Citation Nr: 21042576 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 17-19 675 DATE: July 13, 2021 ORDER Entitlement to an earlier effective date prior to September 25, 2015 for an increased evaluation of 100 percent for post-traumatic stress disorder (PTSD) with chronic major depressive disorder is denied. REMANDED Entitlement to a compensable disability rating for traumatic brain injury (TBI) is remanded. Entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded. Entitlement to a disability rating in excess of 10 percent for lower left extremity radiculopathy is remanded. Service connection for a neck condition is remanded. Service connection for bilateral wrist conditions, to include carpal tunnel syndrome is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The evidence of record supports the assignment of a 100 percent rating from September 25, 2015, the date of receipt of the Veteran's claim for an increased rating, but no earlier. CONCLUSION OF LAW The criteria for an effective date prior to September 25, 2015 for an increased evaluation of 100 percent for PTSD are not met. 38 U.S.C. §§ 1155, 5510, 38 C.F.R. §§ 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1999 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions in June 2012, December 2013, February 2016, January 2017 and May 2017 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in April 2021. A transcript of the hearing is of record. Entitlement to an earlier effective date prior to September 25, 2015 for an increased evaluation of 100 percent for PTSD with chronic major depressive disorder The Veteran contends that he is entitled to an earlier effective date of January 10, 2012 for the increased rating of 100 percent for his PTSD, on the ground that a September 2014 rating decision denying the claim never became final. Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Three possible dates may be assigned depending on the facts of an increased rating case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2)); or, (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2)). See Gaston v. Shinseki, 605 F.3d 979, 982-84 (Fed. Cir. 2010); Harper v. Brown, 10 Vet. App. 125, 126 (1997). Here, the Veteran initially filed a claim for an increased disability rating for PTSD on January 11, 2012. That claim was adjudicated in a June 2012 rating decision. The Veteran did not appeal that decision and new and material evidence was not received within a year of the decision. As such, the June 2012 rating decision became final. 38 C.F.R. § 3.156. The claim for an increased rating decision for PTSD was next adjudicated in September 2014. That rating decision did not reference a claim and the record does not reflect any claims subsequent to the January 11, 2012 claim. The Veteran submitted new and material evidence and sought an increased rating for PTSD on September 25, 2015, within a year of notification of the September 2014 rating decision. The Board thus concurs with the Veteran's contention that the September 2014 decision did not become final. The question for the Board is when, during the course of the pendency of the claim, did the evidence establish entitlement to a 100 percent rating. In that regard, the Board finds that the evidence supports the assignment of a 100 percent rating from September 25, 2015, the date of the Veteran's most recent claim for an increased PTSD rating, but no earlier. The Veteran's claim was accompanied by a statement from his wife describing his condition. Notably, her description detailed the state of his PTSD at the time of her written statement; in other words, it was contemporaneous, and did not offer a retrospective description of his condition that could be used to evaluate the severity of his condition prior to September 2015. A VA examination conducted in November 2015 confirmed that the Veteran met the criteria for a 100 percent disability rating for PTSD. The Veteran had also been afforded a VA examination in September 2014. At that time, the examiner concluded that he could not comment on the Veteran's functional impairment because of the unreliability of the Veteran's description of his symptoms, as reflected in testing results conducted by the examiner. Simply put, there is no indication in the record that the increase in disability preceded the September 25, 2015 claim. Accordingly, the claim for an earlier effective date is denied. As the preponderance of evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a compensable disability rating for TBI is remanded. The Veteran contends that he is entitled to a compensable rating for his TBI. The Veteran was afforded VA examinations for TBI in December 2009 and February 2012. The December 2009 VA examiner concluded that the Veteran's PTSD would explain his mood, neurobehavioral and sleep disturbance. The February 2012 VA examiner concluded that the Veteran's reported symptom complex was consistent with post concussive disorder and that there was no evidence of residual lingering sequelae from a head injury. The November 2015 VA examination for the Veteran's PTSD indicated that there was no TBI diagnosis. The Veteran has submitted a private evaluation conducted in June 2020, in which a private psychologist opines that the Veteran should be rated at 70 percent for his TBI. The Board finds that remand is necessary in order to provide the Veteran with a new VA examination. The evidence suggests that the Veteran's condition may have worsened and that the prior examinations were inadequate. Under these circumstances, a new examination is necessary. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As part of the examination, the Veteran's TBI symptoms should be distinguished from his PTSD symptoms, if possible. The claims for entitlement to a disability rating in excess of 10 percent for degenerative disc disease of the lumbar spine and for lower left extremity radiculopathy are remanded. The most recent VA examination for the Veteran's back disability was conducted in November 2011. The Veteran testified at the April 2021 Board hearing that his back and leg pain has gotten worse and that the pain affects his range of motion. The Veteran also testified that he has flareups two times a week that put him out of commission for an entire day. Based on the reports of worsening, the Board finds that remand is warranted to determine the current nature and severity of the Veteran's back disability and lower left extremity radiculopathy. The claims for service connection for a neck condition and bilateral wrist conditions, to include carpal tunnel syndrome, are remanded. The Veteran testified at the April 2021 Board hearing that he sustained whiplash in service as part of the same incident that caused his back disability and that his wrists are always in pain, they go numb and he experiences tingling. VA treatment records also reflect complaints of neck pain and tingling in his arms. An August 2009 private treatment record documents neck pain that started in service, related to exposure to explosions and trauma and accompanied by paresthesia and pain in his hands bilaterally. A July 2012 private treatment record documents complaints of neck pain and tingling in the hands for 4 years. The Veteran has not been afforded VA examinations for his neck and wrist claims. VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide the claim. See 38 U.S.C. § 5103A (d); McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Lay testimony as to continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. See McClendon, 20 Vet. App. at 83. Furthermore, the Veteran is competent to testify to in-service injuries, symptoms and events. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds that Veteran's statements regarding his neck and wrist pain starting in service and his explanation of his exposure to trauma are sufficient to warrant a VA examination to determine the nature and etiology of his neck pain and wrist conditions. McClendon, supra. As the Veteran also testified that his neck and wrist pain was related to his back disability, an opinion should also be obtained as to secondary service connection. The claims for entitlement to SMC based on aid and attendance and a TDIU are remanded. The Board finds that the issues of entitlement to a TDIU and entitlement to SMC are inextricably intertwined with the remanded claims for increased ratings and service connection. Where a pending claim is inextricably intertwined with other claims currently on appeal, the appropriate remedy is to remand the claim on appeal pending the adjudication of the inextricably intertwined claims. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, the issues of entitlement to a TDIU and entitlement to SMC are also remanded. The matters are REMANDED for the following action: 1. Obtain updated treatment records. 2. After completing the development in item 1, schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and severity of his service connected TBI. The examiner must be provided with and review the entire claims file, to include a copy of this remand. All appropriate tests and studies should be conducted, and the results reported in detail. The examiner should then address the following: (a.) The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria and describe the effect of his TBI disability on his occupational and daily functioning. (b.) The examiner is asked to differentiate which symptoms or which portion of the Veteran's impairment is attributable to his service-connected TBI and to his service-connected PTSD. In making this determination, please address the contentions in the June 2020 private report for the Veteran's TBI. If the examiner finds that the examinations conducted prior to June 2020 better represent the residuals of the Veteran's TBI, and that the Veteran's TBI signs and symptoms have not worsened in severity, the examiner should explain the reasons why he or she believes that to be so. 3. After completing the development in item 1, schedule the Veteran for a VA examination with an appropriate clinician to assess the current nature and severity of his service-connected low back and lower left extremity radiculopathy disabilities. The examiner must be provided with and review the entire claims file, to include a copy of this remand. All appropriate tests and studies should be conducted. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (a.) Based upon a review of the medical records, lay statements and testimony submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected low back disability, and how he characterizes additional functional loss during a flare up. The examiner should note that the Veteran testified that he experiences flare ups at the April 2021 Board hearing. (b.) If the Veteran describes experiencing flare ups, identify the: a. Frequency; b. Duration; c. Precipitating factors; and d. Alleviating factors. (c.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to 60 degrees forward flexion (the measurement required for the next higher rating). Please explain why or why not. (d.) Please also describe the effect of the Veteran's low back disability and lower left extremity radiculopathy on his occupational functioning. 4. After completing the development in item 1, schedule the Veteran for a VA examination to determine the nature and etiology of his neck pain and bilateral wrist conditions, to include carpal tunnel syndrome. The examiner must be provided with and review the entire claims file, to include a copy of this remand. All appropriate tests and studies should be conducted, and the results reported in detail. The examiner is requested to opine as to the following: (a.) whether it is at least as likely as not that the Veteran's neck and bilateral wrist pain was incurred in service or is otherwise related to service? The examiner should specifically address the Veteran's statements regarding his experiences in service. (b.) If not caused by service, is it at least as likely as not that the Veteran's neck pain and bilateral wrist conditions are caused by his service-connected low back disability? Please explain why or why not. (c.) If not caused by the low back disability, is it at least as likely as not that the Veteran's neck pain and bilateral wrist conditions have been worsened beyond normal progression by his service-connected low back disability? Please explain why or why not. In proffering this opinion, the examiner must determine whether the Veteran's low back disability caused any incremental increase, even transient, in his neck and bilateral wrist conditions, regardless of permanence. (d.) If the examiner finds that the Veteran's neck and bilateral wrist conditions have been worsened beyond normal progression (aggravated) by his service-connected low back disability, please attempt to quantify the degree of aggravation beyond the baseline level of neck pain and bilateral wrist conditions that is attributable to the low back disability. The examiners are advised that the Veteran is competent to report symptoms and that his reports must be considered in formulating the requested opinions. If the Veteran's reports are discounted, the examiner should provide a reason for doing so. A complete rationale for the examiners' opinions should be provided, citing to specific evidence of record and any relevant medical literature, as necessary. If the examiners cannot provide the requested opinions without resorting to speculation, it must be stated, and the examines must provide the reasons why an opinion would require speculation. The examiners must indicate whether there was any further need for information or testing necessary to provide an opinion. Additionally, the examiners must indicate whether any opinions could not be rendered due to limitations of knowledge in the medical community at large and not those of the examiner. If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.