Citation Nr: 20000710 Decision Date: 01/06/20 Archive Date: 01/06/20 DOCKET NO. 18-19 080A DATE: January 6, 2020 ORDER The claim of entitlement to an effective date earlier than January 11, 2012, but no earlier than September 11, 2009, for service connection for posttraumatic stress disorder (PTSD) is granted. The claim of entitlement to revision of a May 29, 2009, rating decision on the basis of clear and unmistakable error (CUE) is granted; the May 29, 2009 rating decision is revised to reflect a grant of entitlement to service connection for DMII as of March 13, 2009. The claim of entitlement to an effective date prior to April 25, 2012, for the establishment of service connection for DMII is dismissed as moot. The claim of entitlement to an effective date prior to November 23, 2012, for an evaluation of 50 percent for sinusitis is denied. FINDINGS OF FACT 1. The Veteran’s initial claim for service connection for PTSD was filed September 11, 2009, which was denied in the rating decision issued December 2009. 2. The rating decision issued December 2009 is not final as the Veteran filed a timely Notice of Disagreement (NOD) in January 2010 that was acknowledged by the Regional Office (RO) in a Deferred Rating issued September 2010. The December 2009 rating decision is still on appeal for the issue of entitlement to service connection for PTSD. 3. As of September 11, 2009, the Veteran’s diagnosed PTSD was etiologically related to his active duty service. 4. The statutory or regulatory provisions extant at the time were not correctly applied in the May 29, 2009, rating decision, and the failure to correctly apply the law and regulations manifestly changed the outcome of the May 2009 rating decision. 5. As the Board grants a revision of the May 29, 2009, rating decision on the basis of CUE, entitlement to an earlier effective date for the grant of service connection for DMII is moot. 6. The Veteran’s sinusitis disability rating was increased in a March 2017 rating decision from 10 percent disabling to 50 percent disabling effective November 23, 2012. 7. During the period of September 11, 2009, to November 22, 2012, the Veteran’s disability picture as to his sinusitis manifested as one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) of antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 11, 2012, but no earlier than September 11, 2009, for service connection for PTSD have been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 9411 (2018). 2. The criteria for revision of the May 29, 2009, rating decision on the basis of CUE have been met. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.104, 3.105(a), 3.307, 3.309 (2018). 3. The issue of entitlement to an earlier effective date for the grant of service connection for DMII is dismissed as moot. 38 U.S.C. § 7105 (2012). 4. The criteria for entitlement to an effective date prior to November 23, 2012, for an evaluation of 50 percent for sinusitis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.97 Diagnostic Code 6514 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from April 1957 to August 1971. Among other accommodations the Veteran was awarded the Vietnam Service Medal, the Combat Action Ribbon, and the Vietnam Campaign Medal. These matters are before the Board of Veteran’s Appeals (Board) from the rating decisions of May 2009, December 2009, May 2015, and March 2017 of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona and Waco, Texas, that denied the earlier effective dates of PTSD and DMII, and denied an earlier effective date of a 50 percent disability rating for sinusitis. The Board notes that the Veteran in his VA Form 9 submitted in April 2018 did not allege the existence of CUE in his claim of entitlement to an effective date prior to November 23, 2012, for an evaluation of 50 percent for sinusitis. The Veteran’s contentions specify that he is claiming the evaluation of his sinusitis at 50 percent should be from September 11, 2009, to November 22, 2012. Therefore, the issue of CUE in the Veteran’s claim for sinusitis is not before the Board. The only issue as to the Veteran’s sinusitis that is on appeal before the Board is his claim for an earlier effective date for his evaluation of 50 percent for his sinusitis from September 11, 2009, to November 22, 2012. Effective Date Generally, the effective date of an award of disability compensation will be the date of receipt of the claim or the date entitlement arose, whichever is later. The earliest effective date for an increased rating for disability compensation is when based on all the evidence of record an increase in that disability has occurred that can be factually ascertainable, if a complete claim or intent to file a claim is received, or within one (1) year from that date, if not, then the date of receipt of the claim shall be the effective date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Entitlement to an effective date earlier than January 11, 2012, but no earlier than September 1, 2009, for service connection for PTSD The Veteran contends that he is entitled to an earlier effective date prior to January 11, 2012, for his service-connected PTSD. The Veteran specifically contends that his PTSD should be service-connected back to September 2009. As there is a balance of both positive and negative evidence of record, resolving all doubt in favor of the Veteran, the Veteran’s