Citation Nr: 22013531 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 17-39 666A DATE: March 9, 2022 ORDER New and material evidence having not been received, reopening the claim of entitlement to service connection for diabetes mellitus is denied. Entitlement to an initial rating in excess of 30 percent for a psychiatric disorder is denied. Entitlement to an effective date prior to May 11, 2016, for the grant of service connection for a psychiatric disorder is denied. Entitlement to an effective date prior to May 11, 2016, for the grant of service connection for a cervical spine disability is denied. Entitlement to an effective date prior to May 11, 2016, for the grant of service connection for a left ankle disability is denied. Entitlement to an effective date prior to May 11, 2016, for the grant of service connection for a lumbar spine disability is denied. Entitlement to an effective date prior to May 11, 2016, for the grant of service connection for left lower extremity radiculopathy is denied. Entitlement to an effective date prior to May 11, 2016, for the grant of service connection for right lower extremity radiculopathy is denied. REMANDED Entitlement to an effective date prior to May 11, 2016, for the grant of service connection for left upper extremity radiculopathy is remanded. Entitlement to service connection for a left hip disability, claimed as secondary to a left ankle disability is remanded. Entitlement to service connection for right upper extremity radiculopathy is remanded. FINDINGS OF FACT 1. In a May 2008 rating decision, the Veteran was denied entitlement to service connection for diabetes mellitus; the Veteran appealed the denial of his claim, and the claim was denied in a March 2011 Board decision. 2. The evidence received since the Board decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the claim for service connection for diabetes mellitus. 3. The occupational and social impairment from the Veteran's psychiatric disorder was manifested by occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with routine behavior, self-care, and normal conversation. 4. Following issuance of a December 2012 rating decision, the Veteran filed a request to reopen his claim for service connection for psychiatric disability that was received by the Department of Veterans Affairs (VA) on May 11, 2016. 5. Following issuance of an August 2014 Board decision, the Veteran filed a request to reopen his claim for service connection for a cervical spine disability that was received by VA on May 11, 2016. 6. Following issuance of an August 2014 Board decision, the Veteran filed a request to reopen his claim for service connection for a left ankle disability that was received by VA on May 11, 2016. 7. Following issuance of an August 2014 Board decision, the Veteran filed a request to reopen his claim for service connection for a lumbar spine disability that was received by VA on May 11, 2016. 8. Following issuance of an August 2014 Board decision, the Veteran filed a request to reopen his claim for service connection for a lumbar spine disability that was received by VA on May 11, 2016; the claim for a left lower extremity disability was as secondary to the lumbar spine disability. 9. Following issuance of an August 2014 Board decision, the Veteran filed a request to reopen his claim for service connection for a lumbar spine disability that was received by VA on May 11, 2016; the claim for a right lower extremity disability was as secondary to the lumbar spine disability. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen a claim of entitlement to service connection for diabetes mellitus. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2020). 2. The criteria for an initial rating in excess 30 percent for a psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9410 (2020). 3. The criteria for an effective date prior to May 11, 2016, for the grant of service connection for a psychiatric disorder are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.400 (2020). 4. The criteria for an effective date prior to May 11, 2016, for the grant of service connection for a cervical spine disability are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.400 (2020). 5. The criteria for an effective date prior to May 11, 2016, for the grant of service connection for a left ankle disability are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.400 (2020). 6. The criteria for an effective date prior to May 11, 2016, for the grant of service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.400 (2020). 7. The criteria for an effective date prior to May 11, 2016, for the grant of service connection for a left lower extremity radiculopathy are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.400 (2020). 