judge_norm: STEVEN D REISS

text:
Citation Nr: 1736000
Decision Date: 08/30/17    Archive Date: 09/06/17

DOCKET NO.  13-18 324A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia

THE ISSUES

1. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the lumbosacral spine.

2. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the right knee.

3. Entitlement to an increased rating in excess of 10 percent for degenerative joint disease of the left knee.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

ATTORNEY FOR THE BOARD

M. Donohue, Counsel
INTRODUCTION

The Veteran served on active duty in the Army from July 1975 to October 1978, and from October 1979 to July 2002.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.

The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ).  VA will notify the Veteran if further action is required.

REMAND

For the following reasons, the Board finds that the appeal must be remanded to ensure that the Veteran is accorded full compliance with the statutory duty to assist.

The Veteran was last afforded a VA examination to determine the severity of his service-connected disabilities in July 2011.  During the pendency of his appeal, in Correia v. McDonald, 28 Vet. App. 158, 170 (2016), it was held that a VA examination evaluating the severity of a joint disability must record the results of motion testing "for pain on both active and passive motion [and] in weight-bearing and nonweight-bearing."  Inasmuch as the July 2011 VA examination is not in compliance with Correia, this matter must be remanded for a new examination.

In addition, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file.  See Bell v. Derwinski, 2 Vet. App. 611 (1992).

Accordingly, the case is REMANDED for the following action:

1.  The AOJ should take appropriate steps to contact the Veteran in order to have him identify the names and addresses of all health care providers who have treated him for the issues on appeal.  The Veteran should also be notified that he may submit evidence or treatment records to support his claim.

The Board is particularly interested any outstanding records of VA medical treatment (generated after the last treatment notes of record, currently August 2011).

The AOJ should attempt to obtain any such records.  All efforts to obtain such records should be documented in the claims folder.  All available records should be associated with the Veteran's VA claims folder.

2.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed his back and knee disabilities, the nature, extent, and severity of his back and knee symptoms, and the impact of these disabilities on his ability to work.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

3.  After completing the actions requested in items 1 and 2, schedule the Veteran for an examination(s) to determine the current severity of the service-connected degenerative joint disease of the lumbosacral spine, right knee, and left knee.  The claims file should be made available to the examiner for review, and all indicated testing should be performed in this regard.

Full range of motion testing must be performed where possible.  The joint(s) involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion of the opposite undamaged joint.  If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

With respect to the Veteran's lumbar spine disability, the examiner is asked to comment on whether the Veteran has radiculopathy, neuropathy, neuralgia, or other neurologic abnormalities associated with his lumbar spine disability.  If objective neurologic abnormalities are associated with the Veteran's lumbar spine disability, then the examiner must specify which nerves are involved, and the severity of the neurologic abnormality (e.g., severe, moderate, or mild).

With respect to the Veteran's right and left knee disabilities, the examiner is asked to describe any instability or subluxation of the knee.

All findings should be reported in detail.

4.  After undertaking any additional development deemed appropriate, and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's claims in light of any additional evidence added to the record.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. �� 5109B, 7112 (2014).

_________________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b) (2016).


series: legacy

judge_norm: MICHAEL E KILCOYNE

disposition: denied

condition: tinnitus

text:
Citation Nr: 1737000
Decision Date: 09/05/17    Archive Date: 09/19/17

DOCKET NO.  15-33 244	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire

THE ISSUES

1.  Entitlement to service connection for bilateral hearing loss.

2.  Entitlement to service connection for tinnitus.

REPRESENTATION

Veteran represented by:	Disabled American Veterans

WITNESSES AT HEARING ON APPEAL

Veteran, Veteran's Spouse

ATTORNEY FOR THE BOARD

S.N. Hunn, Associate Counsel

INTRODUCTION

The Veteran served on active duty from August 1960 to December 1963.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire.

A Board hearing was held in May 2017, a transcript of which is of record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2016).  38 U.S.C.A. � 7107(a)(2) (West 2014).

FINDINGS OF FACT

1.  The most probative evidence of record demonstrates that bilateral hearing loss was not shown during active military service, and there is no competent and credible evidence attributing the Veteran's bilateral hearing loss to his military service.

2.  Tinnitus was not shown during active military service, and the Veteran's lay statements concerning the presence of tinnitus are inconsistent.

CONCLUSIONS OF LAW

1.  The criteria for service connection for hearing loss have not been met.  38 U.S.C.A. �1131, 5107 (West 2014); 38 C.F.R. �3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016).

