Citation Nr: 21073858 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-13 625 DATE: December 10, 2021 ORDER The application to reopen the claim of service connection for rheumatoid arthritis (for substitution purposes) is granted. The application to reopen the claim of service connection for osteoarthritis, bilateral upper extremities to include wrist, hands, fingers, and elbows (for substitution purposes) is granted. The application to reopen the claim of service connection for osteoarthritis, bilateral lower extremities to include ankles, knees, feet, and hips (for substitution purposes) is granted. Entitlement to an effective date prior to April 1, 2015, for a 50 percent evaluation of migraines (for substitution purposes) is denied. Entitlement to an effective date prior to April 1, 2015, for a 20 percent evaluation of diabetic neuropathy of the left lower extremity (for substitution purposes) is denied. Entitlement to an effective date prior to April 1, 2015, for a 20 percent evaluation of diabetic neuropathy of the right lower extremity (for substitution purposes) is denied. REMANDED Entitlement to service connection for rheumatoid arthritis (for substitution purposes) is remanded. Entitlement to service connection for osteoarthritis, bilateral upper extremities to include wrist, hands, fingers, and elbows (for substitution purposes) is remanded. Entitlement to service connection for osteoarthritis, bilateral lower extremities to include ankles, knees, feet, and hips (for substitution purposes) is remanded. Entitlement to service connection for vitiligo (for substitution purposes) is remanded. Entitlement to an evaluation in excess of 40 percent for fibromyalgia, multiple joints (for substitution purposes) is remanded. Entitlement to an evaluation in excess of 20 percent for diabetic neuropathy of the left lower extremity (for substitution purposes) is remanded. Entitlement to an evaluation in excess of 20 percent for diabetic neuropathy of the right lower extremity (for substitution purposes) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) (for substitution purposes) is remanded. FINDINGS OF FACT 1. The RO denied service connection for rheumatoid arthritis in a June 2008 rating decision. The Veteran did not appeal this rating decision, nor did she submit new and material evidence within one year of the rating decision. 2. The evidence received since the June 2008 rating decision relates to an unestablished fact necessary to substantiate the compensation claim for rheumatoid arthritis. 3. The RO denied service connection for osteoarthritis of the bilateral upper extremities in a September 2004 rating decision. The Veteran did not appeal this rating decision, nor did she submit new and material evidence within one year of the rating decision. 4. The evidence received since the September 2004 rating decision relates to an unestablished fact necessary to substantiate the Veteran's compensation claim for osteoarthritis of the bilateral upper extremities. 5. The RO denied service connection for osteoarthritis of the bilateral lower extremities in a September 2004 rating decision. The Veteran did not appeal this rating decision, nor did she submit new and material evidence within one year of the rating decision. 6. The evidence received since the September 2004 rating decision relates to an unestablished fact necessary to substantiate the Veteran's compensation claim for osteoarthritis of the bilateral lower extremities. 7. VA did not receive an increased rating claim for migraines prior to April 1, 2015. 8. VA did not receive an increased rating claim for diabetic neuropathy of the left lower extremity prior to April 1, 2015. 9. VA did not receive an increased rating claim for diabetic neuropathy of the right lower extremity prior to April 1, 2015. CONCLUSIONS OF LAW 1. The June 2008 rating decision denying service connection for rheumatoid arthritis is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The September 2004 rating decision denying service connection for osteoarthritis of the bilateral upper extremities is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2004 rating decision denying service connection for osteoarthritis of the bilateral lower extremities is final. New and material evidence has been received and the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for an effective date prior to April 1, 2015 for a 50 percent evaluation of migraines have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an effective date prior to April 1, 2015 for a 20 percent evaluation of diabetic neuropathy of the left lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 6. The criteria for an effective date prior to April 1, 2015 for a 20 percent evaluation of diabetic neuropathy of the right lower extremity have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1985 to November 2000. She died in November 2020. The Appellant claims as the surviving daughter. The Appellant testified before the undersigned at a June 2021 videoconference hearing. 1. The application to reopen the claim of service connection for rheumatoid arthritis 2. The application to reopen the claim of service connection for osteoarthritis, bilateral upper extremities to include wrist, hands, fingers, and elbows 3. The application to reopen the claim of service connection for osteoarthritis, bilateral lower extremities to include ankles, knees, feet, and hips Generally, a claim that has been denied in a final unappealed rating decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New and material evidence is defined as evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration; such new and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Prior to the June 2013 rating decision on appeal, the Veteran's compensation claim for rheumatoid arthritis was most recently denied in a June 2008 rating decision. The compensation claims for osteoarthritis of the upper and lower extremities were denied in a September 2004 rating decision. The Veteran was notified of these denials but did not appeal nor submit evidence within the one-year appeal period. The decisions were, therefore, final. See 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. After a review of the record, the Board has determined that new and material evidence has been submitted for each issue since the relevant final rating decisions. The Board finds this evidence to be sufficient to warrant a reopening of the compensation claims for rheumatoid arthritis, osteoarthritis of the upper extremities, and osteoarthritis of the lower extremities. 