Citation Nr: 21010088 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 07-23 149 DATE: February 24, 2021 ORDER Entitlement to an effective date of January 16, 2007, but no earlier, for the grant of entitlement to service connection for right lower extremity radiculopathy is granted. Entitlement to an effective date of January 16, 2007, but no earlier, for the grant of a 100 percent rating for loss of use of both hands pursuant to Diagnostic Code 5109 is granted. Entitlement to an effective date of January 16, 2007, but no earlier, for the grant of special monthly compensation (SMC) for loss of use of both hands pursuant to 38 U.S.C. § 1114 (p) at the intermediate level between paragraphs (m) and (n), is granted. Entitlement to an extension of SMC based on housebound criteria beyond October 1, 2012 is dismissed as moot. Entitlement to an extension of SMC based on housebound criteria beyond July 1, 2013 is remanded is dismissed as moot. REMANDED Entitlement to a rating in excess of 30 percent for left upper extremity shell fragment wound (SFW) residuals with injury to the radial, medial, and ulnar nerves, left little finger flexion deformity, and degenerative joint disease (DJD) for the period prior to January 16, 2007, is remanded. Entitlement to a disability rating in excess of 30 percent for left upper arm SFW residuals with Muscle Group (MG) V and MG VI injury is remanded. Entitlement to an initial rating in excess of 20 percent for degenerative joint disease (DJD) of the left shoulder is remanded. Entitlement to an initial rating in excess of 20 percent for vascular damage of the left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for the residuals of a SFW to the right forearm and dorsal distal radius, MGs VIII and IX, is remanded. Entitlement to an initial disability evaluation in excess of 20 percent prior to October 8, 2016 for the residuals of a right shoulder SFW, tendonitis, and bursitis is remanded. Entitlement to an initial evaluation in excess of 10 percent for right upper extremity neurovascular damage is remanded. Entitlement to an initial evaluation in excess of 10 percent prior to April 18, 2012, and in excess of 20 percent thereafter, for right lower extremity peripheral neuropathy and radiculopathy associated with diabetes and as secondary to service-connected lumbar spine degenerative disk disease, is remanded. Entitlement to an initial compensable evaluation prior to March 28, 2011, and in excess of 20 percent thereafter, for left lower extremity neuropathy and radiculopathy associated with diabetes and with the lumbar spine disabilities, to include entitlement to separate evaluations for radiculopathy and peripheral neuropathy, is remanded. Entitlement to an initial evaluation in excess of 20 percent for musculoligamentous instability, right ankle and two scars on right ankle, to include separate ratings for instability and limitation of motion, is remanded. Entitlement to an initial evaluation in excess of 20 percent for a left upper extremity scar, prior to March 1, 2011, is remanded. Entitlement to an evaluation in excess of 20 percent for right leg vein insufficiency, secondary to SFW to MGs XV, XIV, and XVII, is remanded. Entitlement to ratings in excess of 10 percent prior to March 22, 2011, in excess of 60 percent from March 22, 2011 to March 19, 2013, and in excess of 30 percent from July 1, 2013, for coronary artery disease (CAD), is remanded. Entitlement to an extension beyond September 30, 2010 of a temporary total rating under 38 C.F.R. § 4.30 due to treatment for service-connected lumbar spine DDD is remanded. Entitlement to SMC based on loss of use of the right foot is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, right lower extremity radiculopathy was manifested as of January 16, 2007. 2. Resolving reasonable doubt in the Veteran’s favor, loss of use of both hands due to service-connected disability was manifested as of January 16, 2007. 3. As of January 16, 2007, and pursuant to the Board’s decision herein, the Veteran is now in receipt of a 100 percent rating for loss of use of both hands and has additional disabilities independently ratable at 50 percent or more. CONCLUSIONS OF LAW 1. The criteria for an effective date of January 16, 2007, but no earlier, for the grant of service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.71a. 2. The criteria for an effective date of January 16, 2007, but no earlier, for the grant of a 100 percent rating for loss of use of both hands pursuant to DC 5109 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.71a. 3. The criteria for an effective date of January 16, 2007, but no earlier, for the grant of SMC for loss of use of both hands have been met. 38 U.S.C. §§ 1114(p), 5107(b); 38 C.F.R. §§ 3.102, 3.350, 4.63. 4. Entitlement to an extension of SMC based on housebound criteria beyond October 1, 2012 is dismissed as moot. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. 5. Entitlement to an extension of SMC based on housebound criteria beyond July 1, 2013 is dismissed as moot. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to May 1971, to include combat service in the Republic of Vietnam. His awards and decorations include the Purple Heart. The issues on appeal have a complex procedural history and most recently were all remanded by the Board in September 2020 (this Board remand more thoroughly addressed the procedural history of the claims on appeal). 