Citation Nr: 21040462 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 17-58 824 DATE: July 3, 2021 ORDER New and material evidence has been received to reopen the previously denied claim of entitlement to service connection for a low back disability. Entitlement to service connection for a low back disability other than ankylosing spondylitis and lumbar spondylosis with sacroiliac joint degenerative joint disease is denied. Entitlement to an effective date earlier than November 10, 2014 for the award of service connection for right hallux rigidus is denied. REMANDED Entitlement to an earlier effective date for service connection for a right ankle disability is remanded. FINDINGS OF FACT 1. In a September 2013 rating decision, the AOJ denied the Veteran's request to reopen a claim of entitlement to service connection for a low back disability. The Veteran did not file a notice of disagreement with the decision or submit new and material evidence within one year of the denial. 2. Evidence received since the final September 2013 rating decision is neither cumulative nor redundant and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for a low back disability. 3. The preponderance of the evidence is against a finding that the Veteran has a back disability other than those for which the agency of original jurisdiction granted service connection in April 2018. 4. The Veteran did not have an outstanding, unadjudicated claim of entitlement to service connection for right hallux rigidus prior to filing a claim in November 2014. CONCLUSIONS OF LAW 1. The September 2013 rating decision that denied the request to reopen a claim of entitlement to service connection for a low back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.1103. 2. The criteria for reopening a previously denied claim of entitlement to service connection for a low back disability have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a low back disability other than ankylosing spondylitis and lumbar spondylosis with sacroiliac joint degenerative joint disease have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.102, 3.303. 4. The criteria for entitlement to an earlier effective date for the award of service connection for right hallux rigidus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155 (2014), 3.156(c), 3.159, 3.400; Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 1990 to May 1994. This case comes on appeal of a February 2015 rating decision. The Veteran was initially scheduled to testify before the Board at a hearing scheduled at the local regional office. However, due to the ongoing global pandemic, the Veteran accepted the offer to testify at a virtual hearing in January 2021 instead. A transcript of that hearing is of record. As discussed at the January 2021 hearing, the Board observes that, stemming from the February 2015 rating decision, the Veteran appealed the issue of entitlement to an increased rating for his service-connected right ankle disability. In October 2017, the agency of original jurisdiction (AOJ) issued a statement of the case (SOC) that included that issue. The Veteran responded to the SOC by submitting a timely VA Form 9 to perfect his appeal to the Board in November 2017. On the Form 9, the Veteran limited his appeal to the issues of entitlement to service connection for a back condition and an earlier effective date for the award of service connection for hallux rigidus. Therefore, as there was no formal appeal for the issue of the increased rating of the right ankle disability, the Board has no jurisdiction over that issue. Regarding service connection for the back disability, subsequent to the Veteran's filing of the Form 9, the AOJ issued an April 2018 rating decision granting service connection to the date of the claim. The Veteran testified at his Board hearing that he did not believe that this award encompassed the entirety of his back disability and therefore, it did not represent a full grant of benefits sought. As a result, the Board will address the issue of whether service connection is warranted for a disability other than those granted in the April 2018 rating decision. The Board also notes that at his January 2021 hearing, the Veteran testified that, now that his back disability has been service-connected, he would like VA to reconsider entitlement to service connection for disabilities of his left hip and left knee as secondary to the back disability. The Board does not have jurisdiction over those issues; however, the Veteran is invited to file new service-connection claims for those disabilities on a form prescribed by the Secretary. 1. Reopening the claim of entitlement to service connection for a low back disability If a claim of entitlement to service connection has previously been denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The evidence VA is required to review for newness and materiality is that which has been submitted by the claimant since the last final disallowance of the claim on any basis. See Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is low. See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, to include by triggering the Secretary's duty to assist. Shade, 24 Vet. App. at 118. The Board notes that in its February 2015 rating decision, the AOJ reopened the claim of entitlement to service connection for a low back disability. Indeed, in April 2018, the AOJ granted entitlement to service connection for a low back disability. As will be discussed below, the Veteran has disagreed as to whether the April 2018 represented a full grant of benefits