Citation Nr: 20023092 Decision Date: 04/03/20 Archive Date: 04/03/20 DOCKET NO. 19-05 491 DATE: April 3, 2020 ORDER New and material evidence having been submitted, reopening the claim for service connection for hepatitis C is granted. Entitlement to an effective date earlier than December 1, 2015, for radiculopathy, left lower extremity, associated with facet arthritis lumbosacral spine is denied. REMANDED Entitlement to service connection for a psychiatric disability, to include major depressive disorder (MDD) and anxiety, is remanded. Entitlement to service connection for headaches, claimed as migraines, is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for hepatitic C is remanded. Entitlement to service connection for a liver disability is remanded. Entitlement to an effective date earlier than April 6, 2011, for the grant of service connection for radiculopathy, right lower extremity, associated with facet arthritis lumbosacral spine is remanded. Entitlement to an effective date earlier than April 6, 2011, for the grant of service connection for facet arthritis lumbosacral spine is remanded. Entitlement to an initial rating greater than 10 percent for radiculopathy, left lower extremity, associated with facet arthritis lumbosacral spine is remanded. Entitlement to a rating greater than 20 percent for radiculopathy right lower extremity associated with facet arthritis lumbosacral spine is remanded Entitlement to a rating greater than 20 percent for facet arthritis lumbosacral spine is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. In a January 2013 rating decision, the Agency of Original Jurisdiction (AOJ) denied the Veteran’s claim for service connection for hepatitis C. The Veteran did not timely appeal this decision nor did he submit new and material evidence within the one-year period. 2. Evidence received since the January 2013 rating decision includes evidence that relates to previously unestablished facts necessary to substantiate the claim for service connection for hepatitis C. 3. A claim of entitlement to service connection for radiculopathy, left lower extremity, was inferred by the RO from a claim for an increased rating for facet arthritis lumbosacral spine received by VA on December 1, 2015; a VA examination dated in March 2016 is the earliest evidence that establishes left lower extremity radiculopathy. CONCLUSIONS OF LAW 1. The January 2013 rating decision that denied entitlement to service connection for hepatitis C is final. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 2. New and material evidence has been received to reopen the claim for entitlement to service connection for hepatitis C. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (a) (2019). 3. An effective date earlier than December 1, 2015, for the grant of service connection for radiculopathy of the left lower extremity associated with facet arthritis of the lumbosacral spine is not warranted. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to August 1989. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran’s representative submitted additional evidence in support of the Veteran’s service connection claims and included a waiver of review of the evidence by the AOJ in the first instance. 38 C.F.R. § 20.1304(c). Also at that time, the Veteran’s representative submitted medical evidence relevant to his assertion that the Veteran is unable to work due to a combination of service-connected disabilities in addition to claimed disabilities that are currently pending before the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to service connection TDIU is part of a rating issue when unemployability is expressly raised by a veteran or reasonably raised by the record. The Board thus finds that the Veteran via his representative has reasonably raised a claim for a TDIU per Rice; however, remand is required prior to adjudication of the claim for a TDIU. The Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the regional office addressed TDIU in the first instance. 1. Claim to Reopen Service Connection for Hepatitis C Generally, an unappealed RO denial is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. However, upon the receipt of “new and material” evidence, a veteran may request that VA reopen a claim. 38 U.S.C. § 5108. If new and material evidence is presented or secured with respect to a claim that has been disallowed, VA must reopen the claim and review its former disposition. In the instant case, the RO denied the Veteran’s claim for service connection for hepatitis C in January 2013 on the basis that the evidence did not show a link between the disability and service. The Veteran did not appeal that decision and it is the last final rating decision of record. 38 U.S.C. § 7105 (c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2018). The present appeal stems from a March 2016 rating decision that reopened the previously denied claim for service connection for hepatitis C and denied the claim on the merits. Regardless of the RO’s action with respect to reopening the claim, the Board must make its own determination. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Evidence that was received following the January 2013 final adverse rating decision includes the opinion of a VA examiner in March 2016 who reported that the Veteran’s service treatment records clearly showed that he had an “elevated SGOT(ALT)” in service (in January 1987), but the examiner was unable to determine if that was the first indication/reflection that he would later develop Hepatitis C. He explained that the records do not continue to monitor the abnormal findings. The examiner also reported that the Veteran’s birthday falls 5 weeks short of a nationally recognized risk factor for the development of hepatitis C and that he has hemochromatosis which is known to contribute to the etiology of abnormal liver functions. This post January 2013 evidence raises a reasonable possibility of substantiating the Veteran’s claim for service connection for hepatitis C since it indicates a possible nexus between the Veteran’s hepatitis C and service. Therefore, the Board finds that new and material evidence has been received since the January 2013 final, adverse RO decision. Thus, as new and material evidence has been received, the claim of entitlement to service connection for hepatitis C is reopened. 38 U.S.C. §§ 5108, 7105 (2012); 38 C.F.R. § 3.156 (2018). 2. Effective Date Earlier Than December 1, 2015, for the Grant of Service Connection for Radiculopathy, Left Lower Extremity Generally, the effective date of an evaluation and award of compensation based on an original claim or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments are effective for claims and appeals filed on or after March 24, 2015. By way of background, the RO granted the Veteran’s April 2011 claim for service connection for a back disability, claimed as a herniated disc, in January 2013. At this time the RO also granted service connection for facet arthritis, lumbar spine, and radiculopathy, right lower extremity, as secondary to service-connected facet arthritis lumbosacral spine. This was based in part on findings from a December 2012 VA examination showing radiculopathy on the right side only. In May 2014, the Veteran filed a claim for an increased rating for his service-connected back disability which the RO denied in July 2014. The Veteran also filed a claim for an increased rating for his right lower extremity radiculopathy in July 2014 which the RO denied in October 2014. In conjunction with this latter claim, the Veteran underwent a VA examination in September 2014. The results of this examination revealed radiculopathy on the right side only. Thereafter, on December 1, 2015, the Veteran filed a claim for an increased rating for his back disability and for “nerves R/foot”. He was afforded a VA examination in March 2016 and was found at that time to have radicular symptoms on the left side. In March 2016, the RO granted service connection for radiculopathy, left lower extremity, as secondary to service-connected facet arthritis lumbosacral spine, and assigned a 10 percent rating, effective December 1, 2015. As the facts outlined above show, the date of claim for the AOJ’s grant of service connection for radiculopathy, left lower extremity, is inferred from the Veteran’s December 1, 2015, claim for an increased rating for his lumbosacral spine disability. No earlier unadjudicated claim is shown in the record prior to December 1, 2015. Regarding the date that entitlement arose, this is the date of the March 2016 VA medical examination report which is the earliest indication that the Veteran had radicular symptoms on the left side identified as numbness. Thus, considering that the December 2015 date of claim is earlier than the March 2016 date that entitlement arose for radiculopathy, left lower extremity, there is clearly no legal basis for the assignment of an effective date any earlier than December 1, 2015. 38 C.F.R. § 3.400. Accordingly, the Veteran’s claim for an effective date earlier than December 1, 2015, for the grant of service connection for left lower extremity radiculopathy associated with facet arthritis lumbosacral spine is denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning an effective date before that already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 56. REASONS FOR REMAND As noted, in May 2019, the Veteran’s representative submitted additional evidence in support of the Veteran’s claims for service connection. 38 C.F.R. § 20.1304(c). This evidence includes medical opinions that indicate a possible link between the Veteran’s MDD, sleep apnea and headaches to service, to a service-connected disability or to a claimed service-connected disability that is presently pending before the Board. While this evidence is not sufficient to decide these claims at this time, it triggers VA’s duty to afford the Veteran VA examinations with respect to these disabilities. 38 U.S.C. § 5103A(d); see also McClendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). Similarly, now that the Veteran’s claim for service connection for hepatitic C has been reopened, he should be afforded a VA examination to obtain clarification regarding the nature and etiology of his hepatitis C. Id. In addition, the record indicates that the Veteran is in the process of applying for disability benefits from the Social Security Administration (SSA). See May 2019 Mental Health DBQ. Because those records may be relevant to the present appeal involving service connection and increased rating claims, a remand is necessary so that the records may be obtained and reviewed by the AOJ. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). By way of the July 2016 Notice of Disagreement, the Veteran initiated an appeal of the claims for earlier effective dates for the grant of service connection for radiculopathy, right lower extremity, and facet arthritis lumbosacral spine; however, these issues were not included in the Statement of the Case and thus have not been perfected for appellate review. See 38 C.F.R. § 20.200. In regard to these issues, the RO granted service connection for facet arthritis of the lumbosacral spine and for radiculopathy of the right lower extremity in a January 2013 rating decision which the Veteran did not appeal and is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In this regard, once there is a relevant final decision on an issue, there cannot be a “freestanding claim” for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). In other words, after a rating decision that assigns an effective date becomes final, an earlier effective date may be established only by a request for revision of that decision based on clear and unmistakable error (CUE). See Rudd, 20 Vet. App. at 299. Nonetheless, because the filing of a notice of disagreement initiates appellate review and the Veteran included these issues on the substantive appeal, the claim must be remanded for the preparation of a statement of the case. Manlincon v. West, 12 Vet. App. 238 (1999); Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). Lastly, as discussed in the Introduction above, remand is required prior to adjudication of the claim for a TDIU. The Veteran has not been provided adequate notice of the requirements to substantiate TDIU, nor has the regional office addressed TDIU in the first instance. Additionally, adjudication of the currently pending claims may impact the TDIU claim. The matters are REMANDED for the following action: 1. Issue a Statement of the Case to the Veteran and his representative regarding his appeal of an earlier effective date for the grant of service connection for radiculopathy, right lower extremity associated with facet arthritis lumbosacral spine, and follow all appropriate appellate proceedings thereafter. 2. Issue a Statement of the Case to the Veteran and his representative regarding his appeal of an earlier effective date for the grant of service connection for facet arthritis lumbosacral spine, and follow all appropriate appellate proceedings thereafter. 3. Provide the Veteran with notice of the requirements to substantiate a claim for TDIU, including a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 4. Request that SSA furnish a copy of any decision as to the Veteran disability benefits, as well as copies of all medical records underlying that determination. Follow the procedures set forth in 38 C.F.R. § 3.159 (c) as regards requesting records from Federal facilities. All records and/or responses received should be associated with the claims file. 5. Schedule the Veteran for VA examinations to determine the nature and/or etiology of any psychiatric disability to include MDD and anxiety, sleep apnea, headache disability and hepatitis C. Access to the Veteran’s claims file should be made available to the examiners for review in connection with the examinations. (a) The examiners should identify all diagnoses involving claimed psychiatric, sleep, and headache disabilities as well as hepatitis C. (b) The examiners should then provide an opinion as to whether it is at least as likely as not (50 percent degree of probability or higher) that each identified disability was incurred in the Veteran’s active duty service, manifested within a year of his active duty discharge, or is secondary to service-connected disability. Regarding secondary service connection, the examiner must opine whether such disability is (1) proximately due to service-connected disability, or (2) aggravated beyond its natural progression by service-connected disability. (c) In addressing the above, the examiners must consider and discuss all pertinent medical, periodical, and other objective in- and post-service evidence, and all lay assertions. (d) In this regard, the examiners should note that the absence of evidence of treatment for a disability in the Veteran’s service treatment records should not serve as the sole basis for a negative opinion. (e) The examiners are also advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the Veteran’s assertions in any regard are discounted, the examiners should clearly so state and explain why. (f) All examination findings/testing results (if any), along with complete, clearly stated rationale for the conclusions reached, must be provided. Regarding the claim for service connection for hepatitis C, the examiner should specifically comment on the relevance, if any, of the Veteran’s elevated SGOT/ALT in service in January 1987. 6. Then, after undertaking any additional development deemed appropriate, adjudicate the Veteran’s pending claims in light of the additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Shawkey, 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.