Citation Nr: 21007245 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 20-25 831 DATE: February 9, 2021 ORDER Service connection for chronic pain syndrome is denied. Entitlement to an effective date prior to May 4, 2018 for the grant of service connection for left knee instability is denied. REMANDED Service connection for bipolar disorder is remanded. Service connection for hypertension is remanded. Service connection for tinnitus is remanded. Service connection for obstructive sleep apnea (OSA) is remanded. A rating in excess of 10 percent for left knee Osgood Schlatter’s disease is remanded. A rating in excess of 10 percent for left knee instability associated with left knee Osgood Schlatter’s disease is remanded. A rating in excess of 10 percent from October 31, 2014 to May 3, 2018, and a rating in excess of 20 percent thereafter, for left wrist calcific tendinitis is remanded. A rating in excess of 10 percent from October 31, 2014 to May 3, 2018, and a rating in excess of 20 percent thereafter, for right wrist calcific tendinitis is remanded. FINDINGS OF FACT 1. The competent evidence of record shows that the Veteran has not been diagnosed with chronic pain syndrome at any point during the appeal period. 2. In an August 2015 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for the Veteran’s left knee Osgood Schlatter’s disease. The Veteran was given notice of that decision in correspondence issued the same month. He did not appeal the decision, nor was new evidence submitted within one year of the decision. Thus, the decision became final. 3. After the August 2015 rating decision, the next communication that can be considered a claim for an increased rating for a left knee disability was received on May 4, 2018. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic pain syndrome have not been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2019). 2. The August 2015 rating decision is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 20.302, 20.1103 (2019). 3. The criteria for an effective date prior to May 4, 2018 for the grant of service connection for left knee instability have not been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.155 (2014, 2019), 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1981 to November 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2015 and October 2018 rating decisions by the Department of Veterans Affairs (VA). The Board notes that the October 2018 rating decision and April 2020 Statement of the Case (SOC) characterized the issue of service connection for bipolar disorder as a new and material evidence issue. However, following the December 2017 SOC, the Veteran submitted another claim for service connection for bipolar disorder in August 2018, resulting in a rating decision issued in October 2018. As the Veteran’s new claim and rating decision occurred within a year of the December 2017 SOC, the December 2017 SOC never became final, and there is no new and material evidence issue present. Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Service connection for chronic pain syndrome is denied. The Veteran contends that he is entitled to service connection for chronic pain syndrome. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. After a review of the evidence of record, the Board concludes that the Veteran does not have a current diagnosis of chronic pain syndrome and has not had one at any time during the pendency of the claim or recent to the filing of the claim and thus, service connection is not warranted. The Veteran included “chronic pain” in his August 2018 claim. A September 2018 letter asked the Veteran for clarification of his “chronic pain” contention. The Veteran did not submit any further clarification regarding his contention of chronic pain. The record contains no medical or lay evidence of a current diagnosed disability or persistent or recurrent symptoms or disability with an indication of association with an injury, disease, or event that occurred during the Veteran’s active service. There is no record of a diagnosis of chronic pain syndrome. The Veteran’s claim of service connection for chronic pain syndrome is not competent medical evidence. See Pond v. West, 12 Vet. App. 341, 345-56 (1996); Black v. Brown, 5 Vet. App. 177, 180 (1995). The Veteran has not alleged, with any specificity, that he has a current diagnosis of chronic pain syndrome related to his service. In sum, after a careful review of the evidence, the benefit of the doubt rule is not applicable, and the appeal is denied. Effective Date Except as otherwise provided, the effective date of an evaluation and award of 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. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date for the assignment of an increased rating may be up to one year prior to receipt of a formal claim for increase when it is factually ascertainable that an increase in disability had occurred based on all evidence of record. 