Citation Nr: 21062949 Decision Date: 10/12/21 Archive Date: 10/12/21 DOCKET NO. 17-35 020 DATE: October 12, 2021 ORDER Revision of the February 2017 rating decision that changed the effective date for service connection for gastroesophageal reflux disease (GERD) from December 26, 2008, to February 26, 2008, based on clear and unmistakable error (CUE) was proper. Entitlement to an effective date prior to June 3, 2015, for service connection for post-traumatic stress disorder (PTSD) is denied. Entitlement to an effective date prior to August 29, 2016, for service connection for a traumatic brain injury (TBI) is denied. Entitlement to an effective date prior to August 29, 2016, for service connection for migraine headaches associated with a TBI is denied. Entitlement to an effective date prior to August 29, 2016, for service connection for bilateral plantar fasciitis is denied. REMANDED Entitlement to an increased rating for a low back disability, to include an effective date prior to August 29, 2016, for a 40 percent rating, is remanded. Entitlement to an increased initial rating for bilateral plantar fasciitis is remanded. Entitlement to an increased initial rating for migraine headaches associated with a TBI is remanded. Entitlement to an increased rating for a right shoulder disability, to include an effective date prior to August 29, 2016, for a 20 percent rating, for is remanded. Entitlement to an increased rating for a left shoulder disability, to include an effective date prior to August 29, 2016, for a 20 percent rating, is remanded. Entitlement to an increased rating for GERD is remanded. Entitlement to an increased rating for a right wrist disability is remanded. Entitlement to an increased initial rating for a TBI is remanded. Entitlement to an increased rating for a scar is remanded. Entitlement to an increased rating for left lower extremity radiculopathy is remanded. Entitlement to an increased initial rating for PTSD is remanded. FINDINGS OF FACT 1. A February 2017 rating decision changed the effective date of service connection for GERD from December 26, 2008, to February 26, 2008. 2. The correct facts, as they were known at the time, were not before the adjudicator in February 2017 and the failure to consider those facts manifestly changed the outcome of the February 2017 rating decision. 3. The Veteran submitted an application for service connection for PTSD on June 3, 2016; no document received prior to June 3, 2015, may be construed as a formal or informal claim for service connection for PTSD. 4. The Veteran submitted an application for service connection for a left foot disability and a TBI on August 29, 2016; no document received prior to August 29, 2016, may be construed as a formal or informal claim for service connection for these disabilities. 5. An April 2009 rating decision denying entitlement to service connection for right foot plantar fasciitis became final. The Veteran submitted a request to reopen his claim for entitlement to service connection for a right foot disability that was received on August 29, 2016; no document received prior to August 29, 2016, may be construed as a request to reopen a claim of entitlement to service connection for a right foot disability. CONCLUSIONS OF LAW 1. Clear and unmistakable error is shown in the February 2017 rating decision to the extent it changed the Veteran's effective date for GERD from December 26, 2008, to February 26, 2008. 38 U.S.C. §§ 5109A, 5110; 38 C.F.R. §§ 3.105, 3.400 (2017). 2. The criteria for entitlement to an effective date prior to August 29, 2016, for service connection for PTSD have not been met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.400. 3. The criteria for entitlement to an effective date prior to August 29, 2016, for service connection for a TBI have not been met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.400. 4. The criteria for entitlement to an effective date prior to August 29, 2016, for service connection for migraine headaches associated with a TBI have not been met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.400. 5. The criteria for entitlement to an effective date prior to August 29, 2016, for service connection for bilateral plantar fasciitis have not been met. 38 U.S.C. §§ 5101(a), 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.1(p), 3.102, 3.151, 3.155, 3.156, 3.160(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1976 to September 1980 and the United States Army from January 2003 to January 2005 and from October 2007 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2015, February 2017, and July 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran requested a hearing before a Veterans Law Judge in connection with his appeal. The claims file indicates that a videoconference hearing was scheduled for August 2021, of which the Veteran and his representative were notified in a May 2021 letter. However, the Veteran did not attend his hearing. As such, the Board will consider his hearing request withdrawn. The Board notes that the Veteran was awarded service connection for GERD, left lower extremity radiculopathy, a right wrist disability, and a scar in April 2009 and January 2013 rating decisions. He did not appeal the effective dates assigned for service connection with respect to any of these decisions, which became final. In an August 2016 application for benefits, the Veteran requested increased ratings for service-connected