Citation Nr: 21071827
Decision Date: 12/01/21	Archive Date: 12/01/21

DOCKET NO. 17-62 581
DATE: December 1, 2021

ORDER

The appeal for a disability rating in excess of 20 percent prior to February 10, 2020, and in excess of 40 percent thereafter for service-connected lumbosacral strain is dismissed.

The appeal for an effective date prior to December 7, 2017, for the assigned 20 percent disability rating for service-connected lumbosacral strain is dismissed.

The appeal for a disability rating in excess of 10 percent for traumatic arthritis of the right knee with limitation of flexion of motion is dismissed.

The appeal for a disability rating in excess of 10 percent for traumatic arthritis of the right knee with limitation of extension of motion is dismissed.

Entitlement to an effective date of August 1, 1992, for the award of service connection for migraine headache disability is granted.

Entitlement to an effective date earlier than December 7, 2017, for the award of service connection for posttraumatic stress disorder is denied.

An initial disability rating in excess of 30 percent prior to December 10, 2019, for service-connected posttraumatic stress disorder is denied.

An increased disability rating in excess of 70 percent from December 10, 2019, for service-connected posttraumatic stress disorder is denied.

An increased disability rating in excess of 20 percent prior to December 9, 2019, for service-connected cervical spine strain is denied.

An increased disability rating of 30 percent, but no higher, from December 9, 2019, for service-connected cervical spine strain is granted.

An increased disability rating in excess of 10 percent for service-connected residuals, fracture right 2nd toe, is denied.

An increased disability rating in excess of 10 percent prior to August 1, 2021, for service-connected hemorrhoids is denied.

The reduction in a disability rating from 10 percent to a noncompensable disability rating from August 1, 2021, for service-connected hemorrhoids was improper; thus, the 10 percent rating is restored. 

An increased disability rating in excess of 10 percent from August 1, 2021, for service-connected hemorrhoids is denied.

An increased disability rating in excess of 10 percent for service-connected seasonal allergic reaction is denied.

Entitlement to an effective date prior to December 17, 2017, for the assigned 20 percent disability rating for service-connected cervical spine strain is denied.

Entitlement to an effective date prior to December 17, 2017, for the assigned 10 percent disability rating for service-connected hemorrhoids is denied.

Entitlement to an effective date prior to December 7, 2017, for the assigned 10 percent disability rating for service-connected residuals, fracture right 2nd toe, is denied.

Service connection for obstructive sleep apnea as secondary to service-connected posttraumatic stress disorder is granted.

Service connection for type II diabetes mellitus is granted.

Service connection for coronary artery disease is granted.

Service connection for peripheral neuropathy of the left upper extremity as secondary to service-connected type II diabetes mellitus is granted.

Service connection for peripheral neuropathy of the right upper extremity as secondary to service-connected type II diabetes mellitus is granted.

Service connection for peripheral neuropathy of the left lower extremity as secondary to service-connected type II diabetes mellitus is granted.

Service connection for peripheral neuropathy of the right lower extremity as secondary to service-connected type II diabetes mellitus is granted.

REMANDED

Service connection for bladder infection is remanded.

Service connection for painful hands is remanded.

Service connection for chest pain, right side is remanded.

Service connection for corneal abrasion is remanded.

Entitlement to an initial compensable disability rating for upper radicular group (fifth and sixth cervicals) is remanded.

Entitlement to an earlier effective date for a total disability rating based on individual unemployability is remanded.

FINDINGS OF FACT

1. On October 20, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, requesting a withdrawal of his appeal for a disability rating in excess of 20 percent prior to February 10, 2020, and in excess of 40 percent thereafter for service-connected lumbosacral strain in a written correspondence.

2. On October 20, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, requesting a withdrawal of his appeal for an effective date prior to December 7, 2017, for the assigned 20 percent disability rating for service-connected lumbosacral strain.

3. On October 20, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, requesting a withdrawal of his appeal for a disability rating in excess of 10 percent for traumatic arthritis of the right knee with limitation of flexion of motion.

4. On October 20, 2020, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant, through his authorized representative, requesting a withdrawal of his appeal for traumatic arthritis of the right knee with limitation of extension.

5. In September 1992, within one year of the Veteran's honorable discharge from the military, VA received his claim for service connection for migraine headache disability and stress/anxiety.

6. Relevant in-service medical records were received by VA but not considered as part of the March 1, 1994, decision denying service connection for migraine headache disability.

7. The March 2020 decision that granted service connection for migraine headache disability relied in part on the in-service medical records not previously considered in the March 1, 1994, decision.

8. The in-service medical records that were received by VA but not considered as part of the March 1, 1994, decision denying service connection for stress/anxiety are not relevant to the Veteran's December 7, 2017, claim for service connection for posttraumatic stress disorder.

9. The March 2018 decision that granted service connection for posttraumatic stress disorder did not rely on the in-service medical records not previously considered in the March 1, 1994, decision.

10. Prior to December 10, 2019, the severity, frequency, and duration of the Veteran's mental health symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 

11. From December 10, 2019, the severity, frequency, and duration of the Veteran's mental health symptoms did not more closely approximate total occupational and social impairment.

12. Prior to December 9, 2019, the Veteran's cervical spine strain manifested as forward flexion greater 15 degrees but not greater than 30 degrees; and it did not manifest as forward flexion of the cervical spine 15 degrees or less; or favorable ankylosis of the entire cervical spine; or unfavorable ankylosis of the entire spine.

13. From December 9, 2019, the Veteran's cervical spine strain manifested as the functional equivalent of favorable ankylosis of the entire cervical spine; it did not manifest as unfavorable ankylosis of the entire spine.

14. The Veteran's residuals, fracture right 2nd toe, manifested by no more than moderate symptoms.

15. Prior to August 1, 2021, the Veteran's hemorrhoids manifested as large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, and not with persistent bleeding and with secondary anemia, or with fissures.

16. The VA Regional Office did not follow VA regulations when it reduced the 10 percent disability rating for service-connected hemorrhoids to a noncompensable rating effective August 1, 2021; thus, the rating reduction as of August 1, 2021, was improper.

17. From August 1, 2021, the Veteran's hemorrhoids manifested as large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences, and not with persistent bleeding and with secondary anemia, or with fissures.

18. The Veteran's seasonal allergic reaction is not manifested by polyps.   

19. The Veteran's claim for an increased disability rating for service-connected cervical spine strain was received on December 7, 2017.

20. The Veteran's claim for an increased disability rating for service-connected hemorrhoids was received on December 7, 2017.

21. The Veteran's claim for an increased disability rating for service-connected residuals, fracture right 2nd toe, was received on December 7, 2017.

22. The Veteran's obstructive sleep apnea is proximately due his service-connected posttraumatic stress disorder.

23. The Veteran's type II diabetes mellitus is related to his in-service exposure to herbicide agents.

24. The Veteran's coronary artery disease is related to his in-service exposure to herbicide agents.

25. The Veteran's peripheral neuropathy of the left upper extremity is proximately due to his service-connected type II diabetes mellitus.

26. The Veteran's peripheral neuropathy of the right upper extremity is proximately due to his service-connected type II diabetes mellitus.

27. The Veteran's peripheral neuropathy of the left lower extremity is proximately due to his service-connected type II diabetes mellitus.

28. The Veteran's peripheral neuropathy of the right lower extremity is proximately due to his service-connected type II diabetes mellitus.

CONCLUSIONS OF LAW

1. The criteria for dismissal of the appeal for a disability rating in excess of 20 percent prior to February 10, 2020, and in excess of 40 percent thereafter for service-connected lumbosacral strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

2. The criteria for dismissal of the appeal for an effective date prior to December 7, 2017, for the assigned 20 percent disability rating for service-connected lumbosacral strain have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

3. The criteria for dismissal of the appeal for a disability rating in excess of 10 percent for traumatic arthritis of the right knee with limitation of flexion of motion have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

4. The criteria for dismissal of the appeal for a disability rating in excess of 10 percent for traumatic arthritis of the right knee with limitation of extension have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55.

5. The criteria for an effective date of August 1, 1992, for the award of service connection for migraine headache disability have been met. 38 U.S.C. §§ 1110, 1131, 5107, 5110, 7105; 38 C.F.R. §§ 3.102, 3.303, 3.156.

6. The criteria for an effective date earlier than December 7, 2017, for the award of service connection for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107, 5110, 7105; 38 C.F.R. §§ 3.102, 3.303, 3.156.

7. Prior to December 10, 2019, the criteria for a disability rating in excess of 30 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

8. From December 10, 2019, the criteria for a disability rating in excess of 70 percent for posttraumatic stress disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411.

9. Prior to December 9, 2019, the criteria for a rating in excess of 20 percent for cervical spine strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237.

10. From December 9, 2019, the criteria for a rating of 30 percent, but no higher, for cervical spine strain are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237.

11. The criteria for a rating in excess of 10 percent for residuals, fracture right 2nd toe, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5284.

12. Prior to August 1, 2021, the rating criteria for a rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336.

13. The criteria for a restoration of a 10 percent disability rating for hemorrhoids as of August 1, 2021, are met. 38 U.S.C. §§ 1155, 5107; 5112; 38 C.F.R. §§ 3.105, 3.344, 4.114, Diagnostic Code 7336.

14. From August 1, 2021, the rating criteria for a rating in excess of 10 percent for hemorrhoids have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7336.

15. The criteria for an increased disability rating in excess of 10 percent for service-connected seasonal allergic reaction have not been met. 38 U.S.C. §§ 1155, 1159, 5107; 38 C.F.R. §§ 3.957, 4.1, 4.3, 4.7, 4.94, Diagnostic Code 6522.

16. The criteria for entitlement to an effective date prior to December 17, 2017, for the assigned 20 percent disability rating for service-connected cervical spine strain have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

17. The criteria for entitlement to an effective date prior to December 17, 2017, for the assigned 10 percent disability rating for service-connected hemorrhoids have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

18. The criteria for entitlement to an effective date prior to December 7, 2017, for the assigned 10 percent disability rating for service-connected residuals, fracture right 2nd toe, have not been met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

19. The criteria for service connection for obstructive sleep apnea as secondary to service-connected posttraumatic stress disorder are met.  38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

20. The criteria for service connection for type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1116. 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

21. The criteria for service connection for coronary artery disease are met. 38 U.S.C. §§ 1110, 1116. 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

22. The criteria for service connection for peripheral neuropathy of the left upper extremity as secondary to service-connected type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

23. The criteria for service connection for peripheral neuropathy of the right upper extremity as secondary to service-connected type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

24. The criteria for service connection for peripheral neuropathy of the left lower extremity as secondary to service-connected type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

25. The criteria for service connection for peripheral neuropathy of the right lower extremity as secondary to service-connected type II diabetes mellitus are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from June 3, 1968, until his honorable discharge on June 2, 1972, and from July 24, 1972, until his honorable retirement on July 31, 1992.

