Citation Nr: A21020161 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 201008-111924 DATE: December 17, 2021 ORDER Service connection for gastritis as secondary to treatment used to alleviate symptoms of the service-connected lumbar spine disability is granted. Readjudication of the claim for entitlement to an effective date prior to July 9, 2018, for the grant of a 40 percent rating for lumbar spine intervertebral disc syndrome and arthritis, is denied. The appeal pertaining to the issue of entitlement to an effective date prior to January 30, 2013, for the award of service connection for posttraumatic stress disorder (PTSD) with bipolar disorder, is dismissed. The appeal pertaining to the issue of entitlement to an effective date prior to January 30, 2013, for the award of service connection for allergic rhinitis, is dismissed. An earlier effective date prior to November 20, 2016, for the grant of service connection for a right knee disability, is denied. An earlier effective date prior to November 20, 2016, for the grant of service connection for a left knee disability is denied. REMANDED Entitlement to a compensable rating for erectile dysfunction is remanded. FINDINGS OF FACT 1. The Veteran's gastritis is related, at least in part, to the use of nonsteroidal anti-inflammatory drugs (NSAIDs) used to treat his service-connected lumbar spine disability. 2. In a June 2020 decision, the Board granted a 40 percent rating for the Veteran's lumbar spine disability effective July 9, 2018, but no earlier. 3. In July 2020, VA received the Veteran's supplemental claim for an earlier effective date for the grant of the 40 percent rating for the lumbar spine disability prior to July 9, 2018. 4. New and relevant evidence has not been received with respect to the claim for an earlier effective date for the grant of a 40 percent rating for lumbar spine intervertebral disc syndrome and arthritis prior to July 9, 2018. 5. The Veteran's June 2020 claims for earlier effective dates prior to January 30, 2013 for the award of service connection for PTSD and allergic rhinitis are freestanding earlier effective date claims, which are an impermissible means of vitiating the finality of the June 2016 Board decision which previously adjudicated the claims. 6. The grant of service connection for the Veteran's right and left knee disabilities has been awarded since November 20, 2016, the Veteran's initial claim for service connection for a bilateral knee disorder. CONCLUSIONS OF LAW 1. The criteria for secondary service connection for gastritis are met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310. 2. The criteria for readjudicating the claim for the grant of a 40 percent rating for lumbar spine intervertebral disc syndrome and arthritis prior to July 9, 2018 are not met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.2500, 3.2501. 3. The appeal pertaining to the issue of entitlement to an effective date prior to January 30, 2013, for the award of service connection for PTSD with bipolar disorder is dismissed. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 4. The appeal pertaining to the issue of entitlement to an effective date prior to January 30, 2013, for the award of service connection for allergic rhinitis is dismissed. 38 U.S.C. § 7105; Rudd v. Nicholson, 20 Vet. App. 296 (2006). 5. The criteria for an effective date prior to November 20, 2016, for the grant of service connection for a right knee disability are not met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a); 38 C.F.R. §§ 3.155, 3.400. 6. The criteria for an effective date prior to November 20, 2016, for the grant of service connection for a left knee disability are not met. 38 U.S.C. §§ 5101 (a), 5107(b), 5110(a); 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1988 to July 1990. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2020 Appeals Modernization Act (AMA) by the Agency of Original Jurisdiction (AOJ) rating decision that considered the evidence of record on that date. The September 2020 decision adjudicated the following issues: (1) denied a compensable rating for erectile dysfunction (2) denied an earlier effective date for the evaluation of the lumbar spine disability; (3) denied an earlier effective date for the grant of service connection for an acquired psychiatric disorder; (4) denied an earlier effective date for obstructive sleep apnea; (5) denied an earlier effective date for the grant of service connection for allergic rhinitis; (6) denied an earlier effective date for the grant of service connection for a left knee disability; (7) denied an earlier effective date for the grant of service connection for a right knee disability; and (8) denied service connection for gastritis. The Veteran timely appealed the decision to the Board in September 2020 by requesting