Citation Nr: 21062492 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 18-28 127A DATE: October 7, 2021 ORDER Service connection for chronic pain syndrome is granted. Entitlement to an earlier effective date of June 21, 2013, for service connection for right knee arthroscopic surgical scars is granted. Entitlement to an earlier effective date prior to February 16, 2016, for service connection for left lower extremity femoral radiculopathy is denied. Entitlement to an earlier effective date prior to February 16, 2016, for service connection for right lower extremity femoral radiculopathy is denied. Entitlement to an earlier effective date prior to February 16, 2016, for service connection for right elbow olecranon bursitis with spur with limited pronation is denied. REMANDED Entitlement to service connection for erectile dysfunction is remanded. Entitlement to an initial, compensable evaluation for ascending aortic aneurysm is remanded. Entitlement to a rating in excess of 20 percent for nephrolithiasis (kidney stones) with microhematuria is remanded. Entitlement to a rating in excess of 20 percent for hypertension is remanded. Entitlement to an initial rating in excess of 20 percent for thoracolumbar degenerative disc/joint disease is remanded. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity femoral radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity femoral radiculopathy is remanded. Entitlement to a rating in excess of 20 percent right elbow olecranon bursitis with spur with limited flexion is remanded. Entitlement to an initial rating in excess of 20 percent for right elbow olecranon bursitis with spur with limited pronation is remanded. Entitlement to an initial compensable rating for right knee arthroscopic surgical scars is remanded. The propriety of the reduction to 0 percent disabling for right sciatic involvement, effective August 3, 2016, is remanded. The propriety of the reduction to 0 percent disabling for left sciatic involvement, effective August 3, 2016, is remanded. Entitlement to special monthly compensation benefits due to loss of use of a creative organ is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. By a June 2014 rating decision, the Regional Office, in pertinent part, denied service connection for chronic pain syndrome, ascending aortic aneurysm, and granted service connection for thoracolumbar degenerative disc/joint disease and bilateral sciatic involvement, and granted increased ratings for right elbow olecranon bursitis with spur and kidney stones, and denied increased ratings for hypertension and right knee degenerative joint disease, and TDIU. 2. The Veteran did not receive proper notice of the June 2014 rating decision; thus, it is not final. 3. Resolving all doubt in favor of the Veteran, his chronic pain syndrome is related to service-connected disabilities. 4. An effective date of June 21, 2013 is warranted for the Veteran's right knee arthroscopic surgical scars, as his scars were present at the time of his June 21, 2013, increased rating claim for his right knee, addressed in the June 2014 rating decision which did not become final. 5. Entitlement did not arise prior to the February 16, 2016, effective date assigned for the grant of service connection for bilateral lower extremity femoral radiculopathy and right elbow olecranon bursitis with spur with limited pronation. CONCLUSIONS OF LAW 1. The RO's June 2014 rating decision is not final. 38 U.S.C. §§ 7105; 38 C.F.R. §§ 3.156, 20.200, 20.201, 20.302, 20.1103. 2. The criteria for service connection for chronic pain syndrome are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for an effective date of June 21, 2013, for service connection for right knee arthroscopic surgical scars have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 4. The criteria for an effective date prior to February 16, 2016, for service connection for left lower extremity femoral radiculopathy have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 5. The criteria for an effective date prior to February 16, 2016, for service connection for right lower extremity femoral radiculopathy have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 6. The criteria for an effective date prior to February 16, 2016, for service connection for right elbow olecranon bursitis with spur with limited pronation have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to September 1993. In May 2021, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is of record. Service Connection The Veteran seeks service connection for chronic pain syndrome, which he claims is secondary to his service-connected musculoskeletal disabilities. Service connection may be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310. As an initial matter, the Board finds that the record shows that the Veteran has a diagnosis of chronic pain syndrome, and that it causes functional impairment, such that it qualifies as a disability. In particular, the Veteran stated that the pain medication he takes to manage his symptoms make it unable for him function on a normal level, due to side effects such as dizziness, lethargy, trouble concentrating, balance problems and short-term memory loss. In June 2016, the Veteran submitted a Multiple Impairment Questionnaire, completed by his private physician. The clinician noted that the Veteran had chronic pain syndrome, associated with his service-connected degenerative arthritis, as well as his kidney disorder. He specifically noted pain related to the Veteran's elbow, knee and kidney stones, and that pain medication was necessary to control the symptoms. In December 2016, the Veteran underwent a VA examination. After review of the record and examination of the Veteran, the clinician found that the Veteran's chronic pain syndrome was related to his service-connected musculoskeletal disorders, as there was pain noted in all palpated joints. Accordingly, and resolving any reasonable doubt in favor of the Veteran, service connection for chronic pain syndrome, as secondary to service-connected disabilities, is granted. Effective Date The Veteran asserts that he is entitled to an effective date prior to February 16, 2016, for the grant of service connection for bilateral lower extremity femoral radiculopathy, right elbow olecranon bursitis with spur with limited pronation and right knee arthroscopic surgical scars. When a claim is submitted more than one year after service, the effective date shall be the date of the receipt of the claim or the date entitlement arose, whichever is later. U.S.C. § 5110(a); 38 