Citation Nr: 21069051 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 17-08 982 DATE: November 17, 2021 ORDER The appeal with respect to entitlement to a rating in excess of 20 percent for residuals of a right shoulder injury is dismissed. Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II, is granted. Entitlement to an earlier effective date prior to December 6, 2016, for the award of service connection for diabetic nephropathy, is denied. Entitlement to an earlier effective date than November 27, 2013, for entitlement to special monthly compensation (SMC) based on loss of use of a creative organ is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee arthritis is remanded. Entitlement to a rating in excess of 10 percent for left knee arthritis prior to December 6, 2016, and in excess of 0 percent, thereafter, is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Following a December 2017 Statement of the Case, which continued the denial of a rating in excess of 20 percent for residuals of a right shoulder entry, the Veteran did not file a Substantive Appeal, VA Form 9, to perfect an appeal for the issue. 2. Resolving all doubt in favor of the Veteran, the probative medical evidence of record has shown that his current hypertension is proximately due to his service-connected diabetes mellitus, type II. 3. VA received the Veteran's original claim for service connection for diabetic nephropathy on November 21, 2016. 4. The Veteran was diagnosed with diabetic nephropathy on December 6, 2016. 5. VA received the Veteran's original claim for service connection for erectile dysfunction on November 27, 2013. CONCLUSIONS OF LAW 1. The claim for entitlement to a rating in excess of 20 percent for residuals of a right shoulder injury is dismissed. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202. 2. The criteria for service connection for hypertension are met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. The criteria for an effective date prior to December 6, 2016, for the award of service connection for diabetic nephropathy have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for an effective date earlier than November 27, 2013, for the award of SMC due to loss of creative organ have not been met. 38 U.S.C.A. §§ 1114 (k), 5107, 5110 (West 2014); 38 C.F.R. §§ 3.102, 3.155, 3.400, 3.350(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to April 1969. This case comes before the Board of Veterans' Appeals (Board) from July 2014, December 2015, January 2017, and March 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In February 2021, the Veteran presented sworn testimony during a virtual hearing before the undersigned Veterans Law Judge. A transcript of the Board hearing has been associated with the Veteran's claims file. The Board notes that the issue on appeal was characterized as entitlement to service connection for PTSD. However, in light of the evidence of record, the Board has recharacterized the issue more broadly to ensure complete consideration of the claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). Dismissal Entitlement to a rating in excess of 20 percent for residuals of a right shoulder injury Following a December 2017 Statement of the Case, which continued the 20 percent evaluation for residuals of a right shoulder injury, the Veteran did not submit a timely Substantive Appeal, VA Form 9, regarding the issue. Moreover, the Veteran's representative submitted a brief in March 2021 confirming that the Veteran did not appeal the issue of an increased rating of his service-connected right shoulder disability. Therefore, the Board finds that the issue is not properly on appeal before the Board. As there remains no case in controversy, the appeal now before the Board for entitlement to a rating in excess of 20 percent for residuals of a right shoulder injury must be dismissed. See 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection for a disability resulting from a disease or injury incurred in service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Service connection for certain chronic diseases may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2014); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2016). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question," Walker, 708 F.3d at 1339) or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service," the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not "shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned," i.e., "when the fact of chronicity in service is not adequately supported," then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and service, and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Walker, 703 F.3d at 1336; 38 C.F.R. § 3.303(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2016); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to service connection for hypertension, to include as secondary to diabetes mellitus, type II The Veteran seeks entitlement to service connection for hypertension, which is defined as high arterial blood pressure. Dorland's Illustrated Medical Dictionary 801 (28th ed. 1994). Various criteria for its threshold have been suggested, ranging from 140 systolic and 90 diastolic to as high as 200 systolic and 110 diastolic. Id. For purposes of rating the disease, VA defines the term as meaning "that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm." See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The Veteran received a VA examination in December 2016 and the examiner noted a diagnosis of hypertension from 1998. Based on the results of the examination, the examiner found that the condition was due to his diabetes as the Veteran exhibited no significant renal abnormalities at this time. However, the examiner then indicated that he did not feel that the Veteran's hypertension was due to his diabetes for the same reason. The Board will resolve reasonable doubt in the Veteran's favor and find that hypertension is at least as likely as not related to the Veteran's service-connected diabetes. The December 2016 VA examination results are internally inconsistent, with the examiner finding that the Veteran's hypertension was and was not due to his diabetes because there were no significant renal abnormalities. However, the examiner did not document the importance of the absence of significant renal abnormalities. Reading the evidence in the light most favorable to the Veteran, the Board interprets this opinion as concluding that the lack of significant renal abnormalities suggests that diabetes is the only medically viable cause for the Veteran's hypertension. Therefore, after resolving any doubt in the Veteran's favor, the Board concludes that service connection for hypertension is warranted. See 38 U.S.C. § 5107(b) (2017); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Earlier Effective Date Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 3 8 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2). A specific claim in the form prescribed by the Secretary 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). Prior to March 2015, the term "claim" or "application" meant a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). With regard to the date of entitlement, the term "date entitlement arose" is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a "facts found" basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the "facts found." DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). With respect to the effective dates of awards of SMC, the Board notes that claims for SMC are by definition a type of increased (i.e., "special") compensation. Thus, claims for earlier effective dates for SMC are treated analogously to claims for earlier effective dates for increased ratings. Entitlement to an earlier effective date prior to December 6, 2016, for the award of service connection for diabetic nephropathy The Veteran's application for service connection for diabetic nephropathy was received by VA on November 21, 2016. On December 6, 2016, the Veteran received a VA Kidney Conditions (Nephrology) Examination