Citation Nr: 22011978 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 14-43 894 DATE: March 2, 2022 ORDER Entitlement to service connection for bilateral ankle disabilities is granted. Entitlement to an effective date earlier than June 15, 2016, for the award of service connection for right upper extremity cervical radiculopathy is denied. The appeal as to whether a timely notice of disagreement (NOD) was filed with respect to the issue of entitlement to an effective date earlier than June 18, 2011, for the award of service connection for a cervical spine disability, is dismissed. REMANDED Entitlement to service connection for a left knee disability, to include as secondary to a service-connected disability, is remanded. Entitlement to a compensable rating for allergic rhinitis is remanded. Entitlement to a disability rating in excess of 10 percent for a cervical spine disability is remanded. Entitlement to a disability rating in excess of 20 percent for right upper extremity cervical radiculopathy is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, the Veteran has current residuals of in-service stress fractures of both ankles. 2. The Veteran filed a claim for an increased rating for his service-connected cervical spine disability in August 2016, after an intent to file received by the Department of Veterans Affairs (VA) on June 17, 2016. The record prior to June 2016 at the time of his increased rating claim was negative for radiculopathy secondary to his cervical spine disability. 3. In October 2011, VA mailed the Veteran notification of a September 2011 rating decision, which granted service connection for a cervical spine disability and assigned an effective date of June 18, 2011. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for bilateral ankle disabilities have been satisfied. 38 U.S.C. § 1110, 1112, 1116, 5107; 38 C.F.R. § 3.102, 3.303, 3.307, 3.309. 2. The criteria for an earlier effective date earlier than June 17, 2016, for the award of service connection for right upper extremity cervical radiculopathy, have not been satisfied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for filing a timely NOD to the September 2011 rating decision, which granted service connection for a cervical spine disability effective June 18, 2011, have not been satisfied. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.200, 20.201, 20.302. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from November 2000 to June 2011, to include service in Afghanistan and Iraq, as well as additional service in the Army National Guard from June 2011 to September 2017. This matter comes before the Board of Veterans' Appeals (Board) from October 2016 and March 2017 rating decisions of the VA Regional Office (RO). The Veteran testified at a hearing with a Veterans Law Judge in December 2019, a transcript of which is of record. As this VLJ is no longer employed at the Board, the Veteran was offered the opportunity to testify at another hearing by correspondence in December 2021 and again in January 2022. The Veteran did not respond. As such, the Board will proceed based on the evidence of record. The Board also notes that additional medical treatment records have been added to the Veteran's claims file since the last statements of the case (SOC) issued by the RO. However, the Veteran waived initial Agency of Original Jurisdiction (AOJ) review of any additional evidence in an October 2019 correspondence. 38 C.F.R. § 20.1305. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. 1. Service connection for bilateral ankle disabilities. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, chronic diseases are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran suffered stress fractures of the bilateral ankle during service, specifically at the distal fibulae, which is not in dispute. The Veteran's claim was denied by the RO in the relevant rating decision on appeal, however, based on a finding of no current residuals of these stress fractures. Notably, a VA examiner in 2011 determined that his in-service fractures had resolved. The Board notes, however, that an additional examination was afforded in November 2016. Despite the finding that his ankle pain did not result in loss of motion upon VA examination, the Veteran did report flareups of pain that prevented him from certain activities, including an inability to walk, run, or stand for prolonged periods. The Board notes that the functional impairment necessary for the purposes of determining a current disability is not limited to range of motion testing performed upon VA examination alone. Rather, the definition of a "disability" in 38 U.S.C. § 1110 (and by implication 38 U.S.C. § 1131) includes simply any condition that results in functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018); Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020). The Veteran is competent to describe these limitations and his statements have not been found to be less than credible. Further, the Veteran's medical treatment records continue to note that the Veteran suffers from bilateral ankle pain that prevents certain activities with prolonged use. There is no suggestion int the record that the Veteran's ankle pain might be related to an etiology other than his in-service fractures. Based on the foregoing, and after resolving all doubt in his favor, the Board finds that the Veteran has current bilateral disabilities of the ankles during the period on appeal as residuals of his in-service stress fractures. The claim is therefore granted. 2. An earlier effective date for right upper extremity cervical radiculopathy. The Veteran asserts that an earlier effective date is warranted for his cervical radiculopathy. