Citation Nr: 21028640 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-19 936 DATE: May 11, 2021 ORDER Entitlement to an effective date earlier than January 26, 2010 for the grant of service connection for a cervical spine disability is denied. Entitlement to an effective date earlier than May 14, 2013 for the grant of a 20 percent rating for a cervical spine disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran initially submitted a claim for service connection for a cervical spine disability July 2002, which was denied in a September 2003 rating decision. The Veteran did not perfect an appeal of the issue. 2. In May 2007, the Veteran requested to reopen the claim for service connection for a cervical spine disability, which was denied in a June 2008 rating decision. The Veteran did not perfect an appeal of the issue. 3. The RO received the Veteran's petition to reopen the claim for service connection for a cervical spine disability on February 24, 2010. 4. In a May 2013 rating decision, the RO granted service connection for a cervical spine disability and assigned an effective date of January 26, 2010, the day after his discharge from military service. 5. On June 14, 2013, the RO received a VA/DOD Joint Disability Evaluation Board Claim for a higher rating for the cervical spine disability. 6. On July 9, 2013, the RO received a VA/DOD Joint Disability Evaluation Board Claim for a higher rating for the cervical spine disability. 7. A January 2014 rating action granted a 20 percent rating pursuant to the Disability Evaluation System (DES) Program, effective May 14, 2013. 8. Prior to May 14, 2013, there was not an ascertainable increase in the Veteran's cervical spine disability. The disability did not cause him to have forward flexion of the cervical spine limited to greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 9. The Veteran's disabilities meet the schedular criteria for consideration of a TDIU and preclude him from substantial and gainful employment. CONCLUSIONS OF LAW 1. The January 26, 2010, effective date for the grant of service connection for a cervical spine disability is proper. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. 2. The criteria for the assignment of an effective date earlier than November 10, 2015, for the grant of a 20 percent rating for left knee disability with limitation of motion in flexion are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 2001 to May 2002, May 2003 to May 2004, November 2004 to June 2007, and November 2008 to January 2010. He also had periods of active duty for training (ACDUTRA), including from October 1977 to February 1978 and from February to May 1995. The Board remanded the issues in November 2018 for further development, including adjudication of the earlier effective date issues and obtaining a medical opinion on the issue of entitlement to a TDIU. A Supplemental Statement of the Case (SSOC) was issued in July 2020 and a series of medical opinions were obtained in November 2019. The Board therefore finds there has been substantial compliance with the remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Effective Date 1. Entitlement to an earlier effective date for service connection for a cervical spine disability The Veteran seeks an effective date earlier than January 26, 2010, for the grant of service connection for a cervical spine disability. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110. Except as otherwise provided, 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. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). The effective date of an evaluation and an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (q)(2). Thus, once a previous rating decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. See id. Exceptions to this rule include a later grant of service connection based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38 C.F.R. § 3.156 (c), and when the decision is revised or reversed on the basis of clear and unmistakable error (CUE), as provided in 38 U.S.C. § 5109A (a) and 38 C.F.R. § 3.105 (a). Turning to the evidence of record, in July 2002, the Veteran applied for service connection for a cervical spine disability. Service connection was denied via rating action in September 2003. The Veteran submitted a notice of disagreement (NOD) in September 2003 and a Statement of the Case (SOC) was issued in February 2006. However, the Veteran did not perfect an appeal of the issue; rather, in a March 2006 substantive appeal (VA Form 9), the Veteran specifically excluded the issue of service connection for a neck disability from the issues that he wanted appealed to the Board. As such, the September 2003 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. The Veteran submitted a petition to reopen his claim for a cervical spine disability in May 2007. In a June 2008 rating decision, the RO denied the Veteran's petition to reopen the claim. He submitted a NOD in October 2008 in which he reported that he was being deployed and the only way he could be contacted was through email. A statement of the case was issued on October 8, 2009; however, it was returned as undeliverable. On April 6, 2010, the RO sent another copy of the October 2009 SOC to the Veteran (to the same address). He was advised that he had until June 5, 2010, to file a formal appeal. However, the Veteran did not file a timely appeal to the decision (nor was new and material evidence obtained or received by VA within a one-year time period from the issuance of the notice of denial), therefore the June 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 3.105. Because the September 2003 and June 2008 rating decisions are final, July 2002 and May 2007 are no longer appropriate points from which to determine the effective date of an award unless a claim for clear and unmistakable error (CUE) is submitted. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). On February 24, 2010, during the pendency of the June 2008 rating decision appeal, the RO received a statement in support of claim, in which the Veteran petitioned to reopen a claim for a cervical spine disability. A May 2013 rating decision granted service connection for a neck condition and assigned a 10 percent rating effective January 26, 2010, the day after the Veteran's discharge from military service. In a May 2016 appeal form, in the remarks section, the Veteran stated that although "the cervical spine shows claim dates of February 24, 2010 and May 14, 2013, my local VSO has a notice of disagreement to a neck claim dated in 2008." The Board finds that although it is true that the Veteran filed a NOD to the June 2008 rating decision, he failed to properly perfect his appeal. As noted above, in April 2010, he was given an extended period of time to perfect his appeal to the June 2008 rating action (until June 5, 2010) but the Veteran failed to file an appeal (VA Form 9). Therefore, the June 2008 rating decision became final. The Board finds that the earliest possible date for the award of service connection is January 26, 2010, the day after the Veteran's separation from service. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q) and (r). The Board has reviewed the record to determine whether an informal claim of service connection for cervical spine disability was filed prior to January 26, 2010, that can be construed as an informal or formal claim for compensation benefits for a cervical spine disability and was not adjudicated in the September 2003 or June 2008 rating decisions, but finds that there is no such document in the claims file. See 38 C.F.R. §§ 3.151, 3.155; Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for effective date earlier than the date on which the claim was received, impermissibly attempts to vitiate the rule of finality). Accordingly, under the applicable regulations, January 26, 2010, is the earliest date for the award of service connection for a cervical spine disability absent an appeal of whether CUE was committed in a prior rating decision. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Because the preponderance of the evidence is against the claim for an earlier effective date, the benefit of the doubt doctrine is not for application and the appeal is denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 2. Entitlement to an earlier effective date for a 20 percent rating for a cervical spine disability The Veteran seeks an effective date earlier than May 14, 2013, for the grant of a 20 percent rating for a cervical spine disability. A petition to reopen a claim for a cervical spine disability was received by the VA on February 24, 2010. A May 2013 rating decision established service connection for a neck condition, and assigned a 10 percent rating effective January 26, 2010, the day after his discharge from military service. On June 14, 2013, the RO received the Veteran's Supplemental Claim for Compensation requesting an increased rating for the cervical spine disability. On July 9, 2013, the RO received a VA/DOD Joint Disability Evaluation Board Claim for a higher rating for the cervical spine disability. In a January 2014 rating decision, the RO proposed a 20 percent rating for cervical spine degenerative joint and disc disease post revision and posterior fusion (also characterized as cervical spine degenerative joint disease) effective May 14, 2013, pursuant to the Disability Evaluation System (DES) Program, a joint initiative between the Department of Defense and VA. The award was proposed for DES purposes only, and does not constitute a determination for VA benefits. It appears, from a June 2014 rating decision, however, that the RO implemented the DES rating of 20 percent effective May 14, 2013. The June 2014 rating decision continued the 20 percent rating for cervical spine degenerative joint disease. A timely notice of disagreement was filed on August 5, 2014. A March 2016 SOC denied an increased rating for cervical spine degenerative joint disease. Section 5110(b)(2) of title 38 of the United States Code specifically provides that, in cases involving a claim for an increased evaluation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from such date. Thus, determining whether an effective date assigned for an increased rating is proper under the law requires: (1) a determination of the date of the receipt of the claim for the increased rating; and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan vs. Gober, 10 Vet. App. 511, 521 (1992). The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim, only when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157. As noted, the RO received the Veteran's Supplemental Claim for Compensation on June 14, 2013. The next step is to determine whether it was factually ascertainable that there was an increase in severity of the disability prior to this date. The Veteran's cervical spine disability is rated under Diagnostic Code 5010-5237. Diagnostic Code 5010 is applicable to arthritis, due to trauma, and DC 5237 is applicable to lumbosacral or cervical strain. Under the Rating Formula, which contemplates cervical flexion, a 10 percent rating contemplates forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height; a 20 percent evaluation is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis There is no indication that this disorder had reached the level of disability indicative of a 20 percent rating prior to May 14, 2013. In reviewing an October 2010 VA cervical spine examination report and VA records dated prior to May 2013, there is no showing of range of motion limited to forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Nor is shown that additional functional loss based on pain or weakness indicative of a higher rating. In summary, there is no factually ascertainable evidence that shows an increase in the service connected disability occurring prior to May 14, 2013. Therefore, the preponderance of the evidence is against the Veteran's claim for an earlier effective date prior to May14, 2013, for the 20 percent rating for the cervical spine disability. 