly received evidence also shows mild tenderness with moderate palpation to the lateral aspect of both ankles. Given the “low” threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received concerning this claim and, thus, it is reopened. Prior to readjudicating this claim on its underlying merits, however, the Board is remanding this claim to the agency of original jurisdiction (AOJ) since it must be further developed. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In general, the three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or an injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In addition, certain chronic diseases (including sensorineural hearing loss) will be presumed to have been incurred in service, absent an intervening ("intercurrent") cause, if they were shown as chronic in service or if they manifested to a compensable degree within a presumptive period following separation from service (which is one year for sensorineural hearing loss); or, if they were noted in service (or within the applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 6. Entitlement to service connection for right ear hearing loss disability The question for the Board is whether the Veteran has a current disability that began during his service, within a year of his discharge, or that is at least as likely as not related to an in-service injury, event, or disease. But most fundamental to this determination is first confirming the Veteran has this claimed disability. As already explained when discussing the claim for hearing loss in his other (i.e., left) ear, not all hearing loss constitutes a ratable disability for VA compensation purposes; that is to say, the hearing loss must meet the minimum levels noted in 38 C.F.R. § 3.385.   After a review of the evidentiary record, the Board concludes that the Veteran does not have a current right ear hearing loss disability for VA compensation purposes and has not at any time during the pendency of this claim or recent to the filing of this claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The September 2013 DBQ reflects that the Veteran reported having difficulty hearing with background noises present, also that he has to turn the television and telephone volumes up to hear, and that he was exposed to loud noises in service, which is what he attributes his hearing loss to. The Veteran’s hearing acuity upon testing revealed the relevant puretone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 15 10 15 10 Given those results, the Veteran’s puretone threshold average for his right ear was 12.5 decibels. His speech recognition ability was 100 percent for his right ear using the Maryland CNC speech recognition test. Based on those results, he did not have a ratable hearing loss disability for VA compensation purposes, meaning sufficient hearing loss in his right ear to, in turn, satisfy the threshold minimum requirements of § 3.385. As already conceded, the Veteran is competent to describe impaired hearing, which is within the realm of his personal experience, but he is not also competent to state that it meets the required levels as defined by 38 C.F.R. § 3.385. Moreover, there is no competent and credible evidence suggesting he has a ratable hearing loss disability of his right ear for VA compensation purposes, let alone one that is as likely as not causally related to his service or that was aggravated by his service. First showing he has this claimed disability is essential since, without meeting this threshold preliminary requirement, for all intents and purposes there is no current disability to, in turn, relate or attribute to his military service. In other words, in this circumstance there necessarily is no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the competent and credible evidence fails to show a current hearing loss disability for VA compensation purposes, service connection for a right ear hearing loss disability is not warranted because, for all intents and purposes, there is no present-day disability to relate or attribute to the Veteran's service. REASONS FOR REMAND The claims file includes an SSA record indicating the Veteran testified at a September 7, 2018 SSA hearing and notes severe impairment of his right foot, lumbar spine, and because of PTSD. Not all his SSA records have been obtained and associated with his VA file and, to the extent relevant to these particular claims, these other SSA records must be obtained so that they, too, may be considered in deciding this VA appeal. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). 7. Entitlement to service connection for a cervical spine/neck disability The Veteran separated from service in July 2013. In July 2017, he filed a claim for service connection for a neck disability. He asserted that he has had chronic re-occurring neck pain since service. He contends that, in service, he had intensive pain and was treated with valium, Flexeril, and a non-steroidal anti-inflammatory drug (NSAID). He further contends that his pain never fully went away and that it returns approximately every six months. He contends that the regularity (frequency) of the pain began to increase in 2002, and that, in his opinion, the many rough aircraft landings he was in caused continual jarring of his neck and spine which worsened his condition. He also contends that he was the medical staff person and that he self-treated with regular NSAIDs. At least based on the existing evidence of record, the Board finds that any contention as to chronic neck complaints in service or within a year after separation from service is less than credible. The STRs reflect that the Veteran specifically denied neck pain and/or arthritis, rheumatism, or bursitis, and/or chronic bone, muscle, or joint complaints on numerous occasions on Reports of Medical History in July 1999, August 1999, May 2002, August 2003, August 2005, September 2009, October 2010. When noting back complaints, it was specifically noted to be with regard to his lower back. He also reported in 2003 and 2005 that he was in excellent health. Moreover, his September 2013 General Medical DBQ (pre-discharge claim for benefits) is unremarkable for any spine disability or complaints. A May 2014 traumatic brain injury (TBI) examination report reflects that he was seen for possible residuals of being hit on the left side of his head in service. But, upon review of his symptoms, he specifically denied neck pain; moreover, on objective physical examination, he had full range of motion of all phases of his cervical spine with no pain found on examination. A more recent August 2019 VA clinical record, however, notes diagnostic findings of subluxation and multi-level degenerative changes of the cervical spine. The Veteran’s DD Form 214 reflects that he was a medical service technician; thus, he has more training and experience in medical matters than a layman. The Secretary of VA’s obligation under 38 U.S.C. § 5103A(d) is to provide a Veteran with a medical examination or to obtain a medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or a service-connected disability, but (4) insufficient competent evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). For these reasons, the Veteran should be scheduled for an examination so a medical opinion may be obtained concerning the origins of his claimed neck disability, especially in terms of whether related to his military service. 