1. Earlier Effective Date – Right Lower Extremity Radiculopathy In March 2012, the Board granted entitlement to service connection for a low back disorder. An April 2012 rating decision implemented the Board decision and granted entitlement to service connection for lumbar spine degenerative disk disease (herein lumbar spine disability), assigned an effective date of January 16, 2007 and assigned a rating under DC 5237. A November 2012 rating decision granted entitlement to service connection for right lower extremity peripheral neuropathy and radiculopathy and it was noted on the accompanying codesheet that such was “associated with” the Veteran’s service-connected lumbar spine disability, indicating that the radiculopathy was secondary to the lumbar spine disability. A December 2015 Board decision assigned an earlier effective date of March 9, 2010 for entitlement to service connection for right lower extremity radiculopathy. In a May 2017 Memorandum Decision, the United States Court of Appeals for Veterans Claims (Court) vacated and remanded for further development the portion of the December 2015 Board decision that denied an effective date earlier than March 9, 2010 for right lower extremity radiculopathy. The Court stated that “[t]he Board [in the December 2015 decision] based its assignment of an effective date for this condition because it found that it was part of his low back claim” and that “[b]ased on the Board’s finding that the appellant’s radiculopathy was part of this low back claim, evidence of an earlier diagnosis of radiculopathy…would entitle the appellant to effective date earlier than March 9, 2010.” As noted, the Veteran’s lumbar spine disability has been rated under DC 5237, which is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under the General Formula, note (1) states “[e]valuate any associated objective neurologic abnormalities…under an appropriate [DC].” The Veteran was afforded a VA spine examination in March 2007. The examination report stated that the Veteran “underwent low back surgery in 2002…He states that he was having low back and bilateral leg pain. He states that his leg pain has been relieved from the surgery, but he has persistent low back pain and occasional left leg pain that radiates down to his knee.” A few sentences later, it was stated that the Veteran “describes primary and radiating aching, burning, lancinating, sharp, shock like, shooting and stabbing pain.” The Veteran was also afforded a VA spine examination on March 9, 2010. The examination report noted that the Veteran had symptoms of low back pain and daily pain “down right leg,” which was noted as radiating and described as shooting. The examiner stated that the Veteran “has radiculopathy symptoms involving the right leg daily” and “[r]adiculopathy and distribution symptoms coming from his back that are affecting the right lower extremity.” Upon review, and resolving reasonable doubt in the Veteran’s favor, the Board finds that right lower extremity radiculopathy was manifested as of January 16, 2007. See 38 U.S.C. § 5107(b) (“When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, [VA] shall give the benefit of the doubt to the claimant”); 38 C.F.R. §§ 3.102 (“When…a reasonable doubt arises regarding…the degree of disability, or any other point, such doubt will be resolved in favor of the claimant”), 4.3. As noted, January 16, 2007 is the effective date for entitlement to service connection for the lumbar spine disability and right lower extremity radiculopathy was essentially found to be secondary to the Veteran’s service-connected lumbar spine disability. The Board acknowledges that while the March 2007 VA examination report did not explicitly note right lower extremity symptoms, the examination report did note the Veteran’s description of radiating and shooting pain, without specifying which side of the Veteran’s lower extremities were impacted by the radiating and shooting pain. The subsequent March 2010 VA examination clearly noted right lower extremity radiculopathy and also described radiating and shooting pain. The Board finds it unlikely that the Veteran’s right lower extremity radiculopathy symptoms suddenly began on the day of the 2010 VA examination, particularly in light of his longstanding history of symptoms that included the Veteran’s prior lumbar spine surgery. As such, when reviewing and reconciling the examination reports, and resolving reasonable doubt in the Veteran’s favor, the Board will consider the symptoms described on the March 2007 VA examination to apply to the Veteran’s right lower extremity. See 38 C.F.R. § 4.2 (“Different examiners, at different times, will not describe the same disability in the same language. Features of the disability which must have persisted unchanged may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present”). As such, and considering that entitlement to service connection for the lumbar spine disability was granted effective January 16, 2007, and again resolving reasonable doubt in the Veteran’s favor, the Board finds that right lower extremity radiculopathy was manifested as of January 16, 2007. Accordingly, the Board finds that an effective date of January 16, 2007 is warranted for entitlement to service connection for right lower extremity radiculopathy. The Board also finds that no earlier effective date is warranted because, as noted, right lower