Citation Nr: 21012169 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-10 803A DATE: March 3, 2021 ORDER Entitlement to an effective date earlier than February 18, 2016 for the grant of service connection for cystic kidney disease (claimed as hematuria) is denied. But, as new and material evidence has been received, the petition to reopen a claim of entitlement to service connection for a right shoulder disability is granted. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to an increased rating for peripheral neuropathy of the left lower extremity is remanded. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity is remanded. Entitlement to service connection for a blood clot disability, to include residuals, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. There is no legal basis for an effective date earlier than February 18, 2016 for the grant of service connection for cystic kidney disease (claimed as hematuria). 2. The Veteran’s claim for service connection for a right shoulder disability was previously considered and denied in a February 2007 rating decision; but, additional evidence since submitted or otherwise obtained, when considered with the record as a whole, is neither cumulative nor redundant of the evidence of record at the time of that last prior final and binding denial and raises a reasonable possibility of substantiating this claim for service connection for a right shoulder disability. CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than February 18, 2016 for the grant of service connection for cystic kidney disease (claimed as hematuria). 38 U.S.C. §§ 5103 (a), 5103A, 5107(b), 5110; 38 C.F.R. § 3.400. 2. However, evidence received since the last final and binding denial of the claim of entitlement to service connection for a right shoulder disability is new and material; consequently, this claim is reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 3.104(a), 3.156, 3.160(d), 20.302, 20.1103. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1993 to September 2006. In support of these claims, the Veteran testified at a November 2019 hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is of record. 1. Effective date for the cystic kidney disease (claimed as hematuria) The Veteran has been in receipt of service connection for cystic kidney disease effectively since February 18, 2016. He contends that an earlier effective date is warranted. Historically, in a February 2007 decision, the local Regional Office (RO) considered and denied the Veteran’s claim for service connection for hematuria (also claimed as a kidney condition). He did not timely appeal that earlier denial of this claim, so it became a final and binding decision based on the evidence then of record. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On February 18, 2016, the Veteran filed claims for increased ratings for several disabilities, including for his diabetes mellitus. In a March 2018 rating decision, the RO granted service connection for cystic kidney disease (initially claimed as hematuria) and assigned an effective date of February 18, 2016, so the date he filed his claim for an increased rating for his diabetes. This date was chosen because his kidney disability was shown to be as likely as not due to his service-connected diabetes and, thus, the February 2016 claim for an increased rating for his diabetes was also considered as the date of the claim for service connection for his secondary kidney disability. See 38 C.F.R. § 3.310 (a) and (b) (permitting the granting of service connection on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability). See also 38 C.F.R. § 4.119, Diagnostic Code 7913 (discussing how to rate diabetes and complications of it, so including consequent kidney disease). During his more recent November 2019 hearing before this Board, the Veteran’s representative contended that an effective date earlier than February 18, 2016 is warranted because of failure in the duty to assist regarding the initial claim in 2006 that was denied in February 2007. However, a final and binding decision (such as, here, because it was not timely appealed) only may be reopened based on VA’s receipt of new and material evidence or some other exception to “finality” – such as there was clear and unmistakable error (CUE) in the prior final and binding decision denying the claim to vitiate its finality by collateral attack. CUE has not been properly alleged nor found in the February 2007 rating decision and, importantly, VA’s breach of a duty to assist (even if it occurred) cannot form the basis for a claim of CUE. Baldwin v. West, 13 Vet. App. 1, 5 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). 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 on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § §§ 3.400, 3.400(b)(2). The Board has reviewed the file to determine if new and material evidence was received by VA within one year of the February 2007 denial. If there are medical records in VA’s constructive possession within one year of that February 2007 denial, which constitute new and material evidence, they in turn could allow for an effective date based on the earlier claim filed in 2006 under 3.156(b), which was in effect at that time. See Bell v. Derwinski, 2 Vet. App. 611 (1992), see also Turner v. Shulkin, 29 Vet. App. 207 (2018); Lang v. Wilkie, 971 F.3d 1348 (Fed. Cir. 2020) (medical records generated by VA within one year of a decision are constructively “received” for purposes of § 3.156(b)). But there were no such