Citation Nr: 21042630 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 05-14 231A DATE: July 13, 2021 ORDER Entitlement to an effective date earlier than February 26, 2010 for the grant of service connection for lumbar spine spondylosis and degenerative disc disease (lumbar spine disability) is denied. REMANDED Entitlement to service connection for right ankle disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for left ankle disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for morbid obesity, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for diabetes mellitus type II, to include as secondary to a service-connected disability and/or obesity, is remanded. Entitlement to service connection for background diabetic retinopathy, to include as secondary to a service-connected disability and/or diabetes mellitus II, is remanded. Entitlement to service connection for hypertension, to include as secondary to a service-connected disability, obesity, and/or diabetes mellitus II, is remanded. Entitlement to service connection for right knee disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for left knee disability, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to a service-connected disability, is remanded. Entitlement to service connection for cervical spine disability, to include as secondary to a service-connected disability, is remanded. Entitlement to a rating in excess of 20 percent for lumbar spine disability is remanded. Entitlement to an initial rating in excess of 10 percent for a right leg condition, to include shin splints, is remanded. Entitlement to an initial rating in excess of 10 percent for a left leg condition, to include shin splints, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU), to include on an extraschedular basis, is remanded. FINDING OF FACT At the time of receipt of the February 26, 2010 claim, there was no pending or otherwise unadjudicated claim for service connection for lumbar spine disability. CONCLUSION OF LAW The criteria for an effective date earlier than February 26, 2010 for the grant of service-connection for lumbar spine disability have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1976 to July 1978. In August 2008, October 2009, March 2011, March 2012, October 2014, and/or January 2020, the Board remanded some or all of the Veteran's claims for further development. In August 2017, the Board denied the claims listed on the title page except for entitlement to service connection for bilateral knee disability and entitlement to increased rating and earlier effective date for lumbar spine disability. In response to the August 2017 Board decision, the Veteran appealed the decision to the U.S. Court of Appeals for Veterans Claims (Court). In August 2018, the Court granted the parties' Joint Motion Remand (JMR) vacating the Board's decision and remanding the issues for action consistent with the terms of the JMR. The parties agreed that the Board erred when it failed to process the Veteran's privacy request before issuing the August 2017 decision, as required by 38 C.F.R. § 20.1200. Effective Date The statutory guidelines for the determination of an effective date of an award 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 a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 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). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant's representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Analysis The Veteran contends that he is entitled to an effective date prior to February 26, 2010 for the grant of service connection for lumbar spine disability. In September 1978, the Veteran submitted VA Form 21-526, Veterans Application for Compensation or Pension. He requested entitlement to service connection for lumbar spine disability. In an August 1979 rating decision, VA denied the claim. The Veteran did not file a Notice of Disagreement (NOD). As such, the rating decision became final. 38 U.S.C. § 7105(b); 38 C.F.R. § 3.104. In March 1995, the Veteran submitted VA Form 21-526 and requested entitlement to service connection for bilateral leg pain. In March 1996, VA denied the Veteran's claim for service connection for bilateral leg pain. On May 22, 1996, the Veteran submitted a statement appealing the denial. He stated that his severe knee pain was affecting his back; thus, causing him great pain in the lower back region. In a May 28, 1996 Statement of the Case, VA acknowledged the Veteran's May 1996 NOD, but VA continued to deny service connection for bilateral leg pain. On February 26, 2010, the Veteran submitted a statement and stated that he desired to file an application to establish entitlement to service connection for, among other things, lumbar spine disability. In April 2017, VA granted the claim and assigned a 20 percent rating and an effective date of February 26, 2010, the date of receipt of the claim to reopen. The Veteran appealed both the rating assigned and effective date. Based on the evidence of record, the Board finds that an effective date earlier than February 26, 2010 for the grant of service connection for lumbar spine disability is not warranted. The Veteran separated from active service in July 1978. The Veteran filed a claim for service connection in September 1978; however, the claim was denied, and the Veteran did not appeal that decision. The decision became final. As such, service connection for lumbar spine disability may not date back to the day after separation from active duty. In Servello v. Derwinski, 3 Vet. App. 196, 198 (1992), the United States Court of Appeals for Veterans Claims (Court) addressed the issue of entitlement to an earlier effective date and pointed out that the applicable statutory and regulatory provisions require that the Board look to all communications in the file that may be interpreted as applications for claims, formal and informal, for VA benefits and, then, to all other evidence of record to determine the "earliest date as of which" disability is ascertainable. 