Citation Nr: 21066581 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 18-36 531 DATE: November 1, 2021 ORDER Entitlement to service connection for schizoaffective disorder is granted. Entitlement to an earlier effective date than November 21, 2012, for an increased rating of 40 percent for intervertebral disc disease with sciatic nerve involvement is denied. REMANDED Entitlement to service connection for a bilateral knee disability is remanded. Entitlement to an increased rating for a back disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A September 2008 rating decision continued a 10 percent evaluation of rating for intervertebral disc disease with sciatic nerve involvement, formerly rated as low back condition strain. The Veteran did not properly appeal that decision or submit new and material evidence within one year and it became final. 2. VA received a claim for an increased rating for a back disability on November 21, 2012. 3. The preponderance of the evidence is against a finding of an ascertainable increase in severity of a back disability in the year prior to the receipt of the November 21, 2012, claim for increased rating. 4. Resolving all reasonable doubt in the Veteran's favor, schizoaffective disorder is etiologically related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date than November 21, 2012, for the increased rating of 40 percent for intervertebral disc disease with sciatic nerve involvement have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.159, 3.400. 2. The criteria for entitlement to service connection for schizoaffective disorder have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a), 3.304, 3.306. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1983 to December 1983. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2014 and April 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record. 1. Entitlement to an earlier effective date than November 21, 2012, for an increased rating of 40 percent for intervertebral disc disease with sciatic nerve involvement. Except as otherwise provided, the effective date of a rating and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. With regard to the award of an increased rating for compensation, the effective date shall be the earliest date that it is factually ascertainable that an increase in disability occurred, if a claim is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The increase in disability must have occurred during the one-year period prior to the date of the Veteran's claim in order to receive the benefit of an earlier effective date. Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). 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)(1); 38 C.F.R. § 3.151(a). For claims received on or after March 24, 2015, VA amended the regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, and the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. 38 C.F.R. § 3.155; 79 Fed. Reg. 57660. However, prior to the effective date of the amendment, an informal claim was any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a). 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 Veteran, it will be considered filed as of the date of receipt of the informal claim. If a formal claim is received after one year of its receipt, then the effective date will be the date of VA's receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155. The effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. Quarles v. Derwinski, 3 Vet. App. 129 (1992). The Veteran contends she is entitled to an earlier effective date than November 21, 2012, for the assignment of a 40 percent rating for service-connected intervertebral disc disease with sciatic nerve involvement. The Veteran asserts that the increased rating should be earlier because she properly appealed a September 2008 rating decision which denied an increased rating for the back disability. A September 2008 rating decision continued a 10 percent rating for intervertebral disc disease with sciatic nerve involvement, formerly rated as low back condition strain. On November 13, 2008, the Veteran submitted a handwritten letter disagreeing with the September 2008 rating decision. On June 3, 2009, VA notified the Veteran that the November 2008 statement was not accepted as a valid notice of disagreement to initiate an appeal because the Veteran did not specifically identify the issues in the September 2008 rating decision with which she disagreed. The Veteran was advised of the proper action required on her part to appeal the September 2008 rating decision. The Veteran did not respond to the June 3, 2009, VA notification letter. As a result, the Veteran did not properly appeal the September 2008 rating decision or submit new and material evidence within one year of notification of that decision, and it is final. 38 U.S.C. § 7104(b); 38 C.F.R. §§ 3.156, 20.1104. On January 14, 2010, the Veteran called VA and stated that she never received the June 2009 communication from VA because she was in the hospital at that time. On November 21, 2012, VA received a claim for an increased rating for a back disability As a result of the November 21, 2010, claim filing, in December 2013, the Veteran underwent a VA examination where the Veteran was found to have forward flexion of the thoracolumbar spine to 30 degrees or less. The increased rating claim resulted in a January 2014 rating decision that increased the rating for intervertebral disc disease with sciatic nerve involvement to 40 percent, effective November 21, 2012, the date the increased rating claim was received by VA. The Board finds that November 21, 2012, the date VA received the claim for an increased rating for a back disability, is the proper effective date for this grant of an increased rating. After reviewing the record, the Board finds that the preponderance of the evidence is against a finding that an effective date prior to November 21, 2012, for the assignment of a 40 percent rating for intervertebral disc disease with sciatic nerve involvement is warranted. The evidence does not support a finding that an increase in severity of the disability was factually ascertainable within one year prior to the November 21, 2012. The first evidence of record showing an ascertainable increase in the Veteran's disability is the December 2013 VA examination showing forward flexion of the thoracolumbar spine to 30 degrees or less for which the RO assigned a 40 percent rating. The Veteran's statements do not outweigh the evidentiary value of medical records and the VA examination report. The Board acknowledges that the Veteran asserts that she never received the June 2009 communication from VA regarding the appeal of the September 2008 because she was in the hospital at that time. However, there is no evidence currently of record that shows the Veteran as being hospitalized in June 2009. June 2009 is when VA notified the Veteran that action was required on her part to properly appeal the September 2008 rating decision. The evidence does not show that correspondence was returned and the Veteran has not explained why she could not have responded to the correspondence after being discharged from any hospitalization or why or how hospitalization would have prevented receipt of the correspondence. Further, the