2.  The criteria for service connection for tinnitus have not been met.  38 U.S.C.A. �1131, 5107 (West 2014); 38 C.F.R. �3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Applicable Law and Regulations

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  See 38 U.S.C.A. �1110, 1131; 38 C.F.R. �3.303(a).

Establishing direct service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313   (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table).

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as organic diseases of the nervous system, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service.  See 38 U.S.C.A. �1101, 1112; 38 C.F.R. �3.307, 3.309.  In an October 4, 1995, opinion, VA's Under Secretary for Health determined that it was appropriate to consider high frequency sensorineural hearing loss an organic disease of the nervous system and therefore a presumptive disability.  However, this presumption is inapplicable in this case because the most probative evidence of record does not show that the Veteran manifested high frequency sensorineural hearing loss to a degree of 10 percent within one year from the date of termination of service.

For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent.  See 38 C.F.R. �3.385.  The threshold for normal hearing is from 0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss.  See Hensley v. Brown, 5 Vet. App. 155, 157 (1993).

In making its determination, the Board is obligated to weigh the credibility and probative value of lay evidence against the remaining evidence of record.  See King v. Shinseki, 700 F.3d 1339 (Fed. Cir. 2012); Kahana v. Shinseki, 24 Vet. App. 428, 433-34 (2011).  Lay evidence may be competent and sufficient evidence of a diagnosis or nexus if (1) the particular condition at issue is the type of condition that is within the competence or common knowledge of a layperson, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana, 24 Vet. App. at 433, n.4.  The Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person.  See Fountain v. McDonald, 27 Vet. App. 258, 274-75 (2015); see also Jandreau, 492 F.3d at 1376-77.

The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  Kahana, 24 Vet. App. at 433.  The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor.  Davidson, 581 F.3d at 1316.  Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).  Caluza v. Brown, 7 Vet. App. 498, 511 (1995).

A veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement.  Fagan v. Shinseki, 573 F.3d 1282, 1287-88(2009); see also Walker v. Shinseki, supra.  In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence.  Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. � 5107(b)).

II.  Analysis

(a) Bilateral Hearing Loss

The Veteran seeks service connection for bilateral hearing loss.  Specifically, he contends that he suffers from hearing loss as a result of exposure to loud noises while serving on active duty as a teletypist.

The Veteran has reported service noise exposure.  His military personnel records reflect that his primary specialty was a Communications Center Specialist.

The Veteran's service treatment records upon entry are silent as to any complaints, treatment or diagnosis of a hearing condition.  An August 1960 audiogram finding in his service treatment records indicates hearing thresholds in decibels of 25 at 500 Hz and 15 at 6000 Hz in the left ear, as well as 15 in the right ear.  The service treatment records also contain an undated audiogram that indicates hearing thresholds of 10dB at 500 Hz and 3000 Hz for the left ear, only.  Notably, upon separation, his audiometer results were reported as measuring 0db at 500-6000 Hz, bilaterally.  These findings are within normal limits for VA purposes.

Post-service treatment records are silent as to any complaints, treatment, or findings related to hearing loss until April 2010.  VA treatment records from April 2010 indicate that the Veteran suffered from mild sloping to profound sensorineural hearing loss in both ears.  His speech discrimination score presented at 64 percent.  See May 2010 VA Audiology Consultation.  He received routine fittings and amplification adjustments of his bilateral hearing aids.  See April 2010 to November 2016 VA Treatment Records.

The Veteran was afforded a VA examination in June 2012.  On the audiological evaluation, puretone thresholds, in decibels, measured as follows:

Puretone Threshold

500 Hz
1000 Hz
2000 Hz
3000 Hz
4000 Hz
LEFT
40 dB
55 dB
60 dB
75 dB
90 dB
RIGHT
55 dB
60 dB
65 dB
75 dB
90 dB

At the time of his exam, his speech discrimination scores, using the Maryland CNC Word List, measured at 36 percent in the right ear, and 32 percent in the left ear.

Here, the results from the June 2012 VA examination demonstrate current bilateral hearing loss as it is defined by VA regulation, and therefore, the current disability requirement for service connection is satisfied.

