Citation Nr: 21007738 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 17-40 732 DATE: February 10, 2021 ORDER Entitlement to service connection for chronic fatigue is dismissed. Entitlement to an effective date prior to February 9, 2016 for the grant of a 30 percent rating for service-connected posttraumatic headaches, residual of mild traumatic brain injury (TBI), is denied. Entitlement to service connection for sciatica of the right lower extremity is granted. Entitlement to service connection for sciatica of the left lower extremity is denied. REMANDED Entitlement to a compensable rating for service-connected TBI is remanded. Entitlement to service connection for squamous cell carcinoma (claimed as skin cancer) is remanded. FINDINGS OF FACT 1. At the June 2020 Board hearing, the Veteran withdrew the pending appeal as to the claim of entitlement to service connection for chronic fatigue. 2. A July 2014 rating decision granted service connection for posttraumatic headaches, a residual of TBI, and assigned a noncompensable (zero percent) rating. 3. The Veteran did not again file a claim of entitlement to increased rating for service-connected posttraumatic headaches prior to February 9, 2016. 4. The evidence is at least in equipoise as to whether the Veteran’s currently diagnosed sciatica of the right lower extremity is caused by his service-connected lumbar spine disability. 5. The Veteran does not have sciatica of the left lower extremity that is proximately due to or aggravated by his service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal with respect to the claim of entitlement to service connection for chronic fatigue are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for entitlement to an effective date earlier than February 9, 2016 for the award of a 30 percent rating for posttraumatic headaches, a residual of TBI, have not been met. 38 U.S.C. §§ 1155, 5101, 5107, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 3. The criteria for entitlement to service connection for sciatica of the right lower extremity on a secondary basis are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. The criteria for entitlement to service connection for sciatica of the left lower extremity on a secondary basis are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to July 1978, February 2002 to February 2004, June 2006 to September 2006, October 2006 to May 2007, and November 2007 to June 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated July 2014, September 2015, and April 2016 of the Department of Veterans Affairs (VA) Regional Office (RO). The July 2014 rating decision denied service connection for chronic fatigue and granted service connection for cognitive disorder, not otherwise specified (NOS), residual of TBI; a noncompensable (zero percent) rating was assigned from June 29, 2014. An April 2015 rating decision severed service connection for cognitive disorder due to TBI. The Veteran filed a notice of disagreement (NOD) as to the assigned initial rating for TBI in July 2015. An April 2016 rating decision determined that the severance of service connection for cognitive disorder was clearly and unmistakably erroneous and reinstated service connection. However, the rating decision explained that the diagnosed cognitive disorder and psychiatric symptoms will be evaluated with the posttraumatic stress disorder (PTSD). The April 2016 rating decision confirmed and continued the assigned noncompensable initial rating for TBI. A statement of the case (SOC) was issued in June 2017 and the Veteran perfected a timely appeal in August 2017. A September 2015 rating decision denied entitlement to service connection for skin cancer, as well as sciatica of the right and left lower extremities. The Veteran filed a NOD in September 2015. A SOC was issued in June 2019 and he filed a timely substantive appeal in June 2019. The April 2016 rating decision also granted an increased 30 percent rating for service-connected posttraumatic headaches, residual of TBI. The Veteran disagreed with the assigned effective date for the 30 percent rating and a SOC was issued in July 2018. The Veteran perfected a timely appeal in August 2018. In June 2020, the Veteran presented sworn testimony during a virtual hearing, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran’s VA claims file. 1. Entitlement to service connection for chronic fatigue. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In the present case, the Veteran, through his authorized representative, has withdrawn this appeal. Specifically, at the June 2020 Board hearing, the Veteran expressed his desire to withdraw the pending appeal of the claim of entitlement to service connection for chronic fatigue. The withdrawal was explicit, unambiguous, and done with a full understanding of the consequences of such action. At the hearing, the undersigned explained the consequences of withdrawing the appeal and the Veteran indicated that he understood, had discussed the withdrawal with his attorney, and wished to withdraw the issue from appeal. DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. 2. Earlier effective date prior to February 9, 2016 for the assignment of a 30 percent rating for posttraumatic headaches, residual of TBI. The Veteran seeks an effective date earlier than for the 30 percent rating awarded for service-connected posttraumatic headaches as a residual of his service-connected TBI effective from February 9, 2016. He has argued that the 30 percent rating should be effective from the date of service connection. See, e.g., the June 2020 Board hearing transcript. Unless specifically provided otherwise, 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. