Citation Nr: 21071924 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 18-28 538 DATE: December 1, 2021 ORDER Entitlement to an earlier effective date prior to June 15, 2016 for the grant of service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating in excess of 40 percent for service-connected intervertebral disc syndrome (IVDS) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDING OF FACT The effective date of June 15, 2016 is the earliest effective date possible by law for the grant of service connection for the Veteran's posttraumatic stress disorder (PTSD), as this is the first date following his separation from active duty service. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date prior to June 15, 2016 for the grant of service connection for PTSD have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 20.302, 20.1103. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marine Corps from July 2000 to July 2004, and in the Army from June 2006 to June 2016. This case comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2021, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a virtual hearing. A transcript of the hearing is of record. As an initial matter, the Board notes that the Veteran has presented evidence indicating that his service-connected PTSD has rendered him unemployable. As a claim for TDIU is part of an increased rating claim when such a claim is expressly raised by the Veteran or reasonable raised by the record, the Board finds that the issue of TDIU has been reasonable raised, and is thus, properly before the Board. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to an earlier effective date prior to June 15, 2016 for the grant of service connection for PTSD. The Veteran contends that an earlier effective date prior to June 15, 2016 is warranted for the grant of service connection for PTSD. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 2400(b)(2)(i). The Veteran filed an original claim for service connection for PTSD in March 2016 during his active duty service, which the RO granted in the September 2016 rating decision, assigning an initial 70 percent rating, effective June 15, 2016 (day following separation from active service). As the Veteran filed his claim within one year of separation from service, the law requires an effective date of the day following active duty, which in this case is a date of June 15, 2016. Therefore, as the Veteran is already in receipt of the earliest effective date by law for service connection claims, the Board notes that an earlier effective date prior to June 15, 2016 is not possible. As such, the Board finds that an earlier effective date prior to June 15, 2016 for the grant of service connection for PTSD is not warranted; and the claim is denied. In reaching its determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). REASONS FOR REMAND 1. Entitlement to a rating in excess of 40 percent for service-connected IVDS is remanded. The Veteran contends that a rating higher than 40 percent is warranted for his IVDS, as his symptoms have worsened. After review of the record, the Board finds that further development of the medical evidence is needed prior to adjudication of the claim, and in accordance with VA's duty to assist. The Veteran was afforded VA examinations in August 2016, March 2017, and August 2018; however, upon review of each, the Board finds these examinations to be inadequate for adjudicative purposes, as they do not comply with the requirements set forth in Sharp v. Shulkin, 29 Vet. App. 26 (2017). Sharp requires, when a Veteran complains of flare-ups, the examiner must "state their severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, per the Veteran, to what extent, if any, they affect functional impairment." 29 Vet. App. at 10-11. If feasible, functional loss due to flare-ups should be expressed in terms of the degree of additional range-of-motion loss. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his or her conclusion that a non-speculative opinion cannot be offered. Furthermore, in situations where an examination is not conducted during a flare-up, a VA examiner should estimate functional loss based on the Veteran's descriptions of his/her additional loss of function during flare-ups, gleaned from his/her medical records, or discerned from other sources available to the examiner. Id. at 35-36. A review of each examination reveals that the Veteran complained of experiencing flare-ups; however, the examiners failed to state their severity, frequency, and duration or name the precipitating and alleviating factors. Additionally, the examiners failed to express the functional loss due to flare-ups in terms of the degree of additional range-of-motion loss, nor provide an adequate opinion why this cannot be done without resorting to speculation. Moreover, as the March 2017 and August 2018 examinations were not conducted during a flare-up, the examiners failed to ascertain the required information as to the severity, frequency, duration, characteristics, or functional loss regarding the Veteran's flare-ups by alternative means. Therefore, the Board finds that a new VA examination is necessary to gather such information to adequately understand the Veteran's additional and/or increased symptoms and limitations, pursuant to Sharp. Accordingly, a remand is necessary to address the matters discussed above. 2. Entitlement to a TDIU due to service-connected disabilities is remanded. The Board notes that as development of the Veteran's disability claims before the Board may have an impact on the Veteran's TDIU claim, the Board finds these issues to be inextricably intertwined. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the Board will defer adjudication of the inextricably intertwined TDIU claim at this time. The matters are REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his IVDS and obtain any outstanding records and associate them with the Veteran's claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran a VA examination to determine the current severity of his IVDS. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. Following complete review of the record, the examiner must address the following: (a) opine as to the Veteran's active motion, passive motion, and pain with weight-bearing and non-weight-bearing. The examiner should report (in degrees) the point at which pain is objectively recorded. (b) The examiner must also attempt to elicit information, based on all the evidence of record, regarding the severity, frequency, and duration of any flare-ups. (c) To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's IVDS, and report or estimate functional loss in terms of the degree of additional loss of range of motion. If the examiner cannot express functional loss in this manner without resorting to speculation, he/she must explain the basis for his/her conclusion that a non-speculative opinion cannot be offered. The examiner must provide a complete rationale for any opinion given. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.