This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d).

These matters come before the Board on appeal from separate decisions issued by a Regional Office of the United States Department of Veterans Affairs (VA):

	A May 2013 decision denied service connection for type II diabetes mellitus, coronary artery disease, peripheral neuropathy of the bilateral upper and lower extremities, and bilateral hearing loss; and denied separate increased disability ratings for right knee flexion and extension. 

	A March 2018 decision denied service connection for obstructive sleep apnea; granted service connection for posttraumatic stress disorder (PTSD); granted increased disability ratings for service-connected cervical spine strain, lumbosacral strain, hemorrhoids, residuals of a fracture to the right 2nd toe; denied an increased rating for seasonal allergic reaction; and denied entitlement to a total disability rating based on individual unemployability (TDIU).

	A separate March 2018 decision denied reopening of claims for service connection for bladder infection, migraine headache disability, painful hands, right side chest pain, and corneal abrasions due to the lack of new and material evidence. 

The Veteran filed timely Notices of Disagreement with each decision and eventually filed timely appeals to the Board. 

Due the timeframe in which these decisions were issued, and ultimately appealed, they came to the Board at different points in time. Currently, the appeals have been merged before the Board to expedite their processing. The Veteran elected not to testify before the Board with respect to each of his appeals. Therefore, merging of the appeals is not prejudicial to the Veteran. The Board notes that there are outstanding claims on appeal at the Board not before the undersigned Veterans Law Judge because those appeals are being handled under the Claims and Appeals Modernization Act (AMA). See Pub. L. No. 115-55, 131 Stat. 1105 (2017); VA Claims and Appeals Modernization, 84 Fed. Reg. 2449 (Feb. 7, 2019). Those appeals cannot be merged with the instant appeal, which is being decided under the Legacy system. Separate decision will be issued by the Board at a later time on the claims filed under the AMA system. 

With respect to the Veteran's appeal of the VA Regional Office's May 2013 decision, the Board initially decided that appeal first, before the Veteran's other appeals made their way to the Board (prior to merging of the appeal streams). In a May 2020 decision, the Board, in relevant part, denied the Veteran's petition to reopen his claim for service connection for bilateral hearing loss; granted his petition to reopen his claims for service connection for type II diabetes mellitus; denied service connection for coronary artery disease, type II diabetes mellitus, and peripheral neuropathy of the bilateral upper and lower extremities; and remanded the claims for increased disability ratings for right knee flexion and extension. 

The Veteran subsequently appealed the Board's May 2020 decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion for Partial Remand submitted by the parties, the Court entered an order in June 2021 vacating the Board's decision in part and remanding the case to the Board for readjudication. Specifically, the parties stipulated that the Board "erred because, when finding that [the Veteran] was not exposed to herbicide agents during service, it failed to address (1) the January 2020 private examiner's opinion regarding herbicide exposure at Thai air bases and (2) [the Veteran's] November 2019 statement that '[w]henever [he] went off base [he] had to go near the fence or perimeter' of the air base." The Veteran did not appeal the Board's denial of his petition to reopen his claim for service connection for bilateral hearing loss. Consequently, the Court vacated those portions of the Board's decision denying service connection for coronary artery disease, type II diabetes mellitus, and peripheral neuropathy of the bilateral upper and lower extremities.

Those claims, as well as the previously remanded claims for increased ratings for the Veteran's service-connected right knee flexion and extension, now return to the Board. As stated, the Board has merged the Veteran's other appeal streams under the Legacy system in the interest of justice and judicial economy.

Evidentiary Standards

In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits and when rating disabilities.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b) (service connection); 38 C.F.R. § 4.3 (disability rating). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims.

Dismissal of Appeals

A Veteran may withdraw an appeal as to any or all issues. 38 C.F.R. § 19.55(a). Written appeal withdrawals must include: (1) the name of the veteran, (2) the applicable Department of Veterans Affairs file number, and (3) a statement that the appeal is withdrawn. 38 C.F.R. § 19.55(b)(1). If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety or list the issue(s) withdrawn from the appeal. Id. 

Following transfer of an appeal to the Board, a withdrawal is effective when received by the Board. 38 C.F.R. § 19.55(b)(3). "Withdrawal of an appeal will be deemed a withdrawal of the Notice of Disagreement and, if filed, the Substantive Appeal, as to all issues to which the withdrawal applies." 38 C.F.R. § 19.55(c).

1. The appeal for a disability rating in excess of 20 percent prior to February 10, 2020, and in excess of 40 percent thereafter for service-connected lumbosacral strain is dismissed.

2. The appeal for an effective date prior to December 7, 2017, for the assigned 20 percent disability rating for service-connected lumbosacral strain is dismissed.

3. The appeal for a disability rating in excess of 10 percent for traumatic arthritis of the right knee with limitation of flexion of motion is dismissed.

4. The appeal for a disability rating in excess of 10 percent for traumatic arthritis of the right knee with limitation of extension of motion is dismissed.

Due to the similar dispositions for the above claims (#s 1, 2, 3, and 4) on appeal, the Board will address them together.

On October 20, 2020, the Board received written correspondence from the Veteran's representative in which she indicated that the Veteran was withdrawing his appeals "for an earlier effective date and increase[d] rating for his lumbar strain, and for increased[d] rating[s] for his right knee limitation of motion of flexion and extension." The Veteran's notice of withdrawal contains his printed name and is signed by his representative. His VA file number is listed on the correspondence and the correspondence is dated. The Board is satisfied that the Veteran has properly withdrawn his appeals for these claims only. See Hembree v. Wilkie, 33 Vet. App. 1 (2020). Therefore, the Board dismisses them.

Reconsideration of Effective Dates

Ordinarily, under VA's Legacy Appeal system, if a veteran's claim is denied and has become "final," then new and material evidence is required to reopen the claim. 38 C.F.R. § 3.156(a). There is, however, an exception to the rule. If VA receives "relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." 38 C.F.R. § 3.156(c)(1) (emphasis added). This means that new and material evidence is not required to reopen a claim. If VA grants benefits resulting from reconsideration of the merits under section 3.156(c)(1), then it must consider an earlier effective date under 38 C.F.R. § 3.156(c)(3). Blubaugh v. McDonald, 773 F.3d 1310, 1314 (Fed. Cir. 2014). That inquiry involves determining whether the subsequent award was based all or in part on the newly associated records. 38 C.F.R. § 3.156(c)(3). In sum, if VA reconsiders a previously denied claim and grants that claim based, even in part, on "relevant official service department records" that existed but were not in the record at the time of the first denial, VA must assign an effective date based on when the previously denied claim was received or when entitlement arose, whichever is later. Emerson v. McDonald, 28 Vet. App. 200, 207 (2016).

Service department records include in-service medical records. 38 C.F.R. § 3.156(c)(1). Service department records are "relevant" if they "address a dispositive issue and therefore affect the outcome of the case[,]" or in other words, the records must speak to a matter in dispute. Kisor v. Wilkie, 969 F.3d 1333, 1339 (Fed. Cir. 2020). The purpose of section 3.156(c) is "to place a veteran in the position he [or she] would have been had . . . VA considered the relevant service department record before the disposition of [the] earlier claim." Blubaugh, 773 F.3d at 1313.

5. Entitlement to an effective date of August 1, 1992, for the award of service connection for migraine headache disability is granted.

6. Entitlement to an effective date earlier than December 7, 2017, for the award of service connection for posttraumatic stress disorder is denied.

Due to the similar analyses for the above claims (#5 and #6) on appeal, the Board will address them together.

On September 24, 1992, the Veteran filed a claim for service connection for migraine headache disability and stress/anxiety. The claim for stress/anxiety is properly understood (in the present time) to include a claim for PTSD. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (finding that the scope of a claim may include any disorder that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and other information of record). A VA Regional Office denied his claims in a March 1, 1994, decision. This decision became final as the Veteran did not seek a timely appeal of the decision. 38 U.S.C. § 7105(c). Normally, where a veteran later seeks to reopen a final decision, he must submit new and material evidence. 38 C.F.R. § 3.156(a).

In a March 2020 decision, a VA Regional Office reopened and granted the claim for service connection for migraine headache disability and assigned an initial disability rating of 50 percent effective December 7, 2017 (the date the VA Regional Office received the most recent claim for service connection). In a March 2018 decision, a VA Regional Office reopened and granted service connection for PTSD and assigned an initial 30 percent disability rating effective December 7, 2017 (the date the VA Regional Office received the most recent claim for service connection). The Veteran seeks an effective date earlier than December 7, 2017, for each grant of service connection based on in-service medical and personnel records that were received after the initial decisions denying service connection for these claims in March 1994. For the reasons that follow, the Board agrees with the Veteran that he is entitled to an earlier effective date with respect to his award of service connection for migraine headache disability but disagrees with the assertion that he is entitled to an earlier effective date for the award of service connection for PTSD. 

In this case, the VA Regional Office initially denied the Veteran's claim for service connection for migraine headache disability because his in-service medical treatment records were "entirely silent for complaints, treatment of objective clinical findings of migraine headaches." March 1, 1994, VA Regional Office Decision. With respect to his PTSD, the VA Regional Office denied service connection because his in-service medical treatment records were "entirely silent for complaints, treatment of objective clinical findings a psychoneurotic disorder to include stress/anxiety." Id. The March 1, 2014, decision listed the evidence considered by the VA Regional Office, which included, among other items, "Service Medical Records dated 04-02-90 to 06-10-92"; "Reports from National Personnel Records Center received 06-28-93 and 10-26-93"; and "Treatment Records from Malmstrom Air Force Base Clinic dated 11-27-92 to 06-29-93." The Veteran, however, clearly served on active duty between 1968 and 1992. Yet, only in-service medical records between 1990 and 1992 were listed as part of the evidence considered by the VA Regional Office. On review of the Veteran's electronic claims file, the Board finds multiple in-service medical records dated between 1968 and 1990 associated with his claims file in September 1992. Given that these in-service medical records were part of the claims file at the time the VA Regional Office issued its March 1, 1994, decision, but were not listed as being considered within that decision, the Board can only reasonably conclude that the VA Regional Office mistakenly overlooked these relevant records when denying service connection for migraine headache disability and PTSD. 

