Citation Nr: 21025812 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 16-17 767 DATE: April 29, 2021 ORDER Entitlement to an effective date prior to August 16, 2013 for the award of service connection for right foot tendonitis is denied. REMANDED Entitlement to service connection for a bone disability is remanded. Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left foot disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT On August 16, 2013, VA received the Veteran’s intent to file a claim for compensation. Thereafter, on February 28, 2014, VA received VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, from the Veteran seeking service connection for a bilateral foot condition. There is no evidence of prior, unadjudicated claim for a right foot disability. CONCLUSION OF LAW The criteria for an effective date prior to August 16, 2013 for the award of service connection for right foot tendonitis 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 July 1972 to July 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2014 and August 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims for further development in November 2018. 1. Entitlement to an effective date prior to August 16, 2013 for the award of service connection for right foot tendonitis is denied. Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or date entitlement arose if the claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. Id. Moreover, the Court of Appeals for Veterans Claims has determined that the effective date of an award of service connection is not based upon the date of the earliest medical evidence demonstrating entitlement, but on the date that the application upon which service connection was ultimately awarded was filed with VA. See Lalonde v. West, 12 Vet. App. 377, 380 (1999). (“[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.”) Prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit 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. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (as in effect prior to March 24, 2015). On August 16, 2013, VA received the Veteran’s intent to file a claim for compensation, in which the Veteran specifically indicated that the submitted statement was to preserve his effective date for entitlement to benefits. See August 2013 VA Form 21-4138. Thereafter, on February 28, 2014, VA received VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, from the Veteran seeking service connection for a bilateral foot condition. The record does not show any formal or informal claim for service connection for a right foot disability prior to this date, and the Veteran does not allege otherwise. An August 2014 rating decision awarded service connection for right foot tendonitis and an effective date of August 16, 2013 was assigned, noting that was the date the Veteran’s informal claim for benefits was received. Here, the RO assigned the correct effective date of August 16, 2013 for the award of service connection. The Board emphasizes that the Veteran does not assert, and the evidence does not otherwise reflect, that he communicated an intent to file a claim for service connection for a foot disability prior to August 16, 2013, filed a claim that had been previously denied, or filed an informal claim for such a disability prior to that date. In this regard, the Veteran’s December 2010 claim for bilateral hearing loss, tinnitus, and nonservice-connected pension cannot be reasonably construed as a claim of entitlement to service connection for a right foot disability. As such, the Veteran is already in receipt of the earliest possible effective date allowed under law and there is no legal basis to establish an earlier effective date. Accordingly, entitlement to an effective date prior to August 16, 2013 for the award of service connection for right foot tendonitis is denied. REASONS FOR REMAND 2. Entitlement to service connection for a bone disability is remanded. 3. Entitlement to service connection for a neck disability is remanded. 4. Entitlement to service connection for a back disability is remanded. 5. Entitlement to service connection for a left hip disability is remanded. 6. Entitlement to service connection for a right hip disability is remanded. 7. Entitlement to service connection for a left foot disability is remanded. Remand is warranted, as the January 2020 VA examiner’s opinions are inadequate. Specifically, the examiner based her negative opinions primarily on the lack of “chronicity of care” documented in the Veteran’s medical records without supporting rationale, did not discuss the Veteran’s lay statements, nor did she adequately address secondary service connection. Furthermore, the examiner’s opinion did not address all relevant diagnoses, including osteopenia and scoliosis. Accordingly, an addendum opinion with a different examiner is necessary on remand. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 8. Entitlement to a TDIU is remanded. The Board finds that the Veteran’s claim for TDIU is inextricably intertwined with the issues above and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). All outstanding treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, obtain any outstanding relevant private treatment records. 