Citation Nr: 21012372 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-42 807 DATE: March 4, 2021 ORDER Entitlement to an effective date of June 9, 2014, but no earlier, for service connection for radiculopathy of the right lower extremity is granted. REMANDED Entitlement to service connection for radiculopathy of the left lower extremity is remanded. Entitlement to service connection for Parkinson’s Disease is remanded. Entitlement to service connection for constipation or slowing of gastrointestinal tract, claimed as secondary to Parkinson’s Disease, is remanded. Entitlement to service connection for tremors of the left upper extremity, claimed as secondary to Parkinson’s Disease, is remanded. Entitlement to service connection for tremors of the left lower extremity, claimed as secondary to Parkinson’s Disease, is remanded. Entitlement to service connection for stooped posture, balance impairment, or loss of automatic movements, claimed as secondary to Parkinson’s Disease, is remanded. Entitlement to service connection for loss of smell, claimed as secondary to Parkinson’s Disease, is remanded. Entitlement to service connection for obstructive sleep apnea, claimed as due to environmental exposures from Persian Gulf War service, is remanded. Entitlement to an increased rating for bilateral hearing loss, rated as 10 percent disabling prior to April 5, 2017 and 30 percent thereafter, is remanded. FINDING OF FACT The evidence of record is at least evenly balanced to suggest that the Veteran’s service-connected radiculopathy of the right lower extremity manifested as of June 9, 2014, which is the date the Agency of Original Jurisdiction (AOJ) received the Veteran’s claim. CONCLUSION OF LAW The criteria for entitlement to an effective date of June 9, 2014, but no earlier, for service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from July 1978 to April 1985 and then again from September 1990 to July 1991. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a December 1, 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran’s appeals are perfected between VA Forms 9 received on August 11, 2017 (following a June 27, 2017 Statement of the Case [SOC]) and on February 13, 2018 (following a January 19, 2018 SOC). The June 27, 2017 SOC addresses the following claims: service connection for constipation, partial loss of sense of smell, tremors of the left upper extremity, tremors of the left lower extremity, stooped posture (all of the above claimed as symptoms of Parkinson’s Disease), radiculopathy of the left lower extremity, and obstructive sleep apnea. To the extent that service connection for Parkinson’s Disease is not incorporated in the June 27, 2017 SOC notwithstanding the Parkinson’s symptoms that are addressed in the SOC, the Board nonetheless takes jurisdiction of the Parkinson’s claim and remands it. The January 19, 2018 SOC addresses the following claims: earlier effective dates for bilateral hearing loss, tinnitus, and radiculopathy of the right lower extremity, as well as increased ratings for radiculopathy of the right lower extremity. The January 19, 2018 SOC was issued in response to the Veteran’s August 2017 Notice of Disagreement, which notes disagreement with the effective dates and propriety of all of these respective ratings. The SOC is silent as to his claims for increased ratings for bilateral hearing loss and tinnitus. In short, the Board concludes that because the Veteran has never been issued a SOC responding to increased ratings for bilateral hearing loss or tinnitus, see Manlincon v. West, 12 Vet. App. 238 (1999) and the respective claims for earlier effective dates are intertwined, the Board is precluded from issuing final determinations therein. As a result, those issues also require remand. In January 2019, the Veteran’s attorney requested a 90 day extension to submit evidence and argument. The Board granted the requested for Motion for Extension of Time in July 2019. The requested extension period has expired. 1. Entitlement to an effective date of June 9, 2014, but no earlier, for service connection for radiculopathy of the right lower extremity is granted. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from active duty service or the date entitlement arose if the claim is received within 1 year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). The Court of Appeals for Veterans Claims (Court) has explained that, in an original claim for service connection, the date entitlement arouse is governed by the date the claim is received, not the date of the medical evidence submitted to support a particular claim. See McGrath v. Gober, 14 Vet. App. 28 (2000). Where a prior unappealed decision becomes final and binding on a Veteran, the effective date of a subsequent award of service connection is the date of receipt of a reopened claim, not the date of receipt of the original claim. Sears v. Principi, 16 Vet. App. 244 (2002); Melton v. West, 13 Vet. App. 442 (2000). Under VA laws and regulations, a specific claim in the form prescribed by the VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action indicating intent to apply for one or more benefits under laws administered by the VA, and identifying the benefits sought, may be considered an informal claim. 38 C.F.R. § 3.155(a). The provisions of 38 U.S.C. § 5101(a) mandate that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Further, the mere presence of medical evidence in the record does not establish intent on the part of the Veteran to seek service connection for the benefit in question. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). While the Board must interpret the Veteran’s submissions broadly, the Board is not required to conjure up issues that were not raised by the Veteran. Id. The word “claim” includes 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating intent to apply for one or more benefits under laws administered by VA from a Veteran may be considered to be an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In this regard, as of such date, a claimant, or certain other individuals as specified in section 3.155(b), may indicate a claimant's intent to file a claim for benefits by submitting an intent to file a claim to VA. 38 C.F.R. § 3.155(b). An intent to file a claim must provide sufficient identifiable or biographical information to identify the claimant. Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form prescribed by the Secretary, as defined in 38 C.F.R. § 3.160(a), appropriate to the benefit sought within one year of receipt of the intent to file a claim, VA will consider the complete claim filed as of the date of the intent to file a claim was received. 38 C.F.R. § 3.155(b). In this regard, VA may not pay a benefit before a claim is made. 38 U.S.C. § 5101; Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998) (stating that “[38 U.S.C. §] 5101 is a clause of general applicability and mandates that a claim must be filed in order for any type of benefits to... be paid under the laws administered by the Secretary.”) The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377, 382 (1999); Brannon v. West, 12 Vet. App. 32, 35 (1998). More specifically, a medical examination report is only considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. MacPhee v. Nicholson, 459 F.3d 1323, 1327 (Fed. Cir. 2006); see also 38 C.F.R. § 3.157(b)(1) (medical records can serve as informal claim “when such reports relate to examination or treatment of a disability for which service-connection has previously been established”). Likewise, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33, 35 (1995); KL v. Brown, 5 Vet. App. 205, 208 (1993). By way of background, the Veteran’s claim for service connection for a back disorder, and other disorders as secondary to it, was initially received by the AOJ on June 19, 2014. See VA Form 21-526EZ (rec’d June 9, 2014 ). As of the December 2015 rating decision that is currently on appeal, the claims for service connection for lumbar spine degenerative joint disease and radiculopathy of the bilateral lower extremities were each denied. The Veteran filed a timely and valid Notice of Disagreement to these, which was received on January 28, 2016. See NOD ( Jan. 28, 2016 ). In a subsequent rating decision dated May 4, 2017, see Rating Decision ( May 4, 2017 ), the service connection claim for the degenerative disc disease lumbar spine was granted June 9, 2014, but the claim for radiculopathy of the right lower extremity was only granted effective March 31, 2017, and the claim for radiculopathy of the left lower extremity remained denied as of certification of the issues to the Board. In short, the Board resolves all reasonable doubt in the Veteran’s favor and concludes that the Veteran is entitled to service connection for radiculopathy of the right lower extremity effective June 9, 2014. See 38 C.F.R. § 3.400(r). In assigning an effective date for a grant of service connection, the Board is restricted to the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). See also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, not the evidence, is dispositive, the appeal should be terminated for lack of legal merit or entitlement). Whereas the AOJ previously assigned an effective date of March 31, 2017 based upon noted radiculopathy at that VA examination, see VA Exam ( Mar. 31, 2017 ), at Section VIII et seq., the Board notes that the Veteran endorsed subjective pain shooting to his legs on occasions predating that examination. See, e.g.: VA Exam ( Nov. 18, 2015 ), at Question No. 2a, cf. id. at Question No. 8; Private Opinion by Dr. L.L., DO ( Aug. 11, 2016 ). Furthermore, the Veteran has always claimed radiculopathy as part and parcel of his claim for service connection for his back disorder. In the February 2018 VA Form 9, the Veteran’s attorney stated that the claim for service connection for a back disorder “is evidence the Veteran was already experiencing symptoms of radiculopathy. Had the Veteran not been experiencing symptoms, he would have not submitted a claim.” See VA Form 9 (Feb. 13, 2018). The Board has no reason to doubt the Veteran’s credibility, and his contentions appear to be supported by virtue of his service-connected lumbar spine disorder. Ultimately, the Board notes that the Veteran has consistently articulated that his claims for a lumbar spine disorder and radiculopathy are intertwined with each other. The evidence of record is at least evenly balanced to suggest that the Veteran’s radiculopathy of the right lower extremity manifested no later than June 9, 2014; therefore, it should be entitled to service connection as of then, but no earlier. The Board resolves all reasonable doubt accordingly and grants the claim for an earlier effective for service connection in full. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). For the period of service connection from June 9, 2014 to prior to March 31, 2017, the AOJ will assign an initial rating in a future rating decision. REASONS FOR REMAND 1. Entitlement to service connection for radiculopathy of the left lower extremity is remanded. The Board acknowledges that in the above discussed private opinion, Dr. L.L. endorsed the Veteran’s subjective pain upon straight leg raise testing, see Private Opinion by Dr. L.L., DO ( Aug. 11, 2016 ), supra. However, this opinion does not specifically indicate whether pain manifested in the right leg, left leg, or both. As a result, the Veteran underwent a VA examination on March 31, 2017, which indicates positive straight leg raising test results only for the right leg (evincing radiculopathy for the right lower extremity)—but not the left. See VA Exam (Mar. 31, 2017), at Section VII. Additionally, the examiner also specified that the Veteran has “moderate intermittent (usually dull) pain” with L4-S3 nerve roots involvement in the right leg and side only, but not the left. See id. at Section VIII et seq. Subsequent to this VA examination, the Court of Appeals for Veterans Claims held in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) that pain alone, even in the absence of a diagnosis or underlying pathology, can establish a current disability if it results in functional impairment of earning capacity. For this reason, the Board concluded that it is precluded from issuing a final determination on the claim for a left lower extremity disorder at this time. Instead, an updated VA examination is required to fully assess and adjudicate the Veteran’s claim. 