8. The criteria for an effective date prior to May 11, 2016, for the grant of service connection for a right lower extremity radiculopathy are not met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1965 to February 1969. This case comes before the Board on appeal from July 2016 and November 2016 rating decisions issued by a VA Regional Office (RO). The Veteran requested a hearing before the Board when he submitted his VA Form 9 (Substantive Appeal). The Veteran was notified that he was scheduled for a hearing before the Board in April 2020, which was postponed. He was subsequently notified that he was scheduled for a second hearing before the Board in July 2020. The Veteran, through his representative, submitted a statement and withdrew his request for a hearing. In August 2017, the Veteran submitted additional evidence without a waiver. For all substantive appeals received on or after February 2, 2013, any evidence submitted to the Board shall be subject to initial review by the Board unless the Veteran or the Veteran's representative requests in writing that the Agency of Original Jurisdiction (AOJ) initially review such evidence. 38 U.S.C. § 7105(e) (2012). As the Veteran filed his VA Form 9, Substantive Appeal, in these matters after February 2013, a waiver of AOJ initial review is unnecessary. The Veteran submitted a claim for entitlement to a total disability rating based on individual unemployability (TDIU) in February 2017. The claim was initially denied in a May 2017 rating decision and the Veteran submitted a notice of disagreement (NOD) as to the denial of that claim in June 2017. The RO did not issue a statement of the case (SOC) with regard to that issue; however, entitlement to a TDIU was granted in an August 2017 rating decision effective May 11, 2016, the date the Veteran's service-connected disabilities met the schedular criteria for a TDIU. Prior to May 11, 2016, there was no pending increased rating or TDIU claim. As such, the grant of entitlement to a TDIU was a full grant of the benefits sought and no there is no further development necessary for that claim. New and Material Evidence Diabetes Mellitus In a May 2008 rating decision, the RO denied entitlement to service connection for diabetes mellitus. The Veteran perfected an appeal of that decision, and the claim was once again denied in a March 2011 Board decision based on a finding that the Veteran's diabetes mellitus did not manifest during service within one year of service separation and was not otherwise related to service, including exposure to herbicides while working on aircraft that had been in Vietnam. The pertinent evidence that has been received since the March 2011 Board decision includes VA and private treatment reports and the Veteran's statements. The Board finds that while some of the evidence added to the record is new, as it was not previously considered by VA, it is not material as it does not specifically address the reason the claims were previously denied. The Veteran has not submitted any additional evidence confirming his claimed exposure to herbicides while working on planes which had been in Vietnam. When he filed his earlier claim in January 2008, the Veteran indicated that he believed that his diabetes mellitus was due to exposure to herbicides while working on planes which had been in Vietnam, and those statements were considered at the time of the March 2011 Board decision. Therefore, the Board finds that new and material evidence has not been presented sufficient to reopen the Veteran's claims of entitlement to service connection for diabetes mellitus. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Increased Rating Psychiatric Disorder The Veteran contends that his service-connected psychiatric disorder warrants an initial rating higher than 30 percent. During a June 2016 VA examination, the Veteran reported that he had been divorced twice and married his current wife in 1990. He had one child from his first marriage and two children from his second marriage. He reported that he worked various jobs since his discharge from service and retired in 2008. He endorsed depressed mood, anxiety, mild memory loss, such as forgetting names, directions, or recent events. He denied suicidal ideation. The examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depressed mood. The examiner summarized the Veteran's level of occupational and social impairment as occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. VA outpatient treatment reports indicate that the Veteran was reported to be alert and oriented in three spheres and he endorsed anxiety and depression at times. The Board finds that an initial rating in excess of 30 percent is not warranted. In this regard, the Veteran has not demonstrated occupational and social impairment with reduced reliability and productivity. The Veteran's psychiatric disorder has not been manifested by flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships. The Veteran endorsed depressed mood, anxiety, mild memory loss, such as forgetting names, directions, or recent events. However, those symptoms were not severe and there is no indication from the record that the Veteran was not able to function appropriately most of the time. He was reported to have a spouse and children and there is no indication from the record that the Veteran's PTSD resulted in any difficulty with his job prior to his retirement. As such, a higher rating is not warranted for a psychiatric disorder at any time during the time period on appeal. 