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In the case of a claim for an increased rating, if an increase in disability occurred within one year prior to the date of claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of 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); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). Here, the award for service connection for bilateral upper extremity radiculopathy does not stem from a claim for compensation for radiculopathy on a secondary basis. Review of the record shows that the Veteran was awarded service connection for his cervical spine disability in 2011 and a 20 percent evaluation was assigned, effective June 2011. The decision as it pertained to this disability was not appealed, therefore, became final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.202. The Veteran then filed a claim for an increased disability rating for his service-connected neck disability via a June 16, 2016 "intent to file", which was followed by a timely formal claim in August 2016, asserting that the symptoms of his disability had worsened. A subsequent rating decision in October 2016, while denying an increased rating for the cervical spine disability, awarded service connection for right upper extremity radiculopathy as secondary to his cervical spine disability. A 20 percent disability rating was assigned effective June 17, 2016, the date of his intent to file. See 38 C.F.R. §§ 3.310, 3.400(o)(2), 4.124a, Diagnostic Code 8710. Medical treatment records submitted at the time of this increased rating claim note treatment for "radicular syndrome" in 2014, and VA cervical spine and peripheral nerves examinations provided in September 2016 diagnosed right upper extremity radiculopathy. Simply stated, according to the RO in October 2016, the June 17, 2016 effective date for the 20 percent rating for the right upper extremity radiculopathy represented the earliest date the separate award for service connection may be assigned. After review of the evidence, the Board finds that the earliest effective date the Veteran could receive for his right upper extremity radiculopathy has been assigned, as the record is absent evidence that this upper extremity warranted a separate rating prior to the date of his increased rating claim. Medical treatment reports that were of record prior to his increased rating claim are absent upper extremity radiculopathy. Again, the provisions of 38 C.F.R. § 3.400 commence with the notation of the general rule that the effective date of compensation benefits will be the date of receipt of the claim or the date when entitlement arose, whichever is later. As the record reflects that radiculopathy was present more than one year prior to the claim for increased rating claim for the Veteran's cervical spine disability, the increase is effective the date of claim. Thus, the Board finds that the claim for an earlier effective date for his right upper extremity radiculopathy must be denied. 3. Whether a timely NOD was received as to the effective date assigned for a cervical spine disability. Generally, under 38 U.S.C. § 7105, an appeal to the Board must be initiated by a timely filed notice of disagreement in writing and completed, after a Statement of the Case (SOC) has been furnished, by a timely filed substantive appeal. 38 C.F.R. § 20.200; see also 38 C.F.R. §§ 20.201 and 20.202. A written communication from a claimant or his representative expressing dissatisfaction or disagreement with an adjudicative determination by the agency of original jurisdiction and a desire to contest the result will constitute a NOD. While special wording is not required (for the time period in question), the notice of disagreement must be in terms which can be reasonably construed as disagreement with that determination and a desire for appellate review. If VA gave notice that adjudicative determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201. Except in the case of simultaneously contested claims, a claimant, or his representative, must file a NOD with a determination by the agency of original jurisdiction within one year from the date that that agency mails notice of the determination. Otherwise, that determination will become final. The date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(a). Notably, when clarification is sought from VA concerning an unclear communication or disagreement, the Veteran is afforded a period of 60 days from the date of the originating agency's clarification request to provide the clarification sought or 1 year after the date of the adverse decisions notice letter, whichever is later. 38 C.F.R. § 19.26(c). The Board may implicitly or explicitly waive the issue of the timeliness of a substantive appeal. A timely filed NOD, however, is a jurisdictional bar to appellate consideration, and this issue may not be waived. See Percy v. Shinseki, 23 Vet. App. 37, 41 (2009). The Board is bound by the law and is without authority to grant an appeal on an equitable basis. 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425 (1994). Here, review of the record discloses that a September 2011 rating decision awarded an effective date of June 18, 2011 for a grant of service connection for a cervical spine disability. The RO notified the Veteran of the decision by letter dated in October 2011 that included his appellate rights. While a NOD was received in March 2012, it was limited to the issue of service connection for bilateral stress fractures. The Veteran did not submit a notice of disagreement specifically as to the effective date assigned for his cervical spine disability within one year of the October 2011 notification. Thus, the September 2011 rating decision became final when no notice of disagreement was received within one year of the date the notification of the unfavorable determination was mailed. See 38 U.S.C. § 7105(c). While the record does contain a May 2017 NOD indicating disagreement with the effective date assigned his cervical spine disability, the Board can only assume this was in error. Regardless, the NOD is not timely as to the September 2011 rating decision and the Board cannot adjudicate freestanding claims for earlier effective dates. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The United States Court of Appeals for Veterans Claims (Court) has held that it is proper for the Board to dismiss the appeal of a veteran who does not file a timely notice of disagreement prior to the expiration of the time limit for the filing of such a document. See Roy v. Brown, 5 Vet. App. 554 (1993). The Court opined in that decision that the "formality" of perfecting an appeal to the Board is part of a clear and unambiguous statutory and regulatory scheme that requires the filing of both a notice of disagreement and a formal appeal. Id at 555. The Board thus concludes that based on the lack of a timely filed notice of disagreement, there was no appeal from the September 2011 rating decision specifically as it pertained to the award of service connection for a cervical spine disability, and it is final. 38 U.S.C. § 7105. In a case where the law and not the evidence is dispositive, the claim must be denied or dismissed because of lack of entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board thus finds that the Veteran did not timely appeal the September 2011 rating decision and the appeal must be dismissed based on lack of jurisdiction. The Board also notes that the effective date of an award of disability compensation is the day following separation from active service, if the claim is received within one year after separation from service. 