3. Entitlement to a TDIU The Veteran states that he is unable to work due to the manifestations of his service-connected disabilities. Reviewing the Veteran's January 2013 and March 2014 applications for benefits, he asserts that he has not worked since June 2012 due to his service-connected neck, back, and knees. He last worked as a court security officer for the U.S. Marshals Service. Educationally, he has one year of college. For the following reasons, the Board finds that entitlement to TDIU is established. Total disability ratings for compensation may be assigned, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities resulting from a common etiology will be considered as a single disability for the purpose of one 60 percent disability. See 38 C.F.R. §§ 4.16 (a), 4.25. Here, the Veteran is in receipt of service connection for the following disabilities and respective assigned ratings: PTSD, 50 percent from January 26, 2010, and 70 percent from February 27, 2016; lumbar degenerative arthritis with spinal fusion, 20 percent from April 8, 2011; cervical spine disability, 10 percent from January 26, 2010, and 20 percent from May 14, 2013; left knee instability, 20 percent from May 9, 2014; left knee patellofemoral syndrome with degenerative joint disease, 10 percent from January 26, 2010; tinnitus, 10 percent from January 26, 2010; inguinal hernia, 10 percent from January 26, 2010; gastroesophageal reflux disease (GERD), 10 percent from January 26, 2010; traumatic brain injury (TBI), 10 percent from January 26, 2010; migraine headaches, 10 percent from January 26, 2010; left shin, tibial deep bone bruise with sensory impairment, 10 percent from January 26, 2010; diverticulosis, noncompensable; residuals left ankle injury, noncompensable; bilateral hearing loss, noncompensable; sinusitis, noncompensable; hypertension, noncompensable; and tinea pedis, noncompensable. He has had a combined rating of at least 80 percent since January 26, 2010. Accordingly, he meets the schedular threshold for TDIU consideration. The Veteran underwent a series of VA examinations were conducted throughout the appeal period. In May 2014, a VA examiner conducting an examination of the cervical spine found that the Veteran's necks problems were worsening with radicular pain, abnormal sensory exam and pain on palpation. The examiner commented that the Veteran would be able to perform light and sedentary employment. In March 2016, a VA examiner found that the Veteran was impaired in heavy lifting. He could entertain light physical and sedentary employment. In November 2019, a VA examiner indicated that the Veteran would have difficulty with work that involve repetitive flexion of the neck. He was able to drive a car and turn his neck without problems. However, he would have problems with a job that involved extensive driving or monitoring a computer screen. VA examiners in March 2016 indicated that due to his knee disabilities, the Veteran was functionally impaired in prolonged standing, excessive walking, stooping, crouching, crawling, and kneeling. This finding was echoed in VA examination in November 2019. This examiner concluded that the Veteran would have difficulty with work that required prolonged sitting, standing, or walking. He would be able to do sedentary work if a standing desk were provided so he could switch position as needed. In regard to his back, the VA examiner in March 2016 indicated that the Veteran should avoid heavy lifting, bending, and twisting. He could only perform light physical and sedentary tasks due to his diagnosis. The VA examiner in November 2019, noted the Veteran would have difficulty with work that included repetitive bending and lifting. However, his back would not affect his ability to perform sedentary work. In regard to his psychiatric impairment the VA examiner in November 2019, noted that the Veteran's irritability, hypervigilance, and exaggerated startle response increases his discomfort being around people. These symptoms would limit his ability to interact effectively with others. Therefore, his ability to effectively perform work tasks which required frequent interaction with other people was mild to moderately limited. His symptoms impaired his ability to concentrate and remember information. As such, his ability to perform complex work tasks under significant time pressure and or tasks which require prolonged attention and concentration, is mildly to moderately limited. The record contains several opinions as to severity of the Veteran's service-connected disabilities and their effect on his ability to obtain and maintain employment. The courts have clarified the distinction between the VA medical examiners' and VA adjudicators' duties in determining whether a veteran's service connected disabilities render him unemployable. In this regard, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. Id. As noted above, the Veteran is service connected for PTSD, TBI, abdominal problems, headaches, hypertension, tinnitus, hearing loss, and numerous orthopedic disabilities. VA outpatient records show that he continues to receive treatment for these disorders. PTSD was and is currently rated as 70 percent disabling, which indicates significant psychiatric symptomatology. Finally, in a June 2012 letter from his former employer, the Veteran was noted to be terminated effective June 15, 2012, due to medical disqualification. The letter does not specify which medical condition(s) caused the termination. In sum, considering the severity of his disabilities, work history, experience, and the Veteran's own statements as to his inability to resume work due to his condition, as well as resolving any doubt in favor of the Veteran, the Board finds that the combined effects of the manifestations of his service-connected disabilities are sufficiently incapacitating as to result in unemployability. His physical disabilities coupled with his PTSD rendered the Veteran, at best, only marginally employable. It is not clear what type of work the Veteran could do given the restrictions or modifications that would be involved. As such, any doubt on this issue is resolved in favor of the claimant. See 38 C.F.R. § 5107 38 C.F.R. § 3.102. Accordingly, entitlement to a TDIU is granted. N. NELSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.D. Jackson, 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.