8. Entitlement to service connection for a left hip disability AND 9. Entitlement to service connection for a left ankle disability (reopened) In July 2017, the Veteran asserted that he knows that his left hip and left ankle disabilities are due to the musculoskeletal deficiencies and physical compensation required because of surgeries on his service-connected right foot. As noted above, the Veteran has some medical training; however, the Board finds that an opinion by someone with more expertise, someone who is objective, and someone who provides an adequate rationale may be useful to the Board. Based on the foregoing, and with consideration of McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006), the Board finds that the Veteran should be afforded a VA examination and an opinion should be provided as to the whether it is as likely as not that the Veteran has a left hip disability causally related to, or aggravated by, a service-connected disability. 10. Entitlement to a rating higher 70 percent prior to July 24, 2017 for PTSD with MDD The Veteran’s PTSD was rated as 50-percent disabling prior to July 24, 2017 and has been rated higher, as 70-percent disabling, since. On his VA Form 9, Substantive Appeal to the Board, he asserted that he is entitled “to an increased rating in excess of 70% prior to July 24, 2017.” The Board is unsure whether he is requesting a 70 percent rating for the period prior to July 24, 2017 or if he, instead, believes an even higher 100 percent rating is warranted for that preceding period. Regardless, the Board is remanding this claim. The Veteran filed his claim for an increased rating on July 25, 2017. Generally, the effective date of an award for an increased rating shall be the date of receipt of the appellant's claim or the date on which entitlement arose, whichever is later.   Under 38 C.F.R. § 3.400(o)(2), the effective date in a claim for an increased rating may be one year prior to the date of receipt of the increased rating claim – provided the evidence reflects a worsening of the disability during that immediately preceding one-year time period. In other words, this entitlement to a higher rating must be factually ascertainable during that immediately preceding year. See Harper v. Brown, 10 Vet. App. 125 (1997). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C. § 5110(b)(2) was to provide Veterans a one-year “grace period” for filing a claim following an increase in severity of a service-connected disability). In October 2018, the SSA decided the Veteran’s claim for disability and found that he had severe impairment because of his PTSD. His complete SSA records are not in his VA claims file, however, and those not in the file may clarify whether there was a worsening of his PTSD from July 2016 to July 2017 (i.e., during the year immediately preceding receipt of his VA claim for a higher rating for this service-connected mental disability). Thus, the Board has a duty to attempt to obtain these additional SSA records. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, these claims are REMANDED for the following actions: 1. Obtain the Veteran's SSA records (to include, if reasonably possible, his SSA hearing transcript) and all clinical records used by the SSA in making a determination on his claim of disability. Document all requests for these records as well as all responses in the claims file. Notify the Veteran and his attorney if unable to obtain these records. 2. Schedule the Veteran for an examination of his cervical spine for an opinion on whether it is as likely as not (50 percent or greater probability) that he has a cervical spine disability that was directly incurred during his service, or, if involving arthritis, which manifested to a compensable degree within a year of his discharge from service, or that it otherwise related or attributable to his service – including caused OR aggravated by a service-connected disability. To assist in making these important determinations, the examiner must consider the pertinent evidence of record, to include a) the STRs showing the Veteran specifically denied neck pain and/or arthritis, rheumatism, or bursitis, and/or chronic bone, muscle, or joint complaints, on numerous occasions on Reports of Medical History in July 1999, August 1999, May 2002, August 2003, August 2005, September 2009, October 2010); b) the September 2013 General Medical DBQ (pre-discharge claim for benefits) that is unremarkable for any spine disability or complaints; c) the May 2014 TBI examination report noting the Veteran specifically denied neck pain and that, on examination, he had full range of motion of all phases of his cervical spine with no pain found upon examination; d) the earliest clinical evidence of a neck/cervical spine disability; and e) the Veteran’s contention that, in service, he had rough aircraft landings that caused continual jarring of his neck and spine and are the cause of this claimed disability. The examiner should not consider that the Veteran had chronic complaints in service and/or since service as the Board finds any such contention is not credible. 3. Also schedule the Veteran for an examination of his left hip for an opinion on whether it is as likely as not (50 percent or greater probability) that he has a left hip disability causally related to, or aggravated by, his service or a service-connected disability.   To this end, the examiner must consider the pertinent evidence of record, to include: a) the Veteran’s 2013, 2014, 2015, 2017, and 2019 examination reports as they relate to his gait and his complaints; b) whether the degree of left hip disability is consistent with factors such as his age and body habitus or whether it consistent with over-use due to compensation for his right foot or other service-connected disability. Adequate rationale for the opinion is essential, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. Any finding of aggravation must include, if reasonably possible, a statement as to the degree or extent of aggravation due to a service-connected disability. 4. As well, schedule the Veteran for an examination of his left ankle for an opinion on whether it is as likely as not (50 percent or greater probability) that he has a left ankle disability causally related to, or aggravated by, his service or a service-connected disability. To facilitate making these determinations, the examiner must consider the pertinent evidence of record, to include: a) the Veteran’s 2013, 2014, 2015, 2017, and 2019 examination reports as they relate to his gait and his complaints; b) whether the degree of left ankle disability is consistent with factors such as his age and body habitus or whether it is consistent with over-use due to compensation for his right foot or other service-connected disability. Adequate rationale for the opinion is essential, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. Any finding of aggravation must include, if reasonably possible, a statement as to the degree or extent of aggravation due to a service-connected disability. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED