Citation Nr: 21004453 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-34 178A DATE: January 27, 2021 ORDER Entitlement to an effective date prior to May 9, 2016, for the grant of service connection for left ankle degenerative arthritis is denied. Entitlement to an effective date prior to May 9, 2016, for the grant of service connection for right ankle degenerative arthritis is denied. Entitlement to an effective date prior to June 25, 2015, for the grant of service connection for major depressive disorder with alcohol use disorder is denied. New and material evidence, having been received, the issue of entitlement to service connection for a back disability is reopened. Entitlement to a total rating base on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED Entitlement to service connection for a back disability is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to an initial rating in excess of 50 percent for major depressive disorder with alcohol use disorder is remanded. Entitlement to a rating in excess of 10 percent, prior to March 27, 2017, for bilateral pes planus is remanded. Entitlement to a rating in excess of 30 percent, from March 27, 2017 to February 6, 2018, for bilateral pes planus is remanded. Entitlement to a rating in excess of 50 percent on and after February 6, 2018, for bilateral pes planus is remanded. Entitlement to a rating in excess of 10 percent for left ankle degenerative arthritis is remanded. Entitlement to a rating in excess of 10 percent for right ankle degenerative arthritis is remanded. INTRODUCTION The Veteran served on active duty from January to April 1986 and from April 1987 to October 1990. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2020, the Veteran through his attorney requested that his appeal be advanced on the Board’ docket due to financial hardship that resulted in homelessness. Later that month, a Deputy Vice Chairman of the Board granted the Veteran’s motion. In August 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ). At the August 2020 hearing, the undersigned VLJ granted the Veteran’s motion to keep the record open for 60 days. That time period has expired. The Board acknowledges the Veteran’s attorney’s November 24, 2020, request to keep the record open for an additional 60-day period in order to submit additional evidence. Because the Veteran’s case has been advanced on the Board’s docket due to financial hardship, including homeless, this motion is hereby denied, and the Board will adjudicate this appeal based on the current record. The Board acknowledges that the Veteran testified at a September 2020 hearing with different Veterans Law Judge with respect to a claim of entitlement to a rating in excess of 10 percent for left knee disability, in excess of 10 percent for right knee disability, and in excess of 10 percent for migraine headaches. These claims will be addressed in a separate Board decision. FINDINGS OF FACT 1. The Veteran submitted notice of intent to file unspecified claims that received by VA on May 9, 2016. 2. In August 2016, the Veteran submitted claims of entitlement to service connection for left and right ankle disabilities. 3. The Veteran submitted a claim of entitlement to service connection for a psychiatric disability that received by VA on June 25, 2015. 4. The Veteran’s original claim of entitlement to a back disorder was denied in a January 1991 rating decision because the objective evidence did not show a current disability. 5. The RO reconsidered the Veteran’s claim in an August 2007 rating decision, but confirmed and continued the denial thereof. 6. Despite receiving notice of the January 1991 and August 2007 rating decisions and notice of his appellate rights, the Veteran did not perfect an appeal or submit new and material evidence during the appeal period. 7. During the January 2020 hearing, the Veteran the onset of back pain during service and continuously after his service discharge. He also testified that his service-connected lower extremity disabilities caused or aggravated his back disability. 8. Throughout the appeal, it is reasonably shown that the combination of the Veteran’s service-connected disabilities precludes him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to May 9, 2016, for the award of service connection for left ankle degenerative arthritis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date prior to May 9, 2016, for the award of service connection for right ankle degenerative arthritis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for an effective date prior to June 25, 2015, for the award of service connection for major depressive disorder with alcohol use disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. As new and material evidence has been received, the Veteran’s claim of entitlement to service connection for a back disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for assignment of TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Effective Date Claims The Veteran submitted notice of intent to file claims that was received by VA on May 9, 2016. In August 2016, the Veteran submitted formal claims of entitlement to service connection for left and right ankle disabilities. On June 25, 2015, the Veteran submitted a claim of entitlement to service connection for a psychiatric disability that was date-stamped as received by VA on June 25, 2015. Service connection left and right ankle degenerative arthritis was ultimately granted in an April 2018 rating decision. Because