Board notes that under the presumption of regularity in the administrative process, it is presumed that a claimant received proper notice by VA. Boyd v. McDonald, 27 Vet. App. 63 (2014) (under the presumption of regularity, if notice is sent to the claimant's last known address of record, it will be presumed that VA properly discharged its official duties); United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926). The presumption may only be rebutted with clear evidence to the contrary. Schoolman v. West, 12 Vet. App. 307 (1999). That evidence includes clear evidence that VA did not follow its regular mailing practices or that its practices were not regular. The mere assertion that the notice was not received does not by itself constitute clear evidence rebutting the presumption. However, the presumption of regularity may be rebutted where there is evidence that (1) VA used an incorrect address on the mailing in question or (2) the mailing was returned as undeliverable and there were other possible and plausible addresses available to VA at the time. The June 2009 notification letter from VA concerning inadequacy of the attempted notice of disagreement to the September 2008 rating was sent to the Veteran's last known mailing address and was not returned as undeliverable. Thus, it is presumed that the Veteran received proper notice by VA and the presumption has not been rebutted with clear evidence to the contrary. The pertinent statue provides that a notice of disagreement must be in writing and shall identify the specific determination with which the claimant disagrees. 38 U.S.C. § 7105(b)(2). Because the November 2008 attempted notice of disagreement did not identify the specific determination with which the claimant disagreed, the claimant was advised of the need to submit an adequate notice of disagreement. The Veteran did not do so within the one year period for filing a valid notice of disagreement. Therefore, that decision became final. The Board is not authorized to rule in equity but is bound by the applicable statutes and regulations. Any claim in equity should be pursued with the Secretary of VA. 38 U.S.C. § 503. The Board is appreciative of the Veteran's faithful and honorable service to our country. However, as the preponderance of the evidence is against the assignment of an earlier effective date for the increased rating, the claim must be and is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for a psychiatric disability. Service connection may be established for disability caused by disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In order to establish service connection for a claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence, generally medical, of a causal relationship between the claimed in service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247 (1999). Service connection may also be established for any disease initially diagnosed after service, when the evidence establishes that the disease was incurred in-service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 503 (1992). The disease entity for which service connection is sought must be chronic rather than acute and transitory in nature. For the showing of chronic disease in service, a combination of manifestations must exist sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. Secondary service connection may be established for a disability that is proximately due to, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Lay testimony is competent when it addresses readily observable features or symptoms of injury or illness and may provide sufficient support for a claim of service connection. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran is competent to provide testimony concerning factual matters of which he has firsthand knowledge, such as experiencing a physical symptom such as pain. Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Therefore, the Board must assess the competence and credibility of lay statements. Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while weight and credibility are factual determinations going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996): Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the Board must provide reasons and bases supporting a decision, there is no need to discuss, in detail, the evidence submitted by or on behalf of the Veteran. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (Board must review the entire record but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence of record. The Veteran should not assume that the Board has overlooked pieces of evidence that are not explicitly discussed. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Veteran contends that service connection for a psychiatric disability is warranted. Having reviewed all of the evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that service connection for a psychiatric disability is warranted. The October 1982 enlistment examination notes a normal psychiatric evaluation. The November 1983 separation examination found that the psychiatric clinical evaluation was normal. In an accompanying report of medical history, the Veteran indicated having depression or excessive worry. The Veteran indicated that she had been worried about her physical and mental strength since early in her service career. During a May 2019 private examination, after review of the service, VA, and civilian medical records, in a thorough, detailed report, the examiner, a psychologist, provided a professional medical opinion, that it was as likely as not that the Veteran's schizoaffective disorder was the direct result of service. In arriving at that conclusion, the examiner analyzed all of the Veteran's relevant medical history. The Board is not free to substitute its own judgment for that of a medical expert. Colvin v. Derwinski, 1 Vet. App. 171 (1991). However, the Board is required to assess the credibility and weight to be given to evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). The Board has considered the May 2019 private examination and finds it to be credible, competent, and probative as it is supported by detailed rationale and provided by a trained medical professional who specifically identified and discussed the Veteran's contention and theory concerning service and the claimed disability. The probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion she reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board acknowledges that there may be contradictory evidence of record. However, the Board cannot ignore the medical evidence finding that the Veteran's psychiatric disability was directly related to service. Accordingly, after a careful review of the evidence of record, the Board finds that the evidence is, at least, in equipoise in regard to a finding that the current psychiatric disability is due to active service. The Board will resolve reasonable doubt in favor of the Veteran and finds that schizoaffective disorder was incurred in service. Therefore, the Board concludes that service connection for schizoaffective disorder is warranted as the evidence shows that it is at least as likely as not that schizoaffective disorder was incurred in service and directly related to service. Accordingly, as the evidence