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of 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 of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2); see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant’s file which demonstrates that an increase in disability was “ascertainable” up to one year prior to the claimant’s submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). Thus, in fixing an effective date for an award of increased compensation, VA must make two essential determinations. It must determine when a claim for increased compensation was received, and when a factually ascertainable increase in disability occurred. Following notification of an initial review and adverse determination by the RO, a notice of disagreement (NOD) must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. A NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the decision by the agency of original jurisdiction (AOJ) and a desire to contest the result. 38 U.S.C. § 7105(b); 38 C.F.R. § 20.201. As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the statement of the case (SOC) or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105(d)(1); 38 C.F.R. § 20.302(b). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200. If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 19.32. Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Turning to the evidence, VA received the Veteran’s original claim for service connection for TBI prior to his June 2014 separation from active duty service. In a July 2014 rating decision, service connection was granted for posttraumatic headaches, residual of TBI; a noncompensable (zero percent) rating was granted effective June 29, 2014. The Veteran did not file a notice of disagreement (NOD) as to the assigned rating for the service-connected posttraumatic headaches. Accordingly, the July 2014 rating decision is final as to the assignment of the noncompensable rating for service-connected posttraumatic headaches. See 38 U.S.C. § 7105(d)(3); 38 C.F.R. §§ 3.104, 20.1103. In February 2016, the Veteran asked the RO to reexamine his residuals of TBI, including posttraumatic headaches. Following a March 2016 VA examination, an April 2016 rating decision increased the assigned rating for posttraumatic headaches to 30 percent from February 9, 2016. The Veteran disagreed with the assigned effective date and this appeal follows. The Board has thus reviewed the record to determine if the Veteran filed a claim of entitlement to an increased rating for posttraumatic headaches between the final July 2014 rating decision and his February 2016 increased rating claim. However, there is no evidence of any such claim, formal or informal, nor has the Veteran so contended. The Board has considered whether the Veteran could be entitled to an effective date in the year prior to the receipt of the increased rating claim. To this end, the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2); see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant's file which demonstrates that an increase in disability was "ascertainable" up to one year prior to the claimant's submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). In other words, three possible effective dates may be assigned depending on the facts of the case. First, if an increase in disability occurs after the claim is filed, the effective date is the date that the increase is shown to have occurred, i.e. the date entitlement arose. 38 C.F.R. § 3.400(o)(1). Second, if an increase in disability precedes the claim by a year or less, the effective date is the date that the increase is shown to have occurred, i.e. the date the increase is factually ascertainable. 38 C.F.R. § 3.400(o)(2). Third, if the increase in disability precedes the claim by more than a year, the effective date is the date that the claim is received. 38 C.F.R. § 3.400(o)(2). To make its determination, the Board must review all the evidence of record. Hazan, 10 Vet. App. at 521; see also VA O.G.C. Prec. Op. No. 12-98, 63 Fed. Reg. 56704 (1998). Significantly, in this case, the evidence of record does not demonstrate that the increase in headache symptomatology can be dated to any one point in the year prior to the date of claim. Rather, there is no definable date in the year prior that is indicative of increased symptoms. In other words, it cannot be ascertained from the record that the increase in the Veteran’s posttraumatic headache symptoms occurred in the year prior to the date of receipt of his February 2016 claim. As indicated above, the Veteran has requested an effective date in 2014 for the 30 percent rating for posttraumatic headaches, apparently on the basis that his headache symptomatology has been present from that time. Crucially, as indicated above, the Veteran did not timely appeal the assignment of the noncompensable rating in the final July 2014 rating decision. In this regard, absent a showing of clear and unmistakable error (CUE) in the July rating decision, which has not been specifically alleged, that determination is final. Thus, the Board finds that the Veteran has not alleged CUE with the required specificity and there is no basis to consider that argument. Accordingly, the evidence of record shows that the Veteran is not entitled to an effective date prior to February 9, 2016 for the award of 30 percent rating for service-connected posttraumatic headaches, residual of TBI. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 3.400(o)(2); Gilbert, 1 Vet. App. at 53-56. The benefit sought on appeal is therefore denied. 3. Entitlement to service connection for sciatica of the right lower extremity. 4. Entitlement to service connection for sciatica of the left lower extremity. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Disorders diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be granted for a disability that is proximately due to, the result of, or aggravated by a service-connected disability. See 38 C.F.R. § 3.310(a). In this matter, the Veteran has asserted entitlement to service connection for sciatica of the right and left lower extremities, which he contends is secondary to his service-connected lumbar spine disability. For the reasons set forth below, the Board concludes that service connection is warranted for sciatica of the right lower extremity and is not warranted for sciatica of the left lower extremity. The Board initially observes that the Veteran is service-connected for degenerative disc disease (DDD) of the lumbar spine. See the rating decision dated July 2014. The Veteran was afforded a VA examination in January 2011 at which time he reported sciatica with pain radiating down his right lower extremity. He denied numbness or weakness. The Veteran did not complain of any neurological symptoms of the left lower extremity. The examiner diagnosed the Veteran with lumbar DDD and “[s]ciatica with no objective evidence of sensory radiculopathy.” An August 2015 VA examiner reported that the Veteran experienced mild right lower extremity numbness. Regarding functional impairment, the examiner stated that the Veteran’s “right buttock is painful and lifting can be a problem.” However, the examiner determined, “[t]here is no objective evidence to support a diagnosis of the claimed condition sciatica at this time.” Private treatment records dated in July 2020 documented a diagnosis of sciatica of the right side. In a separate July 2020 statement, Dr. J.K. reported that the Veteran has “sciatica related to low back disc disease,” which he has experienced since 2002. Accordingly, the evidence of record demonstrates that the Veteran has been diagnosed with sciatica of the right lower extremity, which is caused by his service-connected lumbar spine disability. Entitlement to service connection sciatica of the right lower extremity is therefore warranted on a secondary basis. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, the record does not support a finding that the Veteran has a current diagnosis of sciatica of the left lower extremity. To this end, his treatment records and examination reports do not document any such diagnosis. In fact, the private treatment records submitted by the Veteran in support of his claim do not indicate that he is diagnosed with sciatica of the left lower extremity. Crucially, the most probative evidence of record, particularly the VA examinations and private treatment records cited above, affirmatively establish that the Veteran does not currently have sciatica of the left lower extremity. In the absence of a current disability, service connection is not warranted. In order for a claimant to be granted service connection for a claimed disability, there must be evidence of a current disability. The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board’s adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Moreover, evidence prior to the date of claim must be considered in determining whether the current disability requirement has been met. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013) (Board erred in failing to address pre-claim evidence in assessing whether a current disability existed, for purposes of service connection, at the time the claim was filed or during its pendency). Here, however, the above evidence reflects that the Veteran does not have sciatica of the left lower extremity. To the extent the Veteran asserts that he has currently diagnosed sciatica of the left lower extremity, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. Jandreau v. Shinseki, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The general principle that he experiences some pain or discomfort, which might be a symptom of a disability manifested by irregular heartbeat or itching, has some tendency to establish a diagnosis. See Davidson, 581 F.3d at 1316; Kahana, 24 Vet. App. at 433, n. 4. In this case, the Veteran’s assertions as to diagnosis and etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376; Barr, 21 Vet. App. at 308-9; Falzone, 8 Vet. App. at 403 (lay person competent to testify to pain and visible flatness of his feet); with Clemons, 23 Vet. App. at 6 (“It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant”); Woehlaert, 21 Vet. App. at 462 (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 (“sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer”). See also Colantonio, 606 F.3d at 1382 (recognizing that in some cases lay testimony “falls short” in proving an issue that requires expert medical knowledge). Critically, there is no medical or other competent evidence to document any diagnosed sciatica of the left lower extremity. The Veteran’s reported symptoms alone do not establish the presence of a current disability in the absence of any indication or contentions that these reported symptoms result in functional impairment of earning capacity. See Wait v. Wilkie, 33 Vet. App. 8, 17 (2020); Saunders v. Wilkie, 866 F.3d 1356 (2018). Rather, the above evidence and analysis reflects that the most probative evidence shows that the Veteran does not currently have sciatica of the left lower extremity. For the foregoing reasons, the preponderance of the evidence is against the claim of entitlement to service connection for sciatica of the left lower extremity. The benefit of the doubt doctrine is therefore not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. However, as indicated above, the evidence is at least in equipoise as to whether the Veteran is currently diagnosed with sciatica of the right lower extremity due to his service-connected DDD of the lumbar spine. Resolving reasonable doubt in favor of the Veteran, service connection for sciatica of the right lower extremity is warranted. 