38 C.F.R. § 3.400(o)(2). Prior to March 24, 2015, a claim is 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) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Entitlement to an effective date prior to May 4, 2018 for the grant of service connection for left knee instability is denied. The AOJ granted service connection for left knee instability during the adjudication of the Veteran’s claim for an increased rating for a left knee disability. The effective date assigned, May 4, 2018, was the date VA received the Veteran’s intent to file application, which was later formalized in a timely and appropriate manner. There was no explicit claim of service connection for left knee instability. Thus, as an initial matter, the Board must determine the appropriate date of claim for an increased rating for his left knee Osgood Schlatter’s disease (left knee disability). Prior to the October 2018 rating decision on appeal, the AOJ granted service connection for a left knee disability in an August 2015 rating decision. The Veteran was given notice of that decision in correspondence issued the same month. He did not appeal the decision, nor was new evidence submitted within one year of the decision. Thus, the decision became final. After the August 2015 rating decision, the next correspondence from the Veteran that can be interpreted as a claim for an increased rating for his left knee disability was received on May 4, 2018. To establish an effective date earlier than May 4, 2018 for the grant of service connection for left knee instability, the Veteran would need to show both (1) that such disability first manifested prior to May 4, 2018 and (2) that he had a prior claim of service connection for left knee instability that remained pending, such that an earlier date of claim would be preserved. See 38 C.F.R. § 3.400. Because there was no explicit claim of service connection for left knee instability and because the August 2015 rating decision granting service connection for a left knee disability became final, the Veteran is not entitled to an effective date until after that decision. After the August 2015 rating decision, the next communication that can be considered a claim for an increased rating for the Veteran’s left knee disability was received on May 4, 2018. Consequently, regardless of when the Veteran’s left knee instability first manifested, there is simply no basis for awarding an effective date prior to May 4, 2018 for the grant of service connection for left knee instability, and the issue must be denied. REASONS FOR REMAND 1. Service connection for bipolar disorder is remanded. The Veteran contends that his current bipolar disorder is related to his service. A November 2020 brief by the Veteran’s representative reference September 1981 service treatment records. These records are noted to correspond with the Veteran’s contended in-service stressor of not wanting to be a military police officer and carry a weapon. A February 2019 VA examination notes that the Veteran was referred to the mental health clinic at Lackland Air Force Base in Texas in 1981 because he was not able to complete military police training. At this time, he began to experience delusions of grandeur, believe that he was Jesus and that he should not carry a gun. A June 2019 VA examination noted that without more details describing the Veteran’s symptoms at the time, it is not possible to link the Veteran’s current symptoms to his service treatment records. The medical evidence of record does not include the service treatment records from September 1981 referred to by the Veteran in the November 2020 brief and in various VA examinations. As such, remand is required to obtain these records. 2. Service connection for hypertension is remanded. The Veteran contends that his hypertension is related to his service. The Veteran has a current diagnosis of hypertension. The Veteran’s service treatment records do not show that he was diagnosed with hypertension during his active service. The Veteran’s October 1981 discharge medical examination notes “no” for “high or low blood pressure.” However, as noted above, a review of the claims file does not find that the Veteran’s complete service treatment records have been obtained. As such, remand is required to obtain these records. 3. Service connection for tinnitus is remanded. The Veteran contends that his tinnitus is related to his service. At a VA examination, the VA examiner found that there was no evidence that the Veteran was exposed to hazardous noise in service. However, as noted above, a review of the claims file does not find that the Veteran’s complete service treatment records have been obtained. As such, remand is required to obtain these records. 4. Service connection for OSA is remanded. The Veteran contends that his OSA is related to his service. An August 2018 sleep study diagnosed the Veteran with OSA. The record contains an October 2020 private opinion that the Veteran’s pain from his service-connected knee, the pain medications used to treat his pain, as well as his mental health symptoms, mental health medications, and obesity, have resulted in his OSA. It is not possible to determine how much of his risk factors discussed have aided in the cause of his OSA, but they have all likely played a role. The Veteran has not been afforded a VA examination or opinion for this condition. VA’s duty to assist includes, when necessary, conducting a thorough and comprehensive medical examination. 38 U.S.C. § 5103A(d)(2); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board cannot make a fully informed decision on the Veteran’s claim for service connection for OSA because no VA medical clinician has opined whether the Veteran’s currently diagnosed OSA is related to any of his other service-connected disabilities. Given that this private opinion indicates some connection between the Veteran’s OSA and his service-connected left knee disability, as well as his (as of yet) non-service-connected psychiatric disability, the Board finds that VA’s duty to assist requires further development of the claim. A VA medical opinion is therefore needed to ascertain whether the Veteran’s OSA is related to his service-connected left knee disability, as well as his (as of yet) non-service-connected psychiatric disability. 5. A rating in excess of 10 percent for left knee Osgood Schlatter’s disease is remanded. 