Migraine headache disability

The Board has carefully reviewed these in-service medical records and finds that they are highly relevant to establishing his claim for service connection for migraine headache disability. In the March 2020 decision, the VA Regional Office specifically cited the Veteran's 1988 in-service treatment record documenting treatment for migraine headaches as part of its basis for awarding service connection. That treatment record was not part of the record when the VA Regional Office issued the initial March 1, 1994 decision. The Board finds reconsideration of the merits of his claim was warranted under 38 C.F.R. § 3.156(c)(1), and he was not required to submit new and material evidence to reopen his claim.

Having determined that reconsideration of the Veteran's claims for service connection for migraine headache disability was warranted and that service connection for migraines headache disability was based on the in-service medical records not previously considered by the VA Regional Office, the Board now considers the appropriate effective date for each award of service connection. 38 U.S.C. § 5110(b)(1) provides, "The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therefor is received within one year from such date of discharge or release." Here, the Veteran separated from the military on July 31, 1992. He filed his initial claim for service connection for migraine headache disability on September 24, 1992, within one year of separation from service. Based on the evidence of record, the Board concludes that the Veteran is entitled to an effective date of August 1, 1992, for the grant of service connection for migraine headache disability. 

Posttraumatic stress disorder

In the March 2018 decision granting service connection for PTSD, the VA Regional Office did not rely on evidence found within the Veteran's in-service medical and military records that were associated with his claims file after the initial March 1, 1994, decision that denied service connection for stress/anxiety. On review of the record, the Veteran's initial claim for service connection for stress/anxiety was based on unspecified experiences during service in Thailand. During a January 1993 VA examination, the Veteran only reported "stress" associated with his service. At that time, he did not identify a particular in-service event (i.e., stressor) that could reasonably be associated with his December 2017 claim for service connection for PTSD. In his December 2017 VA Form 21-0781, Statement in Support of Claim for PTSD, for the first time, the Veteran asserted that while stationed in Germany, he witnessed an air show accident. No evidence of any psychological symptoms associated with this stressor is found within the in-service medical and military records that were associated with his claims file after the March 1, 1994, decision. The VA Regional Office awarded service connection for PTSD based on a response from the Defense Personnel Records Information Retrieval System, which confirmed the claimed in-service stressor. Therefore, the in-service medical and military records that were associated with his claims file after the March 1, 1994, decision were not "relevant" to his award of service connection for PTSD by the VA Regional Office. As the in-service medical and military records associated with the Veteran's claims file after the March 1, 1994 decision had no relevance to the award of service connection for PTSD, the Veteran was required to submit new and material evidence to reopen his claim for service connection for an acquired psychiatric disability, to include stress/anxiety. 38 C.F.R. § 3.156(a), (b).

The Board now considers the appropriate effective date for the award of service connection for PTSD.  Generally, "the effective date of an award based on an . . . a claim reopened after final adjudication . . . shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 ("[T]he effective date of an evaluation and award of . . . compensation . . . based on . . . a claim reopened after final disallowance . . . will be the date of receipt of the claim or the date entitlement arose, whichever is later."). In this case, the Veteran filed his claim for service connection for PTSD on December 7, 2017. This resulted in the VA Regional Office reopening his denied claim from March 1, 1994, which was final. Accordingly, the earliest date that the Veteran could be awarded service connection for PTSD was December 7, 2017, the date he filed his claim to reopen. Thus, he is not entitled to an effective date earlier than December 7, 2017, for the award of service connection for PTSD.  

Increased Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 

Diagnostic codes are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id.

An initial rating is one assigned at the time service-connection is granted. Generally, the effective date of an initial rating is the date of receipt of the claim or request or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400(o)(1); see Sutton v. Nicholson, 20 Vet. App. 419, 422 (2006). When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson v. West, 12 Vet. App. 119, 126 (1999).

A claim for an increased rating is a new, distinct claim. See Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for an increase is "based upon facts different from the prior claim"). The Board is to consider each disability in relation to the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999); 38 C.F.R. § 4.1. The Board must also determine if it is factually ascertainable that the disability worsened within one year preceding the filing of the claim. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).

Separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Fenderson, 12 Vet. App. at 126. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts "for the possible dynamic nature of a disability while the claim works its way through the adjudication process." O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In cases where staged ratings are appropriate, it is necessary to consider all "the evidence of record from the time of the veteran's application." Fenderson, 12 Vet. App. at 127.

7. An initial disability rating in excess of 30 percent prior to December 10, 2019, for service-connected posttraumatic stress disorder is denied.

8. An increased disability rating in excess of 70 percent from December 10, 2019, for service-connected posttraumatic stress disorder is denied.

Rating Criteria  PTSD

Under the General Formula for Mental Disorders (General Formula), 38 C.F.R. § 4.130, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The symptoms listed in the VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 11418 (Fed. Cir. 2013).

The General Formula, 38 C.F.R. § 4.130, DC 9411, provides, in pertinent part, as follows:

 	Rating (%)

Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.	100

Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.	70

Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.	50

Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).	30

38 C.F.R. § 4.130, Diagnostic Code 9411 does provide for ratings lower than 30 percent. In this case, however, the Veteran received an initial disability rating of 30 percent and an increased disability rating of 70 percent. Thus, an analysis of the ratings lower than 30 percent is unwarranted, absent legal and factual bases to issue a reduction in the Veteran's current rating. See 38 C.F.R. § 3.344.

Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. Id. Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).

The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vazquez-Claudio, 713 F.3d at 11617.

Analysis

Prior to December 10, 2019

As the Veteran filed his claim for an increased disability rating for PTSD on December 7, 2017, the appropriate timeframe to consider whether an increased disability is warranted is from December 7, 2016. For the period from December 7, 2016, to December 10, 2019, the Board finds that the Veteran's PTSD symptoms did not result in occupational and social impairment with reduced reliability and productivity. 38 C.F.R. § 4.130, Diagnostic Code 9411 (50 percent rating criteria). 

A private medical record from October 2017 indicated that a routine psychiatric examination by the Veteran's primary care physician, Dr. B.A., resulted in appropriate mood and affect. A November 2017 VA Psychology Note documented that the Veteran had not received prior mental health treatment. This explains the absence of specific mental health evaluations and medical records addressing the Veteran's psychiatric symptoms prior to November 2017. During that evaluation, the Veteran experienced current symptoms of anxiety, irritability, nightmares about military experiences, and hypervigilance. He reported his dreams had grown more intense over the past year, resulting in him kicking his spouse in bed while sleeping. The treating VA psychologist observed no abnormal behavior, to include speech, thought, and appearance. The Veteran denied experiencing suicidal or homicidal ideations. 

The Veteran received a VA-contracted examination in February 2018 addressing his PTSD. The examiner opined that the Veteran's symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent period of inability to perform occupational tasks, although generally function satisfactory, with normal routine, self-care, and conversation. The Veteran reported symptoms including exaggerated startle response, hypervigilance, heightened anxiety and suspiciousness, intrusive memories, nightmares/poor sleep, disrupted focus, irritability, and arousal to/avoidance of cues/triggers. He denied suicidal or homicidal ideation/plans/intentions, but he had persistent negative beliefs and emotional states. He also reported problems with concentration, resulting in mild memory loss. The Board finds the examiner's conclusion as to how the Veteran's PTSD symptoms affected his overall functional ability are adequately supported by the Veteran's reported symptoms and evidence of record at the time of the examination. 

Following his VA-contracted examination, the Veteran began receiving VA mental health treatment. During an April 2018 VA Psychology Intake Assessment, the Veteran did not express suicidal or homicidal ideations. He reported poor sleep, concentration and memory issues, feeling easily startled, feeling persistently on-guard, issues of anger/irritability, nightmares, emotional/physiological reactivity to and avoidance of reminders of trauma, and intrusive thoughts about traumatic experiences he had while in the Air Force. He reported nightmares were his most distressing symptom at that time, experiencing them about two times per week for two years. Regarding irritability, he stated he was easily agitated by others and did not enjoy large crowds or driving because of increased irritability when around other people and other drivers, respectively. He reported the need to constantly check doors and locks. The VA psychologist opined the Veteran's symptoms of severity of avoidance and emotional numbing appeared to be minor at that time. The Veteran said he was very close with his children (both biological and step) and grandchildren, noting he often facetimed with them multiple times a month. The VA psychologist observed no abnormal behavior, to include speech, thought, and appearance. His Patient Health Questionnaire (PHQ-9) score revealed mild depressive symptoms. 

During a May 2018 VA Psychology Telephone Encounter Note, the Veteran did not express suicidal or homicidal ideations and no acute distress was noted. His interpersonal style was friendly, and there was no evidence of hallucinations or delusions. His speech was coherent, on topic, and calm in pace as well as tone.

In a June 2018 VA Addendum report, a VA licensed clinical social worker recorded that the Veteran usually had support, although he was not getting along with his family at that time. He continued to experience nightmares and intrusive memories. He experienced irritability, hypervigilance, startled, moderate concentration problems, and stress. He continued to avoid stimuli that reminded him of his service. He did not feel distant or cut off from people nor did he experience trouble experiencing positive feelings. He reported he did not feel depressed, hopeless, or have feelings of guilt, nor did he experience suicidal or homicidal ideations. Overall, the social worker documented that the Veteran's PHQ-9 score continued to reflect mild depression. 

From 2018 to December 2019, the Veteran attended multiple VA Psychology group counseling sessions. On review of the VA records associated with those sessions, the Veteran displayed appropriate mood, affect, and behavior. None of the records reflect symptoms that were noticeably different in severity, duration, or frequency than those documented by the medical professionals discussed above. 

October 2019 private medical records from the Veteran's primary care physician, Dr. B.A., recorded that the Veteran did not report loss of interest in activities or feelings of depression or hopelessness. Dr. B.A. recorded that the Veteran was negative for depression, anxiety, and insomnia at that time. 

In a November 2019 statement, the Veteran reported that he preferred to spend time alone. He did not socialize as much as he used to in the past. He said he did not like talking to his children on the phone. He primarily socialized with people at church and other military people. His relationship with his extended family was strained. He reported losing his temper easily. He reported panic attacks at least once per week, a loss of motivation, and forgetting names of people. The Veteran's spouse also submitted a statement in November 2019, which mirrored the Veteran's statements. She added that they went out to dinner occasionally, but he also began to express inappropriate behavior. 

