Citation Nr: 21015230 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 20-08 902 DATE: March 17, 2021 ORDER An earlier effective date of June 28, 2017 for the award of service connection for degenerative arthritis of the spine is granted. An earlier effective date of June 28, 2017 for the award of service connection for right lower extremity radiculopathy, femoral nerve is granted. REMANDED Entitlement to service connection for disability manifesting in instability and swelling of the left ankle is remanded. Entitlement to service connection for disability manifesting in instability and swelling of the right ankle is remanded. Entitlement to service connection for bilateral shin splints is remanded. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the spine is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy, femoral nerve is remanded. FINDINGS OF FACT 1. The Veteran’s claim for entitlement to service connection for a back disability was received June 28, 2017; the earliest evidence demonstrating degenerative changes of the lumbar spine is from December 2017. 2. The Veteran’s claim for entitlement to service connection for numbness/ radiculopathy in the legs was received June 28, 2017. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of June 28, 2017, but no earlier, for the award of service connection for degenerative arthritis of the spine have been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5108, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400. 2. The criteria for an earlier effective date of June 28, 2017, but no earlier for the award of service connection for degenerative arthritis of the spine have been met. 38 U.S.C. §§ 5101, 5103, 5103A, 5107, 5108, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from August 1959 to August 1963. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2021, the Veteran presented testimony at a virtual hearing held before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. The Veteran claim has been advanced on the docket based upon age. See 38 U.S.C. § 7107; 38 C.F.R. § 20.900. Effective Dates 1. Entitlement to an earlier effective date of June 28, 201,7 but no earlier, for the award of service connection for degenerative arthritis of the spine is granted. 2. Entitlement to an earlier effective date of June 28, 2017, but no earlier, for the award of service connection for right lower extremity radiculopathy, femoral nerve is granted. Generally, the effective date of an evaluation and award of compensation is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran’s claim was not received within one year of his separation from active service, so the exception allowing assignment of an effective date the day following separation from such service is inapplicable. See 38 C.F.R. § 3.400(b)(2). For claims or appeals filed on or after March 24, 2015, as is the case here, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Prior to March 24, 2015, a claim was "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). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). The Veteran submitted a VA Form 21-526EZ Application for Disability Compensation and Related Compensation Benefits for disabilities including a low back condition and numbness/radiculopathy in the legs which was received by VA on June 28, 2017. The Veteran submitted another VA Form 21-526EZ which was received by the AOJ on May 2, 2018, followed up with clarification that the Veteran was seeking service connection for disabilities including of the lumbar spine. When service connection was granted for degenerative arthritis of the spine and radiculopathy, femoral nerve, right lower extremity, the RO assigned an effective date of May 2, 2018 for both. Inasmuch as the Veteran’s June 28, 2017 VA Form 21-526EZ identified the disabilities and benefit sought, and a December 2017 X-ray showed mild degenerative changes of the lumbar spine, the Board will resolve all reasonable doubt in the Veteran’s favor in finding that entitlement to service connection for lumbar spine degenerative joint disease was present as of the June 28, 2017 filing. The Board recognizes that the Veteran had previously submitted a VA Form 21-526EZ seeking service connection for “scoliosis to left leg 1 centimeter shorter leg” which was received by VA in February 2015. However, it is not clear that the Veteran was seeking service connection for a back disability, and regardless, the evidence of record including the Veteran’s treatment records do not demonstrate that the Veteran complained of or sought treatment for a back disability prior to submitting his May 2018 claim. Of note, the Veteran was provided with a back examination in September 2015, relating to his claimed scoliosis. The examiner found that the Veteran did not have a current back disability. On physical examination, there was no limited range of motion or pain noted, and testing demonstrated full strength, normal sensation and deep tendon reflexes, and negative straight leg raising sign. The report also indicates that imaging done of the thoracolumbar spine did not document the presence of arthritis or scoliosis. Therefore, even if the claim for service connection for a back disability was raised in the February 2015 filing, the evidence does not establish entitlement until after the June 2017 claim was received. Thus, resolving all reasonable doubt in the Veteran’s favor, an earlier effective date of June 28, 2017 for the grants of service connection for lumbar degenerative joint disease and right lower extremity femoral radiculopathy is found warranted. As the claim was not filed within one year of separation from active service, and the evidence does not establish the presence of a lumbar spine disability shortly before or subsequent to the February 2015 filing, there is no basis upon which to assign an even earlier effective date for the grants of service connection. REASONS FOR REMAND 1. Entitlement to service connection for disability manifesting in instability and swelling of the left ankle is remanded. 2. Entitlement to service connection for disability manifesting in right ankle instability and swelling is remanded. 