sought. However, notwithstanding whether a claim that was denied and became final has since been adjudicated on the merits by the AOJ, the Board must make its own determination as to whether new and material evidence has been received to reopen the issue. See Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Thus, even though the AOJ has granted service connection on the merits, because there remains an open question as to additional benefits for a low back disability, the Board will still address whether new and material evidence has been received. The Veteran first filed a request to reopen a claim of entitlement to service connection for a low back disability in May 2012. The AOJ denied the claim in a September 2013 rating decision and the Veteran did not submit a notice of disagreement or new and material evidence within one year of the decision; therefore the decision became final. This represents the most recent final denial; accordingly, the Board must consider whether the Veteran has provided new and material evidence since that decision. Since the most recent final denial, the Veteran has undergone a VA examination that identified a positive aggravation nexus between the Veteran's service connected toe disabilities and low back disability. This evidence was not before VA at the time of the most recent final denial and relates to an unestablished fact necessary to substantiate the claim. Without yet addressing the probative value of this additional evidence, the Board acknowledges that the evidence satisfies the low threshold of new and material evidence required to reopen the claim. To this extent only, the appeal is granted. 2. Entitlement to service connection for a low back disability other than ankylosing spondylitis and lumbar spondylosis with sacroiliac joint degenerative joint disease Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303, 3.304. Service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Walker v. Shinseki, 701 F.3d 1331 (Fed. Cir. 2013). Notwithstanding the lack of evidence of disease or injury during service, service connection may still be granted if all of the evidence, including that pertinent to service, establishes that the disability was incurred in service. See 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). By way of background, the Veteran filed the present claim in November 2014, arguing that he suffered from a back disability that was secondary to his service-connected right toe disabilities. The AOJ denied the claim in a February 2015 rating decision. The Veteran submitted a timely notice of disagreement and, in response, the AOJ issued a statement of the case continuing the denial in October 2017. The Veteran perfected his appeal to the Board by timely filing a VA Form 9 in November 2017. Following the submission of the Form 9, the Veteran underwent additional VA examination of the back. Based on the results of that examination report, the AOJ granted entitlement to service connection for ankylosing spondylitis and lumbar spondylosis with sacroiliac joint degenerative disease in April 2018. Although the AOJ stated in the April 2018 rating decision that this represented a full grant of benefits sought, the Veteran argued in his testimony before the Board that the rating decision did not encompass the full scope of his back disability. Therefore, the Veteran argued, the April 2018 rating decision was only a partial grant and the issue remained on appeal. In essence, the Veteran has argued that he has two separate back disabilities. The first, ankylosing spondylitis, is an autoimmune disease. The Veteran contended that ankylosing spondylitis was likely aggravated by his service-connected toe disabilities, but that this was not the disability that was caused by his service-connected toe disabilities. Rather, the Veteran argued that his toe disabilities cause him to walk with an altered gait and this, in turn, has resulted in significant lower back pain. The Board acknowledges the Veteran's contentions, but finds that the April 2018 rating decision adequately encompassed the totality of the Veteran's back disability. Indeed, at an April 2018 VA examination, the examiner diagnosed ankylosing spondylitis, as well as lumbar spondylosis with sacroiliac degenerative joint disease, sacroiliac joint dysfunction, and vertebral somatic dysfunction. The Board observes that lumbar spondylosis is defined as "degenerative joint disease affecting the lumbar vertebrae and intervertebral disks." Dorland's Illustrated Medical Dictionary, p. 1780 (31st Ed. 2007). Lumbar spondylosis is a distinct and separate disability from ankylosing spondylitis. Therefore, in granting service connection the way it did, the AOJ encompassed both the aggravated autoimmune disorder of ankylosing spondylitis as well as degenerative arthritis, unrelated to ankylosing spondylitis. In the April 2018 rating decision, the AOJ considered the Veteran's complaints of painful motion as symptoms of the service-connected disabilities. There is no other evidence of record to suggest a disability other than those described in the April 2018 rating decision. Accordingly, the claim for a back disability, other than those already granted, fails to meet the first requirement of service connectionevidence of a current disabilityand the claim must be denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (when the preponderance of the evidence is against a necessary finding, the "benefit of the doubt" rule is not applicable and the Board must deny the claim.) The Board notes that, to the extent the Veteran feels the April 2018 rating decision did not adequately rate the severity of his back disability, the Veteran is invited to submit a claim for an increased rating. 