38 C.F.R. § 4.130, Diagnostic Code 9410. Accordingly, the Board finds that the benefit-of-the-doubt rule is not applicable as the evidence is not in approximate balance, and entitlement to an initial rating in excess of 30 percent for a psychiatric disorder is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Earlier Effective Dates - Psychiatric Disorder, Cervical Spine Disability, Left Ankle Disability, Lumbar Spine Disability, and Left and Right Lower Extremity Radiculopathy On May 11, 2016, the Veteran filed a request to reopen previously denied claims for a psychiatric disorder, a cervical spine disability, a left ankle disability, and a lumbar spine disability. In a July 2016 rating decision, the AOJ granted service connection for a psychiatric disorder, a cervical spine disability, a left ankle disability, a lumbar spine disability, and left and right lower extremity radiculopathy as secondary to a lumbar spine disability all effective May 11, 2016. The Veteran appealed, requesting an effective date in 2008 for the grants of service connection. In this case, the issues on appeal were previously before the AOJ and Board on multiple occasions. The claim for service connection for a psychiatric disability (claimed as depression and posttraumatic stress disorder) was initially denied in a November 2008 rating decision. He was notified of the decision and his appellate rights; however, he did not appeal the decision. Furthermore, new and material evidence was not received within one year of the decision. Therefore, the decision is final. 38 C.F.R. § 20.1103. Following the AOJ's final November 2008 rating decision, the Veteran filed a request to reopen the claim for a psychiatric disorder in June 2012, which was denied in a December 2012 rating decision. He was notified of the decision and his appellate rights; however, he did not appeal the decision. Furthermore, new and material evidence was not received within one year of the decision. Therefore, the decision is final. 38 C.F.R. § 20.1103. The claims for service connection for a cervical spine disability and left ankle disability were initially denied in a November 2006 rating decision. He was notified of the decision and his appellate rights; however, he did not appeal the decision. Furthermore, new and material evidence was not received within one year of the decision. Therefore, the decision is final. 38 C.F.R. § 20.1103. Following the AOJ's final denial in November 2006, the Veteran filed a request to reopen claims for service connection for cervical spine and left ankle disabilities in January 2008, which was denied in a May 2008 rating decision. The Veteran appealed and the Board reopened the claims and remanded the issues in March 2011. A final decision denying the claims for service connection for a cervical spine and left ankle disability was issued in August 2014. The evidence does not indicate that the decision was returned as undeliverable or that the Veteran requested reconsideration of the decision. Therefore, Board's August 2014 decision was final as of the date of issuance. 38 C.F.R. § 20.1100. The claim for service connection for a lumbar spine disability was initially denied in a May 2008 rating decision. The Veteran appealed, and the Board remanded the issue in March 2011. A final decision denying the claim for service connection for a lumbar spine disability was issued in August 2014. The evidence does not indicate that the decision was returned as undeliverable or that the Veteran requested reconsideration of the decision. Therefore, Board's August 2014 decision was final as of the date of issuance. 38 C.F.R. § 20.1100. Generally, and 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. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002). In the Sears case, the United States Court of Appeals for Veterans Claims (Court) explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400(q), means a claim to reopen a previously and finally decided claim. The Board has thoroughly reviewed the evidence of record between the December 2012 rating decision and May 11, 2016 (with regard to the claim for a psychiatric disability), and between the August 2014 Board decision and May 11, 2016 (with regard to the claims for a cervical spine, left ankle, and lumbar spine disabilities), to determine whether any evidence could serve as an informal claim in order to entitle the Veteran to an earlier effective date for psychiatric disorder and cervical spine, left ankle, and lumbar spine disabilities. However, no document submitted during that time period indicates an intent to pursue a claim of service connection for those disabilities. As to the claims for service connection for left and right lower extremity radiculopathy, the Veteran has never claimed entitlement to service connection for those disabilities and they were granted in conjunction with the claim for a lumbar spine disability. The Board notes that to the extent that the Veteran may have had symptoms and sought medical treatment for his claimed