Citation Nr: 21062791 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-36 822 DATE: October 12, 2021 ISSUES Entitlement to an effective date earlier than May 11, 2015 for the grant of service connection for other specified depressive disorder (claimed as depression). Entitlement to an increased disability rating in excess of 50 percent for other specified depressive disorder. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disability. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disability. ORDER Entitlement to an effective date earlier than May 11, 2015 for the grant of service connection for other specified depressive disorder (claimed as depression) is denied. REMANDED Entitlement to an increased disability rating in excess of 50 percent for other specified depressive disorder is remanded. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disability is remanded. Entitlement to service connection for a right knee disability, to include as secondary to service-connected disability is remanded. FINDING OF FACT The effective date of May 11, 2015 is the earliest date that the Veteran submitted his intent to file a claim for entitlement to service connection for his other specified depressive disorder. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than May 11, 2015 for the grant of service connection for other specified depressive disorder (claimed as depression) have not been met. 38 U.S.C. §§ 5110, 7105; 38 C.F.R. §§ 3.159, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from July 1997 to August 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded in May 2019 for further development. In October 2020 the RO issued a rating decision which increased the Veteran's rating for other specified depressive disorder from 0 percent to 50 percent, effective May 11, 2015. As this is not a full grant of the Veteran's claim, the matter is still on appeal before the Board. AB v. Brown, 6 Vet. App. 35, 39 (1993). Based on the October 2020 rating decision the issue has been recharacterized as entitlement to an increased disability rating in excess of 50 percent for other specified depressive disorder. The claim has been reworded as noted above. See 38U.S.C. §5110 (b)(1); 38C.F.R. §3.400 (b)(2)(i). As it relates to the issue of entitlement to an increased rating for other specified depressive disorder as well as the issues of entitlement to service connection for a right hip and right knee disability, the Board finds that further evidentiary development is required before these claims on appeal can be adjudicated. Entitlement to an effective date earlier than May 11, 2015 for the grant of service connection for other specified depressive disorder (claimed as depression). The Veteran contends that he is entitled to an effective date earlier than May 11, 2015 for the grant of service connection for specified depressive disorder (claimed as depression). In the October 2017 Appellant Brief the Veteran's representative argued that the Veteran's depressive disorder was impacting him before the date he was assigned service connection. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello, supra. A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly-authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered as filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a). Turning to the case at hand, in an April 2016 rating decision, the RO granted service connection and assigned a noncompensable rating for other specified depressive disorder, effective August 23, 2015, the date that VA received that Veteran's fully complete claim. However, in a July 2017 rating decision the RO found clear and unmistakable error in the assignment of the effective date from the April 2016 rating decision. In a July 2017 rating decision, the effective date for service connection was changed to May 11, 2015, which was cited as the date the Veteran submitted an intent to file with VA. In a May 2019 Board decision, the Board found that the record did not contain any documentation associated with the claims file of the Veteran's May 11, 2015 intent to file. Therefore, this matter was remanded in order for the RO to associate all relevant documentation with the record. In August 2015, an Email Correspondence was added to the claims file which reflects an online screen printout showing that the Veteran submitted his electronic intent to file through eBenefits on May 11, 2015. After a review of the record the Board does find that the date of receipt of the Veteran's intent to file for entitlement to service connection for other specified depressive disorder is May 11, 2015 and the Veteran's award of service connection was properly made effective from that date. As noted above, the record reflects that the Veteran initiated an intent to file for benefits online electronically through eBenefits on this date. Further he submitted a fully complete claim within one year, on August 23, 2015. There is no evidence in the record of an informal claim or any other correspondence received prior to May 11, 2015, which could be construed as a claim for service connection for other specified depressive disorder. With regard to the Veteran's contention that he should be granted an effective date earlier than May 11, 2015 because the symptoms of his other specified depressive disorder arose earlier than that date, the Board notes that although entitlement to the benefit may have arisen earlier, the request for service connection for other specified depressive disorder was not received until May 11, 2015. The effective date will be based upon facts found but will not be earlier than the date of claim. As such, there is no statutory authority that would allow VA to grant the Veteran an effective date earlier than May 11, 2015. Accordingly, the Board concludes that May 11, 2015, is the proper effective date for the award of service connection for other specified depressive disorder and the claim for an earlier effective date must be denied. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against the claim, this doctrine is not for application. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an increased disability rating in excess of 50 percent for other specified depressive disorder is remanded. The Veteran contends that his other specified depressive disorder is more severely disabling than reflected in the currently assigned 50 percent rating. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran was last afforded a VA examination for other specified depressive disorder in November 2019. Since that time the Veteran as submitted statements which indicate that his depressive disorder may be worsening. In a December 2020 Statement in Support of the Claim the Veteran wrote that he had experienced symptoms such as suicidal thoughts and unprovoked irritability. Specifically, in July 2020 he got into a verbal and physical altercation with his wife leading to an emergency protective order being issued against him. Additionally, in a March 2021 Statement in Support of the Claim the Veteran reported and provided documentation from his physician that he was on short term leave from work partly due to symptoms related to his other specified depressive disorder. The United States Court of Appeals for Veterans Claims has held that when a Veteran alleges that his service-connected disability has worsened since the last examination, a new examination may be required to evaluate the current degree of impairment. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Therefore, as the Veteran has alleged worsening of his symptoms since he last underwent a mental disorder VA examination in November 2019, he should be afforded a new VA examination to assess the current nature, extent and severity of his service- connected other specified depressive disorder. 2. Entitlement to service connection for a right hip disability, to include as secondary to service-connected disability is remanded. The Veteran has contended that he is entitled to service connection for his right hip disability, to include as secondary to his service-connected bilateral plantar fascitis, left fifth toe fracture, left knee patellofemoral syndrome and left hip strain. For the reasons explained below, the Board finds that a remand is necessary to obtain a medical opinion which adequately addresses the issue of whether the Veteran's right hip disability is related to service as there are no adequate opinions of record. The Veteran was first afforded a VA hip examination for his right hip in March 2016. The Veteran described the onset of symptoms as beginning in 2005 after he developed bilateral plantar fasciitis. The Veteran reported functional loss due to his hips because he had difficulty with bending over due to pain. At that time the examiner noted a diagnosis of bilateral hip strain and opined that the Veteran's right hip disability was less likely than not caused or aggravated by his service-connected bilateral fascitis. The examiner's only rationale provided was that the review of medical records and medical literature did not support a nexus. The Veteran was afforded a new VA hip examination in July 2017. The Veteran reported that he experienced hip pain after prolonged walking. At the time that examiner continued a diagnosis of bilateral hip strain. The examiner opined that the Veteran's left hip disability was as least as likely as not related to his left fifth toe fracture and also opined that the right hip disability was less likely than not related to the toe fracture. In providing a rationale the examiner only provided an explanation for a positive nexus opinion of the left hip and provided no rationale for the negative nexus opinion for the right hip. Most recently the Veteran was afforded a hip examination in October 2019. The Veteran reported pain and stiffness which was exacerbated by walking and prolonged sitting. The examiner noted objective evidence of pain on range of motion testing which contributed to functional loss. The examiner did not provide a current diagnosis for the Veteran's right hip pain. The examiner opined that the Veteran's right hip symptoms were less likely than not related to an in- service event or one of the Veteran's claimed service-connected disabilities. At the RO's request the examiner provided an addendum opinion clarifying whether the Veteran had a current diagnosis for his right hip. The examiner provided an addendum opinion which was signed in September 2020 in which she opined that the Veteran had no appreciable pathology of the hip and that his symptoms of pain were attributable to his lumbosacral strain. The examiner provided another addendum opinion in September 2020 in which she explained that the Veteran was not diagnosed with a hip condition and that the pain in his hip was due to radiculopathy related to his service-connected lumbar spine disability. The Board notes that in McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the Court held that the requirement of a current disability is satisfied when the claimant had a disability at the time a claim for VA disability compensation was filed, or during the pendency of that claim, and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim. The Board recognizes that while the October 2019 VA examiner opined that the Veteran did not have a current hip disability at the time of her examination, there is evidence on the record that two previous VA examiners diagnosed hip strain during the pendency of the appeal. The Board therefore finds that an addendum opinion is required to obtain clarification as to whether the prior diagnoses of right hip strain were made in error or the disability is in remission. Romanowsky v. Shinseki, 26 Vet. App. 303 (2013). Further, if a right hip disability is not currently shown, an opinion should be provided as to the etiology of any right hip disability manifested or diagnosed at any point during the period on appeal. As such, upon remand it is necessary for the examiner to clarify the Veteran's right hip diagnosis. Additionally, in rendering an addendum opinion the examiner must be sure to adequately address the Veteran's complaints of pain in his right hip. As noted above, the Veteran has generally claimed that he experiences right hip pain and that this has led to some functional loss, including decreased activity levels. In Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." The case reversed years of precedent that had held that "pain alone is not a disability for the purposes of VA disability compensation." Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. A VA medical opinion is needed to assess the functional impairment of the Veteran's right hip pursuant to Saunders v. Wilkie. If such functional impairment is shown, an opinion must also be obtained as to the question of whether it is as likely as not related to the Veteran's period of service. 3. Entitlement to service-connection for a right knee disability, to include as secondary to service-connected disability is remanded. The Veteran has contended that he is entitled to service connection for his right hip disability, to include as secondary to his service-connected bilateral plantar fascitis, left fifth toe fracture, left knee patellofemoral syndrome and left hip strain. For the reasons explained below, the Board finds that a remand is necessary to obtain a medical opinion which adequately addresses the issue of whether the Veteran's right knee disability is related to service as there are no adequate opinions of record. The Board first points out the Veteran's service treatment records (STRs) contain notations that he was diagnosed in March 2000 with left knee overuse syndrome related to running while in service. The STRs also contain a note, where the date is illegible, which show that the Veteran complained of right foot pain and difficulty walking. The Veteran was afforded a VA knee examination in March 2016. At that time the examiner was asked to opine whether the Veteran's right knee disability was less likely than not related to his in-service left knee overuse syndrome and/or his right leg strain during service. The examiner opined that the Veteran's condition was not directly related to an in-service event, however the examiner's rationale only addressed the treatment note for the left knee over use syndrome and did not address the in-service complaints related to the Veteran's right foot. The Veteran was also afforded a VA knee examination in July 2017. At that time the examiner diagnosed bilateral patellofemoral syndrome. The examiner provided a positive nexus opinion for the left knee but opined that the Veteran's right knee patellofemoral syndrome was less likely than not related to his left fifth toe fracture. In providing a rationale the examiner only provided an explanation for positive nexus opinion of the left knee and provided no rationale for the negative nexus opinion for the right knee. The Veteran was afforded a new knee VA examination in October 2019. The examiner diagnosed right knee patellofemoral syndrome. At that time the examiner opined that the Veteran's right knee disability was less likely than not related to an in-service event. In providing a rationale, the examiner cited to the lack of symptoms of patellofemoral pain syndrome in the Veteran's STRs as the basis for this opinion. The examiner provided an addendum opinion in September 2020 to address secondary service connection. The examiner opined that the Veteran's right knee disability was less likely than not related to his service-connected disabilities because the right knee condition is a stand- alone condition. In addressing each of the claimed service- connected conditions the examiner briefly stated that there was no evidence that any of the conditions caused the right knee disability. The examiner also stated that there was no aggravation of the right knee beyond its natural progression because the condition was "mild at best". The Board finds that the most recent VA opinion on direct service connection is inadequate as the examiner simply relied on the lack of evidence in the STRs as the sole basis for determining that there was no nexus to an in-service event. The lack of medical documentation alone cannot be the basis of the opinion. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Further, as it relates to secondary service connection, the opinion is inadequate as the rationale provided by the examiner is conclusory and fails to provide sufficient rationale. A general conclusory statement is not adequate for a rationale. The explanation should contain clear conclusions and a supporting rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Barr v. Nicholson, 21 Vet. App. 303 (2007). Finally, as it relates to the issue of aggravation it is not clear to the Board what standard that the examiner applied when reaching her conclusion. Secondary service connection does not require "permanent" worsening of the condition being claimed by the service-connected disability and requires considering whether there has been any worsening, no matter how incremental, so even if not above and beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App. 233 (2019). Therefore, even if the examiner has concluded that the Veteran's condition is "mild at best" the examiner must still explain whether the Veteran had any worsening of his condition due to his claimed service-connected disabilities. For the reasons explained above, the Board finds that there is insufficient competent medical evidence on file for the Board to make a decision on this claim. Once VA undertakes the effort to provide an examination when developing a claim, the exam must be an adequate one. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, the Board finds a remand is necessary so that an adequate opinion on service connection for the Veteran's right knee disability can be obtained. The matters are REMANDED for the following action: 1. Obtain any outstanding and relevant private and/or VA treatment records. Should such exist, associate such with the claims file. 2. Please schedule the Veteran for a VA examination by an appropriate examiner to determine the current degree of severity of his service-connected other specified depressive disorder. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any symptoms. The examiner should also comment on the Veteran's ability to function in occupational and social environments. Attention is invited to the Veteran's lay statements submitted in December 2020 as well as his medical documentation submitted in March 2021. A complete rationale should be provided for all opinions expressed. 3. Obtain an addendum opinion from the September 2020 examiner (or appropriate medical professional) concerning the Veteran's claimed right hip and right knee disabilities. The electronic claims file, including a copy of this remand, must be made available to, and reviewed by, the examiner. As it relates to the Veteran's right hip, the examiner is requested to address the following: (a) The examiner is to provide a diagnosis which accounts for the Veteran's symptoms for his claimed right hip disability during the pendency of the appeal. If a medical diagnosis cannot be given, the examiner must state whether the Veteran has any functional impairment, such as loss of range of motion, pain, or instability. Complete the "Functional Impact" section of the report. Please note case law: pain alone, even without an underlying pathology or diagnosis, can constitute a disability under VA law where such pain results in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (holding that a "disability" under38 U.S.C. § 1110 refers to functional impairment of earning capacity; pain need not be diagnosed as connected to a current underlying condition to function as an impairment). (b) Then, for any/all disabilities found during the period on appeal, address: (1) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed right hip disability is related to an in-service injury, event or disease. (2) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right hip disability was caused or aggravated by the Veteran's service-connected bilateral plantar fascitis, left fifth toe fracture, left knee patellofemoral syndrome and left hip strain. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's right hip. As it relates to the Veteran's right knee, the examiner is requested to address the following: (a) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's claimed right knee disability is related to an in-service injury, event or disease, to include his complaints of right foot pain while in service. The examiner is reminded that the absence of documented treatment in service or thereafter is not fatal to a service connection claim, and the absence of evidence in the service treatment records is an insufficient basis, by itself, for a negative opinion. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). A significant lapse in time between service and post-service medical treatment may be considered a factor in the analysis. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). (b) Opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right knee disability was caused or aggravated by the Veteran's service-connected bilateral plantar fascitis, left fifth toe fracture, left knee patellofemoral syndrome and left hip strain. With respect to the question of whether any aggravation was observed, the examiner is requested to address whether there has been any worsening, no matter how incremental, of the Veteran's right knee disability. A complete rationale should be provided for all opinions expressed. (Continued on next page.) 4. Thereafter, readjudicate the issues on appeal as noted above. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.