3. Entitlement to an earlier effective date for the award of service connection for right hallux rigidus 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 a 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." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an award of service connection "will be the date of receipt of the claim or the date entitlement arose, whichever is later." 38 C.F.R. § 3.400. By way of background, in January 1998, the Veteran filed a claim of entitlement to service connection for traumatic amputation of the third, fourth, and fifth digits of the right foot and partial amputation of the second digit. Then, in June 1998, the AOJ granted entitlement to service connection for traumatic amputation of the right third, fourth, and fifth toes and partial amputation of the second toe at a 10 percent rating, effective the date of the claim. The Veteran did not submit a notice of disagreement with the decision nor was new and material evidence received regarding his right foot or toes within one year. In November 2014, the Veteran then submitted a new claim which included the disability of "toe amputation [with] scar." The Veteran submitted a private disability benefits questionnaire and later underwent a VA foot examination. As a result of this evidence, in February 2015, the AOJ granted entitlement to service connection for hallux rigidus, as related to the traumatic amputation disability, and assigned a 10 percent rating. The additional 10 percent rating was made effective the date of the November 2014 claim. The Veteran filed a timely notice of disagreement with the February 2015 rating decision. In that notice of disagreement, he argued that he should be entitled to an earlier effective date for the award of service connection for hallux rigidus. The Veteran noted that, based on VA's duty to assist, it is the obligation of VA to consider legal theories or issues that the claimant failed to argue if the record of evidence fairly raises those issues, and that VA must consider those arguments even if the claimant is unaware of the potential claim. He argued that the hallux rigidus disability was part of the evidence of record when he filed his original claim in 1998, and as such, he should be awarded service connection effective the date of that claim. At his January 2021 hearing, the Veteran reiterated this argument. He noted that he was unrepresented at the time he filed for service connection in 1998, did not understand that service connection for a related disability was available to him, and that VA's duty to assist should have triggered the AOJ to adjudicate any issues related to his claim. For the Veteran to be awarded an earlier effective date for the service connection of hallux rigidus, the record must demonstrate that a claim for service connection for hallux rigidus remained unadjudicated prior to the November 2014 claim. See 38 C.F.R. § 3.400(b)(2). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Under the former regulations, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies the benefit sought. See 38 C.F.R. § 3.155(a) (2014). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020), the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), determined that among the essential requirements of any claim, formal or informal, is an indication of the benefits sought. Moreover, the claimant is required to identify the disability for which compensation is sought with at least "a high level of generality." Here, the Veteran's January 1998 claims form was explicit in identifying the amputation of the third, fourth, and fifth toes and partial amputation of the second toe as the disability for which he sought benefits. To the extent that the Veteran sought benefits for a disability of the hallux, or big toe, there was no indication of such in the claim. Additionally, the Veteran submitted a statement accompanying his claim in which he further explained that he was seeking compensation for the amputation incurred in service. Again, in that statement there was no mention of the big toe. Importantly, in a February 1998 VA examination evaluating the Veteran's foot condition, there was no mention of hallux rigidus in the examination report. Indeed, the only evidence of a right big toe condition before VA at the time of the June 1998 rating decision was a June 1992 note in the Veteran's service treatment records indicating that the Veteran was unable to flex his big toe at that time. There was no other evidence to demonstrate that, at the time of the Veteran's January 1998 claim, he had any disabling condition of the right big toe. Accordingly, in the absence of the Veteran raising the issue in his claim, and in the absence of the disability being reasonably raised by the record at that time, VA did not have any indication that the Veteran sought benefits for the disability, or that a separate award of service connection for right hallux rigidus had to be explored. The Board finds that there was no unadjudicated claim for hallux rigidus prior to November 2014, and an earlier effective date for the award of service connection is not available based on his prior January 1998 claim. In reaching this conclusion, the Board acknowledges the Veteran's contentions at his Board hearing that, given his lack of legal or medical expertise, his claim for service connection for his amputated toes should have included any disability involving his right