the AMA Direct Review lane for a reevaluation of the evidence considered by the AOJ. As this is a Direct Review appeal under the AMA, the record closed on the date of the September 2020 rating decision. As it pertains to the claim for an earlier effective date for obstructive sleep apnea (OSA), the Veteran listed this issue in his September 2020 Notice of Disagreement; however, the issue was already on appeal at that time. See April 2020 Notice of Disagreement. The Board denied the claim for an earlier effective date for OSA in April 2021 and the Veteran appealed the Board's decision to the U.S. Court of Veterans Appeal (Court), resulting in a November 2021 Joint Motion for Remand (JMR) by the Parties to the JMR. The Veteran is also represented by a private attorney before the Board solely as it pertains to the issues listed in the JMR. See September 2021 VA Form 21-22a. Therefore, the issue regarding entitlement to an earlier effective date for OSA will be adjudicated by the Board in a separate decision. Regarding the Veteran's claim for service connection for gastritis, in the September 2020 rating decision, the AOJ determined that new and relevant evidence was received to warrant readjudicating the claim. The Board is bound by this favorable finding. AMA, Pub. L. No. 115-55, § 5104A, 131 Stat. 1105, 1106-07. As such, the Board need not adjudicate the reopening of the claim again and may proceed to the merits of the service connection claim. The Veteran also appealed the issue of service connection for migraine headaches. See September 2020 Notice of Disagreement. This issue was denied by the AOJ in a July 2020 rating decision. However, this issue was subsequently granted by the AOJ in a March 2021 rating decision; as such, this issue is no longer on appeal. Service Connection for GastritisLaws and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Only chronic diseases listed under 38 C.F.R. § 3.309 (a) are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303 (b). Walker v. Shinseki, 708 F.3d 1331 Fed. Cir. 2013). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310 (a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310 (a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Initially, the Board finds that the Veteran has been diagnosed with gastritis during the appeal period. See June 2019 VA gastroenterology note. Next, the Veteran has been awarded service connection for a lumbar spine disability, currently evaluated as 40 percent disabling. VA treatment records show an extensive history of NSAIDs use by the Veteran in efforts to alleviate symptoms associated with his service-connected lumbar spine disability. See e. g., February 2008 VA primary care note (indicating use of NSAIDs for low back pain); see also June 2012 VA treatment record (low back pain not improved by use of Vicodin and NSAIDs); see April 2020 VA primary care note (Veteran indicated that NSAIDs "destroy my stomach/body."). The April 2020 treatment record also noted that the Veteran was prescribed Protonix (as opposed to NSAIDs) since the Veteran was found to have "stomach issues." The Veteran also submitted a private medical opinion dated in May 2018 from Dr. Bash, a licensed physician and an associate professor of neuroradiology. The report indicated that Dr. Bash had reviewed the Veteran's claims file and relevant medical literature. Following a review of the record, Dr. Bash opined that the Veteran's service-connected GERD was likely secondary to Motrin used for his service-connected lumbar spine disability. Dr. Bash discussed several medical articles showing a positive causative association between NSAIDs and GERD. Further, Dr. Bash specifically opined that the Veteran's "gastritis is also likely secondary to his NSAIDs use." The Board has reviewed the remaining evidence of record and finds that there are no other medical opinions that are contradictory to Dr. Bash's findings. In a July 2020 VA medical opinion, the examiner opined that the Veteran's gastritis was neither caused nor aggravated by the service-connected GERD disability; however, no opinion was provided as to whether the Veteran's use of NSAIDs (used to treat his low back disability) caused or aggravated his gastritis. As such, the Board will resolve reasonable doubt in the Veteran's favor and finds that the Veteran's gastritis is secondary to his service-connected lumbar spine disability. New and Relevant Evidence Under the AMA, a claimant may continuously pursue a claim or issue by filing a supplemental claim following notice of a decision by the AOJ or the Board. 38 C.F.R. § 3.2500 (c). If new and relevant evidence is presented or secured with respect to the supplemental claim, the AOJ will readjudicate the claim taking into consideration all of the evidence of record. 