Citation Nr: 21040442 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-51 761 DATE: July 3, 2021 ORDER 1. The appeal to reopen a claim of service connection for a left little finger disorder is granted. 2. Entitlement to an effective date earlier than August 28, 2017, for the grant of service connection for insomnia is denied. 3. Entitlement to service connection for a lumbar spine disability is denied. 4. Entitlement to service connection for a left shoulder disability is denied. 5. Entitlement to service connection for a right shoulder disability is denied. REMANDED 6. Entitlement to service connection for a prostate disability is remanded. 7. Entitlement to service connection for a left little finger disability is remanded. 8. Entitlement to service connection for a left knee disability is remanded. 9. Entitlement to service connection for a psychiatric disability other than insomnia is remanded. 10. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 11. Entitlement to a compensable initial rating for insomnia is remanded. FINDINGS OF FACT 1. Evidence received since a December 1999 final rating decision that denied service connection for a left little finger disability relates to an unestablished fact necessary to substantiate the claim of service connection for a left little finger disorder and raises a reasonable possibility of substantiating such claim. 2. On August 28, 2017, VA received the Veteran's intent to file a claim for compensation; his claim service connection claim for a psychiatric disorder was received on August 29, 2017; a July 2018 rating decision granted service connection for insomnia effective August 28, 2017. 3. The preponderance of the evidence is against a finding that a lumbar spine disability order, or a left or right shoulder disability is etiologically related to the Veteran's active duty service. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the claim of service connection for a left little finger disorder may be reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. An effective date earlier than August 28, 2017, for the grant of service connection for insomnia is not warranted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. 3. Service connection for a lumbar spine disorder is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 4. Service connection for a left shoulder disorder is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. 5. Service connection for a right shoulder disorder is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who had active service from July 1979 to July 1999. This case is before the Board of Veterans' Appeals (Board) on appeal from a March 2014 Department of Veterans Affairs (VA) rating decision that denied reopening a service connection claim for a left little finger disorder; denied service connection for lumbar spine, left knee disorder, and prostate disabilities, and increased the rating for a right knee disability to 10 percent effective May 22, 2013; a July 2018 rating decision that denied service connection for posttraumatic stress disorder (PTSD), and granted service connection for insomnia, rated 0 percent, effective August 28, 2017; and a November 2018 rating decision that denied service connection for left and right shoulder disabilities. In October 2016, June 2019, and April 2020, the Veteran requested a Board hearing. In August 2020, he withdrew the hearing request. See 38 C.F.R. § 20.704. Reopening a Claim for Service Connection A December 1999 rating decision denied service connection for a left little finger disorder, finding that treatment for a left little finger disorder during service was not shown. The Veteran did not appeal that rating decision, or submit new and material evidence within a year following, and it became final based on the evidence of record at the time. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. Evidence of record at the time of the December 1999 rating decision included the Veteran's service treatment records (STRs) and VA medical records. As the claim was previously denied based essentially on a finding that it was not shown to be related to disease or injury in service, for evidence to be new and material in the matter, it must tend to relate to this unestablished fact (must tend to show a nexus between a current left little finger disability and the Veteran's active duty service). Evidence received since the December 1999 rating decision includes the Veteran's statement that he injured his left little finger playing basketball during service in the 1980s. This evidence is new, as it was not in the record in December 1999, and it is material, as it pertains to an unestablished fact necessary to substantiate the claim (an injury in service to which the current disability could be related). Consequently, considering the "low threshold" standard for reopening endorsed by CAVC in Shade v. Shinseki, 24 Vet. App. 110, 121 (2010), the Board finds that the evidence received is both new and material, and that the claim of service connection for a left little finger disability may be reopened. Effective Date On August 28, 2017, the Veteran submitted an intent to file a