records in the file or even constructively in the file within one year of that earlier February 2007 decision that would be considered new and material to the claim for kidney disease – including as a residual or complication of the service-connected diabetes. At the time of the February 2007 denial, the claims file included a February 2007 VA examination report indicating the Veteran cited a history of gross hematuria, with recurrent hematuria and hematospermia. He denied any hematuria in recent memory. The examiner found that the Veteran had a history of hematuria but with no then current residuals. There are no clinical records in the year after the February 2007 denial suggesting renewed hematuria or recurrence of it, including owing to the diabetes. Thus, there is no new and material evidence within one year of the February 2007 rating decision. There also was no subsequent claim by the Veteran after that February 2007 rating decision (including a petition to reopen this claim) before February 18, 2016 when he requested a higher rating for his underlying diabetes, thus, no legal basis allowing for any earlier effective date for the later association of the kidney disease with his diabetes and resultant granting of service connection for this additional kidney disability on this secondary basis. The United States Court of Appeals for Veterans Claims (Veterans Court/CAVC) has held that the effective date of the grant of service connection based on a reopened claim cannot be the date of receipt of the claim that was previously and finally denied. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (holding that "the effective date of award for service connection is not based on the date of earliest medical evidence demonstrating a causal connection, but on the date that the application on which service connection was eventually awarded was filed with VA"). A claim that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. "The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application." Wright v. Gober, 10 Vet. App. 343, 346-47 (1997). When, as here, a prior unappealed decision (the one in February 2007) becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of the reopened claim (February 2016), not instead the date of receipt of the original claim. See Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). In Sears, the Court held at 248 that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Moreover, the effective date for a secondarily service-connected condition (here, the kidney disease) is not necessarily identical to that of the original condition (here, the underlying diabetes); the effective date could arise no earlier than the date on which the appellant applied for benefits for the condition at issue. See Ellington v. Nicholson, 541 F.3d 1364 (Fed. Cir. 2008). The effective date assigned for a secondary service-connected condition does not have to be the same as the effective date for the underlying condition simple because 38 C.F.R. § 3.310 states that a "secondary condition shall be considered a part of the original condition." See Ross v. Peake, 21 Vet. App. 528 (2008). For these reasons and bases, an effective date earlier than February 18, 2016 is not warranted. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 2. Whether new and Material evidence had been received to reopen a claim of entitlement to service connection for a right shoulder disability The Veteran’s claim for service connection for a right shoulder disability also was previously considered and denied in the February 2007 rating decision. At the time of that last final and binding denial, the evidence in the file included his service treatment records (STRs) noting shoulder complaints and a January 2007 VA examination noting a diagnosis of tendonitis. However, there was no competent clinical opinion establishing the required correlation (“nexus”) between his then current diagnosis of tendonitis and the shoulder complaints he had in service. He did not perfect an appeal of that earlier decision, so it is a final and binding determination regarding this claim based on the evidence then of record. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. In 2016, the Veteran filed a petition to reopen this previously denied claim. The newly-received evidence includes his statement that push-ups and carrying heavy objects up and down stairs over the years caused problems with his shoulders, and a November 2012 VA record noting he reported having had “right shoulder discomfort for the last couple of days, thinks it is muscular.” The Veteran also testified during his more recent hearing in 2019 before this Board that he has continued to have shoulder complaints dating back to his service. Given the “low” threshold espoused in Shade v. Shinseki, 24 Vet. App. 110 (2010), the Board finds that new and material evidence has been received as the claims file now includes the Veteran’s statement attesting to continuity of symptoms since his service and additional statements of pain in service caused by push-ups and carrying heavy items. Thus, this claim is reopened. REASONS FOR REMAND 3. Entitlement to service connection for a right shoulder disability AND 4. Entitlement to service connection for a left shoulder disability The Veteran’s March 1999 Report of Medical History for ionizing radiation work and for periodic medical examination reflects that the Veteran reported bilateral shoulder pain with works-out and that he had not been seen previously for it. His corresponding Report of Medical Examination