Considering the evidence as a whole, the Board finds that the Veteran's reported and documented PTSD symptoms did not most closely result in occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (50 percent rating criteria). 

The Veteran did experience depression at some points between December 2016 and December 2019, but his depression was not so sever or frequent as to affect his functional ability. In October 2019, he reported not experiencing any symptoms of depression. He did not experience speech issues, other than potentially slower speech as he reported once in June 2018 medical record. Yet, no medical professional observed speech issues that affected his social or occupational abilities throughout the relevant timeframe. Nor does the Board finds any such evidence in the record that indicates he was limited by any speech issues. He did report experiencing panic attacks at least one a week, as stated in his November 2019 statement. But he did not report how long his panic attacks lasted or how they interfered with his daily activities. While he preferred to be alone, there is no indication this was as a result of panic attacks or other PTSD symptoms. The Board believes the Veteran when he said he had minor memory issues, but the Board does not find that these memory issues affected his social or occupational abilities, nor has he indicated how they have affected those abilities. To the Board, it appears the Veteran's memory issues were infrequent and did not interfere with his daily activities such that he needed aid and attention. His spouse did indicate one instance of inappropriate behavior, but the Board can only find that this was a discrete instance. There is a lack of evidence of the severity, duration, and frequency of inappropriate behavior between December 2016 to December 2019. The evidence does indicate the Veteran retained the ability to establish and maintain effective relationships, despite his familial issues. Notably, he continued to have the ability to attend church, communicate with others, and go out to dinner in public. The Board does not find his PTSD symptoms limited him from establishing and maintaining relationships, only that he preferred not to do so, which was a choice he made, stating he did not want to talk to his children on the phone, not that he could not talk to them because of any certain symptoms.

Overall, the Board finds the Veteran's PTSD symptoms prior to December 10, 2019, most closely resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411 (30 percent rating criteria). His PTSD symptoms, while exhibiting some signs associated with the 50 percent rating criteria, were not of such severity, frequency, or duration that they manifested more closely as occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. (50 percent rating criteria). 

From December 10, 2019

The Veteran submitted two private opinions from the same licensed psychologist, dated December 10, 2019, and a second dated May 7, 2020. In each opinion, the psychologist reviewed and discussed all of the foregoing evidence analyzed above. In addition, she conducted a personal interview with the Veteran during which he provided additional information pertaining to his PTSD symptoms. The Veteran's spouse was also interviewed as part of the evaluation. The psychologist opined, with a high degree of certainty, that the Veteran's PTSD symptoms resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The Board finds those evaluations and opinions highly credible and probative as they were based on accurate facts, consideration of the Veteran's mental health history, medical records, and personal interviews with the Veteran and his spouse. 

The Veteran received a VA-contracted medical evaluation in February 2021 to address the severity of his PTSD symptoms. The examiner, similar to the private psychologist, opined that the Veteran's PTSD symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner documented that the Veteran reported that he tried to stay in contact through video conferencing with his family. He lost interest in prior activities. He reported being more irritable and agitated, snapping at his wife. He reported showering only two times per week.  He continued to experience depression, anxiety, suspiciousness, panic attacks weekly or less often, chronic sleep impairment, disturbances in mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. The Board also finds this opinion highly credible and probative as it is based on the consideration of the evidence of record at the time, including medical records, the Veteran's lay statements, and a thorough in-person evaluation. 

Outside of these three very thorough mental health evaluations, the Veteran's VA and private medical records since December 10, 2019, are relatively silent about his PTSD symptoms and how they affected his ability to function. The Board observes generalized notations within his VA medical records that documented he still experienced depression, was alert and oriented, displayed normal judgment and insight, with recent and remote memory intact, and displayed appropriate affect. See November 2020 VA Primary Care Note. Otherwise, the Board finds a lack of evidence indicating the severity, frequency, and duration of the Veteran's PTSD symptoms and the effects on his functional abilities. 

Based on the evidence of record as a whole, the Board finds that from December 10, 2019, the Veterans PTSD symptoms did not result in total social and occupational impairment. The Board finds the most significant evidence are the private and VA-contracted psychological evaluations and opinions. Each mental health professional endorsed that the Veteran's PTSD symptoms most closely resembled occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board finds a lack of evidence contradicting their respective opinions. Accordingly, an increased rating of 100 percent is not appropriate from December 10, 2019. 38 C.F.R. § 4.130, Diagnostic Code 9411. 

9. An increased disability rating in excess of 20 percent prior to December 9, 2019, for service-connected cervical spine strain is denied.

10. An increased disability rating of 30 percent, but no higher, from December 9, 2019, for service-connected cervical spine strain is granted.

Rating Criteria  Cervical Spine

The Veteran's cervical spine disability is rated under 38 C.F.R. § 4.71a, DC 5237, entitled "Lumbosacral or cervical strain." Diagnostic Code 5237 is found under the "General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula for the Spine)," which applies to Diagnostic Codes 5235 to 5243. The General Rating Formula for the Spine provides as follows:

	Rating (%)

With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease	

Unfavorable ankylosis of the entire spine	100

Unfavorable ankylosis of the entire thoracolumbar spine	50

Unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine	40

Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine	30

Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis	20

Forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height	10

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Note (2): (See also Plate V.) For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted.

Note (4): Round each range of motion measurement to the nearest five degrees.

Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability.

Analysis

Prior to December 9, 2019

As the Veteran filed his claim for an increased disability rating for his cervical spine strain on December 7, 2017, the appropriate timeframe to consider whether an increased disability is warranted is from December 7, 2016. For the period from December 7, 2016, to December 9, 2019, the Board finds that the Veteran's cervical spine strain did not result in forward flexion limited to 15 degree or less, or ankylosis, favorable or unfavorable, of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237.

As of December 7, 2016, the Veteran's cervical spine disability was rated as 20 percent disabling based on the results of a January 2018 VA-contracted examination documenting forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees. The examination did not document forward flexion of the cervical spine of 15 degrees or less or favorable or unfavorable ankylosis of the entire cervical spine. The examination was conducted under the appropriate guidelines as interpreted within 38 C.F.R. §§ 4.40, 4.45, and 4.59, to include range-of-motion estimations based on flareups, following repetitive use, and on weight and nonweight bearing. The examiner also documented and considered the Veteran's lay statements about his cervical spine disability. The Board finds this examination and the medical conclusions expressed therein highly credible and probative.

Outside of this examination, the Board is unable to locate evidence within the record indicating, or reasonably suggesting, that the Veteran's cervical spine demonstrated forward flexion of 15 degrees or less, or favorable or unfavorable ankylosis of the entire cervical spine. Absent such evidence, a disability rating in excess of 20 percent, prior to December 9, 2019, is not warranted. 

From December 9, 2019

The Veteran submitted a private medical record dated December 9, 2019, from a medical physician who evaluated his cervical spine disability. The physician recorded that the ranges of motion of the Veteran's cervical spine "were more limited than the one done in 2017." Nevertheless, the physician stated that the ranges of motion were still consistent with the 20 percent rating criteria. But, at the time of the examination, the physician recorded that the Veteran's cervical spine displayed "no extension" and "the [Veteran] was unable to look upwards." 

Recently, in Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that in the absence of a medical diagnosis of ankylosis, a claimant may still receive benefits associated with ankylosis based on the functional equivalent of ankylosis (i.e., the claimant's symptoms sufficiently resemble ankylosis despite the absence of a formal diagnosis). In short, if a claimant's functional loss "is the functional equivalent of ankylosis," a higher rating may be warranted on that basis. Id. at 11.

Considering the physician's examination, the Board finds that the Veteran's cervical spine displayed the functional equivalent of favorable ankylosis as of December 9, 2019. The Board interprets the physician's medical findings as indicating the Veteran's cervical spine was fixed in a neutral, upright position when standing, and a neutral, flat position when lying. Thus, his cervical spine was in a zero-degree position. Being unable to look upwards indicates that the Veteran continued to have range of motion in all other directions that did not impede his functional abilities. According to Note (5) of Diagnostic Code 5237, "Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis." Therefore, the Board concludes that the Veteran is entitled to an increased disability rating of 30 percent as of December 9, 2019, the date of the examination because it is factually ascertainable that his cervical spine displayed the equivalent of functional ankylosis. 

The Board does not find evidence in the record that from December 9, 2019, the Veteran's cervical spine disability resulted in unfavorable ankylosis of the entire cervical spine. According to Note (5) of Diagnostic Code 5237, "unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." None of the Veteran's medical records, nor his lay statements, indicate, or reasonably suggest, that he experienced any of these symptoms in association with his cervical spine disability from December 9, 2019. In a recent February 2020 VA-contracted examination, the examiner documented that the Veteran had to keep his head in a neutral position to avoid pain. The Veteran did not report nor did the examiner document any symptoms identified in Note (5) of Diagnostic Code 5237 in association with the Veteran's cervical spine disability. Nor did the examiner endorse medically recognized unfavorable ankylosis of any part of the spine. Accordingly, an increased rating of 40 percent (and, consequently, 100 percent) is not warranted as there is a lack of evidence of unfavorable analysis of the cervical spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237.

11. An increased disability rating in excess of 10 percent for service-connected residuals, fracture right 2nd toe, is denied.

Right Toe  Rating Criteria

The Veteran's residuals of a fracture for his right 2nd toe are rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284 ("Other Foot Injuries"). Diagnostic Code 5284 provides:

	Rating (%)

Foot injuries, other:	

Severe	30

Moderately Severe	20

Moderate	10

Note: With actual loss of use of the foot, rate 40 percent	

Diagnostic Code 5284 does not define the terms "moderate," moderately severe," or "severe." In the absence of an express definition, words are given their ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (citations omitted). 

"Moderate" means "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Nov. 2, 2021).

"Severe" means "causing discomfort or hardship"; very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Nov. 2, 2021).

"Moderately severe" is not a precisely defined term because "moderately," as an adverb, modifies "severe." "Moderately" means "to a moderate degree or extent." Moderately, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderately, (last visited Nov. 2, 2021). Thus, the Board finds that "moderately severe" indicates an injury that is more than moderate but less than severe, although it may encompass symptoms associated with either a moderate or severe injury.