38 U.S.C. § 5110(b)(2); see also 38 C.F.R. §§ 3.400(o)(2); 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Additionally, the Board notes that where VA fails to adjudicate a claim, it "remains pending until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability." Ingram v. Nicholson, 21 Vet. App. 232 (2007). If there is no final decision on the original claim prior to a grant of a subsequent "claim" for the same disability, then the claimant may be entitled to an effective date commensurate with the date the original claim was filed because the original claim remained pending and unadjudicated until the later "claim" was granted. A claimant may properly argue entitlement to an earlier effective date on the ground that a later "claim" is merely additional correspondence on the previously pending claim. Id., 21 Vet.App. at 243. In determining whether a filing raised a claim that was pending and unadjudicated at the time that VA granted a subsequent "claim" for benefits for the same disability, VA is required to consider the Veteran's entitlement, on any basis consistent with the claim, to any benefit which could flow from a determination of service connection and to which entitlement is reasonably raised on the record. Ephraim v. Brown, 5 Vet. App. 549 (1993). This duty includes broadly construing a claim for service connection to include any disability that may reasonably be encompassed by the claimant's description of the claim, the symptoms the claimant describes, and the information the claimant submits or the Secretary obtains in support of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). After a review of the record, the Board finds that there were no other pending, unadjudicated claims for service connection for lumbar spine disability. The Board notes that on May 22, 1996, the Veteran submitted an appeal for the denial of his bilateral leg pain. In that appeal, the Veteran mentioned that his bilateral leg pain was affecting his back; thus, causing him great pain in the lower back region. The Board finds that this statement does not show an intent to file a claim for service connection for lumbar spine disability. Additionally, the May 1996 Statement of the Case acknowledged the Veteran's May 22, 1996 statement as a NOD and not an application for benefits. Therefore, an earlier effective date based on prior, pending, unadjudicated claim is not warranted. The Veteran did not submit a claim to reopen his claim for service connection for lumbar spine disability until February 26, 2010 when he stated that he desired to file an application to establish service connection for lumbar spine disability. The law regarding effective dates is clear. The effective date of an award of compensation 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. Here, the claim for lumbar spine disability received on February 26, 2010 is the later of the two events giving rise to the grant of service connection. Accordingly, the Veteran is not entitled to an effective date earlier than February 26, 2010 for the grant of service connection for lumbar spine disability. 38 C.F.R. § 3.400(o)(1)(2). For the reasons discussed above, the preponderance of the evidence is against the Veteran's claim. As such, the benefit of the doubt doctrine is inapplicable, and the claim must be denied. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND In the January 2020 Board remanded, the Board instructed VA to obtain any outstanding VA treatment records and the reported private treatment records from Montgomery Area Health Authority and associate them with the claims file. VA was also instructed to provide the Veteran the requested documents, including (a) his VA medical records from 1990 to 1997, (b) his March 2017 VA examinations, and (c) the February 2016 and March 2017 VA examiners' letters of engagement and curriculum vitae. In February, September, October, December 2020, and January 2021, the AOJ requested the February 2016 and March 2017 VA examiners' letter of engagement and curriculum vitae. In January 2021, VA determined that the Veteran's Federal records could not be located and were therefore unavailable for review, and in February 2021, VA determined that the VA examiners' information could not be located and, therefore, were unavailable for review. On March 3, 2021, and based on the evidence obtained since the Board remand, VA issued a Supplemental Statement of the Case (SSOC) and confirmed the denials. On March 30, 2021, and based on the SSOC, the Veteran stated that he desired to continue his appeal to the Board. In April 2021, VA provided the Veteran and his representative with the Veteran's Compensation and Pension Exam, Official Military Personnel File, Service Treatment Records (STRs), and VA medical records located in his claims folder. In May 2021, the Veteran, through his representative, once again, requested