reflects normal upper extremities upon examination. An August 2000 STR reflects that the Veteran complained of right shoulder pain for five to six years. He reported that it had been increasing over time, and that it occurred with weightlifting and exercising. A February 2004 Report of Medical Examination for retention purposes reflects that the Veteran’s upper extremities were normal upon evaluation. The corresponding Report of Medical History reflects that he denied shoulder complaints. The Veteran’s March 2006 Medical Evaluation Board (MEB) is unremarkable for shoulder complaints. However, an April 2006 Report of Medical History for Medical Board purposes reflects that the Veteran reported that he had, or had previously had, painful “shoulder, elbow or wrist”. The Veteran separated from service in September 2006. A January 2007 VA examination report reflects that the Veteran reported complaints of both shoulders. Upon examination of both shoulders, he initially had full range of motion, but after repetitive motion, his range was diminished. He also had pain and lack of endurance with range of motion. The diagnosis was tendonitis. The Board notes that this was four months after separation from service. A February 2010 VA clinical record notes that the Veteran reported that he “has developed left shoulder pain over the past few weeks. He has been starting to lift weight including bench press and other heavy lifting has developed pain with external rotation and abduction.” Upon examination, the assessment was that the Veteran’s left shoulder symptoms were “most consistent with tendinitis or muscular strain.” A November 2012 VA record notes that the Veteran wants to re-establish care at the VA facility. He reported that he had right shoulder “discomfort for the last couple of days, thinks it is muscular.” An October 2015 record notes that the Veteran reported left shoulder pain when seen for ophthalmology. A March 2016 VA clinical record reflects that the Veteran reported that he has left shoulder pain since he was in the military, but he had aggravated it recently when moving boxes at his home. An x-ray showed minimal arthritis changes in the left shoulder. A February 2017 DBQ reflects that it is less likely as not that the Veteran has a current shoulder disability causally related to service because there is only one documented visit for right shoulder complaints in service, and because the MEB and PEB records are silent for any shoulder problems. The Board finds that a supplemental opinion should be obtained, which discusses the records noted above. For example, although the 2000 STR is the only actual treatment record for the shoulder in service, it does note that the Veteran reported right shoulder pain for 5 – 6 years, and the Veteran was noted to have pain of both shoulders when examined four months after separation from service. The Board finds that a discussion as ot the nature of tendonitis (e.g., is it self-limiting, a cause of arthritis, etc.) may be useful.   5. Entitlement to an increased rating for peripheral neuropathy of the left lower extremity. AND 6. Entitlement to an increased rating for peripheral neuropathy of the right lower extremity. The most recent Disability Benefits Questionnaire (DBQ) is from April 2017, at which time the Veteran was noted to have no pain of the lower extremities. Rather, he had mild numbness and mild paresthesias and/or dysesthesias. The Veteran testified at the November 2019 Board hearing that he gets “a lot of Charlie horses”, the nerves in his leg “:thump’ and his legs are sleepy “all the time”, and that sometimes, he uses a cane to walk because of pain. These statements as to pain and “sleepy” legs all the time are indicative of a possible worsening of his disability symptoms since 2017. Thus, the Board finds that another examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400 (1997); The Board also finds that it may be useful to the Board for the VA examiner to differentiate, if reasonably possible, the Veteran’s symptoms which are due to his service-connected peripheral neuropathy from those symptoms, if any, which are related to his bilateral plantar fasciitis, bilateral tendonitis and mild degenerative arthritis of the knees, and possible post-thrombotic syndrome. 7. Entitlement to service connection for a blood clot disability, to include residuals The Veteran is in receipt of service connection for diabetes with erectile dysfunction, for which he contends that he has been prescribed testosterone. He contends that he has a blood clot disability due to the testosterone. The Veteran had a blood clot in March 2016 (there is a discrepancy in the records as to whether it was the right or left lower extremity).   