3. Entitlement to service connection for bilateral shin splints is remanded. The Veteran asserts that he is entitled to service connection for left and right ankle disability and bilateral shin splints either as directly related to injuries sustained while playing basketball in service, or as secondary to his service-connected disabilities. The Veteran was provided with a VA examination concerning his ankle claims in September 2020. The Veteran reported that the region aches and stays swollen status-post clots, and that it is also tight and has swelling with pain, for which he uses a compression stocking. On physical examination, it was noted that he had bilateral pitting edema, worse on the right, and five degrees of limited plantar flexion on the right. The examination report indicates that the Veteran does not have a current diagnosis associated with the ankles, and the examiner stated that the current symptoms are consistent with age and vascular insufficiency. The examiner concluded that the “pitting edema [was] stated as from history of DVTs (blood clots)”, and therefore it was less likely than not that an ankle disability was due to or the result of the Veteran’s service-connected disabilities. Although she checked a box indicating that the claimed condition was less likely than not incurred in or caused by service, the rationale provided relates to whether an ankle disability was caused by a service-connected disability. Additionally, no opinion was provided concerning whether a disability manifesting in ankle swelling or feelings of instability was aggravated by a service-connected disability or disabilities. On remand, a supplemental medical opinion should be provided in order to meet VA’s duty to assist the Veteran in obtaining an adequate medical opinion. The Veteran was provided with VA examinations concerning his bilateral shin splints claim in July 2018 and September 2020. The July 2018 examination indicates that the Veteran had bilateral shin splints that affected the range of motion of the knees. The July 2018 examination report includes an opinion that it is less likely as not that the current bilateral shin splint is secondary to, incurred in, or caused by the Veteran’s “leg length discrepancy; left leg, scoliosis condition.” The rationale was that there is no pathophysiologic relationship between the bilateral shin splint condition and the service-connected condition, nor are there any records showing such a relationship exists. The September 2020 examination report states that the Veteran did not have any current symptoms of shin splints, but acknowledged that it was noted at the 2018 examination. The examiner stated an opinion that because there were no current shin splints, it is less likely as not that shin splints were aggravated beyond their natural progression by service-connected diagnoses, including of the knees. Such opinion does not address whether the shin splints noted at the July 2018 examination were caused or aggravated by service-connected disability or whether such are otherwise related to service. On remand, a supplemental medical opinion should be provided in order to meet VA’s duty to assist the Veteran in obtaining an adequate medical opinion. 4. Entitlement to an initial disability rating in excess of 10 percent for degenerative arthritis of the spine is remanded. 5. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity radiculopathy, femoral nerve is remanded. The Veteran was provided with a VA examination for his back in May 2018. The Veteran was found to have degenerative joint disease of the lumbar spine and right lower extremity femoral nerve radiculopathy. At the September 2020 examination concerning the Veteran’s left and right ankle claims, the Veteran was found to have decreased muscle strength for both left and right ankle dorsiflexion, which the examiner indicated was at least partially due to lumbar radiculopathy affecting both lower extremities. As this indicates a possible worsening of the Veteran’s lumbar spine condition and associated lower extremity radiculopathy, additional examination is found needed in order to assess the current severity and manifestations of the Veteran’s lumbar spine disability and lower extremity radiculopathy. The matters are REMANDED for the following action: 1. Refer the Veteran’s file to a suitable health care professional for a supplemental medical opinion concerning the Veteran’s claim for service connection for left and right ankle disability. The clinician must review the claims file and the AOJ should provide them with a list of the Veteran’s service-connected disabilities. If additional examination is found needed to respond to the below, such should be scheduled and the Veteran provided with sufficient notice. The clinician is asked to address the following: a. Identify a diagnosis for any disability manifesting in the Veteran’s left and/or right ankle symptoms, described as swelling/pitted edema and instability, present at any point during the relevant appeal period (May 2018 to present), whether or not it has resolved during that period. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should indicate this and consider them a “disability” for the purpose of providing the requested opinion(s) below. b. For any disability manifesting in left and/or right ankle symptoms: i) Is it at least as likely as not that the disability arose during or is otherwise related to service, including but not limited to the Veteran’s described wear and tear from playing basketball and/or the two right ankle sprains noted in the Veteran’s July 1961 service treatment records? ii) Is it at least as likely as not that the disability is proximately caused by one or more of the Veteran’s service-connected disorders? iii) Is it at least as likely as not that the disability is aggravated beyond its natural progression by one of more of the Veteran’s service-connected disorders? A complete rationale must be provided for any and all opinions or conclusions stated. 2. Refer the Veteran’s file to a suitable health care professional for a supplemental medical opinion concerning the Veteran’s claim for service connection for bilateral shin splints. The clinician must review the claims file and the AOJ should provide them with a list of the Veteran’s service-connected disabilities. If additional examination is found needed to respond to the below, such should be scheduled and the Veteran provided with sufficient notice. The clinician is asked to address the following for any shin splint disability present at any time during the relevant appeal period (May 2018 to present), whether or not it resolved: a) Is it at least as likely as not that the disability arose during or is otherwise related to service, including but not limited to the Veteran’s described wear and tear from playing basketball? b) Is it at least as likely as not that the disability is proximately caused by one or more of the Veteran’s service-connected disorders? c) Is it at least as likely as not that the disability is aggravated beyond its natural progression by one of more of the Veteran’s service-connected disorders? A complete rationale must be provided for any and all opinions or conclusions stated. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity and manifestations of his service-connected degenerative joint disease of the lumbar spine and any associated radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. For any radiculopathy found, the examiner should provide a characterization of the severity of such radiculopathy, and explain the basis for such characterization. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or with repeated use over time. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional expected impairment due to flare-ups or with repeated use over time based on the other evidence of record and the Veteran’s statements. If it is not possible to provide an estimate of the specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A clear rationale must be provided for any and all opinions and conclusions stated. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Solomon, 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.