Citation Nr: 21067102 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 17-62 230A DATE: November 3, 2021 ORDER Entitlement to an effective date of December 21, 2015, but no earlier, for a 10 percent rating for residuals of a right hand wound, Muscle Group IX impairment is granted. Entitlement to a rating in excess of 10 percent for benign paroxysmal positional vertigo is denied. REMANDED Entitlement to a rating in excess of 10 percent effective December 21, 2015 for residuals of a right hand wound, Muscle Group IX impairment is remanded. Entitlement to a rating of total disability due to individual unemployability based upon service-connected disorders (TDIU) is remanded. FINDINGS OF FACT 1. Resolving all reasonable doubt in the Veteran's favor, the evidence suggests that the Veteran's residuals of a right hand wound, Muscle Group IX impairment manifested in at least moderate disability of the affected muscles as early as December 21, 2015, and the claim was formalized upon receipt of the November 2016 filing. 2. Throughout the period on appeal, the Veteran's benign paroxysmal positional vertigo did not manifest in both dizziness and occasional staggering. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of December 21, 2015, but no earlier, for a 10 percent rating for residuals of a right hand wound, Muscle Group IX impairment have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for entitlement to a rating in excess of 10 percent for benign paroxysmal positional vertigo have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.87, Diagnostic Code 6204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from September 1964 to December 1967, with additional service as a reservist. These matters come before the Board of Veterans' Appeals (Board) on separate rating decisions issued on February 6, 2017 (for the right hand disorder) and December 4, 2017 (for the vertigo disorder). By way of further background, the right hand wound claims were previously before the Board in August 2019; however, the vertigo disorder was only certified to the Board in October 2020. See VA Form 8 (Oct. 19, 2020). After the August 2019 remand, the Veteran's claims for increased ratings and an earlier effective date for his right hand wound underwent further development. Specifically, the matters were remanded to obtain updated VA treatment records and to obtain a VA examination to determine the nature and severity of the Veteran's residuals of a right hand wound. Updated VA treatment records have been associated with the record and a November 2019 letter requested that the Veteran complete an appropriate authorization form to allow VA to obtain records on his behalf. A VA examination was conducted in January 2020. The Veteran was thereafter issued a Supplemental Statement of the Case (SSOC) on May 19, 2020. For reasons to be more thoroughly discussed below in respectively relevant parts, the Board concludes that the Veteran has only been afforded substantial compliance with the previous remand with respect to the claim for increased rating for benign paroxysmal positional vertigo. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As further detailed in the remand section below, the Board must remand for an addendum opinion to reconcile contradictory findings between two VA examinations of record. Meanwhile, in this specific case, the Board interprets a claim for TDIU arising as part and parcel of the remanded increased rating claim, see Rice v. Shinseki, 22 Vet. App. 447 (2009). As potentially intertwined, but also because the claim for a TDIU requires development, this claim is now also remanded. Finally, even though the increased rating claim is remanded, the Board is able to adjudicate the earlier effective date of the 10 percent award previously awarded. The above Stegall violation is only as to higher ratings, but whereas the AOJ previously awarded an effective date of November 7, 2016, the Board can award an earlier date of December 21, 2015, but no earlier. Further development of the earlier effective date claim would unnecessarily impose additional burdens upon the Board with no reasonable possibility of any benefit flowing to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). In an August 2021 letter, the Veteran's attorney asserted that the Board also had jurisdiction for an appeals for an increased rating for posttraumatic stress disorder (PTSD), entitlement to an earlier effective date for PTSD and service connection for gastroesophageal reflux disease that were addressed in a December 2017 statement of the case. The Veteran's attorney also asserted that the Veteran had not received any response from the Board as to these issues. These assertions are incorrect. The Board provided a detailed explanation in its August 2019 remand as to why it did not have jurisdiction over the issues referenced by the Veteran's attorney in his August 2021 letter and will not readdress the matter here. This appeal is advanced on the docket on account of the Veteran's advanced age. 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an effective date of December 21, 2015, but no earlier, for a 10 percent rating for residuals of a right hand wound, Muscle Group IX impairment is granted. The effective date of an original award of direct service connection is 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, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity 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. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For increases in disability, the effective date will generally be the date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). However, an effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Furthermore, the effective date may be assigned beginning from the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within one year from such date. 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). A cognizable increase under this exception is an increase to the next disability level. Hazan v. Gober, 10 Vet. App. 511, 519 (1997). The disability must be shown to have increased during the one year immediately preceding the filing of the claim rather than only earlier. Gaston v. Shinseki, 605 F.3d 979, 980 (2010). For medical records (reports of examination, hospitalization, or medical treatment) to be considered, a complete claim or a statement of intent to file a claim must be received within one year from the date of the medical record. See 38 C.F.R. § 3.400(o)(2). By way of history, service connection for a right hand condition was granted in a June 1968 rating decision. The Veteran filed a claim for a increased rating increase for his right hand wound with impairment in Muscle Group IX. The claim was previously rated as noncompensable, while the claim for an increased rating was received on November 7, 2016. See VA Form 21-526b (rec'd Nov. 7, 2016). The claim for an increased rating increase was ultimately granted to 10 percent, but no higher as of that date, in the February 6, 2017 rating decision that is currently on appeal. See Rating Decision (Feb. 6, 2017). There is no evidence or allegation that the Veteran filed a claim for an increased rating between the June 1968 rating decision and the November 2016 VA Form 21-526b. The Board has carefully reviewed the Veteran's clinical records associated with the claims file, and subject to the one-year period prior to receipt of the claim, the Board is only able to identify one such record evincing the increase, dated December 21, 2015. See VA Medical Record (Dec. 21, 2015) (rec'd Apr. 18, 2016). While there is other similar evidence associated with the Veteran's claims file, see e.g.: id. (Nov. 24, 2014; Jan. 9, 2015) (rec'd Apr. 18, 2016), the December 21, 2015 evidence is the earliest such evidence available to assign an earlier effective date under Gaston. To wit, medical evidence generated and associated with the claims file earlier than November 7, 2015 (let alone on November 24, 2014 or January 9, 2015) would not be within one year of receipt of the complete claim, and would accordingly not be of application under 38 C.F.R. § 3.400(o)(2) and Gaston v Shinseki, supra. Ultimately, resolving all doubt in the Veteran's favor, the Board notices the medical record dated December 21, 2015, and interprets the complete claim received on November 7, 2016 and later granted in the February 6, 2017 rating decision as evidence of entitlement to a 10 percent rating as early as December 21, 2015, but no earlier. The Board further determines that there is no evidence suggesting that the increase is warranted on any date earlier than December 21, 2015, but at the same time within one year preceding the November 2016 receipt of the complete claim for increase. The claim for an earlier effective date of the 10 percent award is granted to December 21, 2015, but no earlier. See 38 C.F.R. § 3.400(o)(2), Gaston v. Shinseki, supra; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). To the extent that the claim for increased ratings about this disorder is being remanded, the Board concludes that the issue of earlier effective date is differentiated from an increased rating, and that previous failures of substantial compliance with previous remand directives are for the increased ratings claim only. See Stegall v. West, supra. In other words, the effective date can be adjudicated now, and the Board does just that, and only that. See Soyini v. Derwinski. There is no further doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to a rating in excess of 10 percent for benign paroxysmal positional vertigo is denied. The Veteran was awarded an initial rating of 10 percent effective February 29, 2016 for benign paroxysmal positional vertigo. See Rating Decision (Dec. 4, 2017). In a March 2018 notice of disagreement, the Veteran's attorney argued that the Veteran experienced more than mere occasional dizziness as he has attacks of vertigo and nausea when bending over, getting out of bed and rolling to the left. At the outset, the Veteran's benign paroxysmal positional vertigo is currently rated under Diagnostic Code 6204. Under Diagnostic Code 6204, a 10 percent rating is warranted for occasional dizziness, and a maximum 30 percent rating is warranted for dizziness and occasional staggering. The term "staggering" is not defined in the rating schedule but is generally defined as standing or proceeding unsteadily. See Webster's New College Dictionary 1099 (3rd ed. 2008). The Veteran submitted to VA examinations as pertaining to the claimed