It should also be noted that use of terminology such as "moderate," "moderately severe," and "severe" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. In addition, objective evidence is not required to assign a disability rating under Diagnostic Code 5284. Cf. English v. Wilkie, 30 Vet. App. 347, 353 (2018); Petitti v. McDonald, 27 Vet. App. 415, 424 (2015). Both subjective and objective evidence may be considered.

Relevant here is 38 C.F.R. § 4.59, entitled "Painful motion," which provides in its fifth sentence: "It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint." 38 C.F.R. § 4.59. This section "provides guidance for noting, evaluating, and rating joint pain." Burton v. Shinseki, 25 Vet. App. 1, 4 (2011). Although the regulation references arthritis, the provision is not limited to arthritic conditions. Id. at 45. It also "acknowledges that a claimant's disability may cause painful motion but still not be severe enough to warrant a compensable rating under the assigned [diagnostic code]." Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). Thus, when there is evidence of painful motion, section 4.59 operates to provide at least the minimum compensable disability rating available under the diagnostic code for the joint. Id. at 47879.

Analysis

The Veteran's received an initial non-compensable disability rating for his right toe residuals. In a May 2021 rating decision, a VA Regional Office awarded the Veteran an increased disability rating of 10 percent under 38 C.F.R. § 4.59 for his right toe residuals and assigned an effective date of December 7, 2017, the date he filed his claim for an increased rating. As the Veteran filed his claim for an increased disability rating for residuals of a right 2nd toe fracture on December 7, 2017, the appropriate timeframe to consider whether an increased disability is warranted is from December 7, 2016. 

The Veteran received a VA-contracted examination in January 2018 addressing the severity of his right toe residuals. The examiner recorded that the Veteran reported his toe will hurt if he is on his feet most of the day, which requires him to sit in order to relieve the pain. During a flare-up, the Veteran reported an inability to bend his toe and pain. The examiner documented pain on movement, pain on weight-bearing, pain on nonweight-bearing, and disturbance of locomotion. Functional loss included an inability to stand, walk, or use the right foot continuously for more than two to three hours, and additional functional loss was expected during flare-ups. The examiner documented that "tandem walk and heel-toe walk" were impaired. The examiner opined that the Veteran's right toe was not so impaired that no effective function remained. The Board observes that the examiner indicated that he did not review the Veteran's claims file, which included medical records and lay statements, because he was not asked to do so. Consequently, the Board concludes that it may only rely on this examination to the extent that it addresses the Veteran's right toe residual symptoms as of January 2018. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) ("[E]ven if a medical opinion is inadequate to decide a claim, it does not necessarily follow that the opinion is entitled to absolutely no probative weight."). The Board finds this evaluation and the opinions contained therein highly probative and credible to the extent indicated. The examiner conducted a thorough examination and considered the Veteran's lay statements at the time of the examination. The examiner's conclusions are adequately supported by sufficient facts.

VA obtained another contracted examination in May 2021, and that examiner did consider the Veteran's electronic claims file, to include medical records and medical history. During the examination, the Veteran reported a burning sensation and tingling in his feet, which worsened with activity. The examiner found that this pain was associated with his diabetic neuropathy in his feet for which he is prescribed Gabapentin. Therefore, the examiner opined these symptoms are not part of his service-connected right toe residuals. Although the Veteran described flare-ups, the examiner found that his flare-up symptoms were also associated with his diabetic neuropathy rather than his right toe residuals. Nevertheless, the examiner was able to document stiffness and pain associated with the Veteran's right toe, which was accompanied by an inability to bend it. The examiner endorsed that the Veteran's right toe residuals contributed to disturbance of locomotion, interference with standing, pain, fatigue, and lack of endurance. The examiner did not find additional functional loss during flare-ups or following repetitive use. The examiner opined that the Veteran's right toe was not so impaired that no effective function remained. The Board finds this evaluation and the opinions contained therein highly probative and credible. The examiner conducted a thorough examination, considered the Veteran's medical history, records, and lay statements. The examiner's conclusions are adequately supported by sufficient facts.

On review of the Veteran's VA and private medical records for the relevant timeframe, the Board finds a lack of evidence relating to his right toe residuals and how his symptoms affected him. 

Based on the relevant evidence of record, the Board finds that the Veteran's right toe residuals reflect moderate functional limitation, not moderately severe functional limitation. Although the Veteran experienced pain and an inability to bend his right 2nd toe, he was not functionally limited to an extent where he could not walk for a continuous period of time (at least two to three hours), could not stand for a continuous period, or was otherwise limited in his mobility to such an extent that it interfered with his daily activities. The evidence indicates the Veteran's right toe residual symptoms are limited in scope and effect, which is consistent with a "moderate" rating analysis. Therefore, an increased disability rating in excess of 10 percent is not warranted for the relevant timeframe. The Board does not find sufficient evidence indicating that the Veteran's right toe residuals manifested to a compensable degree pain and functional loss, or manifested as "moderate" symptoms, for the year preceding the filing of the claim. Therefore, an increased disability rating of 10 percent for the year preceding the filing of the claim is not warranted. 

12. An increased disability rating in excess of 10 percent prior to August 1, 2021, for service-connected hemorrhoids is denied.

13. The reduction in a disability rating from 10 percent to a noncompensable disability rating from August 1, 2021, for service-connected hemorrhoids was improper; thus, the 10 percent rating is restored. 

14. An increased disability rating in excess of 10 percent from August 1, 2021, for service-connected hemorrhoids is denied.

Hemorrhoids  Rating Criteria

Hemorrhoids are rated under 38 C.F.R. § 4.114, Diagnostic Code 7336, which provides:

	Rating (%)

Hemorrhoids, external or internal:	

With persistent bleeding and with secondary anemia, or with fissures	20

Large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences	10

Mild or moderate	0

Diagnostic Code 7336 does not define the terms "mild" or "moderate." In the absence of an express definition, words are given their ordinary meaning. Prokarym, 27 Vet. App. at 310 (citations omitted). "Mild" means "not violent, severe, or extreme; slight or gentle." Mild, Cambridge Dictionary Online, https://dictionary.cambridge.org/us/dictionary/english/mild (last visited Nov. 2, 2021). "Moderate" means "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Nov. 2, 2021). It should also be noted that use of terminology such as "mild" and "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of whether an increased disability rating is warranted. Under Diagnostic Code 7336, objective and subjective evidence are each relevant.

Analysis

The Veteran received an initial noncompensable disability rating effective August 1, 1992, for hemorrhoids. In a March 2018 rating decision, a VA Regional Office awarded the Veteran an increased disability rating of 10 percent with an effective date of December 7, 2017, the date he filed his claim for an increased rating. As the Veteran filed his claim for an increased disability rating for hemorrhoids on December 7, 2017, the appropriate timeframe to consider whether an increased disability is warranted is from December 7, 2016.

The Veteran received a VA-contracted examination in January 2018 addressing the severity of his hemorrhoids. During the examination, the Veteran reported intermittent rectal bleeding and itching. The examiner documented that the Veteran's hemorrhoids manifested as large external hemorrhoids; large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. The Board observes that this examiner indicated that he did not review the Veteran's claims file, which included medical records and lay statements, because he was not asked to do so. Consequently, the Board concludes that it may only rely on this examination to the extent that it addresses the Veteran's hemorrhoids as of January 2018. Monzingo, 26 Vet. App. at 107. The Board finds this evaluation and the opinions contained therein highly probative and credible to the extent indicated. The examiner conducted a thorough examination and considered the Veteran's lay statements provided during the examination. The examiner's conclusions are adequately supported by sufficient facts.

The Veteran received a second VA-contracted examination in May 2021. The examiner indicated review of the Veteran's electronic claims file in addition to conducting an in-person examination. The Veteran reported that he is prescribed hemorrhoidal cream (steroid) and witch hazel to soothe and shrink his hemorrhoids. He reported that he continued to have pain and worsening of symptoms. He reported flare-ups, which increased his pain. He had difficulty with bowel movements, requiring the use of stool softeners. At times, he reported blood from the rectum related to his hemorrhoids. An examination of the rectal area revealed small or moderate external hemorrhoids. The Board finds this evaluation and the opinions contained therein highly probative and credible. The examiner conducted a thorough examination, considered the Veteran's medical history, records, and lay statements. The examiner's conclusions are adequately supported by sufficient facts.

Prior to August 1, 2021

Based on the relevant evidence of record, the Board finds that the Veteran's hemorrhoids manifested as large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences prior to August 1, 2021. There is a lack of evidence indicating, or reasonably suggesting, that his hemorrhoids manifested as persistent bleeding and with secondary anemia, or with fissures. While the Veteran reported intermittent bleeding, there is no evidence such bleeding was accompanied by secondary anemia or fissures. Therefore, an increased disability rating in excess of 10 percent is not warranted for the relevant timeframe. On review of the Veteran's medical records and lay statements, the Board does not find sufficient evidence to ascertain that the Veteran's hemorrhoids manifested to a compensable degree for the year preceding the filing of the claim. Therefore, an increased disability rating of 10 percent for the year preceding the filing of the claim is not warranted.

From August 1, 2010

Improper reduction

While the Veteran's claim for an increased rating was pending before the Board, in a May 2021 rating decision, the VA Regional Office decreased the Veteran's disability rating from 10 percent to a noncompensable disability rating effective August 1, 2021, based on May 2021 VA-contracted examination results that showed only small or moderate external hemorrhoids. The Board has jurisdiction to address whether the rating reduction was proper even though no claim of appeal was taken from the May 2021 decision because a rating reduction matter and an increased rating matter are different characterization of the same issue, similar to how VA generally treats requests for TDIU when raised as part of an increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board finds this rating reduction was improper and that restoration of the 10 percent disability rating is warranted. 

"Reexaminations disclosing improvement, physical or mental, in [ ] disabilities [that have been in effect for less than five years] will warrant [a] reduction in rating." 38 C.F.R. § 3.344(c); see Collier v. Derwinski, 2 Vet. App. 247, 24950 (1992). In cases where a veteran's disability rating is reduced, the Board must determine whether the reduction of the veteran's rating was proper and not phrase the issue in terms of whether the veteran was entitled to an increased rating. Dofflemyer v. Derwinski, 2 Vet. App. 277, 27980 (1992). If VA has reduced the rating without following the applicable VA regulations, the reduction is void at its inception. Kitchens v. Brown, 7 Vet. App. 320, 325 (1995). In any rating-reduction case, VA needs to comply with several regulations, regardless of the rating level or how long that rating has been in effect. See Brown v. Brown, 5 Vet. App. 413, 42021 (1993). In this case, the proper regulations were not followed.