claim of an earlier effective date for service connection for PTSD back to September 11, 2009, is warranted. Procedurally, the Veteran filed for service connection for PTSD in September 2009. A December 2009 rating decision denied service connection as the RO found the Veteran did not have a diagnosis of PTSD. The Veteran filed a timely NOD in January 2010 which was acknowledged in a Deferred Rating dated September 2010. A Statement of the Case (SOC) was issued in May 2012 that found the Veteran’s stressor was conceded but the Veteran still had no diagnosis of PTSD. The Veteran then filed a VA Form 9 in July 2012 which was addressed in a March 2015 rating decision with a grant of service connection for PTSD effective January 11, 2012. The Veteran then filed a timely NOD as of April 2015 requesting an earlier effective date for his service connection of PTSD back to March 2009. A SOC was issued January 2018 denying an earlier effective date and the Veteran filed a VA Form 9 in April 2018. The Board finds that the December 2009 rating decision is not final and is still on appeal. After thorough review of the Veteran’s record, specifically his VA treatment records the Board finds that the Veteran was diagnosed with PTSD in March 2009 that was found to be directly related to his active duty service in Vietnam. See CAPRI records submitted October 2012. As the Veteran did not file his claim for entitlement to service connection until September 11, 2009, the Board is able to grant service connection back to the date of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. Therefore, the earliest date that the Veteran can receive is September 11, 2009. When there is an approximate balance between positive and negative evidence, or equipoise, the benefit of the doubt doctrine must apply in favor of the Veteran. The evidence before the Board here indicates that the Veteran’s claims must be resolved in favor of the Veteran, as the benefit of the doubt doctrine is applicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Board finds that the Veteran is entitled to an earlier effective date for service connection for PTSD as of September 11, 2009. Entitlement to revision of a May 29, 2009, rating decision denying entitlement to service connection for DMII on the basis of CUE The Veteran contends that the May 29, 2009, rating decision should be revised as it denied entitlement to service connection for DMII. He contends that the May 2009 rating decision contains error as the evidence of record at that time established that his DMII was due to his active duty service. CUE For a claim of CUE to be valid, it must meet a three-pronged test. First, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions in effect at the time were incorrectly applied. See Phillips v. Brown, 10 Vet. App. 25 (1997); Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992) (en banc). Further, the error must be “undebatable” and one which, had it not been made, would have manifestly changed the outcome at the time it was made. Id. Finally, a determination of CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Id. A claim that CUE existed on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Additionally, broad-brush allegations of “failure to follow the regulations” or “failure to give due process” or any other general, non-specific claim of “error” cannot meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40 (1993). CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40 (1993). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a), 3.400(k). A current disability diagnosed at any point within the appeal period, even if the disability resolves during the appeal period (becomes asymptomatic) may be subject to service connection. See McClain v. Nicholson, 21 Vet. App. 219 (2007). Certain chronic diseases, including DMII may be presumed to have been incurred in or aggravated by service if manifested to a compensable degree within one year of discharge from service. See 38 U.S.C. §§ 1101, 1112 (2012); 38 C.F.R. §§ 3.307, 3.309. To show chronicity there is a requirement of a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word “chronic”. 38 C.F.R. § 3.303(b) (2018). In these types of cases the disease is presumed under the law to have had its onset during service even though there is no evidence of that disease during service. 38 C.F.R. § 3.307(a). This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. § 1113 (2012); 38 C.F.R. §§ 3.307(d), 3.309(a). Pursuant to 38 C.F.R. § 3.309(a) if a disease is not shown to be chronic during service or the one-year presumptive period, then service connection may also be established by showing a continuity of symptomatology after service. 38 C.F.R. § 3.303(b). Continuity of symptomatology may be established by demonstrating: (1) that a condition is shown in service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Id. However, to use continuity of symptoms to establish a direct service connection is limited only to those disease listed under 38 C.F.R. § 3.309(a) and does not apply to other disabilities. Additionally, veterans who served in the Republic of Vietnam during the Vietnam era are presumed to have been exposed to certain herbicide agents (e.g., Agent Orange). 