benign paroxysmal positional vertigo on November 14, 2017 and September 25, 2020. See VA Exams (Nov. 14, 2017; Sept. 25, 2020). The Board is sympathetic to the Veteran's allegations that the symptoms are more severe. See VA Exam (Nov. 14, 2017), supra, at Question No. 3 (less than once monthly in frequency, duration of each episode from 1 to 24 hours long); contra VA Exam (Sept. 25, 2020), supra, at Question Nos. 2-3 (about twice monthly, but now with each episode not longer than one hour each in duration). However, the September 2020 examination confirms that the Veteran's vertigo does not manifest in staggering of any kindlet alone "occasional" as specifically contemplated in the 30 percent rating that is the next higher than 10 percent as currently rated, and also the maximum schedular rating. Id. at Question No. 3. The only abnormal finding at this examination was a positive test result under the Dix Hallpike test, see id. at Question No. 6F, but external ear, ear canal, tympanic membrane, gait, Romberg test, and limb coordination test ("finger-nose-finger") results were all normal, see id. at Question No. 6 et seq. cf. No. 6F. The Board has thoroughly reviewed all pertinent medical records within the Veteran's claims file; however, there is simply no competent or credible evidence to suggest that the Veteran's benign paroxysmal positional vertigo has ever manifested in staggeringonly dizziness that, at its worst, appears to be adequately compensated by the 10 percent rating. Therefore, a rating in excess of 10 percent is not warranted. In assessing the severity of the benign paroxysmal positional vertigo the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support a rating higher than what was assigned here as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has considered whether staged ratings under Hart, supra is appropriate; however, the Board finds that his symptomatology was been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. The Veteran nor his representative have not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Accordingly, this portion of the Veteran's claim is denied. There is no further doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent effective December 21, 2015 for residuals of a right hand wound, Muscle Group IX impairment is remanded. In December 2016, the Veteran underwent a VA examination that established that the Veteran suffers from a penetrating muscle injury. See 38 C.F.R. § 4.56; VA Exam (Dec. 8, 2016), at Section II, Question A. After the August 2019 remand, the subsequent examination, dated January 2020, determined that the Veteran actually does not suffer from a penetrating muscle injury. See VA Exam (Jan. 8, 2020), at Section II, Question A. The Board cannot reconcile these contrary conclusions on this question in common between the examinations. There is no adequate rationale as to why the Veteran might not any longer have a penetrating muscle injury, including but not limited to if the previous diagnosis was erroneous or that it may have since resolvedespecially when a 10 percent increased staged rating was previously awarded at the beginning of this appellate period. As a result, the Board concludes that the Veteran has not yet been afforded substantial compliance with all previous remand directives. See Stegall v. West, supra. Accordingly, the Board is precluded from issuing a final determination as to this claim, and it is therefore remanded. The Board sincerely regrets further delay that may be incurred by this remand. 2. Entitlement to a rating of a TDIU is remanded. As delineated above, the Board interprets a claim for TDIU as part and parcel of the claims for increased ratings. See Rice v. Shinseki, supra. As the claim for the right hand injury at Muscle Group IX is being remanded, and the claim for TDIU may be inextricably intertwined with it, adjudication of the TDIU claim is accordingly deferred. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Provide the Veteran with a blank VA Form 21-8940 and complete instructions on how to initiate his claim for a TDIU so that the AOJ can start developing this claim. 3. Following the receipt of outstanding records, forward the claims file to the January 2020 examiner for an addendum opinion. The need for a further in-person examination of Muscle Group IX is left to the discretion of the examiner. The examiner should respond to the following questions: (a.) For Veteran's residuals of a right hand wound at Muscle Group IX, the examiner should indicate whether such condition resulted in a slight muscle injury, moderate, moderately severe, or severe. (b.) The examiner must also specifically reconcile contradictory findings in the December 2016 and January 2020 examinations, as to whether or not the Veteran has a penetrating muscle injury. See Section II, Question A at each exam (answering "yes" in December 2016 but "no" in January 2020). A rationale for all opinions should be provided. (Continued on the next page) If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. Furthermore, if any opinion cannot be offered without resorting to mere speculation, the examiner should clearly explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael B. Engle, 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.