As to whether there is a nexus between current disability and service, the 2012 VA examiner opined that the Veteran's hearing loss was less likely than not caused by or related to an event in military service.  The examiner stated that the Veteran was unable to provide a date of onset for his hearing loss, only that it had gradually decreased over time, particularly over the past three to four years.  The examiner also noted the Veteran's enlistment and separation examinations revealed normal hearing acuity bilaterally, with thresholds noted at 0 dB bilaterally.  Given the threshold levels were 0 dB bilaterally at the time of his separation, the examiner concluded that it is unlikely that a standard shift in hearing sensitivity could have occurred from his service entrance to exit at 500 to 6000 Hz as to reflect a nexus between service and current disability. .

A June 2015 letter from the Veteran's private physician noted he had been treating the Veteran since 2006.  See June 2015 ENT Surgeons of Western New England Letter.  It was noted that the private hearing test conducted on January 2013 confirmed moderate to profound sensorineural hearing loss with word recognition scores at approximately 60 percent bilaterally.  Id.  His treating physician opined that the Veteran has a history of noise exposure associated with military service due to his exposure to loud noises from teletype machines for approximately eight hours per day for one and a half years.  Id.

A VA medical opinion was sought in August 2015, at which time it was opined that it is less likely than not that the Veteran's hearing loss is a result of military service.  Particular credence was given to the fact that the Veteran's reported onset occurred approximately three to four years prior to his April 2012 VA examination, decades after service, as well as his normal threshold levels on his discharge audiogram.

During his May 2017 Board Hearing, the Veteran testified as to his conditions in service which gave rise to his noise exposure.  He contended that he worked among 75 to 80 others as a teletypist, and was subject to the constant, loud noises produced by the machines as they received and sent messages.  He further contended that he has not been subject to loud noise exposure, neither occupationally or recreationally, since he separated from service.  See May 2017 Board Hearing Transcript, p.5.

The Board finds that the preponderance of the evidence is against his claim.  The June 2012 and August 2015 opinions are the most probative evidence of record.  The VA examiners are qualified through education, training, and experience to offer medical diagnoses, statements, or opinions.  Moreover, the opinions reflects consideration of the Veteran's history, to include his in-service noise exposure, his service treatment records, and his lay statements concerning the onset of his hearing problems, and makes clear the basis for the opinions.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008) ("[A] medical opinion...must support its conclusions with an analysis that the Board can consider and weigh against contrary opinions.").  There, likewise, is no medical opinion of record to the contrary.  Therefore, the Board accords great probative weight to these opinions.

The Board acknowledges the Veteran's contention that his bilateral hearing loss is related to his military service.  While he is competent to report his in-service noise exposure, he is not competent to opine on complex medical questions such as the etiology of his current hearing loss disability.  His statements linking his current hearing loss to his military service are not within the realm of knowledge of a layperson.  In this instance, the Veteran is competent, as a layperson, to report that about which he has personal knowledge, including the onset, presence, and nature of symptoms, to include loss of hearing.  See Buchanan v. Nicholson, 451 F.3d 1441 (Fed. Cir. 2006).  However, the nature and etiology of his hearing loss is a complex question that requires expertise.  Specifically, it involves the impact of noises on the auditory functioning of the ear.  Thus, the Veteran is not competent to render an opinion regarding the etiology of his hearing loss and his opinion on this matter is not probative.

Moreover, the Board finds that the Veteran may not prevail under the presumptive provisions governing service connection for chronic diseases.  See 38 C.F.R. �3.303(b), 3.307, 3.309(a).  Although such diseases include disabilities of the central nervous system, including hearing loss, service connection would not be warranted unless the hearing loss manifested to a compensable degree within a year of the Veteran's release from active service in December 1963, or if he exhibited a continuity of symptomatology since that time.

In this case, there is no probative evidence of record which demonstrates that bilateral hearing loss manifested to a compensable degree within one year from discharge.  This aligns with the Veteran's consistent claims that hearing loss began approximately three to four years prior to 2012, decades after his separation.  See June 2012 VA examination report; May 2017 Board hearing transcript.

The greater weight of the evidence is against the claim and service connection for hearing loss is not warranted.

(b) Tinnitus

With respect to the Veteran's claim for service connection for tinnitus, he contends that his exposure to loud noise during service resulted in the constant hissing sound he experiences in his ears.

Tinnitus has been variously defined.  It is "a sensation of noise (as a ringing or roaring) that is caused by a bodily condition (as wax in the ear or a perforated tympanic membrane)."  See Butts v. Brown, 5 Vet. App. 532, 540 (1993).  It is a noise in the ears, such as ringing, buzzing, roaring, or clicking.  See YT v Brown, 9 Vet. App. 195, 196 (1996).  It is a ringing, buzzing noise in the ears.  See Kelly v. Brown, 7 Vet. App. 471, 472 (1995).  "Tinnitus can be caused by a number of conditions, including injuries, acute diseases, and drug reactions [but] disablement from tinnitus does not depend on its origin."  See 59 Fed. Reg. 17,297 (April 12, 1994).