38 U.S.C. § 1116 (2018); 38 C.F.R. § 3.307. In the case of such a veteran, service connection for certain diseases will be presumed if they become manifest to a degree of 10 percent or more at any time after service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307, 3.309. The Board finds that the RO erred in failing to apply the statutory and regulatory provisions extant at that time, and that it is undebatable that the evidence of record demonstrated that service connection for DMII was warranted. The Veteran was diagnosed with DMII in February 2009, and the diagnosis was confirmed in March 2009, as noted in the May 2009 rating decision. Those same VA treatment records linked the Veteran’s diagnosed DMII to his service in the Republic of Vietnam. However, VA treatment records in April 2009 noted that the Veteran did not have DMII. The Veteran sought service connection for DMII in March 2009, which was denied in the May 29, 2009, rating decision being challenged. The basis of the May 2009 denial for service connection for DMII was that there was no current diagnosis of DMII and no link to the Veteran’s service. The May 2009 rating decision determined that the Veteran in March 2009 had complaints, treatment, and a diagnosis of DMII and then found that the Veteran did not have a diagnosis as of April 2009. Therefore, the rating decision determined in the absence of a current diagnosis service connection was denied. The Board finds that the RO committed error in the May 2009 rating decision by failing to consider that the Veteran had been diagnosed with the DMII in March 2009, during the period on appeal, despite his DMII being removed from his active problem list in April 2009. The RO also failed to acknowledge VA treatment records that confirmed the Veteran’s DMII was directly related to his active duty service in Vietnam. See DD214 Form, and CAPRI records submitted October 2012. The Board finds that the RO further committed error by failing to apply the presumptive service connection for exposure to herbicide agents due to the Veteran’s confirmed active duty service in the Republic of Vietnam pursuant to 38 U.S.C. § 1116; 38 C.F.R. § 3.307, 3.309. In order to overcome the presumption of exposure to herbicide agents the RO needed to find affirmative evidence to the contrary. See 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a). It is clear from the face of the rating decision that the RO did not apply the provisions of 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307(d), 3.309(a) as it did not address whether the evidence of record showed that the Veteran had met the presumption of exposure to herbicide agents, nor whether there was affirmative evidence to the contrary as to his diagnosis of DMII due to his service in the Republic of Vietnam. The Board finds that had the presumption of exposure to herbicide agents been applied to the evidence of record at the time of the May 2009 rating decision, it would have resulted in a grant of service connection for DMII as of March 13, 2009. In this regard, the RO also did not apply the standard of the Veteran being diagnosed during the appeal period, even if the disability had been resolved pursuant to the findings in McClain v. Nicholson, 21 Vet. App. 219 (2007). Along these lines, the Board notes that in May 2009, as indicated above, DMII is a chronic disease subject ot the presumptive service connection pursuant to 38 C.F.R. §§ 3.307, 3.309(a). As such, the criteria for a finding of CUE in the May 2009 rating decision that denied service connection for DMII have been met. Therefore, the May 29, 2009, rating decision is to be revised and the Veteran’s DMII should be granted service connection as of March 13, 2009. Entitlement to an effective date prior to April 25, 2012, for the establishment of service connection for DMII In this decision, the Board has granted revision of the May 29, 2009, rating decision on the basis of CUE to reflect a grant of service connection for DMII as of March 13, 2009. Consequently, the Veteran’s appeal seeking entitlement to an earlier effective date for the establishment of service connection for this disability is moot as the benefit sought in connection with that appeal is already in effect. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Entitlement to an effective date prior to November 23, 2012, but not earlier than September 11, 2009, for an evaluation of 50 percent for sinusitis The Veteran contends that he is entitled to a 50 percent evaluation for his sinusitis from September 11, 2009, to November 22, 2013. The Veteran was rated at 10 percent disabling, effective September 11, 2009, and was rated at 50 percent disabling, effective November 23, 2012. As discussed above the Board’s focus will be on the time frame of September 11, 2009, to November 22, 2012, for the Veterans claim of an increased disability rating. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes (DCs). 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question between two evaluations, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In accordance with 38 C.F.R. §§ 4.1, 4.2 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. Each disability is viewed in relation to its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). The Board notes that where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2018). Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). VA must consider all favorable lay evidence of record. 