According to 38 C.F.R. § 3.105:

Where the reduction in evaluation of a service-connected disability . . . is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Unless otherwise provided in paragraph (i) of this section, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires.

Here, the VA Regional Office issued the May 2021 rating decision indicting an actual reduction as of August 1, 2021, not a proposed reduction. The accompanying rating codesheet had already taken into account the reduction as of August 1, 2021, further indicating to the Board that the VA Regional Office had already implemented an actual, rather than a proposed, reduction. Within the notification letter sent to the Veteran, the Board finds an absence of clearly identified rules the Veteran was to follow to address the "proposed" reduction, further signaling the reduction was already implemented. Therefore, the reduction was improper, and the 10 percent disability rating is restored as of August 1, 2021.

Increased disability rating

Furthermore, the Board finds an increased disability rating for service-connected hemorrhoids is not warranted from August 1, 2021. The Board relies on the same reasoning discussed above with respect to the timeframe prior to August 1, 2021. In addition, the Board notes that although the Veteran's external hemorrhoids shrunk in size so as not to meet the 10 percent rating criteria (i.e., "large hemorrhoids"), the examiner did not take into account the medications used by the Veteran to shrink his hemorrhoids.

In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that, when assigning a disability rating, the adjudicator may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. "Thus, if [the applicable diagnostic code] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication when evaluating [the disability]. Conversely, if [the applicable diagnostic code] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Diagnostic Code 7336 does not speak to medications in relation to the rating criteria. Therefore, Diagnostic Code 7336 does not contemplate the effects of medication.

The Board finds the Veteran's statements about his use of medication to reduce the size of his hemorrhoids credible. Therefore, the Board reasonably concludes that without such medications, the Veteran's hemorrhoids would remain "large" and meet the remaining criteria associated with the 10 percent disability rating. Accordingly, the 10 percent disability rating is warranted from August 1, 2021, but no higher. Again, there is no evidence that the Veteran's hemorrhoids manifested with persistent bleeding and with secondary anemia, or with fissures from December 7, 2016, thus a higher rating is not appropriate.

15. An increased disability rating in excess of 10 percent for service-connected seasonal allergic reaction is denied.

The Veteran became service connected in a March 1994 decision for an "upper respiratory tract infection, to include acute bronchitis and seasonal allergic reaction." At that time, the VA Regional Office assigned an initial disability rating of 10 percent, effective August 1, 1992, under Diagnostic Code 6599-6602. The VA Regional Office determined the Veteran's condition was "unlisted" within the Rating Schedule at that time. When an unlisted condition is encountered, it is permissible to rate the condition under a diagnostic code that is closely related to the disability. 38 C.F.R. § 4.20. An adjudicator should select a diagnostic code based on the function affected, the anatomical location, and symptomatology to ensure the disabilities are closely analogous. When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code will be "built up" by using the first two digits of the diagnostic for the most closely analogous disability, followed by the terminal digits of "99" connoting an unlisted condition. 38 C.F.R. § 4.27. The hyphenated diagnostic code therefore represents that the condition is unlisted and its analogous disability. 

Here, the hyphenated diagnostic code indicates that an unlisted disability of the respiratory system, Diagnostic Code 6599, is the service-connected disability, and the condition to which it is rated by analogy is bronchial asthma, Diagnostic Code 6602. 38 C.F.R. § 4.97.

After the Veteran became service connected for his respiratory disability in 1994, VA amended the Rating Schedule for respiratory conditions. Particularly, on October 7, 1996, VA added Diagnostic Code 6522, which addresses allergic or vasomotor rhinitis. For the reasons that will be discussed below, the Board finds the Veteran's current respiratory disability is most adequately encompassed by Diagnostic Code 6522 rather than being rated by analogy under Diagnostic Code 6599-6602.

Change of Diagnostic Code

The Board observes that the Veteran's disability rating of 10 percent for seasonal allergic reaction has been in place for more than ten years. According to 38 U.S.C. § 1159, "Service connection for any disability or death granted under this title which has been in force for ten or more years shall not be severed . . . except upon a showing that the original grant of service connection was based on fraud or it is clearly shown from military records that the person concerned did not have the requisite service or character of discharge." See also 38 C.F.R. § 3.957 (implementing regulation). The U.S. Court of Appeals for the Federal Circuit held that section 1159 does not prohibit a change in the applicable diagnostic code because "service connection for a 'disability' is not severed simply because the situs of a disabilityor the diagnostic code associated with itis corrected to more accurately determine the benefit to which a veteran may be entitled for a service-connected disability." Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011); see also VAOPGCPREC 6-02; VAOPGCPREC 13-92 ("§ 1159 does not protect a prior improper diagnosis where the evidence reveals the proper diagnosis, even where the Diagnostic Code is changed.");  VAOPGCPREC 50-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507.

In January 2018, the Veteran received a VA-contracted examination to assess the severity of his seasonal allergic reaction. This was the first VA examination since his award of service connection 1994. The examiner only documented a diagnosis of seasonal allergic rhinitis on examination. On review of the Veteran's private and VA medical records, the Board does not find a current diagnosis of asthma or bronchitis, although he has had a past history of shortness of breath. In fact, 2005 and 2006 VA Medical Notes recorded a diagnosis of allergic rhinitis and did not record diagnoses of bronchitis or asthma. The Board finds the 2005 and 2006 VA medical records make it more likely that the Veteran has only seasonal allergic rhinitis, as found by the examiner. Thus, the Board finds the January 2018 examiner's diagnosis of seasonal allergic rhinitis is the appropriate characterization/diagnosis of the Veteran's service-connected an upper respiratory tract infection from the March 1994 VA Regional Office decision. 

The Board observes a VA-contracted examination conducted in May 2021, in association with the Veteran's new claim for an upper respiratory conditionwhich is on appeal under the AMArecorded a diagnosis of chronic obstructive pulmonary disease (COPD). The examiner recorded the onset and diagnosis of that disease in 2009. Notably, that examiner did not report a diagnosis of bronchitis or another disease that is associated within the Veteran's seasonal allergic reaction. The Board finds the diagnosis of COPD is unrelated to the present claim stemming from the Veteran's award of service connection in March 1994. There is no reasonable indication that his COPD is related to his seasonal allergic rhinitis. Therefore, the Board finds it is not proper to address his COPD as part of the claim for an increased rating for seasonal allergic rhinitis. The Board will allow that claim to be addressed properly in the currently pending appeal. 

In sum, the Board finds that since the Veteran's initial receipt of service connection in 1994 for an upper respiratory tract infection, to include acute bronchitis and seasonal allergic reaction, his disability has specifically progressed and manifested only as seasonal allergic rhinitis as of the filing of his December 17, 2017, claim for an increased disability rating. Since 1994, VA has implemented a new regulation specifically addressing allergic rhinitis, Diagnostic Code 6522. Therefore, the most appropriate code under which to evaluate the Veteran's seasonal allergic rhinitis is Diagnostic Code 6522, not Diagnostic Code 6599-6602 (dealing with asthma).

Seasonal Allergic Rhinitis  Rating Criteria

Allergic rhinitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6522, which provides:

	Rating (%)

Allergic or vasomotor rhinitis	

With polyps	30

Without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side	10

Analysis

The Veteran received an initial 10 percent disability rating effective August 1, 1992. As the Veteran filed his claim for an increased disability rating for his service-connected upper respiratory tract infection, to include acute bronchitis and seasonal allergic reaction on December 7, 2017, the appropriate timeframe to consider whether an increased disability is warranted is from December 7, 2016.

The January 2018 examiner recorded no evidence of polyps associated with the Veteran's rhinitis. Nor did the examiner record greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. The examiner did record permanent hypertrophy of the nasal turbinates. "Turbinate hypertrophy refers to an excessive growth or enlargement of the bony structures located inside of the nose. . . . If these turbinates become enlarged, breathing can become more difficult." Turbinate Hypertrophy, Mayo Clinic Health System, https://www.mayoclinichealthsystem.org/locations/fairmont/services-and-treatments/otorhinolaryngology/nose-conditions-and-treatment/turbinate-hypertrophy (last accessed Nov. 3, 2021).  The examiner opined that the Veteran's  diagnosis of allergic rhinitis had not changed since the original diagnosis and remained active. 

The Board finds no evidence within the Veteran's VA or private medical records that he experienced symptoms of polyps or greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side from December 2016 to the present. Nor has the Board found lay evidence reasonably indicating such symptoms. Despite no medical evidence or lay evidence sufficiently indicating that the Veteran's allergic rhinitis meets the 10 percent rating criteria, and consequently the higher 30 percent rating criteria, the Board finds the Veteran is still entitled to keep his 10 percent rating because it has been in effect for more than ten years. 38 U.S.C. § 1159; 38 C.F.R. § 3.957. In sum, an increased disability rating for allergic rhinitis is not warranted.

 

Effective Dates

Generally, the effective date of an initial rating is the date of receipt of the claim/request or the date entitlement arose, whichever is later. 38 U.S.C.§ 5110(a); 38 C.F.R. § 3.400(o)(1); see Sutton v. Nicholson, 20 Vet. App. 419, 422 (2006). 

The general rule under 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400 is that the effective date of an increase in a veteran's disability compensation shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(b)(2) provides an exception to this general rule: "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." See also 38 C.F.R. § 3.400(o)(2). Thus, "the plain language of [section] 5110(b)(2) . . . only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim." Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). Thus, three possible dates may be assigned depending on the facts:

(1) If an increase in disability occurs after the claim is filed, then the date that the increase is shown to have occurred, whichever is later (date entitlement arose) (38 C.F.R. § 3.400(o)(1));

(2) If an increase in disability precedes the claim by a year or less, then the date that the increase is factually shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or

(3) If an increase in disability precedes the claim by more than a year, and it is not factually ascertainable that the disability increased within the year prior to the filing of the claim, then the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)).

16. Entitlement to an effective date prior to December 17, 2017, for the assigned 20 percent disability rating for service-connected cervical spine strain is denied.

17. Entitlement to an effective date prior to December 17, 2017, for the assigned 10 percent disability rating for service-connected hemorrhoids is denied.

18. Entitlement to an effective date prior to December 7, 2017, for the assigned 10 percent disability rating for service-connected residuals, fracture right 2nd toe, is denied.