the February 2016 and March 2017 VA examiners' letters of engagement and curriculum vitae. In the January 2021 Correspondence, VA noted that in December 2020, the 2016 VA examiner stated that she provided the requested information to her supervisor. However, the Board notes that the information is not of record. As such, the Board finds that a remand is necessary to associate the 2016 VA examiner's letter of engagement and curriculum vitae with the claims file. If VA is unable to obtain the requested information from the examiner's supervisor, VA should attempt to obtain the information directly from the 2016 VA examiner. If, and only if, VA is unable to obtain the requested information, VA should schedule the Veteran for new VA examinations to determine the nature and etiology of his bilateral ankle disability, DM II, background diabetic retinopathy, obesity, OSA, and increase rating for his lumbar spine disability. Regarding the 2017 VA examiner's letter of engagement and curriculum vitae, on September 20, 2021, VA was told that the 2017 VA examiner was no longer working for the VA Medical Center. In a January 2021 Correspondence, VA stated that it attempted to contact the examiner; however, it did not receive a response. The Board notes that in determining that the Veteran's hypertension and bilateral knee disabilities were not related to service, and in determining that a rating in excess of 10 percent was not warranted for bilateral leg disability, VA relied on the 2017 examination. However, as the 2017 VA examiner is not available to provide the requested information, the Board finds that new examinations should be conducted to determine the nature and etiology of the Veteran's hypertension and bilateral knee disability and severity of his bilateral leg condition. During the period on appeal, the Veteran has been diagnosed with major depression with psychosis and dysthymic disorder. He contends that his disability is due to military service, or in the alternative, secondary to his service-connected disabilities. In his May 2019 statement, the Veteran stated one day he was on the ship watching television when a shipmate walked up to him and assaulted him. The Veteran got up and left, but the shipmate followed him and punched him again. This resulted in a fight. The Veteran stated that the confrontation became a racial disturbance because the shipmate lost the fight. That night, the Veteran was shown the logbook and the captain's orders which instructed the crew to give the Veteran a warm welcome, i.e., put him in a laundry bag, and throw him over the side of the ship. That night, the Veteran stated that five shipmates crowded his bed and scared him into thinking that they would follow through with the captain's orders and throw him over the side of the ship. The Veteran stated that he was scared for his life. This went on for weeks and weeks and caused him to become mentally unbalanced. The Veteran further stated that the incident was very disturbing, and he was not able to get this out of his mind. He began hearing voices, he had nightmares, and saw shadows of people around and behind him. He was not able to sleep well. In 2005, he was diagnosed with depression, posttraumatic stress disorder (PTSD), mental disorder, and psychosis. The Board notes that the Veteran has not been afforded a VA psychiatric examination. Additionally, in support of his claim for secondary service connection, in May 2019, the Veteran submitted an article entitled "A Causal Analysis of Chronic Pain and Depression." The Board finds that a remand is necessary to obtain a VA examination to determine the nature and etiology of his psychiatric condition. McClendon v. Nicholson, 20 Vet. App. 79, 81-85 (2006). In May 2016, the Veteran was afforded a VA examination to determine the nature and etiology of his cervical spine disability. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner also opined that the claimed condition is less likely than not proximately due to or the result of the Veteran's service-connected condition. The examiner stated that the most common cause of cervical DJD is wear and tear but can also be caused by trauma to the neck. The examiner further stated that there is no medical evidence of any trauma to the Veteran's neck. However, the Board notes that in December 1977, the Veteran was seen at the military clinic where he complained of neck and back pain due to whiplash. He was diagnosed with cervical and spinal strain. Based on the Veteran's documented whiplash in service, the Board finds that a remand is necessary to obtain another VA opinion to determine the nature and etiology of the Veteran's cervical spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The issue of TDIU is inextricably intertwined with the increased rating claims being remanded. Therefore, the Board will defer TDIU adjudication until the issues are resolved. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are "inextricably intertwine" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: 1. Obtain and associate all outstanding VA treatment records with the claims file. 2. To the extent it is possible, provide the Veteran with the February 2016 VA examiner's letter of engagement and curriculum vitae. 