claim for VA compensation. On August 29, 2017, he filed claim of his service connection for a psychiatric disability order. Adjudicating that claim, a July 2018 rating decision granted service connection for insomnia, effective August 28, 2017, the date an intent to file a claim was received by VA. In November 2018, the Veteran filed a notice of disagreement indicating that he wanted an earlier effective date for the grant of service connection (but did not include any explanation why an earlier effective date may be warranted, and instead merely checked the box on the Notice of Disagreement form indicating he disagreed with the effective date assigned. The critical question in this matter is when the Veteran first filed his service connection claim for an acquired psychiatric disorder. The first communication from the Veteran to VA expressing intent to seek service connection for an acquired psychiatric disorder was received on August 28, 2017, when the Veteran submitted his intent to file a claim. While insomnia was granted service connection, and thus found to be due to his active service, he did not file a formal or informal application for service connection for this condition prior to August 28, 2017. Unless specifically provided otherwise, the effective date of an award of service connection based on an original claim for service connection is based on facts found, but may not be earlier than the date of receipt of application therefor. With limited exceptions (none here applicable), the effective date of an award of service connection is the date the claim was received, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.156, 3.400. The Board is bound by governing law and regulations, and has no authority to awards benefits not authorized by governing law. Because the Veteran is not shown to have filed a formal or informal application for service connection for a psychiatric disability prior to August 28, 2017, VA is precluded from granting an effective date prior to August 28, 2017, for his award of service connection for insomnia (made pursuant to that claim). Neither he, nor his attorney has presented argument why an earlier effective date may be warranted, given the governing law. As the earliest possible effective date under governing law given the undisputed facts in this case is already assigned, the law is dispositive in this matter. See Sabonis v. Brown, 6 Vet. App. 426 (1994). SERVICE CONNECTION CLAIMS Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection, there must be evidence of: (1) a current claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain listed chronic diseases (including arthritis) may be presumed to be service connected if manifested to a compensable degree within a specified period of time following service (one year for arthritis). 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303(b) where a condition in service is noted, but is not, in fact, shown chronic, or where a diagnosis of chronicity may be legitimately questioned, service connection may be established by showing continuity of symptomatology. The continuity of symptomatology provisions of 38 C.F.R. § 3.303(b) apply only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Lumbar Spine Disorder The Veteran asserts that he has a lumbar spine disability that was incurred in service. The Veteran's STRs do not show any complaints, injury, treatment, or diagnosis pertaining to the lumbar spine during his active service. On January 1979, March 1983, November 1991, March 1994, and June 1999 physical examinations, his spine was normal on clinical evaluation, and in accompanying medical health questionnaires, he denied having recurrent back pain. His STRs do not show a diagnosis of a lumbar spine disorder during his active service. Postservice medical records show that the Veteran denied having low back pain in February 2003. The first documented complaint of low back pain was in September 2003. The next mention of back symptoms is three years later when he complained of low back pain in December 2006. In January 2007 and September 2009, no abnormalities were found on examination of his lumbar spine. Seven years later in August 2016, he was again noted to have a complaint of low back pain. His medical records do not show a diagnosis or other objective evidence of a chronic lumbar spine disability, such as arthritis. The Veteran has not submitted any medical evidence supporting that he has a diagnosis of a chronic lumbar spine disorder, or that any back pain symptoms are, or may be, etiologically related to his active duty service, and the record does not include any such evidence. His STRs do not note a back injury, complaints, treatment, or diagnosis, and he specifically denied having recurrent back pain throughout his active service. While he was seen for low back complaints in September 2003, December 2006, and August 2016, lumbar spine arthritis has not been diagnosed. Accordingly, service connection for a lumbar spine disability on the basis it was shown as chronic in service, on a chronic disease presumptive basis (for arthritis), or based on continuity is not warranted. The Veteran's unsupported