38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all of the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, if there is a balance between positive and negative competent evidence then the issues shall be resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2018). The Veteran’s sinusitis is governed by the 38 C.F.R. § 4.97, Diagnostic Code 6514 which is rated under the General Rating Formula for Sinusitis. The Veteran is currently rated at 10 percent disabling for the window under review, which requires one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The next highest rating of 30 percent requires three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The highest rating is 50 percent disabling and requires following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. Id. The Board finds that after thorough review of the Veteran’s records from September 11, 2009, to November 22, 2012, the preponderance of evidence of record shows that the Veteran’s disability picture manifested more closely to the 10 percent disability rating. After reviewing the Veteran’s VA treatment records the Board notes that the Veteran had regular treatment and complaints of allergies and sinus problems, but was not diagnosed with sinusitis, was not prescribed lengthy treatment with antibiotics, and was not complaining of headaches, pain, purulent discharge, and had no note of incapacitating or non-incapacitating episodes during the Board’s window of review. In October 2009 the Veteran was found to have chronic sinusitis and was given a steroid for congestion. In February 2010 the Veteran denied sinus problems and had no tenderness of his frontal or maxillary sinus. In June and July 2010, the Veteran was referred for a follow-up appointment to an otolaryngologist (ENT), for breathing issues at night and was provided a prescription to a combined decongestant and antibiotic but was told to use it as needed. See CAPRI records submitted September 2010. In October 2012 the Veteran denied nasal discharge, cough, and was taking allergy medication, but denied complaints of breathing issues. See CAPRI records submitted December 2012. The Board finds that the Veteran’s treatment records to be competent, credible, and with significant probative weight. The Veteran’s sinus VA examination from April 2012 noted the Veteran’s diagnosed chronic sinusitis and his long history of multiple episodes of sinusitis, treatment with different medications, and the use of Flonase and intermittent antibiotics. The Veteran was noted as having headaches, pain and tenderness of the affected sinus, and purulent discharge or crusting. The Veteran reported that when he has sinusitis, he has headaches and sinus pressure, and when using antibiotics there is discharge and crusting. The examiner noted no response to whether the Veteran had non-incapacitating episodes over the last 12 months and no response as to whether the Veteran had incapacitating episodes over the last 12 months. There was also no response as to whether the Veteran had sinus surgery. The Veteran’s imaging studies of his sinuses were provided from March 2009 with findings that were consistent with both chronic and acute sinusitis with descriptions of each section of the Veteran’s sinuses. The examiner found that the Veteran’s chronic sinusitis did not functionally impact the Veteran except that it may cause absences. The Board finds the VA examination to be competent, credible, and with significant probative weight. The time frame between September 11, 2009, to November 22, 2012, do not show that the Veteran has met the criteria for an evaluation in excess of 10 percent for sinusitis. As the next highest rating of 30 percent requires the Veteran during this time did not have three or more incapacitating episodes per year of sinusitis that required prolonged antibiotic treatment or more than six non-incapacitating episodes per year of sinusitis that were with headaches, pain, and purulent discharge or crusting. The Board finds that this lack of evidence of episodes of sinusitis with prolonged antibiotics treatment, complaints of headaches, pain, discharge, incapacitating episodes and non-incapacitating episodes shows that the Veteran is not entitled to an increased evaluation in excess of 10 percent for the period of September 11, 2009, to November 22, 2012. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. West, 12 Vet. App. 71, 74 (1998), aff’d sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (the definition of evidence encompasses “negative evidence” which tends to disprove the existence of an alleged fact, i.e., the lack of evidence is itself evidence). The Board has also considered staged ratings and have found that they are not appropriate in this case. (CONTINUED NEXT PAGE) When there is an approximate balance between positive and negative evidence the benefit of the doubt doctrine must apply in favor of the Veteran. But when the preponderance of the evidence weighs against the claims of the Veteran the claim will be denied on its merits. In this case the preponderance of the evidence is against the claims of the Veteran, therefore the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, an evaluation in excess of 10 percent disabling for the period of September 11, 2009, to November 22, 2012, is not warranted. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C.A. Teich, 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.