Moreover, unlike hearing loss, tinnitus (or, ringing in the ears) is the type of disability that the Veteran is competent to establish on the basis of his own assertions, see Charles v. Principi, supra, and that, under certain circumstances, credible assertions of continuous symptoms may be sufficient to establish service connection.  See, e.g., Jandreau v. Nicholson, supra.  However, when assessing credibility and probative value of lay assertions, such assertions must be weighed against medical and other pertinent evidence.  Cf. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).  As noted above, in weighing credibility, VA may consider, among other things, inconsistent statements and consistency with other evidence of record.  See Caluza, supra.

In this case, the evidence of record simply does not persuasively demonstrate that the Veteran experiences tinnitus as asserted in his January 2012 claim.  His service treatment records are silent as to any complaints, treatment, or diagnosis for tinnitus.  At the time of his separation examination, he reported he did not experience any ear trouble.

Private treatment records from April 2010 indicate that the Veteran complained of bilateral hearing loss, however the records are silent for any complaints or diagnosis of tinnitus.  Treatment records from June 2010 until November 2016 document ongoing inspection and adjustments to his bilateral hearing aids.  The consistent impression was that the Veteran experienced sensorineural hearing loss but denied experiencing recurrent tinnitus.

During the Veteran's June 2012 VA examination, he reported his hearing gradually decreased over time; however, there were no complaints of tinnitus.  A September 2015 private treatment record provides the only documented complaint of alternating, bilateral tinnitus, vertigo and hearing loss, of record.  A VA medical opinion was sought in August 2015, at which time it was opined that an opinion with respect to the Veteran's tinnitus could not be provided since he denied complaints of such at the time of his last audiology examination.

With the exception of the September 2015 treatment record, the Veteran has inconsistently reported ringing in both ears, or tinnitus, throughout the period on appeal.  See January 2012 Veteran's Statement, May 2017 Board Hearing.  At the time of his May 2017 Board hearing, he asserted that for many years he had been experiencing a persistent hissing like sound in his ears.  He reported hearing music in both ears, 24 hours a day that sounded like "a vacuum cleaner being run across the street."  See May 2017 Board Hearing Transcript, p.11.  He dates his tinnitus back to the time his hearing loss began and attributes his condition to his months in the field of communication using teletype machines.  Notably, the Veteran reported the onset of his hearing loss to be three to four years prior to his June 2012 VA examination.  See June 2012 VA examination report.  He further denied experiencing any signs of hearing loss at the time of his separation.  See September 2015 Substantive Appeal Form.

The Veteran's service treatment records document no complaints, findings, or diagnoses pertinent to tinnitus.  In this instance, the Veteran is competent, as a layperson, to report that about which he has personal knowledge, including the onset, presence, and nature of symptoms, to include ringing or hissing sounds in his ears.  See Buchanan v. Nicholson, 451 F.3d 1441 (Fed. Cir. 2006).  Here, the Veteran has been inconsistent in his reporting of having tinnitus and when it began.  As such, the history he reports is less probative than the treatment records.  These do not show any tinnitus linked to service.

With regard to the Veteran's lay statements as to the etiology of his tinnitus, the Veteran is not competent to attribute his tinnitus to any instance of his military service because he has not demonstrated that he is an expert in determining the etiology and is a layperson in this regard.

In this case, the most probative evidence of record is against the conclusion that tinnitus was incurred in service.

ORDER

Service connection for bilateral hearing loss is denied.

Service connection for tinnitus is denied.

____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: ANTHONY C SCIRÉ, JR

disposition: dismissed

text:
Citation Nr: 1738000
Decision Date: 09/08/17    Archive Date: 09/19/17

DOCKET NO.  16-18 590	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUE

Entitlement to a total disability rating based on individual unemployabilty due to service-connected disabilities (TDIU).

REPRESENTATION

Appellant represented by:	The American Legion

ATTORNEY FOR THE BOARD

S. Krunic, Counsel

INTRODUCTION

The Veteran had active service in the United States Army from August 1982 to August 2008.  His awards and decorations include the Combat Action Badge.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2012 and September 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.

