Citation Nr: 22052182 Decision Date: 09/13/22 Archive Date: 09/13/22 DOCKET NO. 21-00 291A DATE: September 13, 2022 ORDER Entitlement to an effective date earlier than October 3, 2011, for the grant of service connection for the Veteran's back disability, is denied. Entitlement to an effective date of October 3, 2011, but no earlier, for the grant of service connection for the Veteran's right lower extremity radiculopathy disability, is granted. Entitlement to an effective date earlier than August 22, 2011, for the grant of service connection for an acquired psychiatric disability, claimed as post-traumatic stress disorder (PTSD), is denied. Entitlement to an effective date earlier than August 22, 2011, for basic eligibility of Dependents' Educational Assistance (DEA) under Chapter 35, Title 38 of the United States Code, is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for the Veteran's back disability, and a rating in excess of 20 percent from November 17, 2016, is remanded. Entitlement to an initial disability rating in excess of 10 percent for the Veteran's right lower extremity disability, and a rating in excess of 20 percent from November 17, 2016, is remanded. FINDINGS OF FACT 1. A claim for service connection for a back disability, either express or implied, was not received until October 3, 2011. 2. The issue of secondary service connection for right lower extremity radiculopathy was reasonably raised during the processing of the October 3, 2011, claim filed for service connection of the primary disability of a back condition 3. A claim for service connection for an acquired psychiatric disability, either express or implied, was not received until August 22, 2011. 4. Eligibility for DEA benefits under 38 U.S.C. Chapter 35 arose on August 22, 2011. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 3, 2011, for service-connection of a back disability, have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.106, 3.155, 3.158, 3.400, 3.655 (2021). 2. The criteria for an effective date of October 3, 2011, but no earlier, for service-connected right lower extremity radiculopathy, as secondary to the service-connected back disability, is warranted. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.106, 3.155, 3.158, 3.400, 3.655 (2021). 3. The criteria for an effective date prior to August 22, 2011, for service-connection of an acquired psychiatric disability, have not been met. 38 U.S.C. § 5110 (2018); 38 C.F.R. §§ 3.106, 3.155, 3.158, 3.400, 3.655 (2021). 4. The criteria for an effective date earlier than August 22, 2011, for the award of basic eligibility to DEA benefits under Chapter 35 are not met. 38 U.S.C.A. §§ 5101, 5107, 5110 (2018); 38 C.F.R. §§ 3.151, 3.157, 3.341, 3.400 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1979 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2016 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2022, the Veteran testified in a hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is of record. The present issues were previously before the Board in April 2020, at which time they were remanded for additional development. They have been returned to the Board for further appellate action. Earlier Effective Date Service Connection Back Disability The Veteran seeks an effective date prior to the currently assigned date of October 3, 2011, for service connection of his back disability. Primarily, the Veteran argues that a claim filed in June 1996 should be liberally construed as encompassing a claim for a back disability. He also argues that he did not receive proper notice of the resulting March 1997 rating decision, therefore, he asserts, the claim remained open. In support of his position, the Veteran also posits that had he received proper notice of the March 1997 rating decision that VA would have been in receipt of additional VA treatment records from that time that would have otherwise implicated a claim for service connection of a back disability. See April 2022, Hearing Transcript. The primary issue in this case is whether the scope of the Veteran's June 1996 claim can be read as reasonably encompassing a claim for a back disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a claim pursued by a claimant includes any diagnosis that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). In June 1996, the Veteran filed a formal claim for service connection for four specific disabilities: 1) bilateral knee; 2) left foot; 3) right hip; and 4) migraine headaches. See June 1996, VA Form 21-526. Notably, the claim application completed by the Veteran contained an incomplete mailing address. As was later rectified through ongoing mailing attempts, the mailing address listed originally by the Veteran did not include an apartment number. The Veteran's argument of failing to be notified of VA communications is addressed in turn below. However, the Board must first assess whether the 1996 claim implicated consideration of service connection for a back disability. Precedential decisions discussing the scope of a veteran's claim are presented in the cases of Boggs v. Peake, as well as the aforenoted case of Clemons v. Shinseki. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (holding that, "claims based on separate and distinctly diagnosed diseases or injuries must be considered separate and distinct claims." Id. at 1336). Most recently, the cases of Sellers v. Wilkie and Murphy v. Wilkie, have added additional analysis and discussion to the issue of determining the scope of a veteran's claim. Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020); Murphy v. Wilkie, 983 F.3d 1313 (Fed. Cir. 2020) (discussing the distinctions between application of the Boggs analysis versus the Clemons analysis regarding evaluation of the scope of a claim). The Board finds that the relevant analysis, in this case, is undertaken in consideration of the standard set forth in Clemons. In that case, the Court of Appeals for Veterans Claim (Court), explained that the VA, "...should construe a claim based on the reasonable expectations of the non-expert, self-represented claimant and the evidence developed in processing that claim." Clemons, 23 Vet. App. at 5. In Clemons, the appellant had filed a claim for a mental disability, identifying PTSD. However, upon examination, he was not diagnosed with PTSD, but with schizoid personality disorder. The claim was denied by the RO as well as the Board, and on appeal, the Court reversed the decision, finding that the claim must be considered based upon all reasonable disabilities that the appellant would have expected to have included in his claim. Id. In the case of Sellers v. Wilkie, the Federal Circuit addressed a claim in which the appellant argued that the holding of Clemons applied to a formal claim for service connection stated as one, "...for disabilities occurring during active duty service," when such claim was also accompanied by service treatment records depicting a chronic mental health disability diagnosis. Sellers, 965 F.3d at 1332. The appellant in Sellers had filed a formal claim in 1996 seeking service connection for injuries to his leg, knee, back, finger, and ears. Id. at 1331. In the "remarks" section of the claims form, he included the general language of also claiming "disabilities occurring during active duty service." Id. The appellant argued that the regulation in effect in 1996 required that his "remarks" be considered as a formal claim for major depressive disorder (MDD), even though his claim in no way referred to MDD. Such argument arose after the appellant filed an informal claim in September 2009 seeking service connection for PTSD. Id. The Board applied Clemons and granted service connection for an acquired psychiatric disability after the Veteran was diagnosed with MDD but not PTSD and awarded an effective date of September 2009. The Board specifically found that the formal claim filed in 1996 "did not include any claim for psychiatric disorder or problems that could be reasonably construed as a claim for service connection for psychiatric disability." Id. at 1332. The appellant appealed that decision to the Court, which reversed the Board's decision. The Court found that the Board erred in not identifying the psychiatric disability claim as being "reasonably identifiable" from the 1996 filing, when medical records in the RO's possession at that time showed an undisputed in-service diagnosis of a psychiatric disability: thereby holding that a "legally sufficient formal claim can be stated despite the absence of any statement in the claim that could be sympathetically understood to identify sickness, disease, or injury for which benefits are sought." Id. at 1335. The Federal Circuit reversed the Court's ruling, citing to Epps v. Gober , 126 F.3d 1464, 1468 (Fed. Cir. 1997) as establishing the validity of the relevant regulatory scheme at the time which required "...that a veteran's legally sufficient claim provide information, even at 'a high level of generality,' to identify the sickness, disease, or injury for which benefits are sought." Id. at 1337. The appellant further argued that the VA failed in assisting to develop the claim, as the 1996 filing had specified at least one specific condition for which benefits were sought, thus invoking the VA's duty to assist. The Federal Circuit rejected that argument explaining that such an interpretation would impose an untethered duty upon the VA for claims development when the duty to assist does not commence until the VA can comprehend "the current condition on which the claim is based." Id. at 1338. Turning to the case at hand, the Board finds that the Federal Circuit's holding in Sellers, discussing the scope of a claim pursuant to Clemons, is directly on point. Sellers, 965 F.3d at 1332. Here, the Veteran filed a claim in June 1996 which did not include a claim for a back disability. The closest claim specified in that filing was for service connection of a right hip disability. There was no mention of back injury, back pain, or otherwise reference to any spinal deficiency. Anatomically, the hip is a distinct region of the musculoskeletal system from the spine. Although it is recognized that injury to one area of the musculoskeletal system can result in secondary injury to another, only when such secondary claim is reasonably raised during the course of adjudicating a complete claim on a primary disability, is the VA's duty to consider and