Citation Nr: 21005936 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 19-02 999A DATE: February 2, 2021 ORDER An effective date prior to April 4, 2016, for the award of a 10 percent rating for residuals of compression fracture of vertebra (back disorder) is denied. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), including claimed as secondary to service-connected Traumatic Brain Injury (TBI), is remanded. Entitlement to an evaluation in excess of 10 percent for a back disorder is remanded. FINDINGS OF FACT 1. The Veteran’s current claim for an increased rating for his back disorder was received by VA on April 4, 2017; as it was factually ascertainable that the increase in his disability occurred within one year of that date, he was assigned an effective date of April 4, 2016, for the award of his increased 10 percent rating. 2. The Veteran has been assigned the earliest effective date possible for the award of 10 percent for his service-connected back disorder. CONCLUSION OF LAW The criteria for an effective date prior to April 4, 2016, for the award of a 10 percent rating for the Veteran’s service-connected back disorder are not met. 38 U.S.C. §§ 5707, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1983 to May 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office/Agency of Original Jurisdiction (RO/AOJ) which granted an increased 10 percent rating for the Veteran’s back disorder from April 4, 2017 and denied service connection for OSA. An interim February 2019 rating decision assigned an earlier effective date of April 4, 2016 for the increased 10 percent rating for the Veteran’s back disorder. Earlier Effective Date As a preliminary matter, the Board finds that there is no dispute as to the facts essential to resolution of this appeal: Specifically, the Veteran does not contend that he filed a claim of entitlement to an increased rating for his service-connected back disorder prior to April 4, 2017. Neither the Veteran nor his attorney has advanced an argument as to why an earlier effective date is warranted. As explained below, the Board finds that an effective date prior to April 4, 2016, for the award of a 10 percent rating for the Veteran’s back disorder, is not warranted. Historically, an unappealed December 1986 rating decision granted service connection for residuals of compression fracture of L1 and assigned a noncompensable rating from May 24, 1986, the date following the Veteran’s separation from service, and an unappealed October 1999 rating decision continued the noncompensable rating. A claim for an increased rating for the Veteran’s back condition was received on April 4, 2017. A June 2017 rating decision found the Veteran’s lumbar spine was manifested by symptoms productive of impairment no greater than combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees and painful motion and granted an increased 10 percent rating for the Veteran’s back disorder from April 4, 2017. Thereafter, a February 2019 rating decision found March and April 2016 private treatment records (which were submitted with the Veteran’s claim for increase) showed treatment for back complaints since April 4, 2016, the earliest date on which an increase in back symptomatology is factually ascertainable during the one year prior to the Veteran’s April 2017 claim for increase. While the Veteran indicated his disagreement with the issues listed on the accompanying February 2019 statement of the case, since the award of the earlier effective date, he has not made specific argument as to why an effective date earlier than April 4, 2016 is warranted. In fact, the October 2020 statement from his representative does not specifically provide any argument with respect to the earlier effective date issue. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. That is, the effective date of an award “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). However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually “ascertainable that an increase in disability had occurred” within that timeframe. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 982-83 (Fed. Cir. 2010). The reference above to “the date entitlement arose” is not defined in the current statute or regulation. The United States Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. The amended regulations apply to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA after this date, on April 4, 2017, the new regulations apply. Prior to March 24, 2015, a “claim” was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). The identification of a claim can be made indirectly through examination of evidence to which the claim documents themselves point when sympathetically read. Shea v. Wilkie, 926 F.3d 1362, 1369 (Fed. Cir. 2019). VA must look beyond the four corners of those documents when the documents themselves point elsewhere, including to medical records. Id. at 1368-69. A review of the record reveals that there were no other pending, unadjudicated claims for a higher rating for a back disorder from the time frame after the unappealed October 1999 rating decision until April 4, 2017. Specifically, although the record shows that the Veteran filed other claims and correspondence prior to April 4, 2017 (see, e.g., November 2008 VA Form 21-674, Request for Approval of School Attendance), there is no formal claim form of record that mentions a back disorder and there is no earlier document of record on which an informal claim for an increased rating for a back disorder may be construed when sympathetically read. Thus, the Board has determined that April 4, 2017 is the date of receipt of the higher rating claim for a back disorder. Neither the evidence of record nor the Veteran has contended otherwise. Notably, the Court in Turner v. Shulkin, 29 Vet. App. 207 (2018), held that for purposes of finality, VA treatment records dated during the appeal period are considered in VA’s possession even if these records are not physically associated with the claims file until many years after the RO issued a rating decision, as long as the RO had sufficient knowledge of the existence of the records within the one-year appeal period. The Court also held that these VA treatment records will thereafter only trigger 38 C.F.R. § 3.156(b) if they are new and material evidence. However, this is not the case in the present appeal. Here, the record does not show (and the Veteran does not claim) the RO had sufficient knowledge of the existence of new and material treatment records prior to the expiration of an appeal period. The Board notes that since the law only permits the Board to consider the evidence of record within the one-year period preceding the date of the claim, the Veteran has already been assigned the earliest effective date possible, one year prior to the date of his increased rating claim was received by VA, April 4, 2016. The pertinent legal authority governing effective dates is clear and specific in this regard and the Board is bound by such authority. In the absence of a pending formal or informal claim for increase that has been left unadjudicated by VA in a prior final decision, the Board is constrained by the laws and regulations governing the assignment of effective dates from awarding the Veteran an effective date earlier than April 4, 2016, for the assignment of a 10 percent rating for his service-connected back disorder. In summary, under the facts of this case, there is no legal entitlement to an effective date earlier than April 4, 2016, for the assignment of a 10 percent disability evaluation for a back disorder because the RO has already assigned the earliest possible effective date provided by law. See Sabonis v. Brown, 6 Vet. App. 426 (1994) (where the law is dispositive, the claim must be denied due to an absence of legal entitlement). REASONS FOR REMAND The Veteran’s most recent VA back examination was in June 2017. Subsequent VA treatment records show the Veteran has undergone repeated right lumbar radiofrequency ablation and right lumbar facet medial branch blocks for pain management since 2019. This evidence suggests the Veteran’s back disorder may have increased in severity since the last VA examination. Accordingly, another VA examination is required. Notably, the June 2017 examination report shows the examiner provided no estimate of functional loss with repetitive use (no flare-ups were reported) and indicated that such an assessment could not be provided without “mere speculation.” However, the examiner provided no explanation as to how the available information was inadequate to provide the requested opinion. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that the Board may accept a VA examiner’s assertion that he or she cannot offer such an opinion without resort to speculation only after it determines that the examiner’s conclusion is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. On remand, the examiner will have another opportunity to obtain all “procurable medical evidence” before declining to offer an opinion as to functional loss on repetitive use. Regarding OSA, the Veteran claims his sleep disorder is secondary to his service-connected TBI. Although a June 2017 VA sleep apnea examination provides no diagnosis of OSA and includes the opinion that the Veteran’s claims OSA is not “due to or the result of” his service-connected TBI or back disorder; this opinion is insufficient for rating purposes because the examiner did not address whether the Veteran’s OSA (which was subsequently diagnosed) is related to his period of active duty service (service treatment records (STRs) show “excessive sleepiness” noted on December 1985 Medical Evaluation Board report) or is aggravated by his service connected disabilities. Notably, VA treatment records dated subsequent to the June 2017 VA sleep apnea examination show a diagnosis of OSA and note treatment with a continuous positive airway pressure (CPAP) device. Accordingly, remand to obtain a supplemental opinion is necessary. The matters are REMANDED for the following action: 1. Please secure for the record copies of complete updated clinical records (any not already of record) of all VA and non-VA treatment the Veteran has received for his back and sleep related complaints. Please ask the Veteran to provide the releases necessary for VA to secure any adequately identified private treatment records. 2. After the development sought in paragraph 1 is completed, please schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the nature and severity of his service-connected back disability. All indicated tests should be performed. After interview and examination of the Veteran and review of his claims file, the examiner is requested to delineate all symptomatology associated with, and the current severity of, his back disability. In particular, the examiner should respond to the following: a) The examiner should test the range of motion of the Veteran’s thoracolumbar spine in active motion, passive motion, weight-bearing, and nonweight-bearing, if possible. 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 why that is so. b) The examiner should also estimate in degrees of additional range of motion loss the extent to which the Veteran experiences functional impairments such as weakness, excess fatigability, incoordination, or pain due to repeated use or flare-ups. In providing this opinion, if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time at the moment of examination, the examiner should nevertheless offer opinions with respect to functional loss based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss. If such an estimate cannot be provided, the examiner must indicate that he or she has considered all procurable and assembled data, and that the inability to provide an estimate results from limitations in the knowledge of the medical community at large or that additional facts are required, and not limitations of his or her personal knowledge or a reluctance to provide an opinion on symptoms not directly observed. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. Detailed rationale is requested for all opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. 3. After the development requested in paragraph 1 is complete, please arrange for a supplemental medical opinion (with examination only if feasible and deemed necessary by the opinion provider, and using telemedicine techniques if possible) to determine the nature and likely cause of the Veteran’s OSA. Based on review of the record (and, if necessary and deemed feasible, interview and examination of the Veteran), the examiner should provide opinions that respond to the following: a) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s currently diagnosed sleep disturbance, including OSA, had its clinical onset during service or is otherwise related to his active duty, including noted excessive sleepiness? Please explain. b) If (a) is answered no, is it at least as likely as not (50 percent or greater probability) that his currently diagnosed sleep disturbance, including OSA, is proximately due to (caused by) a service-connected disability/ies (which now include loss of part of skull, migraines, brain disease due to trauma, residuals of compression fracture of vertebra, mixed mechanism glaucoma suspect with left cranial nerve 6 palsy (resolved) and bilateral age-related nuclear cataracts, and scars)? Please consider and discuss as necessary (1) Webster, Joseph B. et al., “Sleep apnea in adults with traumatic brain injury: a preliminary investigation”, Archives of physical medicine and rehabilitation, Vol. 82, Issue 3 (March 2001), pp. 316-21; and (2) Mollayeva, T., et al. “Sleep apnea in traumatic brain injury: Understanding its impact on executive function.” Journal of Sleep Disorders & Therapy (July 2013). Please explain. c) If (b) is answered no, is it at least as likely as not (probability of at least 50 percent) that his currently diagnosed sleep disturbance, including OSA, has been aggravated (any increase in disability) by a service-connected disability/ies? Please explain. In providing the requested opinion, in addition to reviewing the Veteran’s claims file and considering his competent statements, the examiner should consider and address as necessary (1) the STRs, which show “excessive sleepiness” noted on the December 1985 Medical Evaluation Board report; (2) June 2017 VA sleep apnea examination report and opinion; (3) June 2017 VA sleep consultation report, which notes the Veteran’s history of head and neck injury which “hurts him at night,” and (4) the October 2020 argument with references to medical literature summitted by the Veteran’s attorney. The clinician is informed that aggravation here is defined as any increase in disability. If the Veteran’s OSA is aggravated by a service-connected disability, the clinician should indicate, to the extent possible, the approximate level of disability (baseline) before the onset of the aggravation. The clinician must provide complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. If an opinion cannot be provided without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hughes, Kshama 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.