and the examiner diagnosed diabetic nephropathy. The Veteran was granted service connection for diabetic nephropathy in a January 2017 rating decision. It reported an effective date of December 6, 2016, was being assigned because it was the first date evidence showed a diagnosis of the condition. As noted, in general, the effective date of an evaluation and award of compensation based on an original claim, or a claim reopened after disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. The Board has reviewed the Veteran's claims folder and can find no medical evidence of a previous diagnosis of diabetic nephropathy. While the Veteran's representative has highlighted lab results from 2013 showing issues with kidney function, she also notes that there was no formal diagnosis of diabetic nephropathy made at the time. See March 2021 Claimant's Brief. Hence, on this record, an earlier effective date is not assignable by law. Entitlement to an earlier effective date than November 27, 2013, for entitlement to SMC based on loss of use of a creative organ By way of procedural history, the Veteran filed a claim for entitlement to service connection for erectile dysfunction on November 27, 2013. The January 2017 rating decision granted entitlement to service connection for erectile dysfunction and stated that it assigned an effective date of November 27, 2013. Entitlement to service connection for SMC based on loss of us of a creative organ was also granted and assigned the same effective date. The Veteran filed a timely notice of disagreement in September 2017, requesting an earlier effective date for service connection for erectile dysfunction. A December 2017 Statement of the Case (SOC) noted that erectile dysfunction was a noncompensable complication of diabetes and there was no effective date assigned to that disability separately. Therefore, there was no issue to disagree with concerning an effective date; however, the RO considered the argument in relation to the effective date assigned for SMC based on loss of us of a creative organ. Based on the procedural history of this claim, the Board finds no support for an effective date for service connection for erectile dysfunction prior to November 27, 2013. The date assigned by the RO was appropriate and in accordance with 38 C.F.R. § 3.400. Although the Veteran may have demonstrated erectile dysfunction prior to November 27, 2013, VA cannot assign an effective date of an award of service connection based on the earliest medical evidence showing a causal connection to service; rather, it must assign the date that it received the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Regarding the Veteran's claim for SMC, the Board emphasizes that SMC is compensation payable "in addition to the basic rate of compensation otherwise payable on the basis of degree of disability." 38 C.F.R. § 3.350 (a). It follows that SMC based on loss of use of a creative organ generally cannot precede the effective date of the grant of service connection for the underlying erectile disability. As such, an effective date prior to November 27, 2013, for the grant of SMC for loss of use of a creative organ is not warranted. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for right knee arthritis Entitlement to a rating in excess of 10 percent for left knee arthritis prior to December 6, 2016, and in excess of 0 percent thereafter The Veteran received a VA examination of his knees in December 2016. The Board has reviewed that examination report and has determined that it is not adequate, as it does not appear that any passive, weight-bearing or nonweight-bearing range of motion testing was conducted at that time. Consequently, the Board must remand the claims in order for another VA examination to be accomplished to address the findings in the prior examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint). Entitlement to a rating in excess of 20 percent for diabetes mellitus, type II The Veteran was afforded a VA Diabetes Mellitus examination in December 2016. Since that time, he has also received treatment at a VA medical center. Due to the almost five years since the prior VA examination, and the additional relevant evidence received, the Board finds that there is a potential worsening of the Veteran's diabetes disorder. Thus, the Veteran should be afforded a new VA examination to assess the current nature and severity of his disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran received a VA examination in December 2015 and the examiner found that he did not have a current mental disorder diagnosis. Current VA treatment records, however, reflect a diagnosis of an adjustment disorder with mixed anxiety and depressed mood. In light of this new evidence, the Board finds that a new examination is warranted to determine the nature and etiology of any currently diagnosed psychiatric disorder. Entitlement to TDIU Regarding the claim for entitlement to a TDIU, this issue is intertwined with the claims remanded herein; accordingly, it must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated.) The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination so as to determine the current severity of his left and right knee disabilities. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed. The left and right knees must be tested in both active and passive motion, in weight-bearing and nonweight-bearing. 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. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of flare-ups on the Veteran's range of motion, he/she should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. The examiner is also asked to determine whether the Veteran's range of motion results from the December 2016 VA examination would have been reduced if tested in both active and passive motion and in weight-bearing and nonweight-bearing. To the examiner's best ability, the additional range of motion loss should be described and estimated in degrees. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. 2. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected diabetes mellitus, type II. All appropriate testing and studies should be accomplished, and the results discussed in the examination report. The examiner should also review the prior VA examination reports. All pertinent findings and functional impairment, to include severity, must be reported in detail. 3. Schedule the Veteran for a VA examination to determine the nature and etiology of any current acquired psychiatric disorder that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The claims folder should be reviewed by the examiner. The examination report should note review of these records and specifically the Veteran's lay statements and VA treatment records. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should identify all current acquired psychiatric disorder(s). If any previously diagnosed psychiatric disorder is not found on examination, the examiner should address the prior diagnoses of record and indicate whether they may have resolved or been misdiagnosed. For each diagnosis identified other than PTSD, the examiner should state whether it is at least as likely as not that disorder manifested in or is otherwise related to the Veteran's military service, including any symptomatology therein. With respect to PTSD, the RO should provide the examiner with a summary of any verified in-service stressors and instruct the examiner that only these events may be considered for the purpose of determining whether exposure to an actual in-service stressor has resulted in PTSD. The examiner should determine whether the diagnostic criteria to support the diagnosis of PTSD have been satisfied. If the PTSD diagnosis is deemed appropriate, the examiner should address whether it is at least as likely as not (i.e. probability of 50 percent or more) that PTSD is due to military service. A complete rationale should be given for all opinions and conclusions expressed. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Daniels, 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.