6. A rating in excess of 10 percent for left knee instability associated with left knee Osgood Schlatter’s disease is remanded. VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA knee examinations of record does not fully comport with the requirements of Correia or Sharp. The Veteran most recently underwent a VA knee examination in October 2018. The Veteran reported that he has difficulty standing for more than 15 minutes due to knee pain. He reported flare-ups three times a week lasting for hours. Upon examination, pain was noted causing functional loss. The examiner further noted that the Veteran has a limited ability to stand or walk for more than 10 minutes and cannot run, jump, or climb. The VA examiner did not provide estimated ranges of motion during flare-ups, for passive motion, or for non-weight-bearing circumstances. Thus, remand is necessary for a new VA knee examination. 7. A rating in excess of 10 percent from October 31, 2014 to May 3, 2018, and a rating in excess of 20 percent thereafter, for left wrist calcific tendinitis is remanded. 8. A rating in excess of 10 percent from October 31, 2014 to May 3, 2018, and a rating in excess of 20 percent thereafter, for right wrist calcific tendinitis is remanded. VA examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). In this case, the VA wrist examinations of record does not fully comport with the requirements of Correia. The Veteran underwent VA wrist examinations in July 2015 and October 2018. The VA examiner did not provide estimated ranges of motion for passive motion or for non-weight-bearing circumstances. Thus, remand is necessary for a new VA wrist examination. Additionally, the examiner should provide a retrospective opinion regarding the Veteran’s bilateral wrist range of motion and level of functional impairment during the period from October 31, 2014 to May 3, 2018. 9. Entitlement to an effective date prior to May 4, 2018 for the grant of an increased rating for a left wrist disability is remanded. 10. Entitlement to an effective date prior to May 4, 2018 for the grant of an increased rating for a right wrist disability is remanded. Adjudication of these issues must be deferred because it is inextricably intertwined the remand for an increased rating for a bilateral wrist disability, as described above. Specifically, the Board is unable to determine the effective date of the appeal period assigned to an increased rating if the increased rating itself is being contested, as it is here. As a result, deferment of adjudication is necessary and the claim must be remanded. The matters are REMANDED for the following action: 1. The AOJ should obtain updated VA and non-VA treatment records. 2. The AOJ should obtain the Veteran’s complete service treatment records, to specifically include records from Lackland Air Force Base in September 1981. 3. The AOJ should obtain a VA opinion from an appropriate clinician to determine the nature and likely cause of the Veteran’s obstructive sleep apnea (OSA). The examiner should review the claims file (including this remand) and note such review was conducted. Only arrange for the Veteran to undergo examination if one is deemed necessary in the judgment of the examiner designated to provide the addendum opinion. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (i) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s OSA was (a) caused by or (b) aggravated by the Veteran’s service-connected left knee disability? Please explain why. The opinion must address whether the disability increased in severity (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must address the October 2020 private opinion that the pain medications used to treat the Veteran’s knee pain resulted in his OSA. (ii) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s OSA was (a) caused by or (b) aggravated by the Veteran’s (as of yet) non-service-connected psychiatric disorder? Please explain why. The opinion must address whether the disability increased in severity (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner must address the October 2020 private opinion that the Veteran’s mental health symptoms and mental health medications resulted in his OSA. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that the Veteran’s left forearm disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. A detailed explanation is required to support the opinion. A complete and thorough rationale must be provided for any opinions expressed with consideration given to all evidence of record. If the examiner is unable to offer the opinion requested, he or she must explain in detail why that is the case. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and state whether the need to speculate is due to a deficiency in the state of the general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or expertise). 4. The AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected left knee disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 5. The AOJ should arrange for an examination of the Veteran by an appropriate clinician to assess the current severity of his service-connected bilateral wrist disability. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. The examiner should provide, to the extent possible, a retrospective opinion regarding the Veteran’s bilateral wrist range of motion and level of functional impairment during the period from October 31, 2014 to May 3, 2018. In providing this retrospective opinion, the examiner should consider all relevant, procurable data in the claims file, including the Veteran’s lay contentions and/or statements made during prior examinations for the bilateral wrists in July 2015 and October 2018, as well as any other VA and non-VA treatment records. N. RIPPEL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.