GERD, left lower extremity radiculopathy, a right wrist disability, and a scar. In the February 2017 rating decision on appeal, the RO denied his claims for increased ratings for these disabilities and continued his existing ratings. In his notice of disagreement, the Veteran's representative indicated that he was appealing the disability evaluations for GERD, the left lower extremity radiculopathy, the right wrist disability, and the scar, as well as their effective dates. The Veteran and his representative have not articulated any arguments with respect to why they believe earlier effective dates are warranted. In any event, he cannot appeal the dates that any increased disability evaluations became effective because higher ratings were not granted for these disabilities. Moreover, the Veteran cannot collaterally attack the effective dates for service connection that were assigned in a rating decision that has become final absent clear and unmistakable error, or CUE. Neither the Veteran nor his representative has submitted any correspondence alleging that there is CUE in the April 2009 or January 2013 rating decisions. As such, any claim for an earlier effective date for service connection for the GERD, left lower extremity radiculopathy, right wrist disability, or scar would be considered free-standing earlier effective date claims, which are impermissible. All this is to say that although the Veteran indicated in his notice of disagreement that he was appealing the effective dates and evaluations assigned for GERD, the left lower extremity, the right wrist disability, and the scar, only the increased rating issues were properly on appeal. The RO explained as much in the June 2017 statement of the case, which stated that the earlier effective date issues were not properly before the RO for consideration. The RO also issued a June 2017 letter and supplemental statement of the case that once again clarified that the earlier effective date issues were not for consideration. At this juncture, the Board reiterates that the issues of earlier effective dates for GERD, left lower extremity radiculopathy, the right wrist disability, and the scar are not properly before the Board, as no increased ratings were granted in the rating decision on appeal and the decisions assigning effective dates for service connection became final. As such, the Board lacks jurisdiction over these issues and will not address them in this decision. Clear and Unmistakable Error By way of background, the Veteran filed a claim for service connection for GERD that was granted in an April 2009 rating decision. Although the claim was received by VA in November 2008 (i.e., while he was still on active duty in the Army), the RO did not adjudicate the claim until after he was discharged in December 2008. As set forth in the April 2009 rating decision, service connection for GERD was effective from December 26, 2008 (i.e., the day after he was discharged from active duty), because the Veteran had filed his claim within one year of his discharge from active duty. Subsequently, the Veteran filed a claim for an increased rating for GERD in August 2016. In a February 2017 rating decision, the RO denied his request for an increased rating. In the codesheet accompanying the rating decision, however, the RO mistakenly stated that service connection for GERD was effective from February 26, 2008, instead of December 26, 2008. In a July 2017 rating decision, the RO stated that the February 2017 rating decision contained CUE to the extent that the effective date for GERD was changed from December 26, 2008, to February 26, 2008, and that revision of the February 2017 rating decision was thus warranted to correct the error. The Veteran filed a notice of disagreement with respect to this decision, and this appeal followed. Previous determinations that are final and binding will be accepted as correct in the absence of CUE. 38 C.F.R. §§ 3.104(b), 3.105(a). If there is CUE in a prior final and binding decision, the prior decision will be reversed or amended, and the effective date will be the same as if the correct decision had been made on the date of the reversed decision. 38 U.S.C. §§ 5109A, 5112; 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, 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, 43-44 (1993). A determination of CUE is a three-pronged test. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Second, the error must be undebatable and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. Third, a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. All three prongs must be met to establish CUE. Russell v. Principi, 3 Vet. App. 310 (1992). Here, the Board finds that it was proper for the RO to find that the February 2017 rating decision contained CUE to the extent that the RO changed the effective date for GERD from December 26, 2008, to February 26, 2008. To that end, the then-applicable statutory and regulatory provisions extant at the time of the February 2017 rating decision provided that, with certain exceptions, the effective date of an award of compensation based on an original claim would be the date of the receipt of the claim or the date entitlement arose, whichever was later. 38 C.F.R. § 3.400 (2017). If, however, a claim for disability compensation was received within one year after separation from service, the effective date of entitlement was the day following separation. 