Citation Nr: 21066337 Decision Date: 10/29/21 Archive Date: 10/29/21 DOCKET NO. 14-37 487 DATE: October 29, 2021 ORDER Entitlement to an effective date prior to July 28, 2010, for the award of service connection for residuals of a left tibia stress fracture is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative osteoarthrosis, cervical spine, claimed as neck pain and spasms (cervical spine disability), is remanded. Entitlement to an initial compensable rating for residuals of a left tibia stress fracture, to include whether left knee arthritis and left knee popliteal cyst are proximately due to and/or aggravated by the service-connected stress fracture, is remanded. FINDING OF FACT On July 28, 2010, VA received the Veteran's application for compensation that was reasonably construed as a claim for service connection for residuals of left tibia stress fracture; the Veteran did not file a formal or informal claim prior to July 28, 2010. CONCLUSION OF LAW The criteria for an effective date prior to July 28, 2010, for the grant of service connection for residuals of left tibia stress fracture have not been met. 38 U.S.C. § 5110 (West 2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (in effect prior to March 24, 2015). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1982 to April 1991. This case has a long procedural history that has been outlined in prior Board decisions. Most recently, the Board remanded these issues for further development in June 2021. The Board remanded the issue of entitlement to an earlier effective for the grant of service connection for residuals of left tibia stress fracture for issuance of a statement of the case (SOC). Following issuance of an SOC, the Veteran would be given the opportunity to submit a substantive appeal; thereby, appealing the issue to the Board. However, the agency of original jurisdiction (AOJ) issued a supplemental statement of the case (SSOC) addressing this issue in October 2021 as opposed to a SOC. As the AOJ has led the Veteran to believe this claim is on appeal by issuing a SSOC, the Board will also construe it as being on appeal and address it herein. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). Entitlement to an effective date prior to July 28, 2010, for the award of service connection for residuals of a left tibia stress fracture The Veteran generally contends that he is entitled to an effective date prior to July 28, 2010, for the grant of service connection for residuals of a left tibia fracture. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. As a general proposition, the law regarding the effective date of an award of service connection benefits is well-understood. The effective date of an award of benefits based on an original claim cannot be earlier than the date that the VA received the claim. See 38 U.S.C. § 5110(a); Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009). The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400(b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. Effective March 24, 2015, VA amended its regulations to require all claims be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant's effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran's claim was received by VA prior to that date, the former regulations apply, as provided below. In effect prior to March 24, 2015, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA 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. 38 C.F.R. § 3.155(a). The basic facts in this case are not in dispute. VA received the Veteran's current claim for service connection on July 28, 2010. There is no record prior to this application that can reasonably be construed as a claim for service connection. The Veteran himself has not pointed to any other document that could reasonably be construed as a prior claim for service connection. In sum, there is no document of record that can be construed as an informal or formal claim for service connection for this disability that was received prior to the receipt of the July 28, 2010 claim. Under the prior provisions of 38 C.F.R. § 3.157(b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The Court, however, has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). In sum, merely seeking treatment does not establish a claim, to include an informal claim, for service connection. After reviewing the evidence, the Board finds that the AOJ did not receive an application for compensation benefits prior to the receipt of the Veteran's claim in July 2010. Importantly, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). Significantly, the pertinent regulations specifically state that the effective date should be the date of the original claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective date has been appropriately assigned as the date of original claim for service connection. While sympathetic to the Veteran's belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by statute from assigning an effective date prior to July 28, 2010, for the grant of service connection for residuals of a left tibia fracture. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to July 28, 2010 for the award of service connection for residuals of a left tibia fracture. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for cervical spine disability; and entitlement to an initial compensable rating for residuals of a left tibia stress fracture, to include whether left knee arthritis and left knee popliteal cyst are proximately due to and/or aggravated by the service-connected stress fracture, is remanded. These issues were previously remanded to afford the Veteran with VA examinations to address the severity of these disabilities and determine whether any left knee disability is secondary to the service-connected residuals of left tibia fracture. The Veteran was afforded VA examinations in September 2021. The Veteran has asserted that the examiner, who was identified as a General Family Nurse Practitioner, was not qualified to perform the VA examinations. In the October 2021 brief, the Veteran's representative requested that the Veteran be afforded VA examinations conducted by another VA examiner. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011); see also Francway v. Wilkie, 940 F.3d 1304, 1307-08. However, once a challenge is raised, VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran. Id. Here, the AOJ did not provide any further information concerning the qualifications of the examiner. In light of the representative's assertions as well as the deficiencies discussed below, the Board finds that the Veteran should be afforded additional VA examinations with another VA examiner, an orthopedic specialist if possible. With respect to the Veteran's cervical spine disability, the September 2021 VA examiner found that the Veteran did not suffer from radiculopathy of the upper extremities. However, the Veteran has continued to assert that he suffers from cervical radiculopathy and private medical records also show a diagnosis of cervical radiculopathy. Thus, the VA examiner should have addressed these inconsistencies. Further, the Board specifically requested that the examiner address the severity of the Veteran's residuals of stress fracture under both under the old and new rating criteria under Diagnostic Code 5262. However, the examination report shows that the examiner did not indicate whether the Veteran suffered from any associated knee or ankle impairment and whether it could be characterized as slight, moderate or marked under the old criteria. Likewise, the examiner did not address the severity of the Veteran's disability under the new criteria, including whether it was unresponsive to shoe orthotics or other conservative treatment. Moreover, importantly, the examiner opined that the Veteran's left knee arthritis and left popliteal cyst are less likely than not (less than 50 percent probability) proximately due to or the result of Veteran's service-connected condition. The examiner rationalized that the conditions are not medically related. The left knee arthritis and left popliteal cyst are separate entities entirely from the left tibial stress fracture residuals and unrelated to it. A thorough review of medical literature failed to demonstrate a causal relationship. A nexus has not been established. The examiner also found that the conditions were not aggravated by the service-connected condition. The examiner essentially gave the same rationale indicating that the conditions of left knee arthritis and left popliteal cyst and left tibial stress fracture residuals are not medically related. The left knee arthritis and left popliteal cyst are separate entities entirely from the left tibial stress fracture residuals and unrelated to it. Importantly, a secondary service connection claim has two prongs: causation and aggravation. 38 C.F.R. § 3.310. To be adequate, a VA opinion must provide separate rationales for both causation and aggravation. See Atencio v. O'Rourke, 30 Vet. App. 74 (2018). Thus, these opinions are inadequate. Moreover, the examiner did not discuss whether any functional impairment of the left knee is caused by the service-connected stress fracture under the old rating criteria, which does indicate a medical relationship between knee impairment and a tibial disability. In light of the need to remand, any additional VA clinical records should be obtained. The matters are REMANDED for the following action: 1. Obtain additional VA clinical records. 2. Schedule the Veteran for VA spine examination with another examiner, an orthopedic specialist, if possible, to determine the current symptoms, level of severity, and functional impairment associated with his cervical spine disability. The claims file should be reviewed by the examiner. The examiner shall discuss both old and, if relevant, new, revised criteria for revisions to the Diagnostic Codes for musculoskeletal disabilities. 38 C.F.R. § 4.71a. (revised February 7, 2021). The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. The VA examiner is advised that in the past, the Veteran has reported flare-ups which vary from mildly increased difficulty in moving his neck to not being able to move his neck at all. Besides the current severity, the VA examiner must also obtain a detailed history of the frequency, duration, and severity of each type of past flare-ups(e.g., mild increased difficulty to not being able to move the neck). If it is not possible to specifically estimate cervical spine range of motion during flare-up and after repetitive use over time without speculation, the examiner is asked to opine as to whether during these conditions, forward flexion of the cervical spine would be limited to 30 degrees or less, or if the combined range of motion of the cervical spine would be 170 degrees or less; if motion would be greater than this, that should be stated. If this cannot be accomplished without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. 3. Schedule the Veteran for VA nerve examination with another examiner to determine whether the Veteran suffers from any radiculopathy of the upper extremities associated with his cervical spine disability. The claims file should be reviewed by the examiner. If the examiner finds that the Veteran does not suffer from radiculopathy of the upper extremities, the examiner must rectify this finding with the Veteran's lay statements and clinical records diagnosing radiculopathy. 4. Schedule the Veteran for a VA lower extremity examination to determine the current symptoms, level of severity, and functional impairment associated with his left tibia. The claims file should be reviewed by the examiner. The examiner shall address the current severity for this disability residuals of stress fracture, left tibia, under both the old and new, revised Diagnosed Code 5262 (effective February 7, 2021). Specifically, the examiner must determine whether the Veteran suffers from any associated knee or ankle impairment and whether it could be characterized as slight, moderate or marked under the old criteria. Likewise, the examiner should address whether the Veteran's disability was unresponsive to shoe orthotics or other conservative treatment under the new criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. If associated impairment of the knee and ankle is found, the examiner is asked to opine as to whether during flare-ups or repeated use over time, result in range of motion of the knee flexion limited to 45 degrees or extension limited to 10 degrees; or ankle is limited to15 degrees dorsiflexion or 30 degrees plantar flexion. If motion would be greater than this, that should be stated. The VA examiner must address whether any current left knee disability, to include arthritis popliteal cyst, is (a) caused by, or (b) aggravated by (any incremental increase) service-connected left tibia stress fractures, to include as a result of shin splints. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as adjudicators are precluded from making any medical findings. If this cannot be accomplished without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training) and explain why that is the case. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.