Citation Nr: 22017168 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 14-99 825A DATE: March 24, 2022 ORDER Entitlement to an earlier effective date of April 9, 2007, but not earlier, for service connection for insomnia, associated with status post left inguinal hernia, is granted. REMANDED Entitlement to an initial rating for a right ankle disability in excess of 20 percent as of June 22, 2021, is remanded. Entitlement to an initial rating for a right ankle disability in excess of 10 percent, as of February 1, 2021, to June 21, 2021, is remanded. Entitlement to an initial rating for a right ankle disability in excess of 10 percent, as of May 27, 2014, to December 3, 2020, is remanded. Entitlement to an initial rating for a right ankle disability in excess of 0 percent, prior to May 27, 2014, is remanded. Entitlement to an initial rating in excess of 0 percent for a right ankle scar is remanded. Entitlement to an initial rating for a low back disability in excess of 40 percent, as of June 22, 2021, is remanded. Entitlement to an initial rating for a low back disability in excess of 10 percent, from June 22, 2004, to June 21, 2021, is remanded. Entitlement to an initial rating in excess of 20 percent for femoral nerve radiculopathy of the left lower extremity is remanded. Entitlement to an initial rating in excess of 20 percent for sciatic nerve radiculopathy of the left lower extremity is remanded. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to October 28, 2018, is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for service connection for residuals of a left inguina hernia on April 9, 2007. 2. The record indicates that the Veteran experienced both sleeplessness and service-connected neuralgia pain at the time of the filing of the April 9, 2007, claim. 3. As the Veteran experienced insomnia at the time of the filing of the claim for service connection for a hernia, claim and insomnia was granted as a separate rating for hernia symptomatology, the effective date for the grant of service connection for insomnia is April 9, 2007, the date of the filing of the claim. CONCLUSION OF LAW The criteria for entitlement to an earlier effective date of April 9, 2007, but not earlier, for the grant of service connection for an insomnia disability, associated with status post left inguinal hernia, prior to July 14, 2015, have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156(c), 3.816(c). REASONS AND BASES FOR FINDINGS AND CONCLUSION Entitlement to an earlier effective date prior to July 14, 2015, for insomnia, associated with status post left inguinal hernia Generally, the effective date for service connection is 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 U.S.C. § 5110; 38 C.F.R. § 3.400. A veteran may have separate ratings under different diagnostic codes for the same injury; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran's service medical records indicate reports of sleeplessness. The Veteran incurred a hernia during service and, in December 2005, underwent a left inguinal herniorrhaphy. The Veteran separated from active duty service in April 1991. The Veteran filed a claim for service connection for residuals of a hernia procedure on April 9, 2007. VA granted the Veteran's claim in an April 2008 rating decision and, subsequently, the Veteran appealed the initial rating assigned for the hernia procedure to the Board. At a July 2015 VA examination, the Veteran told the VA examiner that he was "sometimes unable to sleep due to [left] groin pain," due service-connected hernia residuals. At a November 2016 VA examination, the Veteran reported having difficulty sleeping due to left groin pain caused by his service-connected hernia residuals. The examiner opined that the Veteran's had an insomnia disability that was at least as likely as not related to pain caused by service-connected hernia residuals. In a November 2016 VA medical opinion, an additional VA examiner diagnosed post-herniorrhaphy neuralgia, resulting in left groin pain. The examiner indicated that the pain disability had most likely started prior to April 9, 2007, the date of the filing of the claim for service connection for residuals of a hernia. VA subsequently established service connection for the post-herniorrhaphy neuralgia, effective April 9, 2007, the date of the filing of the claim for residuals of a hernia. VA established a separate rating for insomnia, associated with service-connected hernia residuals, effective July 14, 2015, the date of the examination at which he reported sleeplessness caused by hernia pain. The Veteran subsequently appealed, stating that he had experienced insomnia related to hernia pain since service. As the Veteran did not file the claim for service connection for a hernia disability within one year of his April 1991 separation from service, the effective date for a separate rating for insomnia arising from the grant of service connection for hernia residuals must be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board notes that the Veteran has a diagnosed nonservice-connected sleep apnea disability of lengthy duration. Moreover, the Veteran did not report having difficulties sleeping solely due to hernia pain until the date of the July 14, 2015, VA medical examination. However, viewing the evidence in the light most favorable to the Veteran, the Veteran reported having difficulty sleeping prior to the April 9, 2007, filing of the claim for service connection for hernia residuals. The Veteran subsequently was diagnosed with a pain disability associated with the hernia and insomnia related to that pain disability. Although the Veteran also experienced sleeplessness due to a separate sleep apnea disability, the record does not contain sufficient evidence to allow the Board to differentiate between the Veteran's service-connected insomnia and non-service-connected sleep apnea symptoms. Therefore, the Board finds that the Veteran's insomnia, associated with his service-connected hernia residuals, predated the April 9, 2007, filing of a claim for service connection for residual of a hernia, and that one of those residuals was an insomnia disability. That claim remained pending until service connection for insomnia was established. Therefore, the earliest effective date allowed for the grant of service connection is the date of the filing of the claim. Therefore, an effective date of April 9, 2007, but not earlier, for the grant of service connection for insomnia, associated with a residuals of a hernia, is granted. The Board finds that the weight of the evidence is against the assignment of any earlier effective date. There is no reasonable doubt to resolve in favor of the Veteran and the claim for any earlier effective date must be denied. REASONS FOR REMAND 1. Entitlement to an initial rating for an ankle disability in excess of 20 percent as of June 22, 2021, is remanded. 