38 C.F.R. § 3.400(b)(2) (2017). Here, the Veteran's application for service connection for GERD was received prior to his discharge from active duty on December 25, 2008. However, the file indicates that the RO deferred adjudicating his claim until he was separated from active duty and treated his claim as if it were received on December 26, 2008. When it adjudicated the claim, the RO granted service connection from the earliest date allowable by law, the day following his separation from service (December 26, 2008), because his claim was received within one year of his discharge. This was reflected in the April 2009 rating decision and the codesheet accompanying it. It was not until February 2017 that his codesheet stated that service connection was effective from February 26, 2008. This change in effective date appeared to be due to an unintentional administrative error. Regardless of the reason for the change, however, the change in effective date was clearly and unmistakably erroneous, as it appears that the RO had the incorrect facts before it at the time regarding the Veteran's dates of service. Indeed, the Veteran was on active duty in February 2008, and the then-extant version of 38 C.F.R. § 3.400(b) would not have permitted an effective date to be assigned until after separation from service. Moreover, the claims file indicates that the Veteran's application for compensation was received several months following February 2008. But for the RO's error, the Veteran's effective date would not have changed from December 26, 2008. As such, revision of the February 2017 rating decision based on CUE was proper, and restoration of the prior effective date was warranted. Effective Dates The Veteran and his representative assert that he is entitled to earlier effective dates for service connection for bilateral plantar fasciitis, a TBI, migraines secondary to a TBI, and PTSD. He is currently entitled to service connection for bilateral plantar fasciitis, the TBI, and migraines from August 29, 2016, and service connection for PTSD from June 3, 2015. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increased compensation will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation. 38 C.F.R. § 3.400(b)(2). Otherwise, it is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended various regulations governing how to file a claim. The amended regulations 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. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.31(p), 3.151, 3.155). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). At the time that these amendments were made, VA also deleted a regulation that allowed various documents to be considered informal claims. Notably, prior to the date the amendments became effective, a report of examination or hospitalization could be accepted as an informal claim for benefits in claims for an increased disability rating or to reopen a claim after a final disallowance. See 79 Fed. Reg. 57,660, 57,675 (Sept. 25, 2014) (removing then-current 38 C.F.R. § 3.157(b)). The Board notes that the Veteran's application for service connection for PTSD was received by VA on June 3, 2015, while his application for service connection for a TBI (including its residual headaches) and plantar fasciitis of the left foot was received on August 29, 2016. Prior to this date, no communication that could be construed as a formal or informal claim for these disabilities had been received by VA. The Board acknowledges that post-service treatment records show treatment for these disabilities prior to filing his claims in 2015 and 2016. Even if his disabilities developed prior to filing his claim, however, VA did not receive any claims with respect to PTSD, his TBI, migraines, or left foot plantar fasciitis until his formal claims were filed in 2015 and 2016, respectively. Moreover, these claims were submitted more than one year after the Veteran was released from active duty in December 2008. As such, the earliest effective dates allowable by law have already been assigned for these disabilities. The Board notes that, with respect to plantar fasciitis of the right foot, the Veteran previously filed a claim for right foot plantar fasciitis that was denied in an April 2009 rating decision. He did not file a notice of disagreement or submit new and material evidence within one year of being notified of the adverse decision. Although the claims file indicates that service treatment records were uploaded to the record following the April 2009 rating decision, these records are duplicative of service treatment records that were already in the record at the time of the April 2009 rating decision or not relevant to the Veteran's right foot plantar fasciitis. As such, the April 2009 rating decision became final. It was not until August 2016 that the RO received the Veteran's request to reopen his prior claim for a right foot disability, along with a new claim for a left foot disability. As set forth above, no formal or informal claims were received with respect to the right foot following the April 2009 rating decision until August 2016. The earliest effective date for the right foot has thus already been assigned. REASONS FOR REMAND Last, the Veteran argues that he is entitled to increased disability evaluations for his service-connected low back, bilateral plantar fasciitis, TBI, migraine, bilateral shoulder, PTSD, scar, left lower extremity radiculopathy, right wrist, and GERD. At