In a January 2017 decision, the Board granted service connection for traumatic brain injury (TBI) and assigned an initial 70 percent evaluation for the Veteran's service-connected posttraumatic stress disorder (PTSD).  Additionally, the Board remanded the issue of entitlement to a TDIU for additional development.  The case has since been returned to the Board for appellate review.

In a May 2017 rating decision, in pertinent part, the Appeals Management Organization implemented the Board's decision by assigning a 70 percent evaluation for PTSD with TBI effective from May 18, 2011.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into account the existence of this electronic record.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900 (c) (2016).  38 U.S.C.A. � 7107 (a)(2) (West 2014).

FINDING OF FACT

The evidence of record demonstrates that the impact of the Veteran's multiple service-connected disabilities, as opposed to a single disability, render him unemployable.

CONCLUSION OF LAW

The question of whether the Veteran is entitled to an award of TDIU is moot.  38 U.S.C.A. � 7105 (West 2014); 38 C.F.R. � 4.16  (2016).

REASONS AND BASES FOR FINDING AND CONCLUSION

In a January 2017 decision, the Board found that the issue of entitlement to a TDIU was reasonably raised in connection with the increased rating claim for service-connected PTSD.  The Board noted that the Veteran had specifically attributed his unemployability to, among other things, his service-connected PTSD.

In this regard, in his June 2015 VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran reported that he was unable to work due to his service-connected PTSD, TBI, migraine headaches, diabetes, tinnitus, and flatfeet.  The Veteran stated that he last worked full-time in December 2014.

The Veteran's combined evaluations for compensation during the appeal period is as follows: 80 percent from May 18, 2011, 100 percent from April 11, 2014, (based on � 38 C.F.R. 4.30), 90 percent from June 1, 2014, 100 percent from September 2, 2014, 100 percent from September 12, 2014, (based on 38 C.F.R. � 4.30), and 100 percent from November 1, 2014.   The Board notes that the Veteran was granted special monthly compensation (SMC ) at the (s) level effective from April 11, 2014, to May 31, 2014 and from September 12, 2014, to October 31, 2014.  In this respect, the 100 percent evaluations required for SMC (s) were assigned based on surgery for the Veteran's service-connected bilateral plantar fasciitis with bilateral pes planus.  Hence, the issue of entitlement to a TDIU is moot as to those periods.

A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. � 4.16(a).  If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more.

In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined that a 100 percent disability rating does not necessarily render the issue of TDIU moot.  A separate TDIU predicated on one disability (although perhaps not rated at the schedular 100 percent level) when considered together with another disability separately rated at 60 percent or more could warrant SMC under 38 U.S.C.A. � 1114(s).  Thus, the Court reasoned, it might benefit the Veteran to retain or obtain the TDIU even where a 100 percent schedular rating also has been granted.  Under Bradley, VA must consider a TDIU despite the existence of a schedular total rating and award SMC under 38 U.S.C.A. � 1114(s) if VA finds the separate disability supports a TDIU independent of the other 100 percent disability rating.

Special monthly compensation is payable at the housebound rate where the veteran has a single service-connected disability rated as 100 percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability, and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.  38 U.S.C.A. � 1114(s); 38 C.F.R. � 3.350(i).

A total disability rating based on individual unemployability (TDIU) satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more, for purposes of entitlement to SMC for housebound purposes.  Bradley, 22 Vet. App. at 293.  However, housebound benefits are not available to a veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated as 100 percent disabling.  See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011).  In other words, a TDIU rating based on a single disability, but not on multiple disabilities, is permitted to satisfy the statutory requirement of a total rating.  A TDIU rating that is based on multiple disabilities cannot satisfy 38 U.S.C.A. � 1114(s) requirements of 'a service-connected disability' because that requirement must be met by a single disability.  Buie v. Shinseki, 24 Vet. App. 242, 249-250  (2010)

During the appeal period, the Veteran was not assigned a 100 percent rating for any individual disability, and he has claimed that his unemployability was based on the combined impact of several service-connected disabilities including PTSD with TBI (70 percent disabling) , bilateral plantar fasciitis with bilateral pes planus (30 percent disabling), headaches (30 percent disabling), type II diabetes mellitus (20 percent disabling), and tinnitus (10 percent disabling).   The lay and medical evidence of record indicates that the Veteran's type II diabetes mellitus, plantar fasciitis with flatfeet, PTSD with TBI, and hypertension (10 percent disabling) produce functional impairment.  In this regard, a May 2016 medical statement from the Veteran's psychiatrist reports that the Veteran is unable to sustain significant gainful employment due to his service-connected PTSD.  In addition, an October 2015 VA examiner opined that the Veteran's hypertension was impacted by work due to increased task orientation and increased anxiety.  Furthermore, the VA examiner opined that the Veteran's diabetes, plantar fasciitis, and pes planus could affect the Veteran's physical and sedentary activities along with excess weight for extended periods of time whether sitting or standing.  Finally, a March 2017 VA examination report reflects that it is more likely than not that the Veteran's inability to work at this time is directly related to his service-connected disabilities.