2. Entitlement to an initial rating for an ankle disability in excess of 10 percent, as of February 1, 2021, to June 21, 2021, is remanded. 3. Entitlement to an initial rating for an ankle disability in excess of 10 percent, as of May 27, 2014, to December 3, 2020, is remanded. 4. Entitlement to an initial rating for an ankle disability in excess of zero percent, prior to May 27, 2014, is remanded. 5. Entitlement to an initial rating in excess of 0 percent for a right ankle scar is remanded. A June 2021 Board decision granted an earlier effective date, prior to October 25, 2006, for a right ankle disability, assigning an effective date of June 28, 1977. As a result of that Board decision, the AOJ assigned a 0 percent rating for a right ankle disability from June 28, 1977, to May 27, 2014. Throughout the pendency of the appeal, especially for the period prior to May 27, 2014, the Veteran has maintained that a right ankle disability was of greater severity than contemplated by the currently assigned ratings. The Veteran was not provided with a VA examination to determine the severity of an ankle disability until May 27, 2014, more than two and a half decades after the effective date assigned for the right ankle disability. During that period, the Veteran reported experiencing pain and discomfort in the ankle and underwent ankle surgery in August 1995. The Board further notes that, in that May 2014 examination report, the VA examiner did not provide any findings regarding the Veteran's range of motion in weightbearing and non-weightbearing. Therefore, the examination would be considered inadequate. Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, in a subsequent September 2015 VA medical examination report, a VA examiner reported being unable to determine the functional limitation on motion of the ankle the Veteran would experience during flare-ups, because the Veteran was currently not experiencing any flare-ups. Therefore, the Board finds that examination inadequate. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board notes that the May 2014 and September 2015 VA examination reports were the only reports created prior to June 22, 2021, the date the Veteran underwent a right ankle peroneal tendon repair surgery. In certain instances, when there is an absence of medical evidence regarding the severity of a disability during a lengthy period of time, a retroactive medical evaluation may be warranted. Chotta v. Peake, 22 Vet. App. 80 (2008). Because the Veteran is still seeking a higher initial rating for his right ankle disability, a remand is necessary to determine the current severity of his right ankle disability. In addition to offering findings regarding the current severity of the Veteran's disability, having interviewed the Veteran and reviewed the claims file, the examiner should also provide a retroactive opinion regarding the severity of the Veteran's right ankle, to include any limitations due to flare-ups, during the pendency of the appeal. The examiner should also consider any previous right ankle surgeries and whether any convalescence ratings may have been warranted. Remand is necessary for examination and opinions. 6. Entitlement to an initial rating for a low back disability in excess of 40 percent, as of June 22, 2021, is remanded. 7. Entitlement to an initial rating for a low back disability in excess of 10 percent, from June 22, 2004, to June 21, 2021, is remanded. 8. Entitlement to an initial rating of 20 percent for femoral nerve radiculopathy of the left lower extremity is remanded. 9. Entitlement to an initial rating of 20 percent for sciatic nerve radiculopathy of the left lower extremity is remanded. Of note, the Board recently granted the Veteran's claim for an earlier effective date of June 22, 2004, for service connection for a low back disability. As a result of that, the AOJ assigned a 10 percent rating for the unrated period. Throughout the pendency of the appeal, especially for the period prior to June 22, 2021, the Veteran has maintained that a low back disability was of greater severity than contemplated by the currently assigned ratings. The Veteran was not provided with a VA examination to determine the severity of a low back disability until May 2014, nearly a decade after the June 22, 2004, effective date assigned for service connection for the low back disability. The Board further notes that, in that May 2014 examination report, the VA examiner did not provide any findings regarding the Veteran's range of motion in weightbearing and nonweight-bearing. Therefore, the examination would is inadequate. Correia v. McDonald, 28 Vet. App. 158 (2016). Moreover, in a subsequent September 2015 VA medical examination report, a VA examiner reported being unable to determine the severity of limitations the Veteran would experience during flare-ups of his disability, because the Veteran was currently not experiencing any flare-ups. Therefore, the Board finds that examination inadequate. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board notes that the May 2014 and September 2015 VA examination reports are the only reports created prior to June 22, 2021. Additionally, the record contains lay evidence submitted by the Veteran's employer, suggesting that the Veteran's low back disability was of such severity as to make him unable to perform any amount of lifting, pushing, prolonged standing, or, occasionally, sometimes sitting, without causing extreme pain while working. In certain instances, when there is an absence medical evidence regarding the severity of a disability during a lengthy period of time, a retroactive medical evaluation may be warranted. Chotta v. Peake, 22 Vet. App. 80 (2008). Because the Veteran is still seeking a higher initial rating for his low back disability, a remand is necessary to determine the current severity of his low back disability. In addition to offering findings regarding the current severity of the Veteran's disability, having interviewed the Veteran and reviewed the claims file, the examiner should also provide a retroactive opinion regarding the severity of the Veteran's low back disability, to include any limitations due to flare-ups, during the entirety of the rating period, to especially include the period prior to June 22, 2021. Remand is necessary for examination and opinions. 