2. Entitlement to service connection for Parkinson’s Disease is remanded. The Veteran appears to claim that his Parkinson’s Disease is attributable to certain environmental exposures that may have been caused by exposure to burn pits or oil fires. See, e.g.: Medical Treatment Record by Dr. J.M.P. ( Aug. 18, 2015 ); Medical Treatment Record by Dr. M.A.C. (Jan. 15, 2019) (rec’d Feb. 26, 2019 ). However, there is insufficient evidence to confirm that the Veteran has qualifying presence in the Southwest Asia theater of operations. The military personnel records associated with the claims file appear to be limited to a Form DD-214 addressing the Veteran’s first period of service and a Form DD-215 addressing the first period of service. See DPRIS Forms (rec’d July 27, 2015 ). Unfortunately, there is no record to confirm whether this service includes service within a qualifying country, and there are also no flight logs associated with the claims file that might elicit further information as to the Veteran’s military career as a pilot. This claim is accordingly remanded, so that the AOJ may make further attempts to associate these personnel records with the file. 3. Entitlement to service connection for constipation or slowing of gastrointestinal tract, claimed as secondary to Parkinson’s Disease, is remanded. 4. Entitlement to service connection for tremors of the left upper extremity, claimed as secondary to Parkinson’s Disease, is remanded. 5. Entitlement to service connection for tremors of the left lower extremity, claimed as secondary to Parkinson’s Disease, is remanded. 6. Entitlement to service connection for stooped posture, balance impairment, or loss of automatic movements, claimed as secondary to Parkinson’s Disease, is remanded. 7. Entitlement to service connection for loss of smell, claimed as secondary to Parkinson’s Disease, is remanded. The Board concludes that because the Veteran’s claim for Parkinson’s Disease is to be remanded as detailed above, the Veteran’s additional claims for service connection appear to be inextricably intertwined with that issue. Accordingly, the Board is precluded from issuing final determinations as to service connection for these discrete sequelae. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are “inextricably intertwined” when a decision on one issue would have a “significant impact” on a Veteran’s claim for the second issue). These claims are accordingly remanded as well. 8. Entitlement to service connection for obstructive sleep apnea, claimed as due to environmental exposures from Persian Gulf War service, is remanded. Meanwhile, even though the Veteran’s claim for service connection for obstructive sleep apnea does not appear to be as secondary to Parkinson’s Disease, the Board interprets the Veteran’s argument as based upon similar environmental exposures that may be presumed from burn pits or oil fires. In other words, the Veteran claims that Parkinson’s Disease and sleep apnea have a common etiology. As such, the Board similarly concludes that because the Veteran’s claim for Parkinson’s Disease is to be remanded as detailed above, the Veteran’s claim for service connection for sleep apnea appears to be inextricably intertwined with that issue. Accordingly, the Board is precluded from issuing final determinations as to that claim as well. See Harris v. Derwinski, supra. This claim is accordingly remanded as well. 9. Entitlement to increased ratings for service-connected bilateral hearing loss is remanded. The Board notes that in August 2017, the Board received the Veteran’s timely and valid Notice of Disagreement as to increased ratings for bilateral hearing loss. The respective SOC, which was issued to the Veteran in January 2018, only addresses the Veteran’s claim for entitlement to an earlier effective date for bilateral hearing loss and tinnitus. The SOC fails to address the respective claims for increased ratings, even though they were identified on the NOD. The Board concludes that the Veteran has never been issued a SOC as to entitlement to increased ratings for bilateral hearing loss. As a result, those portions of the Veteran’s claim is remanded. See Manlincon v. West, supra. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Issue the Veteran a Statement of the Case responding to the claim for increased rating for service-connected bilateral hearing loss. Advise the Veteran of the time period in which to perfect his appeal. If the Veteran perfects his appeal of this issue in a timely fashion, then return the case to the Board for its review, as appropriate. 3. Contact the appropriate service department including, but not limited to, the National Personnel Records Center (NPRC), the Joint Services Records Research Center (JSRRC), the Records Management Center (RMC), the Veteran’s unit, and any other appropriate location, to request any outstanding military personnel records for the Veteran. Attempts should be made to verify whether the Veteran had in-country service in qualifying countries within the Southwest Asis theater of operations during the Persian Gulf War era, including but not limited to flight logs. 4. Then, readjudicate the Veteran’s claims for service connection for Parkinson’s Disease, the intertwined issues of constipation, tremors of the left upper extremity, tremors of the left lower extremity, stooped posture, and loss of smell, and obstructive sleep apnea (to include as due to similar environmental exposures), and entitlements to increased ratings and earlier effective dates for bilateral hearing loss and tinnitus. If upon completion of the above actions, and any other development warranted any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure, to include the issuance of a Supplemental Statement of the Case and affording the Veteran and his attorney sufficient opportunity to respond. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Michael B. Engle, 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.