assertions that he has a lumbar spine disorder that is due to his active service are not competent evidence in this matter and have no probative value. He is a layperson, and does not cite to supporting clinical data or medical principles or treatise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has considered whether a VA examination or opinion is necessary, and finds one is not. There is no evidence of a related disease or injury in service, and therefore no possibility that an opinion could establish a nexus between a current back disability and a disease or injury in service. Because it is not shown that there was a related disease or injury in service or that a current back disability may be related to a disease or injury in service, the preponderance of the evidence is against this claim. Accordingly, the appeal in this matter must be denied. Right and Left Shoulder Disabilities The Veteran asserted that he injured his shoulders during his active service playing football and has had continuous shoulder symptoms since service. The Veteran's STRs do not show any complaints, injury, treatment, or diagnosis pertaining to a shoulder disability. On January 1979, March 1983, November 1991, and March 1994 physical examinations, his upper extremities were normal on clinical evaluation, and in accompanying medical health questionnaires, he denied having a painful or "trick" shoulder. On June 1999 separation examination, his upper extremities were again normal on clinical evaluation; however, he reported having shoulder pain for three months. A shoulder disability was not diagnosed. Postservice medical records show that the earliest documented notation of shoulder complaints was in January 2008, when the Veteran fell, injuring his left shoulder. In February 2008 a left shoulder sprain was diagnosed. In March 2009 shoulder pain due to overuse in the gym was noted. On October 2018 VA examination, the Veteran reported that his shoulder problems began during his active service in 1999. The diagnoses were right and left shoulder strains. On review of the claims file and interview and examination of the Veteran, the examiner opined that the Veteran's bilateral shoulder disorders were less likely than not due to his active service. The examiner noted that the Veteran reported shoulder pain for three months at his June 1999 separation examination, but there were no treatment records for shoulder pain during his active service. On June 2019 VA examination, the Veteran again reported that his shoulder problems began in 1999. The diagnosis were bilateral shoulder impingement syndrome and acromioclavicular (AC) joint osteoarthritis. On review of the claims file and interview and examination of the Veteran, the examiner opined that the Veteran's bilateral shoulder disorders were less likely than not due to his active service. The examiner noted that the Veteran reported shoulder complaints on separation examination but further noted that his STRs did not show any shoulder diagnoses during his active service, and that the earliest postservice shoulder complaint in the record was in January 2008 after a fall that injured the left shoulder. A chronic shoulder disorder was not manifested in service. While the record shows he reported shoulder complaints on service separation examination, his STRs do not show any shoulder injury or shoulder disability diagnosis during his active service. Furthermore, his upper extremities were normal on all physical examinations during his active service and on service separation examination. Therefore, his complaints at service separation are shown to have been acute, and not reflecting an underlying chronic shoulder disability. The Veteran has not submitted any competent (medical opinion) evidence to the contrary. There is also no evidence in the record that arthritis of a shoulder was manifested in the first postservice year or prior to the 2019 VA examination. Consequently, service connection for a left shoulder or right shoulder disorder on the basis that such disability was shown as chronic in service, for arthritis on a chronic disease presumptive basis, or based on continuity is not warranted. Whether under such circumstances a current shoulder disorder is etiologically related to physical activities in service or acute injuries in service rather than to postservice etiological factors (such as a fall or overuse in a gym) is a medical question which requires medical expertise. See Jandreau, 492 F.3d 1372. The Veteran is a layperson. He has not presented any competent (medical opinion or treatise) evidence in support of his theory of entitlement. His own opinion has no probative value in these matters. The only competent (medical) evidence in the record that directly addresses the matter of a nexus between the Veteran's bilateral shoulder disorders and the Veteran's service is in the findings and opinions of the October 2018 and June 2019 VA examiners. Noting that the Veteran reported that he started having shoulder problems in 1999, the examiners concluded that the Veteran's bilateral shoulder disorders were less likely than not due to the Veteran's active service. The