disabilities prior to May 11, 2016, the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Brannon v. West, 12 Vet. App. 32, 35 (1998); Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Based on the foregoing, the Board finds that an effective date prior to May 11, 2016, for a psychiatric disorder, a cervical spine disability, a left ankle disability, and a lumbar spine disability is not warranted. REASONS FOR REMAND With regard to the claim for an earlier effective date for left upper extremity radiculopathy, in August 2016, the Veteran submitted a timely notice of disagreement (NOD) with a July 2016 rating decision that granted entitlement to service connection left upper extremity radiculopathy, effective, May 11, 2016. A review of the record shows that the Veteran has not been issued a SOC addressing this issue. Where a NOD has been filed with regard to an issue, and a SOC has not been issued, the appropriate Board action is to remand the issue for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). Therefore, the matter is remanded for issuance of a SOC. With regard to the claim for service connection for a left hip disability, the Veteran contends that a left his disability was either caused or aggravated by his service-connected left ankle disability. The Veteran was afforded a VA examination in October 2016 at which time he reported that his left hip condition began shortly after his left ankle injury in service and increased in severity since that time. The examiner opined that there was no diagnosis for the left hip and left hip pain was less likely than not proximately due to or the result of the service-connected left ankle disability. When VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. In this case, the examiner failed to conduct any diagnostic testing, did not indicate whether the left hip pain resulted in any functional impairment, and failed to consider whether the left hip condition was aggravated by the service-connected left ankle disability. As such, the examination report as it stands is not adequate for adjudication purposes. Therefore, the Veteran should be afforded another VA examination to address the discrepancies noted. Barr v. Nicholson, 21 Vet. App. 303 (2007) With regard to the claim for service connection for right upper extremity radiculopathy, the claim was denied because there was no confirmed diagnosis of a right upper extremity disability based on a June 2016 VA examination and other medical evidence associated with the claims file. Subsequent to an August 2017 SOC, the Veteran submitted an electromyography (EMG) performed by R. Webb, M.D, in June 2017. The EMG indicates that the Veteran had possible bilateral C5 radiculopathy with chronic features. In light of the June 2017 EMG, the Veteran which suggests that the Veteran might have a right upper extremity radiculopathy, the Board finds that another examination should be accomplished to determine whether the Veteran has a current right upper extremity radiculopathy. The matters are REMANDED for the following action: 1. Issue a statement of the case on the issues the effective date assigned for the Veteran's service-connected left upper extremity radiculopathy. Inform the Veteran of the requirements to perfect an appeal of those issues. If the Veteran perfects an appeal, return the matter to the Board. 2. Schedule the Veteran for a VA examination of the left hip. Any necessary diagnostic testing, to include X-rays, should be accomplished. The examiner must opine whether the Veteran's left hip condition is at least as likely as not proximately due to or aggravated beyond its natural progression by his service-connected left ankle disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. If there is left hip pain, even if there is no identified underlying pathology, the examiner must indicate whether the left hip pain at least as likely as not results in functional impairment. If there is functional impairment from the hip pain, then the examiner must opine whether the hip pain is at least as likely as not caused or aggravated beyond its natural progression by the Veteran's service-connected left ankle disability. The examiner's report must include a complete rationale for the opinion. 3. Schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the nature and etiology of any right upper extremity disability that may be present. The claims file must be made available to, and reviewed by the examiner. Any indicated studies should be performed. Based on the examination results and a review of the record, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or better) that any currently present right upper extremity disability was caused or aggravated by treatment for the Veteran's service-connected cervical spine disability. A rationale for all opinions expressed must be provided. 4. Confirm that VA examination reports and all medical opinions provided comport with this remand and undertake any other development determined to be warranted. 5. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Cryan, 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.