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to a compensable initial rating for service-connected TBI is remanded. The Veteran asserts entitlement to a compensable initial rating for service-connected TBI. He was last afforded a VA examination for his service-connected TBI in November 2016. The VA examiner reported that the specific nature and severity of the Veteran’s TBI symptoms “cannot be parsed out from the impact of his mental health condition.” The examiner therefore provided facet ratings for TBI, which reflected both TBI and non-TBI effects. The examiner stated, “I am unable to separate out the effects of each etiological category without resorting to speculation based on the high overlap in symptoms, their interactional effects, and the unclear timeline of their origin.” Accordingly, the November 2016 VA examiner failed to provide facet ratings for TBI distinct from now service-connected residual disabilities including posttraumatic stress disorder (PTSD) with major depressive disorder (MDD), cognitive disorder, and sleep impairment, tinnitus, and posttraumatic headaches. The evidence of record is thus inadequate to resolve the claim of entitlement to a compensable initial rating for service-connected TBI. Therefore, this matter requires remand in order to afford the Veteran a VA examination, which differentiates between the Veteran’s TBI symptoms and those associated with his other service-connected TBI residuals including PTSD with MDD, cognitive disorder, and sleep disturbance, tinnitus, and posttraumatic headaches. Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. 2. Entitlement to service connection for squamous cell carcinoma (claimed as skin cancer) is remanded. Service connection for certain diseases, including malignant tumors such as a basal cell carcinoma, may also be established on a presumptive basis by showing that such a disease manifested itself to a compensable degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Further, service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Malignant tumors, such as squamous cell carcinoma, are "chronic diseases" listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provision of 38 C.F.R. § 3.303(b) apply to those claims, if met. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As indicated above, the Veteran served on active duty from July 1974 to July 1978, February 2002 to February 2004, June 2006 to September 2006, October 2006 to May 2007, and November 2007 to June 2014. Service in Southwest Asia is indicated by the record. Significantly, private treatment records dated in March 2015 documented a diagnosis of squamous cell carcinoma of the skin of the left leg including the lateral calf. He was also diagnosed with squamous cell carcinoma of the left lateral chest, the left far lateral chest, and the left mid forearm. The diagnosis was confirmed by skin biopsy. See the private treatment records dated March 2015. As such, the medical evidence of record shows that the Veteran was diagnosed with squamous cell carcinoma within one year of his June 2014 active duty discharge. Accordingly, pursuant to 38 C.F.R. § 3.309(a), service connection for certain diseases, including malignant tumors such as a basal cell carcinoma, may be established on a presumptive basis by showing that such a disease manifested itself to a compensable degree of 10 percent or more within one year from the date of separation from service. Thus, the critical question is whether the Veteran’s squamous cell carcinoma was compensable, or entitled to a rating of at least 10 percent, when first manifested. 38 C.F.R. § 4.118 addresses skin disabilities. Malignant tumors of the skin, the subject of Diagnostic Code 7818 thereunder, are rated as disfigurement of the head, face or neck, scars, or impairment of function when something akin to systemic therapy is not required. To this end, it is unclear whether the Veteran’s diagnosed squamous cell carcinoma manifested to a compensable degree within one year of separation from service. Although the Veteran submitted private dermatological records in support of his claim, these records contain only documentation of diagnosed squamous cell carcinoma on his left chest, lateral left calf, and left forearm. These biopsy reports do not include any information pertaining to any scar resultant from removal of the diagnosed squamous cell carcinoma. Moreover, at the June 2020 Board hearing, the Veteran testified that he has recently been diagnosed with squamous cell carcinoma of the right leg. See the Board hearing transcript, pg. 14. Accordingly, the Board finds that this matter should be remanded in order to obtain outstanding private treatment records, which may be pertinent to the question of whether the Veteran’s diagnosed squamous cell carcinoma manifested to a compensable degree within one year of his active duty discharge. The matters are REMANDED for the following action: 1. After obtaining the appropriate release of information forms where necessary, undertake appropriate efforts to procure any records of outstanding private treatment (including the dermatological treatment records, referenced above) and VA treatment dating from January 2019 that the Veteran has received, which are potentially pertinent to the pending claims. All such available documents should be associated with the claims file. 2. Schedule an appropriate VA compensation examination reassessing the severity of the Veteran’s service-connected TBI. The claims file must be made available to the examiner for review in connection with the examination. The examination should be performed in accordance with the current disability benefits questionnaire for TBI. The examiner should determine all manifestations and residuals associated with his service-connected TBI, and the severity of any such manifestations and residuals. To the extent possible, the examiner should provide facet ratings that differentiate between TBI and separately service-connected residuals including PTSD with MDD, cognitive disorder, and sleep disturbance, tinnitus, and posttraumatic headaches. All examination findings/testing results, along with complete, clearly-stated rationale for the conclusions reached, must be provided. K. Conner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. K. Buckley, 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.