Due to the similar dispositions for the above claims (#s 16, 17, and 18) on appeal, the Board will address them together.

On December 7, 2017, the Veteran filed claims for increased disability ratings for his service-connected cervical spine strain, hemorrhoids, and residuals of right 2nd toe fracture. On that date, the Veteran had the following associated disability ratings and effective dates:

	Cervical spine strain, 10 percent, effective August 1, 1992

	Hemorrhoids, noncompensable, effective August 1, 1992

	Residuals, fracture right 2nd toe, noncompensable, effective August 1, 1992

Following the filing of his claims, the VA Regional Office awarded the following disability ratings and effective dates:

	Cervical spine strain, 20 percent, effective December 7, 2017

	Hemorrhoids, 10 percent, effective December 7, 2017

	Residuals, fracture right 2nd toe, 10 percent, effective December 7, 2017

The Board has already addressed the Veteran's claims for increased disability ratings for these disabilities in the preceding discussions and has not altered the assigned disability ratings or effective dates assigned by the VA Regional Office stated above. 

The Veteran's request for earlier effective dates is unaccompanied by any argument as to what specific date he seeks or what basis he relies on for his request. The Board observes that unlike his service-connected migraine headache disability for which he is entitled to an earlier effective date, see discussion above, the Veteran has been service-connected for his cervical spine disability, hemorrhoids, and right toe residuals since August 1, 1992. That is the earliest date at which service connection can be granted in this case. 38 U.S.C. § 5110(b)(1). Thus, the Board can only reasonably read the Veteran's claims to be that he wants an effective date earlier than December 7, 217, for the disability ratings assigned by the VA Regional Office cited above. The Board finds he is not entitled to earlier effective dates for any of these disabilities. 

The Board has already discussed in preceding analyses above why he is not entitled to increased disability ratings for these disabilities prior to December 7, 2017, under VA's one-year look back provision, 38 C.F.R. § 3.400(o)(2). For the same reasons, the Veteran is not entitled to earlier effective dates for these assigned disability ratings. According to 38 C.F.R. § 3.400(o)(2), if it is not factually ascertainable that the disability increased within the year prior to the filing of the claim, then the effective date will be the date that the claim is received. Here, VA received the Veteran's claims for increased disability ratings for these service-connected disabilities on December 7, 2017. As previously discussed, it was not factually ascertainable that any of these disabilities worsened in the year preceding the claim. Therefore, the earliest date on which the assignment of the increased disability ratings could be awarded was December 7, 2017, the date VA received the claims for increased disability ratings. Accordingly, the Veteran is not entitled to earlier effective dates for the increased ratings of 20 percent for cervical spine strain, 10 percent for hemorrhoids, and 10 percent residuals, fracture right 2nd toe.

Service Connection

VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d).

Generally, in order to be entitled to service connection there must be competent, credible evidence of (1) a current disability, (2) an in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). When these elements are satisfied, service connection may be granted on a direct basis. Additional legal theories of service connection will be discussed where appropriate. 

19. Service connection for obstructive sleep apnea as secondary to service-connected posttraumatic stress disorder is granted.

Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a), (b). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability exists, (2) the veteran has a service-connected disability; and (3) the current disability was either (a) proximately due to or the result of; or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439, 448 (1995). Where aggravation is the relied upon theory, compensation may only be provided to that degree over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen, 7 Vet. App. at 448.

First element: A current disability

The Veteran's medical records establish that he presently has obstructive sleep apnea. Therefore, the first element is satisfied. 

Second element: A current service-connected disability

The Veteran is currently service connected for PTSD. He has been service connected for PTSD since August 1, 1992, consistent the Board's decision in this appeal. Therefore, the second element is satisfied.

Third element: A causal link

"Proximate cause" is defined as "[t]hat which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces injury, and without which the result would not have occurred." Black's Law Dictionary 1225 (6th ed. 1990); VAOPGCPREC 6-03 (adopting this definition). When there are potentially multiple causes of a harm, an action is considered to be a proximate cause of the harm if it is a substantial factor in bringing about the harm and the harm would not have occurred but for the action. VAOPGCPREC 6-03. 

In January 2021, the Veteran submitted a private medical opinion from medical physician who specializes in pulmonary medicine. After thorough review and consideration of the Veteran's military records, medical records, medical history, lay statements, and the claims file in general, he opined that the Veteran's obstructive sleep apnea was at least as likely as not caused by his PTSD. The examiner first addressed the correlation between PTSD and obstructive sleep apnea, citing a vast amount of medical research and literature. He then discussed the Veteran's particular onset of PTSD and subsequent onset of obstructive sleep apnea, connecting the Veteran's obstructive sleep apnea to his PTSD. The Board finds this opinion highly credible and probative. The examiner adequately connected the general medical literature with the facts of the Veteran's particular case. Therefore, the Board finds the third element is satisfied.

Accordingly, service connection for obstructive sleep apnea as secondary to service-connected PTSD is granted. The Board finds this is a full award of benefits and, therefore, no discussion of direct service connection or the theory of aggravation under secondary service connection is necessary. 

20. Service connection for type II diabetes mellitus is granted.

21. Service connection for coronary artery disease is granted.

Due to the similar dispositions for the above claims (#s 20 and 21) on appeal, the Board will address them together.

Law and Regulations  Herbicide Agent Exposure

Certain diseases associated with exposure to herbicides, such as Agent Orange, may be entitled to service connection on a presumptive basis; type II diabetes mellitus and coronary artery disease are among such diseases. 38 C.F.R. § 3.309(e). VA regulations provide that exposure to herbicides may be presumed for veterans who, in specified circumstances and during specific times, served in Vietnam or the Demilitarized Zone of Korea; or who operated, maintained, or served aboard certain U.S. Air Force aircraft. In this matter, the Veteran does not argue, nor does the record show, that he served in Vietnam or Korea. Instead, his military service included service at U-Tapao Royal Thai Air Force Base (RTAFB) in Thailand.

Although statutory and regulatory provisions do not establish a presumption of exposure to herbicide agents based on service in Thailand, per information from the Department of Defense, VA recognizes herbicide agents were used at certain times and places at some military bases in Thailand during the Vietnam Era. See Parseeya-Picchione v. McDonald, 28 Vet. App. 171 (2016). The "Vietnam era" is the period beginning on February 28, 1961, and ending on May 7, 1975, for veterans who served in the Republic of Vietnam, and the period beginning on August 5, 1964, and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Despite the absence of a statute or regulation, VA has established procedures under which it will concede exposure to herbicide agents during service in Thailand but only if certain conditions are met. The Board is not bound by these VA procedures. Overton v. Wilkie, 30 Vet. App. 257, 263 (2018). Nevertheless, the Board adopts these procedures as the relevant standard to analyze the Veteran's claim. See Hudick v. Wilkie, 755 Fed. Appx. 998, 100507 (Fed. Cir. 2018). 

VA Compensation Service has determined that a special consideration of herbicide agent exposure on a factual basis should be extended to U.S. Air Force Veterans whose duties placed them on or near the perimeters of Royal Thai Air Force Bases during the Vietnam era, to include U-Tapao. If an Air Force veteran served on the base as a security policeman, security patrol dog handler, member of a security police squadron, or otherwise served near the air base perimeter, as shown by his or her military occupational specialty, performance evaluations, or other credible evidence, then herbicide agent exposure will be acknowledged on a facts-found or direct basis. Otherwise, the procedures direct the VA Regional Office to ask the veteran for the approximate dates, location, and nature of alleged exposure to determine whether exposure to herbicide agents can be acknowledged on a direct or facts-found basis.

Analysis

Service

The Veteran served on active duty in the United States Air Force from June 3, 1968, until his honorable discharge on June 2, 1972, and from July 24, 1972, until his honorable retirement on July 31, 1992. According to his military records, he serviced on active duty at the U-Tapao RTAFB from October 9, 1973, to October 5, 1974. Therefore, his service at U-Tapao falls within the Vietnam Era. 38 U.S.C. § 101(29)(A).

Exposure to herbicide agents at U-Tapao

According to the Veteran's military records, while stationed at U-Tapao, his military occupational specialty (MOS) was as a personnel technician and computer systems supervisor. This MOS is not one of the identified occupations associated with service at the base's perimeter. Thus, the Board must review any additional evidence of record to determine whether the Veteran's duties otherwise placed him near the base's perimeter.

In an October 2019 statement, the Veteran described his living conditions at U-Tapao. He described his living quarters as "open-air," and no foliage was present around the living quarters. He described witnessing people spray the vegetation along a walkway, and when he would see the same area the next day the vegetation would be dead. He did not have air-conditioning in his barracks, so he kept his windows open all day, which allowed the smell of chemicals from the spraying to enter his barracks. He stated that he would walk by the fields where spraying occurred to get to work. 

In a November 2019 statement, the Veteran described how he was near the perimeter of the base every time he went off base, witnessing the lack of foliage. He claimed to have seen people spraying the vegetation with what he suspected were pesticides. He described the smell of chemicals in the air on a constant basis, which he attributed to the pesticide spraying. 

In a November 2020 statement, the Veteran provided a map of the U-Tapao RTAFB and identified where his barracks were located. He identified his barracks as being approximately 50 feet from the perimeter of the base. He described his daily routine at U-Tapao, which included walking near the permitter of the base to get to other buildings. He identified particular paths he routinely took and buildings he routinely visited, which often placed him near the perimeter of the base. 

The Board finds that the Veteran is competent to offer his lay statements about his experiences at U-Tapao, to include where he lived, worked, and socialized. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (citing United States v. Brown, 540 F.2d 1048, 1053 (10th Cir. 1976) (witnesses may testify "upon concrete facts within their own observation and recollectionthat is, facts perceived from their own senses, as distinguished from their opinions or conclusions drawn from such facts."). The Board finds his statements are credible, but not those statements that indicate he witnessed people spraying herbicide agents. There is no evidence in the record that the Veteran had personal knowledge of the contents of the containers that he witnessed being sprayed. Therefore, his belief that the people were spraying herbicide agents, such as Agent Orange, is speculation. 

In addition, to his lay statements, the Veteran relies on Contemporary Historical Examination of Current Operations of the United States Air Force that states herbicide agents were not only used at the perimeter of the base but within the base and airfield. He has also submitted numerous military articles about the use of herbicide agents in Thailand to support his position that herbicide agents were not solely used at the perimeter base, but within the base as well. 