38 C.F.R. § 3.2501. New evidence is evidence not previously part of the actual record before agency adjudicators. 38 C.F.R. § 3.2501 (a)(1). Relevant evidence is information that tends to prove or disprove a matter at issue in a claim, including evidence that raises a theory of entitlement that was not previously addressed. 38 C.F.R. § 3.2501 (a)(2). If new and relevant evidence is not presented or secured, the AOJ will issue a decision finding that there was insufficient evidence to readjudicate the claim. Id. By way of procedural background, the Veteran filed a claim for an increased rating for the lumbar spine disability in November 2016. In a January 2017 rating decision, the AOJ decreased the Veteran's rating from 20 percent to 10 percent effective November 12, 2016. The Veteran appealed the issue to the Board. In a June 2020 decision, the Board granted a 40 percent rating for the appeal period beginning July 9, 2018, but no earlier. The Board also noted that the AOJ's reduction from 20 percent to 10 percent did not impact his overall combined rating evaluation. Notably, the Veteran has been in receipt of a 100 percent combined rating from his fist claim for VA compensation benefits in January 2013. Following implementation of the Board's decision in a July 2020 rating decision, VA received the Veteran's supplemental claim for an earlier effective date for the award of a 40 percent rating for his lumbar spine disability. Upon review of the record, the Board finds that new and relevant evidence has not been received to warrant readjudication of the claim for an earlier effective date for the 40 percent rating awarded effective July 9, 2018. As indicated by the AOJ in the September 2020 rating decision, the Veteran has not explained why he believes an earlier effective date is warranted. Further, the Veteran did not provide any evidence to support a finding that a 40 percent rating for his lumbar spine disability was warranted prior to July 9, 2018. Accordingly, the Board finds that new and relevant evidence has not been received, and readjudication of the claim for earlier effective date is not warranted. Claims for Earlier Effective DatesLaws and Analysis Section 5110(a), title 38, United States Code, provides that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... of compensation... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." The implementing regulation, 38 C.F.R. § 3.400, similarly states that the effective date of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." PTSD and Allergic Rhinitis As it pertains to the claim for PTSD with bipolar disorder, a December 2014 rating decision awarded service connection with a 70 percent rating, effective January 30, 2013. Later that month, the Veteran filed a notice of disagreement as to the propriety of the assigned effective date in such decision. A Statement of the Case was issued in July 2015, and the Veteran filed a timely substantive appeal to the Board. As to the claim for allergic rhinitis, an August 2015 rating decision awarded service connection with a 0 percent rating, effective March 5, 2013. Later that month, the Veteran filed a notice of disagreement as to the propriety of the assigned effective date in such decision. A Statement of the Case was issued in November 2015, and the Veteran filed a timely substantive appeal to the Board. In June 2016, the Board denied the claim for entitlement to an earlier effective date prior to January 30, 2013 for the grant of service connection for PTSD with bipolar disorder. The Board also awarded an effective date of January 30, 2013, but no earlier, for the grant of service connection for allergic rhinitis. The Veteran was provided notice of the decision and of his appellate rights, but he did not perfect a timely appeal. Therefore, the June 2016 Board decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1100. In June 2020, the Veteran filed a supplemental claim seeking earlier effective dates for the award of service connection for PTSD and allergic rhinitis. However, the Board finds that these claims are freestanding earlier effective date claims as they were initiated after the expiration of the appeal period where such a challenge would be viable. In this regard, a freestanding claim for an earlier effective date, i.e., claim initiated once the appeal period has expired and the underlying rating decision becomes final, is impermissible, as such a claim attempts to vitiate the rule of finality. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). When such a freestanding claim for an earlier effective date is raised, the United States Court of Appeals for Veterans Claims (Court) has held that such an appeal should be dismissed. Id. The only means of substantiating the Veteran's earlier effective date claims is to overcome the finality of the June 2016 Board decision, which requires revision or reversal based on clear and unmistakable error (CUE). Where a decision that established an effective date becomes final, an earlier effective date can only be established by a request for a revision of that decision based on CUE. However, to date, the Veteran has not filed a claim of CUE as to the propriety of the assignment of January 30, 2013 as the effective date for the award of service connection for PTSD and allergic rhinitis in the June 2016 Board decision. Accordingly, the Board finds that a CUE claim has not been raised with respect to the June 2016 Board decision, and no further discussion of CUE is warranted. In sum, the Veteran's June 2020 claim seeking effective dates prior to January 30, 2013 for the award of service connection for PTSD and allergic rhinitis are freestanding earlier effective date claims and, therefore, must be dismissed. Right and Left Knee Disabilities As noted above, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b). The effective date for a grant of benefits on the basis of the receipt of new and material evidence received after final disallowance, or in the case of reopened claims, is the date of the receipt of the new claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(1)(ii), (r). The Veteran submitted to a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, on November 21, 2016 (one day after the currently assigned effective date). Notably, neither the Veteran nor his representative have provided any indication as to why the effective for the Veteran's knee disabilities should be prior to November 20, 2016. A review of the remaining evidence of record does not show any other correspondence by the Veteran that may be construed as a formal or informal claim for service connection for these disorders prior to November 20, 2016. In sum, the earliest indication that the Veteran wished to pursue a claim for service connection for his knee disabilities was the November 2016 claim. Thus, the evidence is against the Veteran's claim for earlier effective dates for the grant of service connection for these disorders. The claim is denied. REASONS FOR REMAND Under the AMA, the Board must remand to the AOJ to correct pre-decisional duty to assist errors (including when the AOJ failed to make reasonable efforts to obtain VA treatment records or relevant federal or private treatment records, failed to obtain a VA examination, or provided an inadequate VA examination or opinion). 38 C.F.R. § 20.802 (a). The pre-decisional duty to assist error is discussed in detail below. Erectile Dysfunction The Veteran is seeking entitlement to a compensable rating for his erectile dysfunction. The Veteran was awarded service connection for erectile dysfunction as secondary to his service-connected lumbar spine and radiculopathy disabilities. The Veteran's service-connected erectile dysfunction has been rated as noncompensable disabling by analogy under 38 C.F.R. § 4.115b , Diagnostic Codes 7599-7522 for penis, deformity, with loss of erectile power. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. The Board notes that other diagnostic codes for the penis or testes that provide for a rating greater than zero percent may be applicable in this case. See 38 C.F.R. § 4.115b, Diagnostic Code 7523 (atrophy of the testes). Specifically, the Board notes that the August 2019 VA examiner indicated that the Veteran's right testicle was 1/2 to 1/3 of the normal size and both testicles were considerably softer than normal. However, there is no indication as to the cause of the Veteran's testes conditions, i. e., to include whether they are a symptom of the Veteran's service-connected erectile dysfunction disability, or other service-connected disabilities. As such, a clarifying medical examination and opinion is required. The Board finds that the AOJ's failure to obtain a medical opinion regarding this issue constitutes a pre-decisional duty to assist error. A remand is therefore required. The matter is REMANDED for the following action: Schedule the Veteran for a VA male reproductive system examination. The electronic claims file must be made available to the individual designated to provide the opinion. The examiner is then asked to address the following: (a.) Indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran's testicular conditions are a symptom associated with his service-connected disabilities, including erectile dysfunction, lumbar spine disability, and/or radiculopathy disabilities. **Please note that an August 2019 VA examination report found that the Veteran's right testicle was 1/2 to 1/3 of the normal size and both testicles were considerably softer than normal. A complete rationale for any opinion expressed should be included in the examination report. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.