extremity radiculopathy was found to be secondary to the Veteran’s service-connected lumbar spine disability and the effective date of entitlement to service connection for the lumbar spine disability itself is January 16, 2007. The effective date for the secondary disability of right lower extremity radiculopathy cannot be earlier than the effective date of the primary lumbar spine disability and therefore an effective date prior to January 16, 2017 is not warranted for right lower extremity radiculopathy. See Delrio v. Wilkie, 32 Vet. App. 232, 247-48 (2019) (“the lesson of Frost [v. Shulkin, 29 Vet. App. 131 (2017)] is not that benefits may be awarded independent of the effective date of service connection for an underlying disability…Frost is concerned with causation for secondary service connection purposes; it does not permit or require VA to ignore the effective date of a grant of service connection when assigning an evaluation based on that service-connected disability”). In sum, the Board finds that, resolving reasonable doubt in the Veteran’s favor, right lower extremity radiculopathy was manifested as of January 16, 2007. As such, the Board concludes that the criteria for an effective date of January 16, 2007, but no earlier, for the grant of service connection for right lower extremity radiculopathy have been met and, to this extent, the Veteran’s claim is therefore granted and denied. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.71a. 2. Earlier Effective Date – 100 Percent Rating for Loss of Use of Both Hands 3. Earlier Effective Date – SMC for Loss of Use of Both Hands A November 2016 rating decision granted service connection for loss of use of both upper extremities and assigned a 100 percent rating under DC 5109. The agency of original jurisdiction (AOJ) stated that “[a]n evaluation of 100 percent is assigned from October 8, 2016, the date of your VA examination which showed your condition had worsened to an extent to warrant loss of use of both upper extremities. At your examination, it was noted that wife must help you with dressing and with almost all activities of daily living. It was also noted that you use a device to pick up items off the floor.” The AOJ also stated that “[w]e have combined all your disabilities affecting the right and left upper extremities under this evaluation effective October 8, 2016.” DC 5109 is listed under the heading of “Combination of Disabilities” and provides for a 100 percent rating for “[l]oss of use of both hands.” A footnote also states “[a]lso entitled to [SMC].” The Veteran has already been awarded SMC for loss of use of both hands pursuant to 38 U.S.C. § 1114 (p) at the intermediate level between paragraphs (m) and (n), effective October 8, 2016. He maintains an earlier effective date is warranted. The Board notes the AOJ previously assigned (in an April 2007 rating decision) a rating under DC 5125 for loss of use of the left hand from January 16, 2007. As such, a key issue is whether there was loss of use of the right hand prior to October 8, 2016. Effective as of January 16, 2007, the Veteran was service-connected for multiple right upper extremity disabilities, specifically right shoulder SFWs with retained foreign bodies, tendonitis and bursitis (herein right shoulder disability); scars, SFW, right forearm and dorsum of the distal radius, MGs VIII and IX, well healed with retained foreign body right (herein right forearm disability); and right upper extremity neurovascular damage associated with the right forearm disability. Entitlement to service connection for the right shoulder disability and the right upper extremity neurovascular damage was granted as of January 16, 2007 and the initial assigned ratings for such disabilities have been appealed to the Board. Of record is a March 2012 Social Security Administration (SSA) decision, which found that the Veteran was disabled since August 1975. The SSA decision stated that “[m]ore recent evidence includes evaluations for pain in the right and left hand (Exhibit 23F). Recent vocational testing shows that the claimant cannot use the hands more than occasionally (Exhibit 24E).” The referenced exhibits were not included in the SSA records of record and thus it is unclear exactly what the date was for the record that noted that the Veteran “cannot use the hands more than occasionally.” The Board notes that other evidence also indicated that the Veteran’s right hand was variously limited earlier than October 8, 2016. See March 2007 Arteries, Veins and Miscellaneous Examination Report (“he mentioned multiple times per day where the right hand goes numb. The right forearm also does the same with numbness numerous times a day that may last 15 to 60 minutes, and he complains of numbness over the fourth and fifth fingers…The right hand swells about once or twice a week”). Resolving reasonable doubt in the Veteran’s favor, the Board finds that loss of use of both hands due to service-connected disability was manifested as of January 16, 2007. As noted, this is the same date that the AOJ previously found loss of use of the left hand and also the date of entitlement to service connection for a right shoulder disability and right upper extremity neurovascular damage. As such, the Board finds that a 100 percent rating under DC 5109 for loss of use of both hands is warranted as of January 16, 2007 and that, accordingly, SMC for loss of use of