3. Then obtain an addendum opinion from an examiner other than the January 2020 VA examiner, addressing the etiology of the Veteran’s back and neck disabilities. No additional examination is necessary, unless the examiner determines otherwise. The entire claims file must be made available to and reviewed by the examiner. After a review of the claims file, the examiner should address the following: (a) Identify all back and neck disabilities diagnosed since August 2013, to include lumbosacral strain, spondylolisthesis, scoliosis, T8 compression fracture cervical spine degenerative arthritis, cervical intervertebral disc syndrome, and kyphosis. If any of the diagnoses are not warranted, please reconcile these findings with the diagnoses of the same in the June 2014 and January 2020 VA examination reports. (b) If a diagnosis of scoliosis is warranted, please determine whether such diagnosis is a congenital defect or disease. (For VA purposes, a defect differs from a disease in that the former is more or less stationary in nature while the latter is capable of improving or deteriorating.) (1) If scoliosis does not have a congenital origin, please address the questions outlined beginning from part (c) below. (2) If scoliosis is identified as a congenital defect, please opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran incurred any superimposed disease or injury on such defect during service that resulted in additional disability. If so, please describe the resultant disability. (3) If scoliosis is identified as a congenital disease, please opine as to whether it is at least as likely as not (50 percent or greater probability) that such disease was aggravated (worsened beyond natural progression) by service. (c) For all back and neck disabilities diagnosed, including scoliosis if determined not to have a congenital origin, please opine as to whether it is at least as likely as not (50 percent probability or greater) that such disability: (1) had their onset in or are otherwise related to service, to include as a result of the documented December 1974 skull trauma incident and July 1975 report of back pain and lumbar strain therein; (2) are proximately due to his service-connected bilateral knee strain, right foot tendonitis, post-concussive headaches, and/or traumatic brain injury residuals; or (3) have been aggravated (worsened beyond natural progression) by his service-connected bilateral knee strain, right foot tendonitis, post-concussive headaches, and/or traumatic brain injury residuals. In addressing these questions, the examiner must discuss the Veteran’s lay statements submitted in February 2014, June 2015, and April 2016, as well as his October 2015 Decision Review Officer (DRO) testimony. Please assume the Veteran’s statements are true and determine, based on the same, whether a nexus between the Veteran’s disabilities and service are “medically plausible.” Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for reaching that conclusion. 4. Then obtain an addendum opinion from an examiner other than the January 2020 VA examiner, addressing the etiology of the Veteran’s bone, bilateral hip, and left foot disabilities. The entire claims file should be made available to the examiner. No additional examination is necessary, unless the examiner determines otherwise. (a). Following a review of the claims file, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s diagnosed (1) bone disability, to include osteoporosis and osteopenia, as well as demonstrated functional impairment of the (2) left foot, (3) right hip, and (4) left hip: (1) are proximately due to his service-connected bilateral knee strain, right foot tendonitis, and/or back disability (if service-connected); or (2) have been aggravated (worsened beyond natural progression) by his service-connected bilateral knee strain, right foot tendonitis, and/or back disability (if service-connected). (b). Additionally, only as to the Veteran’s left foot functional impairment, the examiner should opine as to whether it is as least as likely as not (50 percent or greater probability) that it had its onset in or is otherwise related to service. (c). Please note that the Board has conceded current left foot and bilateral hip disabilities based on demonstrated functional impairment in VA examination reports of record. Therefore any opinion premised on a lack of current diagnosis will be rendered inadequate and require clarification. Please render separate opinions for each condition. In addressing these questions, the examiner must discuss the Veteran’s lay statements submitted in February 2014, June 2015, and April 2016, as well as his October 2015 DRO testimony. Please assume the Veteran’s statements are true and determine, based on the same, whether a nexus between the Veteran’s disabilities and service are “medically plausible.” Failure to consider the Veteran’s lay statements will result in an inadequate opinion. Also, please note that the lack of contemporaneous medical records is not dispositive and may not be used as a basis for a negative opinion. A complete rationale should be given for all opinions and conclusions expressed. If unable to opine without speculation, please provide a basis for reaching that conclusion. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.S. Mahoney 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.