38 C.F.R. § 3.400 (b)(2). Here, the Veteran's effective date for his cervical spine disability is the day following his discharge from active service. Even if the Board were to find NOD to be timely, an earlier effective date for service connection would still be precluded as a matter of law. Sabonis v. Brown, 6 Vet. App. at 430. REASONS FOR REMAND While the Board regrets additional delay, the Veteran's remaining claims must be remanded for additional development. 1. Service connection for a left knee disability. The Veteran seeks service connection for a left knee disability, currently diagnosed as neuroma, status post debridement. While his STRs are negative for an indication of a left knee disability during his period of active service, the Veteran asserted the additional theory of entitlement during his hearing with the undersigned that his left knee disability was caused or aggravated by his musculoskeletal disabilities, to include his low back and cervical spine disabilities, as well as his bilateral ankle disabilities for which the Board has granted service connection herein. 38 C.F.R. § 3.310. As no medical opinion on secondary service connection is of record as to his left knee disability, the claim must be remanded. 2. A compensable rating for allergic rhinitis. The Veteran was awarded service connection for allergic rhinitis in September 2011 and assigned a noncompensable rating. The Veteran filed a claim for an increased rating in October 2016. The Veteran's allergic rhinitis is rated under 38 C.F.R. § 4.97, which addresses diseases of the nose and throat. Pursuant to Diagnostic code 6522 for allergic rhinitis, a 10 percent rating is warranted for allergic or vasomotor rhinitis without polyps, but with greater than 50 percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for allergic or vasomotor rhinitis with polyps. 38 C.F.R. § 4.97, Diagnostic Code 6522. A VA examination was afforded to the Veteran for the purpose of his increased rating claim in November 2016. The Veteran reported developing allergic rhinitis in approximately 2007 and prescribed antihistamines. He stated that he experienced allergies which are mostly in the spring months, where he has to be on Allegra, eye drops, and nasal steroids to control his symptoms. While physical examination confirmed allergic rhinitis, the examiner noted no obstruction greater than 50 percent on both sides of the nasal passage or complete obstruction on one side. The examiner also noted no hypertrophy of nasal turbinates, nasal polyps, or any granulomatous conditions. No additional disability, such as sinusitis, larynx or pharynx conditions, a deviated septum, or tumors or neoplasm, was present. As a result of the above, the Veteran's noncompensable rating was continued. During his more recent hearing before the undersigned, however, the Veteran asserted that he experienced worsening nasal symptoms. The claims file appears absent a thorough examination since his last VA examination in 2016. VA's duty to assist includes, in appropriate cases, the duty to conduct a thorough and contemporaneous medical examination "when such an examination or opinion is necessary to make a decision on the claim." 38 U.S.C. § 5103A(d)(1); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the record does not adequately reveal the current state of the disability, the duty to assist requires a medical examination that considers the appellant's medical history. Id. 3. Ratings for cervical spine and right upper extremity radiculopathy. The Veteran asserted during his Board hearing that the symptoms of his service-connected cervical spine disability, as well as it's associated upper extremity radiculopathy, have increased in severity. While a VA examination of the peripheral nerves in January 2022 is now of record, this examination was conducted for the purposes of a separate claim for peripheral neuropathy of the lower extremities. It was specifically noted that the Veteran's upper extremity neuropathy would not be addressed. Thus, and despite the examination report noting certain findings related to the upper extremities, it is not apparent that a throughout examination of the upper extremities was actually conducted. As the last examinations to determine the current nature and severity of the Veteran's cervical spine disability and associated upper extremity neuropathy has not been conducted since 2016, new examinations are necessary. The matters are therefore REMANDED for the following actions: 1. Ask the Veteran to identify all outstanding treatment records relevant to his remanded claims. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of their unavailability. 2. After records development is completed, schedule the Veteran for a VA examination to determine whether it is at least as likely as not (50 percent probability or greater) that any current left knee disability onset during service or is otherwise related to an in-service injury, event, or disease. The examiner should also address whether any current left knee disability is at least as likely as not (a) caused by, or (b) aggravated (i.e., worsened beyond natural progression) by any service-connected disability (to include his now service-connected bilateral ankle pain) or combination of service-connected disabilities. The examiner should elicit a full history from the Veteran and consider the lay statements of record. The Veteran is competent to attest to factual matters of which he has first-hand knowledge, and if there is a medical basis to support or doubt the history provided by the Veteran the examiner should provide a fully reasoned explanation. A rationale for all opinions expressed is requested as the Board is precluded from making any medical findings. 3. After records development is completed, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his service-connected allergic rhinitis. The claims file should be reviewed by the examiner. 4. After records development is completed, schedule the Veteran for a VA examination to determine the current symptoms, level of severity, and functional impairment associated with his service-connected disabilities of the cervical spine and associated upper extremity radiculopathy. The claims file should be reviewed by the examiner. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.