Citation Nr: 21011851 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 19-31 053 DATE: March 2, 2021 ORDER Entitlement to service connection for hypothyroidism is granted. Entitlement to an earlier effective date for a temporary evaluation of 100 percent based on a total right knee replacement is denied. REMANDED Entitlement to a rating in excess of 30 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for tinnitus is remanded. Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for cataracts is remanded. Entitlement to service connection for psoriasis is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s currently diagnosed hypothyroidism is presumed to be the result of in-service exposure to herbicide agents. 2. The temporary 100 percent rating for the Veteran’s total right knee replacement was granted effective January 18, 2018, the date the Veteran filed his intent to file a claim. CONCLUSIONS OF LAW 1. The criteria for service connection for hypothyroidism have been met. 38 U.S.C. §§ 1110, 1112, 1116, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. 2. The criteria for an effective date prior to January 18, 2018, for a temporary 100 percent rating based on a total right knee replacement have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1965 to August 1967, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran initially requested a hearing before the Board in his October 2019 substantive appeal, however, in January 2021, the Veteran and his representative asked the Board to withdraw the Veteran’s request for a hearing and proceed with adjudication based on the evidence of record. See 38 C.F.R. § 20.704(e). The Board notes that the Veteran submitted evidence since the February 2020 statement of the case was issued. Because this evidence was submitted by the Veteran and he filed his substantive appeal after February 2, 2013, waiver of initial Agency of Original Jurisdiction (AOJ) review of this evidence is presumed. 38 U.S.C. § 7105(e). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 1. Entitlement to service connection for hypothyroidism is granted. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For purposes of service connection for a disability resulting from exposure to an herbicide agent, including a presumption of service connection, a veteran who, during active military, naval, or air service, served in the Republic of Vietnam between January 9, 1962, and May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 U.S.C. § 1113, 1116; 38 C.F.R. § 3.307(a)(6)(iii). If a claimant was exposed to an herbicide agent during active military, naval, or air service, certain conditions shall be presumed to be service connected even though there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. § 3.309(e). During the pendency of this appeal, effective January 1, 2021, an act of Congress amended the law relating to presumptive service connection, adding three diseases that are now deemed to be presumptively associated with exposure to herbicide agents in Vietnam. National Defense Authorization Act for Fiscal Year 2021, Pub. L. No. 116-283, H.R. 6395, 116th Cong. (2021) (to be codified at 38 U.S.C. § 1116). Hypothyroidism is one of those diseases. The Veteran’s VA treatment records establish that he has a current diagnosis of hypothyroidism, and his military personnel records confirm that he had service in Vietnam. Accordingly, herbicide exposure is conceded, and the Veteran’s hypothyroidism is presumed to be service connected. 2. Entitlement to an earlier effective date for a temporary evaluation of 100 percent based on a total right knee replacement is denied. As an initial matter, the Board notes that VA has developed new evidence regarding the signs and symptoms of the Veteran’s right knee disability since the February 2020 statement of the case, however, this evidence is unrelated to the issue of entitlement to an earlier effective date for a temporary evaluation of 100 percent based on a total right knee replacement, thus, remand for AOJ consideration of this evidence is not warranted. Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Similarly, the effective date of a change in evaluation is the date of receipt of the claim for increase, or the earliest date as of which it is factually ascertainable, based on all evidence of record, that a change in disability has occurred, if that date is within one year prior to the date of receipt of the claim. Id. Where a claim has been finally adjudicated and then reopened at a later date, the effective date of any subsequent award is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002). The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A claim received within one year of separation from active service will be assigned an effective date of the day following separation. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2). Here, the Veteran filed an intent to file which was received by VA on January 18, 2018. In April 2018, the Veteran filed a claim of entitlement to service connection for a right knee condition. A September 2018 rating decision granted service connection for a right knee condition, rated as 10 percent disabling, effective January 18, 2018. In November 2018, the Veteran filed a claim for an increased rating for his right knee disability, including a temporary total disability rating based on a total right knee replacement in September 2017. A February 2019 rating decision granted a temporary evaluation of 100 percent effective January 18, 2018, based on surgical or other treatment necessitating convalescence. A 30 percent rating was assigned for the Veteran’s right knee disability effective November 1, 2018. In January 2020, the Veteran filed a notice of disagreement as to the effective date of the grant of the temporary 100 percent evaluation. The Board finds that an earlier effective date is not warranted for the temporary 100 percent evaluation because entitlement to that rating arose prior to the date of the claim for service connection. More specifically, entitlement to a temporary 100 percent rating arose in September 2017, the date of the Veteran’s total right knee replacement surgery, however, the Veteran did not file his intent to file a claim until January 18, 2018. In denying an earlier effective date, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board notes that Diagnostic Code 5055, for knee replacement (prosthesis), allows a 100 percent evaluation to be assigned for one year following the implantation of the prosthesis, not from the date of the claim. Thus, if the claim for service connection is filed after the date of the implantation of the prosthesis, the 100 percent rating can only be assigned for the remainder of the one year following the implantation of the prosthesis. 38 C.F.R. § 4.71a, Diagnostic Code 5055. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for a right knee disability is remanded. 2. Entitlement to a rating in excess of 10 percent for tinnitus is remanded. 3. Entitlement to service connection for glaucoma is remanded. 4. Entitlement to service connection for cataracts is remanded. 5. Entitlement to service connection for psoriasis is remanded. VA developed new, pertinent evidence regarding the issues of entitlement to increased ratings for a right knee condition and tinnitus, as well as the issues of entitlement to service connection for glaucoma, cataracts, and psoriasis, since the February 2020 statement of the case. This evidence includes VA treatment records and VA examinations. Thus, the evidence must be referred to the AOJ for initial consideration to ensure the Veteran is afforded due process. 38 C.F.R. § 19.31(b), 20.1305(c). The Board notes that the Veteran has asserted that his glaucoma, cataracts, and psoriasis are secondary to his now service-connected hypothyroidism. 6. Entitlement to service connection for a neck disability is remanded. The Veteran has not been afforded a VA examination regarding his neck condition, however, he contends that his neck disability is directly connected to in-service injuries. In addition, the Veteran contends that he has experienced neck pain since his time in service. Thus, the Board finds that a VA examination regarding the Veteran’s neck is warranted. See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006) (VA is obliged to provide an examination where there is insufficient information to decide the claim and there is an indication the current disability may be associated with service). 7. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The issue of entitlement to TDIU is inextricably intertwined with the rating assigned for the Veteran’s service-connected right knee disability and tinnitus, as well as his claims of entitlement to service connection for glaucoma, cataracts, psoriasis, and a neck disability, and therefore, is remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Obtain an opinion, preferably with a qualified clinician who has not previously examined the Veteran, to determine whether any neck disability found during the period on appeal is related to the Veteran’s military service. If the selected clinician determines that an examination is necessary to respond to this request, such examination should be scheduled. The examiner should identify all neck disabilities found during the period on appeal. For each neck disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. In doing so, the examiner should address the Veteran’s contentions regarding his in-service neck injuries, as well as his contention that he has suffered from neck pain since his time in service. The Veteran’s report of symptoms capable of lay observation may not be disregarded solely on the basis that they are not recorded in contemporaneous medical treatment records. The clinician should be advised that pain alone, even without an identifiable underlying diagnosis, can constitute a current disability. Therefore, if no neck disability is diagnosed during the appeal period, the clinician must opine as to whether the Veteran’s current neck pain results in functional loss. If the current neck pain does result in functional loss, the clinician must opine as to whether the current neck pain is related to the Veteran’s military service. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide a reason for doing so. (Continued on the next page)   All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Readjudicate the issues on appeal based on all the evidence of record. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then, return the matter to the Board, if otherwise in order. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Elias, 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.