A May 2016 VA clinical record shows the Veteran had deep vein thrombosis (DVT) in the “left lower limb and bilateral PE secondary to lupus anticoagulant antibody.” However, the record also reflects as follows: As interval between the [deep vein thrombosis] and PE was about a week, it is likely that with a/c therapy the clot got dislodged from it. L/L and has gone through pulmonary circulation. Most probably this is a single episode of VTE that was provoked by the use of testosterone and a sedentary lifestyle.” A February 2017 DBQ reflects that the Veteran had a DVT in March 2018; however, this is a typographical error as the DVT was in March 2016. The DBQ also notes that the Veteran has been on Warfarin. The examiner found it less likely as not that the Veteran’s DVT was due to testosterone because the “cause of DVT is unknown. There are many risk factors for DVT. Current medical literature does not support a causal link between testosterone and development of DVT.” The Board finds that a supplemental opinion which reconciles the May 16, 2016 record with the February 2017 opinion as to the relationship, if any, between testosterone and DVT may be useful. Prior to providing an opinion, the examiner should opine as to whether the clinical records support that during the pendency of the claim (from September 2016 to present), the Veteran has had residuals (such as post-thrombotic syndrome). The examiner should also consider when the Veteran stopped using testosterone; and when the Veteran stopped Warfarin, if he did. Essentially, If the Veteran has a disability, such as post-thrombotic syndrome, and if his use of testosterone was due to a service-connected disability, an opinion as to etiology with adequate rationale is necessary.   8. Entitlement to a TDIU prior to March 19, 2018. The Veteran last worked full time on November 26, 2016. He has had a 100 percent combined schedular rating effectively since March 19, 2018; thus, the issue before the Board is whether he is entitled to a TDIU from November 27, 2016 to March 18, 2018, since this is not the situation contemplated by precedent cases when he may have a 100 percent schedular rating concurrently with a TDIU. See Bradley v. Peake, 22 Vet. App. 280 (2008). He has not indicated that his full-time employment was not substantially gainful, but this TDIU claim is derivative of – so inextricably intertwined with – other claims that are being remanded for further development and consideration. Thus, consideration of this derivative TDIU claim must be deferred pending completion of the additional development concerning those other claims. Accordingly, these claims are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. Document all efforts to obtain these additional records and appropriately notify the Veteran and his representative if unable to. 2. Schedule the Veteran for an examination to determine the current severity of his bilateral (left and right) lower extremity peripheral neuropathy. 3. Obtain a supplemental opinion to the February 2017 opinion concerning the claim for service connection for residuals of a blood clot. The examiner should opine on whether it is as likely as not (50 percent or greater probability) the Veteran has a blood clot disability causally related to medication for a service-connected disability. To this end, the examiner must consider the pertinent evidence of record – to include the May 2016 VA clinical record suggesting a possible relationship between an episode of VTE and testosterone. The examiner should also ascertain whether the Veteran continues to take testosterone and/or Warfarin, the reason why he has been prescribed testosterone, and whether he has a current disability such as post-thrombotic syndrome since September 2016. The opinion provided in response to this inquiry must include discussion of the underlying rationale, preferably citing to supporting evidence in the file and/or accepted medical authority on the subject. 4. Obtain a supplemental opinion to the February 2017 DBQ regarding the Veteran’s right and left shoulder disabilities. The examiner should opine on whether it is as likely as not (50 percent or greater probability) the Veteran has a current shoulder disability causally related to his service. To this end, the examiner must consider the pertinent evidence of record - to especially include: a.) a March 1999 Report of Medical History showing the Veteran reported bilateral shoulder pain with works-out, but the normal findings on the Report of Medical Examination; b.) an August 2000 STR showing he complained of right shoulder pain for five to six years; c.) a February 2004 Report of Medical History showing he denied shoulder complaints; d.) the 2006 Medical Evaluation Board (MEB) that is unremarkable for shoulder complaints; e.) the April 2006 Report of Medical History showing he reported that he had, or had previously had, painful “shoulder, elbow or wrist”; f.) the January 2007 VA examination report (four months post separation from service) showing he had complaints of both shoulders, and that, after repetitive motion, his range of motion was diminished, he had pain, and he had lack of endurance with range of motion; g.) a February 2010 VA clinical record for the left shoulder noting pain for a few weeks and that his left shoulder symptoms were “most consistent with tendinitis or muscular strain”; h.) a November 2012 VA record noting he reported that he had right shoulder “discomfort for the last couple of days, thinks it is muscular”; i.) an October 2015 VA ophthalmology record noting left shoulder pain; and j.) a March 2016 VA clinical record indicating he reported having left shoulder pain since he was in the military, also that he had aggravated it recently, and the X-ray findings of minimal arthritic changes. The examiner should provide a current diagnosis, if any, for both the left and the right shoulder, and discuss the relationship, if any, between the Veteran’s complaints in service, his complaints post-service, and his current disabilities.   The opinion provided in response to this inquiry must include discussion of the underlying rationale, preferably citing to supporting evidence in the file and/or accepted medical authority on the subject. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Wishard 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.