develop such secondary claim invoked. See Wilson v. McDonough, 35 Vet. App. 103 (2022). Such is not the case here, where there is no assertion of an inter-related nature of any hip disability to a back disability or argument of any type of a secondary condition. The case of Murphy v. Wilkie, discussed the holding in Sellers with the Federal Circuit further explaining that the application of Clemons "...does not require that the VA embark on a fishing expedition to explore any potential condition which the record may support as a basis for benefits, nor does the VA have to attempt to read the mind of the claimant; the VA need only explore those conditions which may be reasonably considered within the scope of the claim." Murphy, 983 F.3d at 1318 (citing Sellers, 965 F.3d at 1338). In keeping with such apt logic, in the instant case, specific claims for bilateral knees, right hip, and migraines, cannot be read to be all-encompassing of "any potential condition" which may somehow be related. Should all joints and musculoskeletal systems within those regions be considered? Should any claim for a knee joint automatically include consideration of ankle disabilities, or hip disabilities? Is it not possible for hip disabilities to arise without being incidental to a back injury? Are they not, at times, mutually exclusive? The Board highlights these suggestions to display the type of slippery slope that would ensue with such broad interpretation of the scope of a claim. Just because one joint connects to another does not mean that a specific claim for one includes a claim for all anatomically connected joints. Based upon the foregoing, the Board finds that the June 1996 claim did not include a claim for service connection for a back disability. In applying Clemons, the Board holds that the specific disabilities claimed of bilateral knee conditions, left foot, right hip, and migraine headaches, do not reasonably encompass a claim for a back disability. Clemons, 23 Vet. App. at 5. The Veteran has also argued that had he received proper notice of the rating decision at that time that the VA would have been in receipt of medical records which would have demonstrated a back disability. Such argument is directly contrary to the Federal Circuit's explanation in Sellers, as discussed above. In Sellers, the appellant's record at the time of his 1996 filing, demonstrated an unambiguous, diagnosed, chronic mental health disability. Sellers, 965 F.3d at 1335. Even still, the Federal Circuit rejected such a broad and sympathetic reading of a claim, where the appellant had specifically listed "disabilities occurring during active duty service" on his claims form, and the records reviewed at the time of denial included those showing an in-service mental health disability diagnosis. Id. The instant case does not even present with such a favorable filing or records. The Veteran's claim did not include any such generalized claim of all identifiable disabilities. Furthermore, unlike the Sellers case, although the Veteran argues ongoing back symptoms since his separation from service, further development of the record demonstrates that a back disability was not medically diagnosed, even according to the Veteran's private expert's report, until 2010. See October 2016, Private Medical Opinion (discussing the December 1980 injury and waxing and waning course of symptoms until diagnosis in 2010). Indeed, the Veteran's own reporting of medical symptoms and disabilities in his Social Security Administration (SSA) application for benefits from 2003 is completely devoid of any reference to a back disability, symptoms, or diagnosis. Moreover, private treatment records from 2010 depict that the Veteran reported to his treating physician that back symptoms had started merely 3 weeks earlier. Medical records from May and June 1996 depict that the Veteran sought treatment in May 1996, due to having fallen at home on his right arm. There is no mention of back pain or treatment, complaints of symptoms, or any reference to a back disability at all. At that time, the Veteran received orthopedic treatment for a broken finger. Finally, to this point, it has long been held and detailed within the regulations, that medical reports are not sufficient to state an original informal claim for benefits. See 38 C.F.R. § 3.155(a) (1995); see also MacPhee v. Nicholson, 459 F.3d 1323, 1324 (Fed. Cir. 2006). The Board recognizes and has considered the Veteran's statements regarding ongoing symptoms, however, the existence of continuity of symptoms does not establish an earlier diagnosis nor does it suffice for establishing the existence of a previous claim being filed. The Board also recognizes the notices of returned mail within the Veteran's claims file, noting that mailings from August, October, and December 1996, had been returned as undeliverable, with one of them noting the corrected address to include "Apt. A." However, those are the only returned mailings of record and an April 1997 mailing of VA form 21-8947, which included the information of the date of the Veteran's claim, file number, rating decision date of March 27, 1997, and corrected address for the Veteran, including apartment number, indicates