cited to the absence of evidence of a chronic shoulder disability in service and to the lengthy postservice interval before shoulder complaints or pathology were noted postservice, as well as to the clinical data that identify an alternate postservice etiology for the development of shoulder disabilities, including a fall and postservice physical activity (overuse in a gym). The opinions (against the Veteran's claim) reflect familiarity with the entire record, including the Veteran's accounts, and include rationale that cites to supporting clinical and factual data. The Board finds the October 2018 and June 2019 VA medical opinions probative evidence in this matter. As there is no competent evidence to the contrary, the Board finds the medical opinions persuasive. Therefore, the preponderance of the evidence is against these claims. Accordingly, the appeals in these matters must be denied. REASONS FOR REMAND Prostate Disability. The Veteran asserts that he has a prostate disorder that was incurred in service. His STRs show that at his June 1999 separation physical, a grade II prostate was noted. Postservice medical records show that the Veteran received a diagnosis of prostate cancer in August 2011 and underwent prostatectomy in February 2012. Considering the foregoing, a medical opinion to determine the etiology of the Veteran's prostate cancer (whether it may be related to the finding on service separation examination) is necessary. Left little finger disability The Veteran asserts that he broke his left little finger playing basketball during his active service. His STRs show that on service entrance examination he was noted to have a left (unidentified otherwise) finger that could not be fully extended due to a prior injury. On June 1999 service separation examination, he reported that he had fractured his left little finger. On May 1999 VA examination it was noted that the Veteran's left little finger was crooked at the proximal joint. The examiner did offer an opinion regarding the etiology of the deformity. Therefore the May 1999 VA examination is inadequate for rating purposes. As examination to ascertain the etiology of any current left little finger disability is needed. Left knee disability service connection/right knee disability increased rating. The Veteran asserts that his left knee disorder is secondary to his service-connected right knee disability as he it puts strain on the left knee. He was last afforded a VA examination for his knees in March 2014. However, an opinion regarding regarding etiology of any left knee disability was not then requested or offered. Furthermore, medical records in the file note ongoing bilateral knee complaints and treatment for his bilateral knee disorders. Updated treatment records are likely to contain pertinent information, and must be secured for the record. Considering the allegation of worsening and the duration of the interval since he was last examined and that there is no medical opinion regarding the etiology of any current left knee disability, development for a contemporaneous examination that addresses those questions is necessary. Psychiatric disability other than insomnia, and rating for insomnia The Veteran originally filed a service connection claim for posttraumatic stress disorder (PTSD) in August 2017. He reported a PTSD stressor in service that involved the death of a fellow soldier, which was confirmed in January 2018. A March 2018 VA examiner found that the Veteran did not have a diagnosis of PTSD and instead diagnosed insomnia. A July 2018 rating decision granted service connection for insomnia, rated 0 percent, effective August 28, 2017. In his October 2018 notice of disagreement, the Veteran asserted that a higher rating for insomnia is warranted along with an award of service connection for PTSD. On April 2020 VA examination, anxiety disorder was diagnosed, and the examiner noted that the Veteran's insomnia had been subsumed by his anxiety disorder diagnosis. The examiner did not offer an opinion regarding the etiology of the Veteran's anxiety disorder. Another VA examination addressing whether the Veteran's anxiety disorder is a progression of his service-connected insomnia (or is otherwise related to service); if not, whether symptoms of insomnia may be disassociated from those of the anxiety found; and if so to assess the current severity of the insomnia is needed. The Board observes that if both insomnia and anxiety exist as separate disability entities, they would warrant a single rating (as they are rated under the same criteria; thus the claims are inextricably intertwined. The matters are REMANDED for the following: 1. With the Veteran's assistance (identifying providers and submitting authorizations for VA to obtain any private treatment records), secure for the record all outstanding medical records pertaining to evaluations and treatment he received for his prostate, left little finger, right and left knee disorder, and a psychiatric disorder to include insomnia (any not already in the claims file). 