Considering the evidence as a whole, the Board finds that it supports concession of herbicide agent exposure as to the Veteran's duties at the U-Tapao RTAFB. The standard of proof is credible evidence, not corroborated evidence. Hudick v. Wilkie, 755 Fed. Appx. 998 (2018). The Veteran has provided specific statements about his service at U-Tapao, specifically identify his living quarters, describing his daily living situation, describing his routes to work and buildings on the base that took him near the permitter of the base on a routine basis. He has gone beyond mere general assertions and offered statements that when viewed in light of the military articles he offered in support of his position make his statements credible and probative. There is no evidence on the other side of the scale. Therefore, consistent with VA procedural guidance, herbicide agent exposure is conceded due to the Veteran's military service at U-Tapao RTAFB based on his routine location and duties that took him near the perimeter of the base.

Service Connection

The Board now addresses the elements of service connection for his type II diabetes mellitus and coronary artery disease.

First element: A current disability

The Veteran has present diagnoses of type II diabetes mellitus and coronary artery disease according to his VA and private medical records. Therefore, the first element is satisfied as to each claim for service connection. 

Second element: An in-service event, injury, or illness, or aggravation thereof

As just discussed, VA concedes exposure to herbicide agents in service. Therefore, the second element is satisfied. 

Third element: A causal link

Under 38 C.F.R. §§ 3.307(a)(6) and 3.309(e), if a Veteran is exposed to herbicide agents in service and develops type II diabetes mellitus or coronary artery disease, then these disabilities are presumed to be due to herbicide-agent exposure if they manifest to a degree of 10 percent or more any time after service. See also Effective Date for Claims Involving Exposure to Agent Orange with Thailand Base Perimeter Duty, VA Compensation Service Bulletin 1-2 (Dec. 2011) (acknowledging exposure to tactical herbicides for veterans who worked along the base perimeters of RTAFBs during the Vietnam era, declaring that those veterans "are eligible for presumptive service connection for the diseases associated with tactical herbicide exposure listed at []§ 3.309(e)," and providing an example of a veteran who worked along the perimeter of an RTAFB and now has type II diabetes mellitus).

The Veteran's type II diabetes mellitus and coronary artery disease have each manifested to a degree of 10 percent of more under their respective diagnostic codes, 38 C.F.R. § 4.119, Diagnostic Code 7913 (type II diabetes mellitus); 38 C.F.R. § 4.104, Diagnostic Code 7005 (coronary artery disease). Therefore, the third element is satisfied. 

Accordingly, service connection for type II diabetes mellitus and coronary artery disease is granted. 

22. Service connection for peripheral neuropathy of the left upper extremity as secondary to service-connected type II diabetes mellitus is granted.

23. Service connection for peripheral neuropathy of the right upper extremity as secondary to service-connected type II diabetes mellitus is granted.

24. Service connection for peripheral neuropathy of the left lower extremity as secondary to service-connected type II diabetes mellitus is granted.

25. Service connection for peripheral neuropathy of the right lower extremity as secondary to service-connected type II diabetes mellitus is granted.

Due to the similar dispositions for the above claims (#s 22, 23, 24, and 25) on appeal, the Board will address them together.

The Veteran asserts that this bilateral peripheral neuropathy of the upper and lower extremities is secondary to his type II diabetes mellitus. For the reasons that follow, the Board agrees. 

First element: A current disability

The Veteran's VA and private medical records indicate he has bilateral peripheral neuropathy of the bilateral upper and lower extremities. Therefore, the first element is satisfied.  

Second element: A current service-connected disability

Based on the Board's previous findings within this decision, the Veteran is now service connected for type II diabetes mellitus. Therefore, the Board finds the second element is satisfied. 

Third element: A causal link

The Veteran submitted a private medical opinion dated January 6, 2020, from a medical physician. She opined that that the Veteran's bilateral peripheral neuropathy of the upper and lower extremities are at least as likely as not secondary to his type II diabetes mellitus. The physician provided a thorough recitation of the Veteran's relevant military and medical history associated with his type II diabetes mellitus and peripheral neuropathy. She cited and discussed specific, relevant medical records that she considered. Although the physician did not specifically state under what theory of secondary service connection the Veteran's  peripheral neuropathy was related to his type II diabetes mellitus, the Board reasonably interprets the opinion to be based on the theory of causation rather than aggravation. The Board finds this opinion and rationale highly credible and probative. 

In addition to the private medical opinion, the Board finds the Veteran's VA medical records attribute his peripheral neuropathies to his type II diabetes mellitus, continuously referring to the disabilities as "diabetic peripheral neuropathy." 

Based on the credible and probative evidence of record, the Board finds the Veteran's bilateral peripheral neuropathy of the upper and lower extremities is cause by his type II diabetes mellitus. Therefore, the third element is satisfied. 

Accordingly, service connection for bilateral peripheral neuropathy of the upper and lower extremities as secondary to his type II diabetes mellitus is granted.

REASONS FOR REMAND

1. Service connection for bladder infection is remanded.

2. Service connection for painful hands is remanded.

3. Service connection for chest pain, right side is remanded.

4. Service connection for corneal abrasion is remanded.

Due to the similar dispositions for the above claims (#s 1, 2, 3, and 4 of the Remand portion of this decision) on appeal, the Board will address them together.

The Veteran initially filed claims for service connection for a bladder infection, painful hands, right side chest pain, and corneal abrasion in September 1992. A VA Regional Office denied his claims in a March 1994 decision, which became final as the Veteran did not appeal the decision. On December 7, 2017, he filed a petition reopen each of these claims for service connection. In a March 2018 decision, a VA Regional Office denied his petition to reopen each of claims finding he had not submitted new and material evidence to warrant reopening. He filed a timely appeal of that decision. 

For the same reasons in the discussion above addressing the Veteran's claims for service connection for migraine headache disability, the Board finds the Veteran was not required to submit new and material evidence to reopen his claims for service connection. When the VA Regional Office denied the Veteran's initial claims for service connection in the March 1994 decision, it did not have, or at the very least did not consider, all of the Veteran's in-service medical records. Notably, the in-service medical records contained relevant information related to these claims for service connection. See, e.g., July 1970 and 1971 In-Service Medical Records (documenting corneal abrasion); February 1979 and May 1980 In-Service Medical Records (documenting right arm/wrist/hand pain); March 1981 In-Service Medical Record (documenting bladder infection); December 1982 In-Service Medical Record (documenting chest pain); May 1986 In-Service Medical Record (documenting orbital trauma); July 1990 In-Service Medical Record (documenting right side chest pain for one month). Therefore, pursuant to 38 C.F.R. § 31.56(c)(1), the Veteran was not required to submit new and material evidence to reopen his claims for service connection. Instead, the VA Regional Office was required to reconsider his previously denied claims anew, taking into consideration all of the in-service medical records as well as all evidence of record. 

Because the VA Regional Office did not reopen these claims, they have not addressed their respective merits. Thus, remand is required to permit any necessary development on these claims and to permit the VA Regional Office to address their merits based on reconsideration under 38 C.F.R. § 3.156(c)(1) rather than reopening the claims under 38 C.F.R. § 3.156(a). See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); 38 U.S.C. § 7104.

5. Entitlement to an initial disability rating for upper radicular group (fifth and sixth cervicals) is remanded.

In the Veteran's October 20, 2020, correspondence with VA, he is seeking an initial disability rating of 30 percent under 38 C.F.R. § 4.124a, Diagnostic Code 8510, based on a claim of incomplete paralysis of the upper radicular group (fifth and sixth cervicals) as due to his service-connected cervical spine disability. He claims he has moderate, incomplete nerve paralysis due to his service-connected cervical spine disability. According to Note (1) of 38 C.F.R. § 4.71a, Diagnostic Code 6237, under which his cervical spine disability is rated, adjudicators are to "[e]valuate any associated objective neurologic abnormalities, . . . separately, under an appropriate diagnostic code." (Emphasis added). 

Here, the Veteran's medical records indicate various radiculopathies, although it is unclear to the Board the exact nature of these radiculopathies. For example, various medical records indicate "polyneuropathy" and others indicate "S1 radiculopathy." The Veteran also asserts pain in his arms and hands, which he attributes to his radiculopathy. The Board observes the Veteran is currently in receipt of disability ratings for bilateral lower extremity sciatic radiculopathy. The Board finds no examination of record that specifically addresses any current upper extremity radiculopathy as potentially associated with his cervical spine disability. The Board finds remand is required to obtain such an examination. 

6. Entitlement to an earlier effective date for a total disability rating based on individual unemployability is remanded.

The Veteran received a total disability rating based on individual unemployability (TDIU) effective December 7, 2017. In light of all decisions made herein, the Board finds that entitlement to an earlier effective for TDIU may reasonably be affected by its adjudication of the claims as well as those claims the Board has remanded for further consideration. Therefore, the Board finds these issues to be inextricably intertwined, and entitlement to an earlier effective date for the award of TDIU must be remanded pending completion of development on the remanded claims as well as consideration of the Board's rulings within this decision.

Accordingly, the matters are REMANDED for the following actions:

1. Obtain any of the Veteran's outstanding VA medical records and associate them with the claims file.

2. Reconsider the Veteran's claims for service connection for (1) bladder infection, (2) right side chest pain, (3) painful hands, and (4) corneal abrasion anew under 38 C.F.R. § 3.156(c)(1) because the initial March 1994 decision did not consider all of the Veteran's in-service medical records. As such, new and material evidence is not required to reopen his claims under 38 C.F.R. § 3.156(a). 

3. Conduct all necessary and proper development associated with the Veteran's claims for service connection for (1) bladder infection, (2) right side chest pain, (3) painful hands, and (4) corneal abrasion, which may include obtaining VA examinations to address whether the Veteran had such disabilities during the pendency of his claims. 

4. Obtain a VA examination from an appropriately qualified clinician to assess the Veteran's peripheral nerves, particularly those of the upper radicular group (fifth and sixth cervicals,) that he claims are associated with his service-connected cervical spine disability. See 38 C.F.R. § 4.124a, Diagnostic Code 8510, Note (1) ("[e]valuate any associated objective neurologic abnormalities, . . . separately, under an appropriate diagnostic code."). The entire claims file must be made available to and be reviewed by the examiner.

After all necessary and proper development has been accomplished, readjudicate the Veteran's claim for entitlement to an earlier effective dated for a total disability rating based on individual unemployability. 

 

 

M. Tenner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. F. Sawka, 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.