C.F.R. § 3.400. By way of history, service connection for the Veteran's right elbow pain with history of olecranon bursitis and right knee disability was initially granted in an October 1996 rating decision, which assigned a 0 and 10 percent rating, respectively. The Veteran appealed the rating for his right knee, and such was denied in a December 1997 Board decision. In March 2003, the Veteran sought an increased rating for his right elbow pain with history of olecranon bursitis and right knee disability, both rated as 10 percent disabling, though as discussed below, the 10 percent rating noted for the elbow was later reversed as an error. Such was denied in an August 2003 rating decision. In August 2009, the Veteran again sought an increased rating for his right elbow pain with history of olecranon bursitis and right knee disability. Such was denied in a December 2009 rating decision. An April 2010 rating decision noted that the August 2009 rating decision committed a clear and unmistakable error in continuing the 10 percent rating for the right elbow, but increased the rating to 10 percent, effective August 17, 2009. With respect to all of the above rating decisions, save the right knee rating denied by the Board in October 1997, the Veteran neither appealed them nor submitted new and material evidence within one year, and they therefore became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Regarding the October 1997 Board decision, such was not appealed to the United States Court of Appeals for Veterans Claims, and thus, also became final. In June 2013, the Veteran again sought an increased rating for his right elbow pain with history of olecranon bursitis and right knee disability. A June 2014 rating decision increased the Veteran's elbow rating to 20 percent disabling, effective June 21, 2013, and denied an increase for the right knee disability. Additionally, the June 2014 rating decision granted service connection for the Veteran's thoracolumbar degenerative disc/joint disease, assigning a 20 percent rating. However, the record does not include the standard notification letter, which outlines the Veteran's appellate rights, issued in conjunction with rating decisions. Most recently, the Veteran submitted an Application for Increased Compensation Based on Unemployability on February 16, 2016. On June 21, 2016, he submitted an Application for Disability Compensation and Related Compensation Benefits, indicating, in pertinent part, pain related to his right knee, right elbow and back. In a January 2017 rating decision, the RO granted service connection for bilateral lower extremity femoral radiculopathy, assigning a 10 percent rating for each, effective June 21, 2016. That decision also continued the 10 percent rating for the Veteran's elbow and 20 percent rating for his back. An April 2017 rating decision corrected the effective date for bilateral lower extremity femoral radiculopathy to February 16, 2016, continued the 20 percent rating for right elbow olecranon bursitis with spur with limited flexion, and granted service connection for right elbow olecranon bursitis with spur with limited pronation, assigning a 20 percent rating effective February 16, 2016. Service connection for right knee arthroscopic surgical scars was also granted with an evaluation of 0 percent, effective February 16, 2016. Significant to the issues at hand, the Board finds the Veteran never received VA's June 2014 rating decision, as the notification letter is not included in the record. Therefore, he never received notice of his appellate rights, and thus, the June 2014 rating decision never became final. The claim which initiated the June 2014 rating decision was received by VA on June 21, 2013. Here, the Board finds that an effective date of June 21, 2013, is warranted for the Veteran's right knee arthroscopic surgical scars, as his scars were present at the time of his June 21, 2013, increased rating claim for his right knee. However, an effective date prior to June 21, 2013, is not warranted, as discussed further below. Conversely, the Board finds that an effective date earlier than February 16, 2016, is not warranted for the grant of service connection for bilateral lower extremity femoral radiculopathy or right elbow olecranon bursitis with spur with limited pronation. Such grants were based on examinations procured in relation to a claim of worsening of his related service-connected disabilities. In particular, the subsequent grant of service connection for bilateral lower extremity femoral radiculopathy was based on an August 2016 VA examination showing involvement of the bilateral femoral nerve. Similarly, the grant of service connection for right elbow olecranon bursitis with spur with limited pronation was based on a February 2017 VA examination showing limitation of pronation. Notably, right elbow pronation and bilateral femoral nerve involvement were not found during the April 2014 VA examination upon which the June 2014 rating decision was based. Again, effective dates are governed by the date of the receipt of the claim, or the date entitlement arose, whichever is later. Thus, even considering the date of his June 21, 2013, claim, there is no suggestion during the relevant appeal period that entitlement arose prior to the already assigned effective date of February 16, 2016, as the disabilities in question were not evidenced until the August 2016 and February 2017 VA examinations. In making the determination that an effective date prior to June 21, 2013, is not warranted for the grant of right knee surgical scars and that an effective date earlier than February 16, 2016, is not warranted for the grant of service connection for bilateral lower extremity femoral radiculopathy or right elbow olecranon bursitis with spur with limited pronation, the Board has considered whether the Veteran may have been continuously prosecuting a claim for bilateral lower extremity femoral radiculopathy, right elbow olecranon bursitis with spur with limited pronation and right knee arthroscopic surgical scars as part and parcel of the initial claims of service connection for a back, elbow and knee disability. However, as set out above, prior decisions which awarded service connection for such and subsequently adjudicated increased rating claims have all become final, up until the June 2014 rating decision. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104(b), 3.105(a). When a rating decision is final, only a request for a revision premised on CUE could result in the assignment of an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). The "implicit denial" rule provides that in certain circumstances, a claim for benefits will be deemed to have been denied, and thus finally adjudicated, even if VA did not expressly address that claim in its decision. See Adams v. Shinseki, 568 F.3d 956, 961 (Fed. Cir. 2009). In Cogburn v. Shinseki, 24 Vet. App. 205 (2010), the Court set forth four factors that must be considered when determining whether a claim was implicitly denied: (1) the relatedness of the claims; (2) whether the adjudication alluded to the pending claim in such a way that it could reasonably be inferred that the prior claim was denied; (3) the timing of the claims; and (4) whether the claimant is represented. Cogburn, 24 Vet. App. at 212-14. Regarding the first factor, the Board finds that bilateral lower extremity femoral radiculopathy, right elbow olecranon bursitis with spur with limited pronation and right knee arthroscopic surgical scars are related to the initial claims of service connection for a back, elbow and knee disability, as such the recently service-connected disorders stem from the already service-connected disabilities. About the second factor, prior decisions discussed the pertinent medical evidence of record in relation to the applicable diagnostic codes, such that it could reasonably be inferred that the prior claim was denied. Regarding the third factor, the timing of the claims, at no point did the Veteran file separate claims for bilateral lower extremity femoral radiculopathy, right elbow olecranon bursitis with spur with limited pronation and right knee arthroscopic surgical scars. For the fourth factor, the Veteran has been continuously represented since he first initiated his claims. As above, the Veteran did not appeal the prior decisions which addressed his back, elbow and knee disabilities. Further, neither the Veteran, nor his representative, have alleged any CUE in the prior decisions, nor have they articulated any reason why earlier effective dates should be granted. Accordingly, the Board finds that an effective date of June 21, 2013, for the grant of service connection for right knee arthroscopic surgical scars is warranted. However, the claim of entitlement to earlier effective dates for bilateral lower extremity femoral radiculopathy and right elbow olecranon bursitis with spur with limited pronation must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to earlier effective dates for those issues, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. REASONS FOR REMAND Missing Records Remand is necessary to obtain missing private treatment records pertinent to the Veteran's musculoskeletal disabilities on appeal as well as his increased rating claim for an aneurysm. Specifically, the Veteran testified that he receives private treatment from a pain specialist in Lake City and a heart surgeon, Dr. M., from the Mayo clinic. Examinations Remand is necessary to afford the Veteran current VA examinations for his increased rating claims for kidney stones, hypertension, right elbow, right knee, and back. In particular, he was last afforded VA examinations for all but his elbow in August 2016, while his elbow examination occurred in February 2017. Such examinations which are now over four and five years old, are too remote in time to adjudicate the Veteran's increased-rating claims. Remand is necessary to afford the Veteran a VA examination and etiological opinion for his claimed erectile dysfunction. In this regard, though he was previously scheduled for such in April 2017, the record reflects that the Veteran notified VA he was unable to attend the examination but was never rescheduled for such. Intertwined Issues The issues of SMC and TDIU are intertwined with the above issues and must be remanded as well. The matters are REMANDED for the following action: 1. Take appropriate action to obtain authorization from the Veteran to request his private treatment records, to include records from his private pain specialist in Lake City and his cardiologist, Dr. M., from the Mayo clinic. Make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and afford him an opportunity to submit any copies in his possession. 2. Afford the Veteran an appropriate VA examination to determine the nature and etiology of his erectile dysfunction. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following an interview with the Veteran, a review of the evidence of record, and a physical examination, the examiner should render an opinion as to the following: Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's erectile dysfunction was caused or aggravated by his service-connected hypertension or psychiatric disorder? A complete rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected hypertension. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Any appropriate tests should be conducted with the findings reported in detail. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected nephrolithiasis (kidney stones) with microhematuria. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiner. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. Any appropriate tests should be conducted with the findings reported in detail. 5. Afford the Veteran the appropriate VA examination(s) to assess the current severity of his (1) right elbow (2) right knee, and (3) back disabilities. The claims file, to include a copy of this remand, must be made available to and be reviewed by the examiners. The examiners must obtain from the Veteran and record in the examination reports the functional impairment he experiences due to his disabilities, to include, but not limited to, information regarding the severity, duration, frequency, and characteristics of any flare-ups. Both passive and active range of motion testing should be performed, in weight-bearing and nonweight-bearing of both the service-connected joints and the opposite nonservice-connected joints, if applicable. See Correia v. McDonald, 28 Vet. App. 158 (2016). If an examiner is unable to conduct any of the required testing, he or she must explain why this is so. Each examiner MUST provide a rationale for all opinions requested. In doing so, the examiners must consider the Veteran's lay statements regarding functional impairment he experiences. If any examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. All opinions must be compliant with Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). 6. Readjudicate the appeal. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.Z., 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.