Citation Nr: 21076799 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 17-50 073A DATE: December 27, 2021 ORDER Entitlement to an effective date of September 16, 2015, for the grant of service connection for coronary artery disease, is granted. Entitlement to service connection for skin cancer is granted. Entitlement to service connection for a scar of the right wrist, horizontal scar of right lower back, vertical scar of the right lower back, scar of the right upper chest, and scar of the right lateral neck, is granted. REMANDED Entitlement to a rating in excess of 10 percent for a cervical spine strain prior to May 7, 2018, is remanded. Entitlement to a rating in excess of 20 percent for a cervical spine strain for the period following May 7, 2018, is remanded. FINDINGS OF FACT 1. On September 16, 2015, VA received an informal claim from the Veteran for service connection for coronary artery disease. The Veteran filed a formal claim for service connection on July 7, 2016, within one year of the informal claim. 2. The Veteran's skin cancer is related to herbicide exposure during active service. 3. The Veteran's scar of the right wrist, horizontal scar of right lower back, vertical scar of the right lower back, scar of the right upper chest, and scar of the right lateral neck, are caused by his service-connected skin cancer. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 16, 2015, for the grant of service connection for coronary artery disease have been met. 38 U.S.C. §§ 5101 (a), 5103, 5103A, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 2. The criteria for service connection for skin cancer have been met. 38 U.S.C. § § 1110, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303. 3. The criteria for service connection for a scar of the right wrist, horizontal scar of right lower back, vertical scar of the right lower back, scar of the right upper chest, and scar of the right lateral neck have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1969 to June 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In a November 2019 Decision, in pertinent part, the Board denied the Veteran's claim for an earlier effective date for service connection for coronary artery disease, and remanded his claims for an increased rating for a cervical spine claim and service connection for skin cancer. In a February 2021 Memorandum Decision, the Court of Appeals for Veterans Claims (the Court) set aside the November 2019 Board decision to the extent that it denied entitlement to an earlier effective date for service connection for coronary artery disease, and remanded the case to the Board for readjudication. Notably, the Veteran had a separate appeal under the Appeals Modernization Act (AMA), wherein he sought restoration of a 20 percent rating for his service-connected cervical spine strain. The Veteran's claim was granted in a January 2021 Board decision, restoring his 20 percent rating for a cervical spine strain, effective January 8, 2020. The effect of this grant is that the Veteran is in receipt of 10 percent rating for his cervical spine prior to May 7, 2018, and 20 percent rating thereafter. The Board declined to take jurisdiction of the Veteran's increased ratings claims in the January 2021 AMA decision, as they are the subject of the instant legacy appeal. 1. Entitlement to an effective date earlier than June 7, 2016, for the grant of service connection for coronary artery disease A February 2017 rating decision granted entitlement to service connection for coronary artery disease, effective June 7, 2016. The Veteran contends that he is entitled to an earlier effective date for this award of service connection. As noted above the Veteran appealed the November 2019 Board decision that denied entitlement to an earlier effective date. In the CAVC decision issued in February 2021, the Court concluded that the Board provided an inadequate statement of reasons or bases for finding that the Veteran's intent to file a claim for compensation benefits was received by VA on June 7, 2016. The Board will address this finding in further detail below. Generally, the effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a)(1); 38 C.F.R. § 3.151(a). Prior to March 24, 2015, VA accepted both formal and informal claims for benefits. See Norris v. West, 12 Vet. App. 413, 416 (1999). An informal claim was defined as "[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA]." 38 C.F.R. § 3.155 (2014); see 38 C.F.R. § 3.160(a) (2014) (referring to § 3.155 for the definition of informal claims). Under the pre-amendment system, when VA received an informal claim and a formal claim had not yet been filed, VA sent the claimant a formal application for benefits; if that application was received within one year, it was considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (2014). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the Veteran, it will be considered filed as of the date of receipt of the informal claim. On the other hand, if the formal claim is received after one year of its receipt, then the effective date will be the date of VA's receipt of the formal application form. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); 38 U.S.C. § 5103(b); 38 C.F.R. § 3.155. However, the effective date of a claim will be the date of the informal claim if VA did not send a claimant a formal application form after receiving an informal claim, as required by 38 C.F.R. § 3.155, because the one-year time limit to return the formal claim did not begin. Quarles v. Derwinski, 3 Vet. App. 129 (1992). The Veteran separated from active military service in June 1978. It is not in dispute that he failed to submit a claim of entitlement to service connection for a heart disorder within one year from his discharge. Assignment of an effective date back to the day following discharge is not possible. Thus, the appropriate effective date is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38C.F.R. §3.400(b)(2). In this case, a rating decision was issued in May 2015 for several claims unrelated to the Veteran's heart condition. In response, he filed a Notice of Disagreement (NOD) on September 16, 2015. On the September 2015 NOD, the Veteran also stated, "This is a claim for service connection for ischemic heart disease, myocardial infarction, coronary artery disease, and atherosclerotic cardiovascular disease." The Board finds that this is as an informal claim of service connection for a heart disorder, as the claim was listed on a formal NOD form and not a formal claim form or an intent to file form. In a November 2015 letter, the AOJ informed the Veteran and his representative that the AOJ had received the Veteran's correspondence indicating that he would like to file a claim for benefits. However, the letter stated that VA regulations now require all claims to be submitted on a standardized form. The letter further instructed the Veteran that he could do one of the following: (1) initiate a claim for benefits online; (2) submit an intent to file over the telephone; or (3) Complete, sign, and return a VA Form 21-0966. There is no indication that the AOJ sent a formal claim application to the Veteran for him to execute and return. The next correspondence of record related to the Veteran's claim is a letter, dated June 7, 2016, that indicated that the AOJ had received the Veteran's intent to file a claim on June 7, 2016. Notably, there is no record of the actual completed intent to file form in the claims file. The June 2016 letter went on to instruct the Veteran to complete, sign, and return a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. He was further instructed that he could locate the form online. There is no indication that the AOJ sent a formal claim application to the Veteran for him to execute and return. On July 7, 2016, the Veteran submitted a VA Form 21-526b Supplemental Claim. He was ultimately granted service connection for coronary artery disease in a February 2017 rating decision, effective June 7, 2016, the date VA determined that the Veteran had submitted his intent to file a claim. In this case, as noted above, the Board finds that the Veteran first submitted an informal claim for a heart condition at the time of his September 2015 NOD. See 38 C.F.R. § 3.155 (2014). While the Veteran was informed by the letters sent in November 2015 and June 2016 that he must submit his claim on the appropriate form, there is no indication that he was sent such form; only that he was instructed as to where it could be found online. In any event, the Veteran's informal claim was followed up with the formal VA Form 21-526b Supplemental Claim, filed on July 7, 2016. Since the Veteran's formal claim was filed within one year of the informal claim, the date of the claim is preserved, and the proper effective date is the date of the informal claim. Jernigan v. Shinseki, 25 Vet. App. 220 (2012); Quarles v. Derwinski, 3 Vet. App. 129, 137 (1992). As such, an earlier effective date of September 16, 2015, is warranted for the grant of service connection for coronary artery disease. 2. Entitlement to service connection for skin cancer The Veteran contends that his current diagnosed skin cancer is due to Agent Orange Exposure during his active service in Vietnam. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). With regard to herbicide exposure, VA laws and regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the Vietnam war (i.e., January 9, 1962, to May 7, 1975), shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence to the contrary. 38 U.S.C. § 1116(a)(3); 38 C.F.R. § 3.307(a)(6)(iii). Service connection may be granted on a presumptive basis for certain diseases associated with exposure to certain herbicide agents, even where there is no record of such diseases during service, if they manifest to a compensable degree at any time after service, in a veteran who is presumed to have been exposed to an herbicide agent. 38 C.F.R. §§ 3.307, 3.309. This presumption may be rebutted by affirmative evidence to the contrary. 38 U.S.C. § 1113; 38 C.F.R. §§ 3.307, 3.309. As relevant to the skin, chloracne is a disease associated with herbicide exposure, but the Veteran's diagnosed skin cancer is not. 38 C.F.R. § 3.309(e). Notwithstanding the inapplicability of the Agent Orange presumptive service connection regulations, direct service connection may still be granted, based on a finding that the Veteran's skin cancer is related to active service. Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). There is no dispute as to whether the Veteran has a current diagnosis of skin cancer. See June 2021 VA Examination. Likewise, it has been established that the Veteran was exposed to herbicides during service. Accordingly, the remaining inquiry is whether the Veteran's skin cancer is related to his in-service herbicide exposure. The Veteran was afforded a VA examination in June 2021. The examiner noted a diagnosis of basal cell carcinoma and concluded that the condition was related to the Veteran's in-service herbicide exposure. The examiner explained that skin cancers, such as basal cell cancer, arise from damage to DNA bases affecting tumor suppression genes, often by exposure to carcinogenic chemicals. The examiner stated that TCDD, one of the known carcinogens in Agent Orange, has been shown to suppress the expression of two tumor-suppressor genes. Th examiner also cited medical research that indicates that Veterans exposed to Agent Orange, and the contaminant dioxin, have twice the rate of suffering invasive skin cancers; these cancers include basal cell carcinoma and squamous cell carcinoma. The Board finds that the June 2021 examiner's opinion is highly probative, as it is based on an accurate medical history, cites relevant medical literature, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Accordingly, the Board finds that the evidence of record supports a claim for entitlement to service connection for skin cancer. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. Entitlement to service connection for a scar of the right wrist, horizontal scar of right lower back, vertical scar of the right lower back, scar of the right upper chest, and scar of the right lateral neck, as secondary to the Veteran's service-connected skin cancer Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The medical evidence confirms that the Veteran has current diagnoses of scars of the right wrist, a horizontal scar of right lower back, a vertical scar of the right lower back, a scar of the right upper chest, and a scar of the right lateral neck. See June 2021 VA scars examination. Additionally, as noted above, the Veteran is now service connected for skin cancer. As such, the first two requirements of secondary service connection are met. The remaining inquiry for the Board is whether the medical evidence of record establishes a link between the Veteran's skin cancer and his scars. In the June 2021 VA scars examination, the examiner opined that the Veteran's scars are secondary to his basal cell cancer excisions. Based on the foregoing, the Board finds that the probative medical evidence indicates that the Veteran's current scars are proximately due to his now service-connected skin cancer. There are no medical opinions contrary to this conclusion. Hence, service connection for the Veteran's scars, secondary to service-connected skin cancer, is granted. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a cervical spine strain prior to May 7, 2018, is remanded. 2. Entitlement to a rating in excess of 20 percent for a cervical spine strain for the period following May 7, 2018, is remanded. The Veteran's service-connected cervical spine disability is rated as 10 percent disabling prior to May 7, 2018, and 20 percent disabling for the period following May 7, 2018. He contends that increased ratings are warranted throughout the entire period on appeal. The Veteran has been afforded VA examinations on several occasions during the period on appeal. However, the examinations of record contain several deficiencies. The Veteran was afforded a VA examination in September 2017. On range of motion (ROM) testing of the spine, the Veteran was noted to have pain with right and left lateral rotation of the cervical spine that caused functional loss; however, the examiner failed to indicate the degree at which the pain began. At the time of a May 2018 VA examination, the Veteran reported that he was unable to fully turn his neck to look to the left or the right; however, the examiner indicated that there was no evidence of painful motion of the neck. Additionally, the examiner did not offer ROM findings for repeated use over time, indicating that (s)he could not do so without resorting to mere speculation without observing the Veteran's function under these conditions. The examiner also did not offer estimated ROM findings based on the available evidence of record. Likewise, at the time of a January 2020 examination, the Veteran was noted to have painful motion of the cervical spine that caused functional loss. However, the examiner did not indicate the degree at which pain began. VA examinations must include joint testing on both active and passive motion, and in weight-bearing and non-weight-bearing circumstances on both the service-connected and the opposite, undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups or functional loss due to pain, if feasible, even if the Veteran is not experiencing a flare up or pain during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA cervical spine examinations of record do not fully comport with the requirements of Correia or Sharp. Accordingly, remand is warranted for retrospective and addendum medical opinions The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to assess the current severity of his cervical spine condition. a.) The examiner MUST test the Veteran's range of motion on BOTH active and passive motion, on weight-bearing AND non-weight-bearing, if possible. b.) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. c.) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran's disability. The examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his cervical spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. d.) Provide a retrospective opinion that comments on the functional limitations caused by flare-ups and repetitive use due to the Veteran's disability prior to May 7, 2018. The examiner should ask the Veteran to describe the flare-ups, if any, he experienced during this period, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experienced during a flare-up of his cervical spine symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time prior to May 7, 2018. If the examiner cannot provide an opinion as to additional loss of motion on repeated use or during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Marsh II, 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.