10. Entitlement to total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to October 28, 2018, is remanded. Because the remaining issues are being remanded for further development, they are inextricably intertwined with the issue of entitlement to TDIU, prior to October 28, 2018. Therefore, the issue of TDIU must be remanded as well. Additionally, the record indicates that the Veteran last worked in March 2016. The Veteran has maintained that, because of the service-connected disabilities, he had great difficulty performing his job due to an inability to walk, sit, or stand for any period. The record contains a July 2015 statement, written by a representative of the Veteran's employer, indicating that, although the Veteran currently was working full-time, his coworkers had taken it upon themselves to fulfill many of his duties, presumably due to his physical difficulties. The employer indicated that the Veteran was not performing to company expectations, but they would allow the Veteran to continue working until December 31, 2015, so that he would not be penalized when he applied for Social Security Administration benefits. In a March 2020 employer statement, another representative of the employer indicated that the Veteran had to retire in March 2016 due to the service-connected disabilities. The representative stated that any amount of lifting, pushing, prolonged standing, and sometimes sitting caused the Veteran extreme pain. The representative stated that the Veteran was unable to perform the job that he had been hired to do. The representative indicated that, having decided to retire, the Veteran only stayed long enough to train the representative to take over at his position. The Board notes that the employer's statements suggest that, although the Veteran maintained full time employment, he was working in an environment best described as sheltered employment in which he was allowed to work in a protected environment due to his handicaps. In reviewing the Veteran's claim for TDIU, consideration should be given to the possibility that the Veteran was working in a state of sheltered employment. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA orthopedic examination to assist in determining the current and past severity of service-connected right ankle and low back disabilities during the rating period. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. In reviewing the record, the examiner should note the records regarding treatment for the right ankle for the entire rating period, beginning on June 28, 1977, to include those noting the Veteran's need for surgical treatment in August 1995; and treatment for the low back disability, with the attendant radiculopathy disabilities, for the entire rating period, beginning on June 22, 2004. The examiner should also note the submissions from the Veteran and his employers, noting the difficulty caused by the Veteran's service-connected disabilities in performing his job. In writing the required findings, the examiner should, as best as possible, provide both current findings and retrospective findings for the entirety of the rating periods for each disability, based on the medical and lay evidence of record. After a review of the records, an interview with the Veteran, and a physical examination, the examiner should do the following: (a.) Provide ranges of motion for weight-bearing and non-weight-bearing and passive and active motion of both ankles and the lumbosacral spine. (b.) State whether there is any additional loss of right ankle and low back function due to painful motion, weakened motion, excess motion, fatigability, incoordination, or on flare up. (c.) Elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups for each joint, and opine as to the additional functional loss on flare up. (d.) State what nerves are involved in the left lower extremity radiculopathy and opine as to the severity of the involvement and describe the symptoms. State when left lower extremity radiculopathy was first manifested based on review of the medical record. (e.) Examine any scars resulting from the Veteran's right ankle surgery, and make comments as to their size and nature, to include describing the measurements of the scars and whether they are superficial, unstable, discolored, painful, or tender on palpation. (f.) To the extent possible, the examiner should identify any symptoms and functional impairments due to each disability alone and discuss the effect of each of the Veteran's disabilities on any occupational functioning and activities of daily living. (g.) Provide a retrospective opinion regarding the severity of the right ankle disability since June 28, 1977. Note any surgeries and whether any convalescence would have been needed due to those surgeries. Opine whether it is at least as likely as not that the right ankle became painful on motion prior to May 27, 2014. Consider the lay statements of the Veteran and medical evidence of record in providing the opinion. (h.) Provide a retrospective opinion regarding the severity of a lumbar spine disability since June 22, 2004. Opine whether there have been any incapacitating episodes of intervertebral disc syndrome since June 22, 2004, and the number of weeks each 12 month period. Incapacitating episodes are periods of acute signs and symptoms requiring treatment by a physician and bed rest prescribed by a physician. Opine whether the lumbar spine disability limited flexion to 60 degree or less, or 30 degrees or less, at any time since June 22, 2004. (i.) Opine as to the date that the Veteran first became unable to secure or follow a substantially gainful occupation due to the service-connected disabilities. 2. Issue a rating decision to effectuate the earlier effective date for service connection for insomnia awarded in this decision. 3. Then, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to TDIU, prior to October 28, 2018. In assessing the issue of entitlement to TDIU, consider the evidence suggesting that the Veteran was engaged in sheltered employment, as evidenced by the July 2015 and March 2020 statements submitted by the employer. If the criteria of 38 C.F.R. § 4.16(a) are not met, request an opinion from the Director of the Compensation Service regarding entitlement to TDIU under 38 C.F.R. § 4.16(b). If any decision is 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. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.M. Gillett 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.