Citation Nr: 21020814 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 10-13 580A DATE: April 8, 2021 ORDER Entitlement to an effective date earlier than September 22, 2011 for the award of service connection for residuals of cold injury of the left foot is denied. Entitlement to an effective date earlier than September 22, 2011 for the award of service connection for residuals of cold injury of the right foot is denied. REMANDED Entitlement to an initial rating for unspecified trauma and stressor related disorder in excess of 30 percent prior to August 10, 2015 and in excess of 50 percent thereafter is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.   FINDINGS OF FACT 1. No claim (formal or informal) of service connection for a left foot disorder was received until September 22, 2011; and, service connection has been established from that date. 2. No claim (formal or informal) of service connection for a right foot disorder was received until September 22, 2011; and, service connection has been established from that date. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than September 22, 2011 for the award of service connection for residuals of cold injury of the left foot are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for an effective date earlier than September 22, 2011 for the award of service connection for residuals of cold injury of the right foot are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from December 1951 to December 1953. He died in June 2020 during the pendency of the appeal, and the appellant is his surviving spouse. The appeal originates from July 2009 and October 2015 decisions of a Department of Veterans Affairs (VA) Regional Office. The claims were previously dismissed in July and August 2020 Board decisions. In August 2020, the appellant was granted substitution. The Veteran appeared for a hearing before the undersigned in September 2011. 1. Entitlement to an effective date earlier than September 22, 2011 for the award of service connection for residuals of cold injury of the left foot. 2. Entitlement to an effective date earlier than September 22, 2011 for the award of service connection for residuals of cold injury of the right foot. The law provides that the effective date for an award of service connection is the day following separation from active duty, or the day entitlement arose, if the claim is filed within the year after active duty. When the claim is filed more than a year after active duty, the effective date for service connection will be the date of VA receipt of the claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). The appellant claims entitlement to an earlier effective date based on the unavailability of the Veteran’s complete service treatment records. She adds that the Veteran’s limited mental capacity that prevented him from responding to requests from VA. See January 2018 Form 9. The Veteran filed a service connection claim for a right big toe condition in February 2000 without elaboration. VA requested clarification in March 2000 as to the nature of his disability and its relation to service. No response was received, and the claim was denied in an April 2000 rating decision. The Veteran was provided notice of the decision in May 2000. VA again denied the claim in a May 2001 rating decision and provided notice to the Veteran shortly thereafter. The Veteran did not appeal the May 2001 decision and new and material evidence was not received within one year of the decision. The decision therefore became final. Due to its vagueness, the February 2000 correspondence cannot be construed as a claim for a right foot disorder, much less for residuals of an in-service cold injury. VA sought clarification from the Veteran but no response was received. Moreover, even assuming the claim was for a right foot disorder, it could not serve as the basis of an earlier effective date since it was denied in a final rating decision.   No correspondence regarding a foot condition was received until September 22, 2011 when the Veteran filed a claim for frozen feet. He was already in receipt of service connection effective from that date. An effective date earlier than September 22, 2011 is simply not warranted. Consideration is given to the appellant’s arguments raised in the January 2018 Form 9. It is true that the Veteran’s complete service treatment records are unavailable. VA made a formal finding of unavailability in June 2009 and provided notice to the Veteran. Consideration has also been given to the fact that the Veteran was diagnosed with mild cognitive impairment in approximately 2012, and that his decreased mental acuity may hindered him in pursuing a claim or appeal. However, the unavailability of the Veteran’s claims file and his cognitive impairment do not provide a justiciable basis for the Board to award an earlier effective date. The effective date of award, as discussed, is based on the filing of a claim for benefits. REASONS FOR REMAND 1. Entitlement to an initial rating for unspecified trauma and stressor related disorder in excess of 30 percent prior to August 10, 2015 and in excess of 50 percent thereafter is remanded. 2. Entitlement to TDIU is remanded. The Veteran underwent a VA examination in December 2009 at which time he was diagnosed with moderate chronic alcohol dependence, mild posttraumatic stress disorder (PTSD), and a mood disorder. The examiner indicated that approximately 90 percent of his symptoms were due to alcohol dependence rather than PTSD. In the January 2010 NOD, the Veteran appeared to indicate that he used alcohol to treat his psychiatric symptoms.   The Veteran was afforded another examination in March 2012, and the examiner was requested to provide an opinion as to whether an alcohol disorder was related to PTSD. The examiner found that the Veteran did not meet the criteria for alcohol abuse or dependence at that time and did not provide an opinion. Though it appears that alcohol dependence may have resolved (or more likely had gone into remission) in between the examinations, the relation between the Veteran’s psychiatric disability and alcohol dependence would be pertinent to consideration of his symptoms for an increased rating earlier in the appeal. An opinion should therefore be obtained concerning this matter. With respect to TDIU, the increased rating claim for a psychiatric disability bears on the Veteran’s eligibility for TDIU, and therefore adjudication must be deferred at this time. The matter is REMANDED for the following action: Request an addendum opinion from the June 2019 PTSD examiner. Following a review of the claims file and in consideration with this remand, the examiner is asked to opine as to whether it is at least likely as not that the Veteran’s moderate chronic alcohol dependence (diagnosed in December 2009): a. was proximately caused by the Veteran’s PTSD b. underwent any incremental increase in disability, regardless of its permanence, due to the service-connected PTSD. Rationale must be provided for all requested opinions. The term “incremental increase in disability” means additional impairment of earning capacity.  Objective measurement, or numerical quantification, is not required to ascertain an increase in disability.  Moreover, any “incremental increase in disability” need not be permanent. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alhinnawi 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.