is in equipoise for the claim of entitlement to service connection for schizoaffective disorder, the claim must be granted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to an increased rating for a back disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to an increased rating for a back disability. VA's statutory duty to assist the Veteran includes the duty to conduct a thorough examination so that the evaluation of the claimed disability will be a fully informed one. Green v. Derwinski, 1 Vet. App. 121 (1991); Snuffer v. Gober, 10 Vet. App. 400 (1997). Assistance by VA includes providing a medical examination or obtaining a medical opinion when an examination or opinion is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The record shows that the Veteran was most recently provided a VA thoracolumbar spine examination in March 2018, over three and a half years ago. The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination. Palczewski v. Nicholson, 21 Vet. App. 174 (2007). However, when available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993). The Board finds that not only is the most recent examination remote, but the examinations appear to no longer indicate the Veteran's current level of disability. Specifically, the Board notes that, during a February 2021 Board hearing, the Veteran alleged a worsening in severity of the service-connected disability. Therefore, the Board finds that not only are the most recent examinations remote, but the examinations appear to no longer indicate the Veteran's current level of disability. The Board finds that updated examination is warranted to access the current severity and manifestations of the service-connected disability. After all outstanding medical records are associated with the claims file, more contemporaneous examination is needed to rate the claim for an increased rating for a back disability. Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran is notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of these claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 2. Entitlement to service connection for a bilateral knee disability is remanded. Although the Board regrets the delay, additional development is needed prior to further disposition of the claim of entitlement to service connection for a bilateral knee disability. The Veteran contends that a currently diagnosed bilateral knee is secondary to service-connected intervertebral disc disease with sciatic nerve involvement. Post-service treatment records show that the Veteran has been diagnosed chronic knee pain. Prior to Agency of Original Jurisdiction adjudication in January 2014, the Veteran demonstrated a potential current knee diagnosis and alleged secondary service connection. However, the Veteran has not been provided a VA examination which addresses any relationship between any knee disability and service. That is a pre-decisional duty to assist error. Therefore, the Board finds that a VA opinion to determine any relationship between any current bilateral knee disability and a service- connected disability should be scheduled. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. Because a decision on the remanded issues of entitlement to service connection for a bilateral knee disability and entitlement to an increased rating for a back disability, could significantly impact a decision on the issue of entitlement TDIU, the Board finds that the issues are inextricably intertwined. Because those claims are being remanded, the Board finds that it would be potentially prejudicial to the Veteran for the Board to consider the TDIU claim prior to the determination of the other claims. Therefore, the adjudication of the TDIU claim must be deferred pending resolution of the service connection and increased rating claims. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all pertinent VA medical records, not yet associated with the claims file, and associate them with the claims file. 2. Schedule the Veteran for a VA examination of the service-connected back disability. The examiner must review the claims file and should note that review in the report. Any studies or tests deemed necessary should be performed. The examiner should provide a complete rationale for any opinions provided. The examiner is asked to report on the nature and severity of the back disability. The examination must include range of motion testing expressed in degrees for active motion, passive motion, weight-bearing, and nonweight-bearing. Correia v. McDonald, 28 Vet. App. 158 (2016). The examination must also include range of motion testing after repetitive use. The examiner is also specifically asked to describe any functional limitation due to pain, weakened motion, excess motion, fatigability, incoordination, or on flare-ups. If the Veteran describes flare-ups of pain, the examiner should offer an opinion as to whether there would be additional limits on functional ability during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the back disability alone and discuss the effect of the back disability on any occupational functioning and activities of daily living. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran is unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. If the Veteran is felt capable of work despite the service-connected disabilities, the examiner should state what type of work and what accommodations would be necessary due to the service-connected disabilities. 3. Schedule the Veteran for a VA examination to diagnose and determine the nature and etiology of any bilateral knee disability. The examiner must review the claims file, including this remand, and should indicate that review in the report. The examiner should diagnose all bilateral knee disabilities found or shown in the record during the pendency of the claim. For each knee disability diagnosed, to include pain resulting in functional loss, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that each knee disability is etiologically related to active service or any event, disease, or injury during service, including whether any knee disability (1) began during active service, (2) was noted during service with continuity of the same symptomatology since service, (3) was caused by the service-connected disabilities or treatment for the service-connected disabilities, to specifically include a back disability or any altered gait caused by the back disability, or (4) has been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities or treatment for the service-connected disabilities, to specifically include a back disability or any altered gait caused by a back disability. The examiner is advised that the Veteran is competent to report symptoms and that those reports must be acknowledged and considered in formulating any opinion. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. The examiner must consider and discuss any lay statements of record and should reconcile the opinion with any previous opinions of record. A clearly stated rationale for each opinion offered must be provided and cannot be based on the lack of an in-service record of the claimed disability. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mondesir, Eric 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.