3. If, and only if, VA is unable to obtain the 2016 VA examiner letter of engagement and curriculum vitae, schedule the Veteran for new VA examinations to determine the nature and etiology of his bilateral ankle disability, to include as secondary to his service-connected disabilities; morbid obesity, to include as secondary to service-connected disabilities; DM II, to include as secondary to service connected disabilities and/or obesity; background diabetic retinopathy, to include as secondary to DM II; OSA, to include as secondary to service-connected disabilities; and increase rating for lumbar spine disability. 4. Schedule the Veteran for VA psychiatric, cervical spine, hypertension, bilateral knee, and bilateral leg condition examinations to assist in determining the nature and etiology and/or current severity of the Veteran's disabilities. The examiner must review all pertinent documents in the record and obtaining a complete medical history from the Veteran. Then, the examiner should provide the following: A. Psychiatric disorder: i. Identify any psychiatric disability that has been present during the period on appeal. ii. For any diagnosed disorder, determine if it is at least as likely as not (i.e., probability of 50 percent or greater) that the diagnosed disorder had its onset in service or is in any way related to the Veteran's service. iii. If the disorder is not related to service, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the psychiatric disorder is either caused or aggravated by a service-connected disability. iv. If PTSD is diagnosed and any stressor incident is verified, is it at least as likely as not (a 50 percent or better probability) that such disability is related to the Veteran's service, to include the reported stressor? The examiner must consider the Veteran's lay statements on the history of his psychiatric symptoms. The examiner is also asked to consider the article submitted in May 2019 entitled "A Causal Analysis of Chronic Pain and Depression." The supporting rationale for all opinions expressed must be provided. B. Cervical Spine disability: i. Identify any cervical spine disability that has been present during the period on appeal. ii. For any diagnosed condition, the examiner should determine whether it is at least as likely as not (50 percent probability or greater) that the Veteran's cervical spine disability had its onset in service or is otherwise related to any in-service disease, event, or injury, to include the whiplash caused by the December 1977 accident. iii. If the diagnosed condition is not related to service, then, determine if it is at least as likely as not (50 percent or greater probability) that the Veteran's cervical spine disability has been aggravated (e.g., permanently worsened beyond the normal progression of that disease) by a service-connected disability. If aggravation is found, the examiner should also state, to the extent possible, the baseline level of disability prior to aggravation. This may be ascertained by the medical evidence of record and also by the Veteran's statements as to the nature, severity, and frequency of his observable symptoms over time. The supporting rationale for all opinions expressed must be provided. The examiner must consider the Veteran's lay statements on the history of his cervical spine condition. C. Hypertension: i. Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's hypertension had its onset during active service or is etiologically related to the Veteran's active duty service? ii. If the answer to (i) is no, is it at least as likely as not (50 percent or greater probability) that the Veteran's hypertension was caused by or aggravated (i.e. permanently worsened beyond the normal progression of that disease) by a service-connected disability? If the examiner finds that the Veteran's hypertension was aggravated by a service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by a service-connected disability occurred. The supporting rationale for all opinions expressed must be provided. The examiner should consider the Veteran's lay statements. D. Bilateral knee disability i. Identify any knee disability that has been present during the period on appeal. ii. For any diagnosed condition, the examiner should determine whether it is it at least as likely as not (i.e., probability of 50 percent or greater) that the diagnosed condition had its onset in service or is in any way related to the Veteran's service. iii. If the condition is not related to service, the examiner should provide an opinion as to whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the knee disability is either caused or aggravated by a service-connected disability. E. Bilateral leg condition, to include shin splints: The examiner should identify all shin splint pathology found to be present. The examiner should conduct range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also identify the length and type of any treatment required and indicate whether shin splints were responsive to treatment. Findings pertaining to shin splints should comply with the newly enacted Diagnostic Criteria 5262 effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 4.71a, Diagnostic Code 5262) The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). 5. After any further development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, furnish the Veteran and his representative a Supplemental Statement of the Case and afford them the opportunity to respond before the file is returned to the Board for further consideration. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Moore 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.