Citation Nr: 21021168 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 13-02 224 DATE: April 12, 2021 ORDER Entitlement to an effective date earlier than January 28, 2009, for the award of service connection for right rotator cuff tendonitis with mild acromioclavicular arthritis is denied. REMANDED Entitlement to an initial compensable rating for dyspnea on exertion is remanded. Entitlement to service connection for a pulmonary and/or respiratory disability (other than service-connected sinusitis and dyspnea on exertion) is remanded. Entitlement to service connection for a skin disability, to include dermatitis and tinea corporis, and to include as due to service in the Southwest Asia theater of operations, is remanded. FINDING OF FACT An application to reopen the claim of service connection for a right shoulder disability was received by VA on January 28, 2009. There were no prior unadjudicated claims. CONCLUSION OF LAW The criteria for an effective date earlier than January 28, 2009, for the award of service connection for right rotator cuff tendonitis with mild acromioclavicular arthritis are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 2004 to January 2006. These matters come to the Board of Veterans’ Appeals (Board) on appeal from June 2010 and September 2010 rating decisions by a Regional Office (RO) of the United States Department of Veterans Affairs (VA).  The Veteran and his wife testified at a videoconference hearing before a Veterans Law Judge (VLJ) in March 2016. The Veteran’s son was also present but did not testify. A transcript of the hearing is of record. In March 2020 correspondence, the Veteran was informed that the VLJ who presided over the March 2016 hearing was no longer employed by the Board and was advised of the opportunity to testify at another hearing under 38 C.F.R. § 20.700. No response was received from the appellant within 30 days of the letter, and so it is presumed that a new hearing is not desired. In December 2016 and February 2018, the Board, in pertinent part, remanded the claims of entitlement to service connection for a chronic respiratory disorder (other than service-connected dyspnea on exertion); service connection for a chronic skin disability; entitlement to an initial compensable rating for dyspnea on exertion; and entitlement to an effective date earlier than January 28, 2009 for the award of service connection for right rotator cuff tendonitis, to include on the basis of clear and unmistakable error (CUE) in a March 2006 rating decision. Upon return of the appeal in May 2020, the Board granted service connection for sinusitis. The Board further remanded the claims of entitlement to service connection for a pulmonary and or respiratory disorder (other than service-connected sinusitis and dyspnea on exertion); service connection for a skin disorder; an initial compensable rating for dyspnea on exertion; and entitlement to an effective date earlier than January 28, 2009 for the award of service connection for right rotator cuff tendonitis, to include on the basis of CUE in a March 2006 rating decision. The matters again are before the Board. At this time, the Veteran is within the time period to pursue an appeal of the adverse December 2020 rating decision which denied the motion for CUE in a March 2006 rating decision in the first instance. However, since the implementation date of the Appeals Modernization Act (AMA), on and after February 19, 2019, veterans are required to file a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), to appeal to the Board. As that form has not been received, this issue is not under the Board’s jurisdiction. Pursuant to 38 C.F.R. § 20.200, the RO must inform the Veteran of his appellate rights to initiate an appeal. Consequently, the Veteran’s motion for revision of a March 2006 rating decision is not currently ripe for appellate review at this time and will be decided in a later Board decision, if appropriate. This appeal is limited to the issues on the title page. The Veteran’s CUE motion is not inextricably intertwined with the current earlier effective date appeal, as that matter may be decided irrespective of any eventual determination regarding CUE, on an independent set of facts. While a finding of CUE may render a decision on the current appeal moot at some time in the future, such does not impact the findings of fact and laws and regulations at issue here. Harris v. Derwinski, 1 Vet. App. 180 (1991). Earlier Effective Date The Veteran contends that he is entitled to an effective date earlier than January 28, 2009 for the award of service connection for right rotator cuff tendonitis. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.”  See 38 U.S.C. § 5110(a).  If the claim is filed within one year of separation of service, the effective date may be the day following separation from service if entitlement arose. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.304(b)(2). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. Prior to March 24, 2015, VA recognized formal and informal claims. See 38 C.F.R. § 3.1 (p) (2014). The amendments also, inter alia, eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Under the law prior to the amendment, a claim was defined as 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 was any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). Under the law at the time, VA had an obligation to look to all communications from a claimant that may be interpreted as applications or claims formal and informal for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board finds that the appropriate date for the Veteran’s claim is January 28, 2009, the receipt date of the Veteran’s application to reopen a claim of service connection for a right shoulder disability. The evidence of record reflects that the Veteran submitted his initial claim of service connection for a right shoulder disability in an Application for Compensation (VA 21-526), which was received by the RO in January 2006. Service connection for a right shoulder disability was denied by the RO in a rating decision dated March 2006. Although evidence was submitted within a year of its promulgation, it was not material to the claim of service connection for a right shoulder disability. Further, the Veteran did not submit a notice of disagreement or otherwise express disagreement with that determination within one year of the decision. Therefore, the March 2006 rating decision is final. See 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. Thereafter, the record reflects that the Veteran submitted an application to reopen the claim of service connection for a right shoulder disability (claimed as “shoulder pain”) in an Application for Compensation (VA 21-526) received by the RO on January 28, 2009. In a June 2010 rating decision, the RO awarded service connection for rotator cuff tendonitis with mild acromioclavicular arthritis of the right shoulder, with an evaluation of 30 percent disabling, effective January 28, 2009. When a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen, which in this case is January 28, 2009. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005)). No prior unadjudicated claims were outstanding. Therefore, the Board finds that the proper effective date for the award of service connection is January 28, 2009, the receipt date of the Veteran’s application to reopen a claim of service connection for a right shoulder disability. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REASONS FOR REMAND A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. As such, another remand is warranted. In its most recent remand in May 2020, the Board directed the RO to ask the Veteran to complete and return VA Forms 21-4142, Authorization and Consent to Release Information, for any private medical treatment he has received from Dr. Sloan (Easy Care Medical Clinic) and test results or treatment received from the Magnolia Regional Health Center, to include specific pulmonary function test (PFT) results. Upon association of the records with the claims file, the Board notes that the PFT results were for a plethysmograph and not a spirometry test. While records were subsequently associated with the claims file in October 2020, the RO did not obtain a medical opinion to assist in determining the nature and etiology of the Veteran’s claimed pulmonary and or respiratory disorder, as also directed by the Board in May 2020. Therefore, another remand is warranted to obtain an opinion. Concerning the Veteran’s claim for an initial compensable rating for his service-connected dyspnea with exertion, the Veteran was most recently afforded a VA respiratory examination in February 2019. The examination report referenced a February 2018 diagnosis of acute bronchitis, and February 2019 diagnoses of acute sinusitis and pleurisy. The VA examiner further indicated that the Veteran required use of intermittent inhalational bronchodilator therapy. The Board acknowledges that when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. Nevertheless, the VA examiner did not state what disability required such therapy. A VA examiner should, to the extent possible, distinguish symptoms attributable to service-connected dyspnea with exertion from those attributable to any other disability that is not service-connected. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998). Notwithstanding, the VA examiner reported that the Veteran’s “PFT results may not accurately reflect the [Veteran’s] current pulmonary function due to poor effort during testing” while also stating that “the [Veteran’s] pulmonary function test results accurately reflect the extent of impaired pulmonary functioning.” Consequently, due to these contradictory statements, the Board is without meaningful clinical findings responsive to the applicable rating criteria. A remand is required for another VA examination to determine the current nature and severity of the Veteran’s service-connected dyspnea with exertion. Regarding the Veteran’s skin disability claim, the Veteran was afforded a VA examination in February 2019 pursuant to the Board’s December 2016 and February 2018 remands. The Board directed the VA examiner to determine whether the Veteran has a diagnosis of a skin disability, “notably dermatitis and or tinea corporis.” If VA provides an examination that examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The examination report is internally inconsistent. In the examination report, the VA examiner indicated that the Veteran did not have a skin disability, yet noted that the Veteran was prescribed topical triamcinolone cream for six weeks or more in the past 12 months. Further, the VA examiner ignored ample evidence of record of a current skin disability, to include dermatitis, which reflects a less than thorough review of the claims file. The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability is filed or during the pendency of that claim, even though the disability resolves prior to adjudication of the claim. McClain v. Nicholson, 21 Vet. App. 319 (2007). The Board notes that in VA outpatient treatment records dated April 20, 2009 and April 25, 2019, the Veteran was diagnosed with dermatitis. Therefore, another VA examination is warranted to determine the nature and etiology of the Veteran’s claimed skin disability. The matters are REMANDED for the following action: 1. Associate with the claims file updated VA treatment records. 2. Schedule the Veteran for a VA respiratory examination to ascertain the current nature and severity of his service-connected dyspnea with exertion and to obtain a VA medical opinion to assist in determining the nature and etiology of the Veteran’s claimed pulmonary and or respiratory disorder (other than the service-connected sinusitis and dyspnea on exertion). The examiner must review all pertinent documents in the record and obtaining a complete medical history from the Veteran. Then, the examiner should provide the following: (a) State whether the Veteran has chronic bronchitis and or chronic obstructive pulmonary disease (COPD). The examiner must specifically address the diagnosis of COPD by Dr. Sloan and the report from the Magnolia Regional Health Center, to include any recently obtained PFT results (if received). (b) For each diagnosis, state whether it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran’s disorder had its origin in service or is otherwise related to the Veteran’s service. A full and complete rationale is required for all opinions expressed. 3. Schedule the Veteran for a VA skin examination; the claims folder must be reviewed in conjunction with such. The examiner must identify any current skin disorders. For each diagnosed disability, the examiner must opine as to whether such is at least as likely as not (50 percent probability or greater) caused or aggravated by service, to include as due to service in the Southwest Asia theater of operations. If no skin disability is present at the time of examination, the examiner should still proceed to provide an opinion on the etiology of the documented skin disabilities and reported rashes. A full and complete rationale is required for all opinions expressed. 4. Then, readjudicate the remanded issues. If the benefits sought remain denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Ong, 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.