both hands is also warranted as of that date. Prior to January 16, 2007, the Veteran was service-connected only for the right forearm disability and such did not result in the loss of use of his right hand at that time. See October 2006 VA Muscle Examination Report (“There is maintained function without atrophy in the right upper extremity” and “he is restricted to right hand dominance in terms of writing and other functions”). The Board therefore finds that an effective date prior to January 16, 2007 for a 100 percent rating under DC 5109 for loss of use of both hands is not warranted and that, accordingly, an effective date prior to January 16, 2007 for SMC for loss of use of both hands is also not warranted. In sum, resolving reasonable doubt in the Veteran’s favor, loss of use of both hands due to service-connected disability was manifested as of January 16, 2007. As such, the Board concludes that the criteria for an effective date of January 16, 2007, but no earlier, for the grant of a 100 percent rating for loss of use of both hands pursuant to DC 5109 and for SMC for loss of use of both hands have been met and, to this extent, the Veteran’s claims are granted. Furthermore, and pursuant to the Board’s decision herein, the Veteran has now been granted SMC under 38 U.S.C. § 1114 (p) at the rate intermediate between § 1114(m) and (n) throughout the entire appeal period pursuant to 38 C.F.R. § 3.350 (f)(3), which is a greater benefit than an award of SMC under the provisions of § 1114(s) (housebound rate). The law does not provide for a veteran to receive both SMC under § 1114(s) and § 1114(p). Accordingly, any claim of entitlement to compensation at the § 1114(s) level is effectively moot, as the Veteran is receiving a higher amount of SMC under § 1114(p). REASONS FOR REMAND Upon review, the Board finds that remand is required to obtain outstanding VA treatment records. Following the September 2020 Board remand, the agency of original jurisdiction (AOJ) issued a December 2020 Supplemental Statement of the Case (SSOC) as to all issues on appeal. Under the evidence heading, listed evidence included “Medical records from Rocky Mountain Regional VA Medical Center/Denver VA Medical Center dated May 29, 2020 to December 11, 2020 (to present)” and “Medical records from Omaha VA Medical Center dated December 2, 2016 to present.” The record currently before the Board (the Veteran’s electronic claims file) contains VA treatment records from the Omaha VA Medical Center dated only up to December 2, 2016 and does not contain records after this date. The record currently before the Board also does not contain VA treatment records from 2020 from the Rocky Mountain Regional VA Medical Center/Denver VA Medical Center. In the reasons and bases section of the SSOC, the AOJ referenced VA treatment records in the discussion of all issues on appeal, with some issues including more or less discussion of VA treatment records. For example, regarding the issue of an increased rating for a left upper arm SFW residuals, the SSOC stated “[r]ecent treatment records obtained from the VA Health Care System reflect complaint of left upper extremity pain, but such records do not reflect symptomatology that would warrant assignment of” a higher rating and, regarding the issue of an increased rating for DJD of the left shoulder, the SSOC stated “[a]lthough we have received…recent treatment records from the VA Health Care System, no additional medical findings pertinent or material to the evaluation of [DJD] of the left shoulder has been received.” VA’s duty to assist includes obtaining sufficiently identified VA treatment records. See 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(3); see also Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (“We hold that [38 C.F.R] § 3.159(c)(3) extends the VA’s duty to assist to obtaining sufficiently identified VA medical records…regardless of their relevance”). In this case, the December 2020 SSOC sufficiently identified VA treatment records that are not currently associated with the electronic claims file. In addition, as outlined, the AOJ in the December 2020 SSOC reviewed and discussed VA treatment records that are not currently of record. As such, the Board is currently not able to review the same record that the AOJ reviewed when it last adjudicated the claims on appeal in the December 2020 SSOC, which raises fair process concerns. See Smith v. Wilkie, 32 Vet. App. 332, 337 (2020) (“The Board is obligated to ensure that it provides to appellants fair process in the adjudication of their claims”); 38 U.S.C. § 7104(a) (“All questions in a matter which under section 511(a) of this title is subject to decision by the Secretary shall be subject to one review on appeal to the Secretary”). Accordingly, the Board finds that remand is required to associate with the electronic claims file the outstanding VA treatment records noted in the December 2020 SSOC. The matters are REMANDED for the following action: Associate with the electronic claims file the outstanding VA treatment records noted in the December 2020 SSOC, which specifically includes: (a.) “Medical records from Rocky Mountain Regional VA Medical Center/Denver VA Medical Center dated May 29, 2020 to December 11, 2020 (to present)” and, (b.) “Medical records from Omaha VA Medical Center dated December 2, 2016 to present.” Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.