that the rating decision was mailed to the corrected address. Indeed, the notification of the rating decision, included the full address with apartment number and there is no evidence that it was returned undeliverable. In the communication to the VA, the Veteran provided an address, omitting an apartment number, and merely listing, "Apt." but not following it with any specific designation. See June 1996, VA Form 21-526; VA Form 21-22. From the date of mailing of the March 1997 rating decision to the August 22, 2011, receipt of the Veteran's VA Form 21-0820, the record is completely devoid of any communication from the Veteran or returned mail notices. Although the Veteran asserts that he did not receive notice of the rating decision, the Board finds that the presumption of regularity applies and has not been rebutted. There is no showing that the March 1997 rating decision was returned as undeliverable nor has the Veteran asserted or does the record demonstrate, that there were other possible and plausible addresses available to the Secretary at the time of the BVA decision. Davis v. Principi, 17 Vet. App. 29, 37 (2003). Moreover, the Veteran's duly appointed representative was copied on the communication. The Court has made clear that "[a]n assertion of nonreceipt of a VA decision alone does not establish the 'clear evidence' needed to rebut the presumption of regularity of the mailing." See Crain v. Principi, 17 Vet. App. 182, 186 (2003). See Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994) (holding that the VA is required only to mail notice to the latest address of record in order for the presumption of regularity to attach); see also Mason v. Brown, 8 Vet. App. 44, 55 (1995); see also Clemmons v. West, 206 F.3d 1401, 1403 (Fed. Cir. 2000) (holding that a claimant's statement of nonreceipt, standing alone, is not the type of clear evidence to the contrary which is sufficient to rebut the presumption of regularity in the administrative process). The Board also finds that because of the holding detailed above, the alleged non-receipt of the March 1997 rating decision, is of no consequence to the Veteran's claim for service connection of a back disability, because such a claim was not filed until October 3, 2011. To be clear, the record does not contain an express, or implied, claim for service connection for a back disability until October 3, 2011. See October 2011, VA Form 21-526. Generally, the effective date of an award of disability compensation based on an original claim shall 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. Unless specifically provided, the effective date will be assigned based on the facts as found. 38 C.F.R. § 3.400(a). Accordingly, the Board finds that given the facts presented, entitlement to an effective date prior to October 3, 2011, for service connection of a back disability, is not warranted. Earlier Effective Date Right Lower Extremity Radiculopathy The Veteran asserts that his service-connected disability of radiculopathy of the right lower extremity warrants an effective date earlier than October 22, 2014. The Board herein incorporates by reference the discussion above and applies it to the instant claim as well. Supra, pgs. 3-9. Given the foregoing, and the application of Clemons to the claim for service-connection for right lower extremity radiculopathy, the Board finds that the June 1996 claim does not reasonably encompass a claim for right lower extremity radiculopathy, for all of the reasons as stated above. However, in consideration of the recent holding in Wilson v. McDonough, and resolving reasonable doubt in favor of the Veteran, the Board finds that an effective date of October 3, 2011, is warranted for the effective date of service connection of right lower extremity radiculopathy. October 3, 2011, is the date of receipt of the claim for service connection of a back disability, which the Veteran's right lower extremity radiculopathy is service-connected as secondary to. An express claim was not filed for the disability, however, in reviewing the RO's favorable finding that right lower extremity radiculopathy is secondary to the Veteran's service-connected back disability, the Board notes that medical evidence of record establishes a diagnosis of the disability, as being related to the Veteran's back disability, as early as April 2010. See April 2010, VA Treatment Records. Private records also reference the diagnosis of right lower extremity radiculopathy as early as August 2010. See 2010, Private Treatment Records. In addition, there are various complaints of such symptoms as well as diagnoses relating the pain to the Veteran's back disability, throughout the record from 2010 forward. The Board recognizes that an April 2012 VA examination report, which was based upon review of the record as well as an in-person examination, did not diagnosis or otherwise identify right lower extremity radiculopathy. The Board finds the evidence for and against the claim is in approximate balance. Therefore, the benefit of the doubt must be resolved in the Veteran's favor. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). As such, the Board finds that the issue of secondary service connection for right lower extremity radiculopathy was reasonably raised during the processing of the October 3, 2011, claim filed for service connection of the primary disability of a back condition, and that an earlier effective date of October 3, 2011, is warranted. See Wilson v. McDonough, 35 Vet. App. 103 (2022). Earlier Effective Date Acquired Psychiatric Disability Although the Veteran asserts that an earlier effective date for an acquired psychiatric disability is warranted, during his hearing before the Board it was acquiesced that a claim for such disability was not filed until August 2011. See April 2022, Hearing Transcript. The Board herein incorporates by reference the discussion above and applies it to the instant claim as well. Supra, pgs. 3-9. Given the foregoing, and the application of Clemons to the claim for service-connection of an acquired psychiatric disability, claimed as PTSD, the Board finds that the June 1996 claim does not reasonably encompass the present claim. On August 22, 2011, the VA received the Veteran's intent to file a claim for PTSD and a left ankle disability. See August 22, 2011, VA Form 21-0820. On October 3, 2011, within one year of the intent to file being provided, the Veteran filed a fully completed claim. The December 2016 rating decision on appeal granted service connection, recharacterizing the claim as one for service connection of an acquired psychiatric disability, with an effective date of August 22, 2011. There is no argument made, nor is there any evidence of record, which suggests that a claim for service connection for the Veteran's acquired psychiatric disability was received prior to the effective date of August 22, 2011. There was no previously filed or denied claim for such a condition, nor was the claim filed within a year of the Veteran's separation from service. 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 effective date earlier than August 22, 2011, for the grant of service connection for an acquired psychiatric disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Lynch v. McDonough, 21 F.4th at 776. Earlier Effective Date Dependents' Educational Assistance The Board's denial of an earlier effective date for the awards of service-connection outlined above, precludes the assignment of an effective date prior to August 22, 2011, for the award of DEA benefits. In this regard, for purposes of DEA benefits under 38 U.S.C. Chapter 35, the law relevant to the Veteran's current claim provides that basic eligibility exists where the Veteran was discharged from service under conditions other than dishonorable and has a total disability permanent in nature as a result of a service-connected disability. 38 U.S.C. § 3501(a)(1); 38 C.F.R. §§ 3.80 (a); 21.3021. With certain exceptions that are not applicable to the instant claim, the effective date for the grant of such award shall, to the extent feasible, correspond to effective dates for awards of disability compensation. 38 U.S.C. § 5113(a). A total disability may be assigned where the Veteran's service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the Veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Here, the currently assigned effective date of August 22, 2011, for basic eligibility for DEA benefits is directly related to the earliest award of service connection for the Veteran's acquired psychiatric disability, rated as 100 percent disabling. Thus, since eligibility for DEA benefits under 38 U.S.C. Chapter 35 is predicated on a finding of a total (100 percent) disability rating, entitlement to an effective date earlier than August 22, 2011 is precluded by law. See 38 U.S.C. §§ 3501 (a)(1), 5113(a); 38 C.F.R. §§ 3.807 (a), 21.3021. See also Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND Increased Rating Back and Right Lower Extremity Radiculopathy During the Veteran's April 2022 hearing before the Board, he testified that both his back and right lower extremity radiculopathy disabilities have worsened since the date of his last VA examinations. The Board notes that the Veteran was last afforded VA examinations related to these disabilities in 2016. Accordingly, the Board finds that a new VA examination is necessary. See, e.g., Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and private treatment records and associate them with the Veteran's claims file. 2. Then, schedule the Veteran for an examination by an appropriate clinician to evaluate the severity of his right lower extremity radiculopathy and back disability. The examiner is requested to review all pertinent records associated with the electronic claims file. All appropriate, studies, tests, and evaluations deemed necessary by the examiner should be performed. After a review of the claims file, the examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria. 3. Confirm that the VA examination report and all opinions provided comport with this remand and undertake any other development found to be warranted. (Continued on the next page) 4. Then, readjudicate the appeal. If a decision is adverse to the Veteran, issue a supplemental statement of the case and allow appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Sutherell, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.