the Veteran’s formal claims were received withing one year of VA receiving his notice of intent to file claims, an effective date of May 9, 2016 was assigned. In an April 2018 rating decision, service connection was granted for major depressive disorder with alcohol use disorder, effective December 21, 2014. In January 2020, the RO issue an administrative decision wherein it determined that the April 2018 rating decision included clear and unmistakable error as to the assigned effective date. Specifically, the RO determined that the actual date of the Veteran’s claim was June 25, 2015, not December 21, 2014. The RO corrected the error. The RO decided against initiating an action to recover the overpayment of benefits because the Veteran was not at fault for its creation. The Veteran disagreed and perfected an appeal seeking earlier effective dates. Governing law provides that the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year after separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). To date, the Veteran has not submitted or identified any evidence or argument as to the basis for his claim that he is entitled to an effective date prior to May 9, 2016, for the grants of service connection for left or right ankle degenerative arthritis. The Veteran has not asserted, and the evidence of record does not support, a finding that he submitted or VA received a formal or informal claim of entitlement to service connection for these disabilities prior to May 9, 2016. To date, the Veteran has not submitted or identified any evidence or argument as to the basis for his claim that he is entitled to an effective date prior to June 25, 2015, for the grant of service connection for major depressive disorder with alcohol use disorder. The Veteran has not asserted, and the evidence of record does not support finding that he submitted or VA received a formal or informal claim of entitlement to service connection for this disability prior to June 25, 2015. As such, the Board finds that an effective date prior to May 9, 2016, for the grants of service connection for left and right ankle degenerative arthritis is not warranted, and neither is an effective prior to June 25, 2015, or the grant of service connection for major depressive disorder with alcohol abuse. 38 C.F.R. § 3.400. In reaching these decisions, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claims for earlier effective dates, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Reopen Back Disability In June 2015, the Veteran submitted a claim to reopen the issue of entitlement to service connection for a back disability. A claim that has been finally adjudicated can be reopened and reconsidered if new and material evidence is presented raising a reasonable possibility of substantiating the claim. See 38 U.S.C. § 5108; see also 38 C.F.R. § 3.156(a). Here, the Veteran’s original claim of entitlement to service connection for a back disability was denied in a January 1991 rating decision because a then current disability was not found. The Veteran did not submit a Notice of Disagreement or new evidence in connection with that claim within the appeal period. See 38 C.F.R. § 3.156(b). In an August 2007 rating decision, the RO re-considered the Veteran’s claim of entitlement to service connection for a back disability after receiving additional service treatment records, but confirmed and continued the denial thereof. The RO sent the Veteran notice of this decision and notice of his appellate rights via an August 2007 letter, but he did not perfect an appeal or submit new and material evidence during the appeal period. As such, this decision is final. Id. During his August 2020 hearing before the Board, he testified that the onset of back pain occurred during his active duty and remained present after his service discharge. He also testified about how he modified his gait and other bodily movements to accommodate other service-connected disability, which either caused or aggravated his back pain. His testimony is “new” evidence because it was not previously of record, and “material” because it addresses an unestablished element, i.e., presence of a current disability or pain resulting in functional limitation. See 38 C.F.R. § 3.156(a). Additionally, the evidence meets the low threshold for reopening because, when combined with VA assistance (i.e., a VA examination and medical opinion), there is a reasonable possibility it can substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Therefore, the Board finds that the Veteran’s claim of entitlement to service connection for a back disorder should be reopened. TDIU In June 2015, the Veteran submitted a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Therein, the Veteran explained that he was unable to work to the combination of his physical and psychiatric disabilities. During the pendency of this appeal, the Veteran endorsed working for the U.S. Postal Service for 1996 to 1998 and recently for an automated teller machine company for 2 months. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The [V]eteran’s history, education, skill, and training; Whether the [V]eteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the [V]eteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the [V]eteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58 (2019). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system e.g. orthopedic are considered as one disability. Id. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The Veteran’s service-connected disabilities satisfy the schedular TDIU criteria. Here, the Veteran’s service-connected major depressive disorder has been assigned a 50 percent rating since June 25, 2015. Combined with the ratings for his other service-connected disabilities, the Veteran’s combined disability rating has been 70 percent or more since June 25, 2015. Thus, the Veteran’s service-connected disabilities satisfy the schedular criteria set forth in 38 C.F.R. § 4.16(a). After a thorough review of the record, the Board finds that the functional limitations imposed by the Veteran’s service-connected conditions precludes his performance of substantially gainful employment. Throughout the appeal, his records clearly indicate the severity of his service-connected disabilities, including medical treatments, surgical and non-surgical procedures, medications, and physical limitations. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As the Federal Circuit made clear in Geib, “VA [is] not required to obtain a single medical opinion that address[es] the impact of all service-connected disabilities on [the veteran’s] ability to engage in substantially gainful employment.” Id. After resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the conclusion that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment. The lay and medical evidence of record makes it at least as likely as not that the Veteran’s service-connected conditions have precluded substantial gainful employment consistent with his general education and labor-intensive occupational experience from June 25, 2015, that is, the day he met the TDIU criteria. Based on the evidence, the Board, as a finder of fact, concludes that the evidence supports a finding that the functional impairment associated with the Veteran’s service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. The Board finds it significant that the Veteran’s post-service work experiences had been limited and difficult to achieve. Thus, while the RO has indicated that the Veteran’s disabilities may not inhibit the Veteran from working, the Board finds that the disabilities do render the Veteran unable to secure substantially gainful employment in this particular case. In light of the foregoing, the Board concludes that entitlement to TDIU is warranted throughout the appeal. REASONS FOR REMAND Back and Fibromyalgia In order to satisfy VA’s duty to assist, the Board finds that a remand is warranted to provide the Veteran with VA examinations for his back disability and claimed fibromyalgia. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Major Depressive Disorder with Alcohol Use Disorder, Bilateral Pes Planus, And Left and Right Ankle Degenerative During the August 2020 hearing, the Veteran testified that each of these disabilities has worsened since the most recent VA examinations. As such, the Board finds that a remand is warranted. See Green v. Derwinski, 1 Vet. App. 121, 123-124 (1991) (holding that VA’s duty to assist includes providing a thorough and contemporaneous medical examination). The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete records from the Social Security Administration. 2. Request that the Veteran submit or identify any relevant evidence not already associated with the record. Specifically, request that the Veteran submit or identify evidence pertaining to the diagnosis of fibromyalgia and its etiological relationship to the Veteran’s active duty. 3. Schedule the Veteran for a VA examination to determine the nature, onset and etiology of Veteran’s back disability. The examiner is asked to review the pertinent evidence, including the Veteran’s lay evidence as to the onset of any back impairment and undertake any indicated studies. For any back impairment present, the examiner should opine whether it is at least as likely as not related to an in-service injury, event, or disease. The examiner is also asked to opine whether it is at least as likely as not that any present back disability was caused or aggravated by a service-connected disability. The examiner must consider and discuss the lay evidence regarding the onset and course of the Veteran’s back disability. A thorough rationale must be provided for any rendered opinion. 4. Schedule the Veteran for a VA examination to determine the presence of fibromyalgia. The examiner is asked to review the pertinent evidence, including the Veteran’s lay evidence as to the onset of any associated symptoms and undertake any indicated studies. If fibromyalgia is present, the examiner should opine whether it is at least as likely as not that it was incurred during active duty or is related to an in-service injury, event, or disease. A thorough rationale must be provided for any rendered opinion. 5. Schedule the Veteran for VA examinations to determine the current severity of his major depressive disorder with alcohol use disorder, bilateral pes planus, and left and right ankle degenerative arthritis. The claims file should be made available to and reviewed by the examiners. With respect to pes planus, the examiner is asked to opine as to whether this disability is manifested by any exceptional or unusual symptoms. With respect to bilateral ankles and bilateral pes planus, the examinations must be conducted by someone other than the examiner who conducted the February 2018 and October 2019 examinations. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean G. Pflugner, 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.