4. Entitlement to an effective date prior to April 1, 2015, for a 50 percent evaluation of migraines 5. Entitlement to an effective date prior to April 1, 2015, for a 20 percent evaluation of diabetic neuropathy of the left lower extremity 6. Entitlement to an effective date prior to April 1, 2015, for a 20 percent evaluation of diabetic neuropathy of the right lower extremity The Veteran sought an effective date prior to April 1, 2015, for the grant of increased ratings of 50 percent for migraines and 20 percent for diabetic neuropathy of each lower extremity. The RO granted these increased ratings in August 2015 and January 2017 rating decisions, basing the effective date on receipt of the Veteran's VA Form 21-8940 Application for a TDIU. The general rule regarding effective dates is found at 38 U.S.C. § 5110 (a). The Board notes that the rule has recently changed in accordance with the Appeals Modernization Act. Previously, the rule was as follows: Unless specifically provided otherwise in this chapter, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. It now reads as: Unless specifically provided otherwise in this chapter, the effective date of an award based on an initial claim, or a supplemental claim, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. Importantly, the change in the law or language of the statute does not change the outcome of the decision. The Board will analyze the Veteran's claim under the old law, as this is a legacy appeal. An exception to the general rule for increased rating claims applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). Effective March 24, 2015, the definition of what constitutes a valid claim changed. The amendment only applies to claims or appeals filed on or after March 24, 2015. Under the law prior to the amendment, a claim was defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1 (p). An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155 (a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). As noted, the AOJ implemented the effective date of April 1, 2015, for the increased ratings based on the date of receipt of the Veteran's VA Form 21-8940 Application for a TDIU. This was interpreted as an increased rating claim for migraines and diabetic neuropathy of the lower extremities (among other service-connected issues). A June 2008 rating decision granted service connection for diabetic neuropathy of the lower extremities with an initial evaluation of 10 percent, effective February 26, 2007. A June 2002 rating decision granted service connection for migraines an initial evaluation of 10 percent, effective November 3, 2000. The Veteran did not appeal either decision. As a result, they became final. 38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. A review of the file indicates that there is no formal or informal (prior to March 24, 2015) increased rating claim for migraines or diabetic neuropathy of either lower extremity prior to the April 1, 2015, Form 21-8940. 38 U.S.C. § 5110 (a). There is also no evidence of an increase in disability of migraines or diabetic neuropathy of either lower extremity within the one-year period preceding the date of receipt of the increased rating claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). There is no other applicable exception to the general rule of section 5110(a). As a result, an effective date prior to April 1, 2015, is not warranted, as this is the date of the claim for increase. 38 U.S.C. § 5110 (a), (b). Under the applicable laws and regulations, the Board is unable to grant an earlier effective date for an increased rating for migraines, diabetic neuropathy of the left lower extremity, or diabetic neuropathy of the right lower extremity. The Board is bound by the statutes enacted by Congress and as a result of their application, must find that an earlier effective date must be denied. REASONS FOR REMAND 1. Entitlement to service connection for rheumatoid arthritis is remanded. 2. Entitlement to service connection for osteoarthritis, bilateral upper extremities to include wrist, hands, fingers, and elbows is remanded. 3. Entitlement to service connection for osteoarthritis, bilateral lower extremities to include ankles, knees, feet, and hips is remanded. 4. Entitlement to service connection for vitiligo is remanded. 5. Entitlement to an evaluation in excess of 40 percent for fibromyalgia, multiple joints is remanded. 6. Entitlement to an evaluation in excess of 20 percent for diabetic neuropathy of the left lower extremity is remanded. 7. Entitlement to an evaluation in excess of 20 percent for diabetic neuropathy of the right lower extremity is remanded. At the Appellant's June 2021 Board hearing, she indicated that the Veteran may have sought private treatment. She indicated that she would be able to gather the relevant information pertaining to any private treatment. She has not yet submitted such information. The Board has determined that remand is appropriate to afford her the opportunity to submit such information, as any such records are potentially relevant to each claim to be remanded. In addition, medical opinions clarifying diagnoses and etiologies with respect to rheumatoid arthritis, osteoarthritis of the extremities, and vitiligo are warranted. With respect to vitiligo, the evidence suggests that it preexisted service, however there is no enlistment examination of record. An opinion regarding the possibility of it preexisting service and in-service aggravation is appropriate. 8. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The Veteran was in receipt of a 100 percent evaluation effective April 1, 2015. The matter of entitlement to a TDIU is not ripe for adjudication, as evidence could potentially show unemployability due to a single disability after April 1, 2015. 38 U.S.C. § 1114 (s); Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008); Akles v. Derwinski, 1 Vet. App. 118 (1991). The matters are REMANDED for the following action: 1. Contact the Appellant and request that she provide any relevant private treatment records, or authorization to obtain such records. 2. Return the claims file to an examiner of appropriate expertise to determine the etiology of the Veteran's claimed rheumatoid arthritis, osteoarthritis of the extremities, and vitiligo. Based on a review of the record, the examiner should: (a) Clarify whether the Veteran had rheumatoid arthritis or osteoarthritis of the upper or lower extremities. (b) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that rheumatoid arthritis is related to the Veteran's active service. (c) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed osteoarthritis of the upper extremities is related to the Veteran's active service. (d) Provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that any diagnosed osteoarthritis of the lower extremities is related to the Veteran's active service. (e) Provide an opinion as to whether the Veteran's vitiligo clearly and unmistakably (obviously or manifestly) existed prior to active service. (f) If vitiligo clearly and unmistakably existed prior to active service, provide an opinion as to whether such disorder clearly and unmistakably (obviously or manifestly) was not aggravated during the Veteran's active service. (g) If vitiligo did not preexist service, provide an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that it is causally or etiologically related to any period of active service. A complete rationale for any opinion expressed should be provided in a report. S. Sorathia Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board W. R. Stephens, 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.