2. Then, obtain a medical opinion by an appropriate clinician (in urology, e.g.) regarding the etiology of the Veteran's prostate disorder (whether the diagnosed prostate cancer is etiologically related to the grade II prostate found on service separation or is otherwise etiologically related to his service?). The opinion must include rationale that cites to supporting clinical data and medical principles. 3. Arrange for the Veteran to examined by an appropriate clinician (in orthopedics) to determine the etiology of his left little finger disability (deformity). Considering the Veteran's lay statements asserting a fracture in service, and the notation on service entrance examination) the examiner should respond to the following. Is it at least as likely as not (a 50 percent or better probability that the Veteran's current left little finger disability was incurred or aggravated in service? The rationale must specifically consider both whether there is a basis in the evidence for concluding that the current left little finger disability was not what was noted on service entrance and is related to a fracture injury therein and alternatively (if it was noted on service entrance) whether the record shows a current increased level of severity of the disability from a fracture injury in service that is alleged to have occurred. The rationale should include citation to supporting clinical data and medical principles. 4. Also arrange for the Veteran to examined by an appropriate clinician (in orthopedics) to determine the nature and etiology of any current left knee disability order and to ascertain the current severity of his service-connected right knee disability. The examiner must review the Veteran's claims file, to include all additional treatment records received, and should provide responses to the following: (a.) Identify (by diagnosis) each left knee disability found (or shown by the record during the pendency of this claim. (b) Identify the etiology for each left knee disability diagnosed. Specifically, is it at least as likely as not (a 50 percent or greater probability) that the left knee disability is either etiologically directly related to the Veteran's active duty service and activities therein or was caused by his service-connected disability right knee disability (as a result of added stress on the left knee in compensating for the right knee disability, as has been alleged? The Veteran's lay statements asserting his arguments in this matter should be addressed. c. Assess the current severity of the Veteran's right knee disability in accordance with the criteria in accordance with the criteria in 38 C.F.R. § 4.71a, including results of active and passive motion, in weight-bearing and non-weight-bearing and following repetitive motion testing. Note the presence and severity of any subluxation or instability, and note the nature of any meniscal pathology, including whether there is dislocated semilunar cartilage or there has been removal of semilunar cartilage (that is symptomatic post-removal). 5. Arrange for the Veteran to be examined by an appropriate clinician (a psychiatrist or psychologist) to determine the existence, nature, and likely etiology of any (and each) acquired psychiatric disability other than insomnia, to include the now-diagnosed anxiety disorder, and specifically whether he has a diagnosis of PTSD in accordance with DSM-5; establish the nature of the relationship between any psychiatric disability diagnosed and the service-connected insomnia; and to ascertain the current severity of the current disability manifested by the service-connected insomnia. The opinion must include responses to the following: a. Identify by diagnosis each acquired psychiatric disability (other than insomnia) found, specifically including the recently diagnosed by VA anxiety. Indicate whether or not the Veteran now has a diagnosis of PTSD in accordance with DSM 5, based on a corroborated stressor event in service. If PTSD is not diagnosed, identify the symptoms or other criteria necessary to support such diagnosis that are found lacking. b. Identify the likely etiology for each acquired psychiatric disorder other than insomnia diagnosed (i.e., any other PTSD due to a stressor event in service). Specifically, is it at least as likely as not (a 50 percent or greater probability) that it (i) is directly etiologically related to the Veteran's service or (ii) is a progression of the Veteran's service-connected insomnia (subsumes that diagnosis)? If not, identify the etiology that is considered to be more like, and explain why that is so. (c) If an acquired psychiatric disability (to include anxiety) diagnosed is determined to be unrelated to the Veteran's service, identify whether any psychiatric symptoms related occupational and social functional impairment noted (listed all found) may be distinguished from the Veteran's service-connected insomnia as due solely to the non-service related psychiatric disability. If so, assess the severity of the service-connected insomnia, describing all symptoms and related occupational and social impairment in detail. All opinions must include rationale that cites to supporting clinical data and medical principles. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.