foot. Indeed, the Veteran argued that VA's duty to assist should have triggered such an approach. While VA has a duty to sympathetically read the Veteran's filings by determining all potential claims raised by the evidence, the Board wishes to make clear that hallux rigidus of the right big toe was not identified as a disability present at the time of the examination scheduled following his January 1998 claim. As such, without the Veteran claiming the disability, and without the evidence showing the disability, there was no duty to consider whether that disability too can be service-connected. In sum, the Veteran's actual claims form does not include an explicit service-connection claim for a right big toe disability, and even if the Board were to interpret the claim broadly as one for any foot disorder, a right big toe disability was not identified upon examination prior to the final June 1998 adjudication by the AOJ, which the Veteran did not appeal. Accordingly, even when sympathetically read, the Veteran's 1998 claim and the evidence of record at the time did not raise the issue of entitlement to service connection for hallux rigidus of the right big toe, and the matter has not remained pending since that time. The Board observes that the Veteran filed a claim for increase for his service-connected right foot disabilities in February 2010, but again did not mention hallux rigidus on the claims form. The evidence of record showed the Veteran had movement of the right big toe in flexion, without any specific recognition of a right toe disability associated with his service-connected disabilities. See a February 23, 2010 VA Physical Medicine Rehabilitation Outpatient Consult. The AOJ denied an increased rating in a June 2010 rating decision, which the Veteran also did not appeal and became final. When the Veteran filed his November 2014 compensation claim, he submitted a completed disability benefits questionnaire noting, for the first time, the presence of hallux rigidus of the right big toe. Indeed, the examiner who completed the questionnaire specifically noted that the Veteran has "over time" lost function of the great right toe, with inability to both flex and extend the toe, indicating that this disability was not always present. In the February 2015 decision on appeal, the AOJ awarded service connection for right hallux rigidus of the big toe, effective his November 2014 claim. The Board finds no basis to award service connection for right hallux rigidus prior to the Veteran's November 2014 date of claim, as no prior claim for the disability remained pending. The Board recognizes the Veteran's contentions that, as an unrepresented claimant at the time, he lacked the expertise necessary to navigate the VA disability system. Regardless of the equities of the Veteran's situation, however, VA can only allow benefits that are explicitly authorized. See Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). Here, the Board is limited by the provisions of the law and regulations described above. As there is no legal basis to grant an earlier effective date for service connection for hallux rigidus, prior to November 10, 2014, the claim must be denied. REASONS FOR REMAND Entitlement to an earlier effective date for service connection for a right ankle disability is remanded. The Veteran filed a claim of entitlement to service connection for a right ankle condition in November 2014. In a February 2015 rating decision, the AOJ granted the claim at a rating of 20 percent, effective the date of the November 2014 claim. In July 2015, the Veteran submitted a notice of disagreement in which he expressed disagreement of the rating of the right ankle disability. In October 2017, the AOJ issued a supplemental statement of the case continuing the 20 percent rating for the right ankle. In November 2017, the Veteran submitted a claim requesting an earlier effective date for the 20 percent rating of his right ankle. As the AOJ had applied a 20 percent rating effective the date of the November 2014 claim, this amounted to a claim for an earlier effective date for service connection. In December 2017, the AOJ sent the Veteran a letter informing him that they could not accept the November 2017 claim because the issue of entitlement to an earlier effective date was already on appeal, and that the AOJ had received the appeal in July 2015. The Board considers this to be a favorable finding that the AOJ had considered the July 2015 notice of disagreement to include an appeal of both the rating and the effective date of the Veteran's service-connected right ankle disability. To date, the AOJ has not issued a statement of the case on this issue. When there has been an initial AOJ adjudication of a claim and a notice of disagreement has been filed as to its denial, the Veteran is entitled to a statement of the case. The AOJ's failure to issue a statement of the case is a procedural defect requiring remand. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the Board must remand the issue so that the AOJ may issue a statement of the case. (Continued on Next Page) The matters are REMANDED for the following action: Furnish the Veteran with a Statement of the Case (SOC) pertaining to the issue of entitlement to an earlier effective date prior to November 10, 2014 for the award of service connection of a right ankle disability in accordance with 38 C.F.R. §§ 19.26, 19.29 and Manlincon v. West, 12 Vet. App. 238 (1999). V. Chiappetta Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Giaquinto, 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.