the outset, the Board notes that the Veteran has also asserted that he is entitled to earlier effective dates for increased ratings for his low back and bilateral shoulder disabilities. The earlier effective date issues, however, are part and parcel of the claims for increased ratings that are on appeal, and adjudication of the increased rating claims will encompass the effective date concerns raised by the Veteran. As such, the Board has recharacterized these issues on appeal as part of the claims for increased ratings for the low back and bilateral shoulders. The Board has carefully reviewed the evidence in the claims file regarding the severity of his service-connected disabilities. At this juncture, however, the Board is unable to reach the merits of these claims. First, the Board notes that the most recent VA treatment records that have been associated with the claims file are from 2016, leaving a period of five years without updated records. Remand is thus necessary to obtain outstanding medical records so that proper determinations as to appropriate disability ratings can be made for the entire appeal period. 38 C.F.R. § 3.159(c). Additionally, with respect to the Veteran's claims for increased ratings for his low back, bilateral shoulder, and right wrist disabilities, remand is warranted to obtain new VA examinations. To that end, pursuant to the holding in Correia v. McDonald, 28 Vet. App. 158 (2016), the final sentence of 38 C.F.R. § 4.59 requires that VA examinations including joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing, and, if possible, with range of motion measurements of the opposite, undamaged joint. Additionally, examiners must determine, where possible, the degree of additional range of motion that is lost due to pain on use or during flare-ups. If a veteran is not experiencing a flare-up during an examination, the examiner must instead elicit information from the veteran regarding the severity, frequency, duration, or functional loss manifestations of the flare-ups, or indicate whether such information could be gleaned from medical records or other sources available. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Here, the Veteran's most recent VA examinations for the back, bilateral shoulders, and right wrist contain inadequate findings with respect to Correia and Sharp. For instance, the October 2016 VA examiner failed to conduct range of motion testing on both active and passive motion and on weight-bearing and non-weight-bearing with respect to the back, shoulders, or right wrist. Moreover, although the VA examiner noted that he reported flare-ups of these disabilities and the functional impairment caused by those flare-ups, he failed to solicit detailed information regarding the severity, frequency, and duration of the flare-ups. Furthermore, the VA examiner indicated that he could not describe the limitation on functional ability caused by flare-ups in terms of range of motion because it would depend on the types of activities performed and the severity of pain experienced. As just explained, however, the VA examiner failed to solicit this very information from the Veteran as required by Sharp. When VA undertakes to provide an examination or obtain a medical opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). If an examination report is inadequate or does not contain sufficient detail, the Board is required to return the report in a remand. See Bowling v. Principi, 15 Vet. App. 1, 12 (2001). As such, remand is warranted to obtain VA examinations that comply with Correia and Sharp. Accordingly, the matters are REMANDED for the following action: 1. After obtaining proper authorization, obtain and associate with the claims file any outstanding VA treatment records and any outstanding, relevant private treatment records. 2. Thereafter, schedule the Veteran for VA examinations with respect to the current severity of his low back, bilateral shoulder, and right wrist disabilities. The Veteran's entire claims file, including a copy of this Remand, must be made available to and reviewed by the examiner(s). The examinations should be conducted in accordance with current disability benefits questionnaires, to include testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, and, if possible, of the opposite, undamaged joint, consistent with 38 C.F.R. § 4.59 as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). The examiner(s) must provide a detailed rationale discussing why and how all conclusions and opinions were reached. This discussion should include references to specific evidence in the Veteran's file, including his lay assertions. The examiner(s) must also consider all complaints of flare-ups. In doing so, the examiner(s) must inquire whether the Veteran has any periods of flare-ups. If the Veteran reports any periods of flare-ups, but range of motion testing could not be conducted during a flare-up, state the severity, frequency, and duration of his flare-ups; name their precipitating and alleviating factors; and estimate, according to the Veteran, to what extent, if any, they affect functional impairment. If it is not possible to provide a response without resorting to mere speculation, and after doing everything that reasonably should be done to become informed, provide a clear explanation of why a response could not be provided without resorting to mere speculation. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.