Based on the foregoing, the Board finds that there is no one disability, standing alone, which prevents the Veteran from working.  Moreover, the record does not reflect that the Veteran's remaining service-connected disabilities of tinnitus, upper airway restriction syndrome, right scrotal mass, erectile dysfunction, migraine headaches, hypertensive retinopathy, and eczema would preclude him from securing and maintaining substantially gainful employment.

As such, the Board finds that the instant matter is distinguishable from both Bradley and Buie.  In Bradley, special monthly compensation was available where a veteran had been granted TDIU based on a "less than total" 70 percent rating for only one disability, and had subsequently obtained service connection for multiple orthopedic disabilities that combined to 60 percent.  Under those circumstances, there was no duplicate counting of disabilities.   Here, the Veteran has asserted, and the evidence of record reflects, that the Veteran's TDIU is based on the combined functional impact of multiple service-connected disabilities rather than one service-connected disability standing alone.  Thus, there is no single service-connected disability that has rendered the Veteran unable to secure or follow a substantially gainful occupation.   Again, a TDIU rating based on multiple service-connected disabilities would not satisfy the criteria for one total disability in considering entitlement to housebound benefits under 38 U.S.C.A. � 1114 (s).

As neither Bradley nor Buie is applicable in this case, there is no question or controversy for consideration by the Board with regard to entitlement to TDIU.  Because no allegation of error of fact or law remains for appellate consideration, the Board has no jurisdiction to review the appeal for this issue, and it is dismissed.  See 38 U.S.C.A. � 7105  (d)(5) (West 2014); 38 C.F.R. � 20.202  (2015).

ORDER

The issue of entitlement to TDIU is dismissed as moot.

____________________________________________
ANTHONY C. SCIR�, JR
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: NATHAN KROES

disposition: remanded

text: These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).

text:
Citation Nr: 1740000
Decision Date: 09/18/17    Archive Date: 09/29/17

DOCKET NO.  13-32 327	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina

THE ISSUES

1.  Entitlement to an effective date earlier than September 13, 2010 for the grant of service connection for posttraumatic stress disorder (PTSD).

2.  Entitlement to an effective date earlier than September 24, 2007, for the grant of service connection for chronic ischemic heart disease; coronary artery disease; status post coronary artery bypass graft (ischemic heart disease).

3.  Entitlement to an effective date earlier than December 1, 2010, for the grant of a total disability rating based upon individual unemployability (TDIU).

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

Russell Veldenz, Counsel
INTRODUCTION

The Veteran served on active duty from June 1963 to June 1967 and from May 1970 to February 1986.

This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO).

In January 2017, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is in the record.

The issues of earlier effective dates for the grant of service connection for ischemic heart disease and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).

FINDINGS OF FACT

1.  A September 2008 rating decision denied a claim of service connection for PTSD; the Veteran filed a notice of disagreement with that decision but after a statement of the case was issued in October 2009 he did not submit a timely substantive appeal nor did he submit additional, relevant evidence.

2.  On September 13, 2010, the RO received the Veteran's claim to reopen the previously denied claim for service connection for PTSD.

CONCLUSION OF LAW

The criteria for entitlement to an effective date earlier than September 13, 2010, for the grant of entitlement to service connection for PTSD are not met.  38 U.S.C.A. � 5110 (West 2014); 38 C.F.R. �� 3.156, 3.400 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

Where, as here, the appeal stems from disagreement with the effective date for the grant of service connection, a downstream issue from the original claim, further notice regarding the claim is not required.  38 C.F.R. 3.159(b)(3) (2016).  The Veteran has not raised any issues with the duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Legal Criteria

Governing law provides that the effective date for a grant of service connection is the day after separation from service or day entitlement arose, if a claim is received within one year after separation from service, otherwise the date of receipt of claim, or the day entitlement arose, whichever is later.  38 U.S.C.A. � 5110(b)(1); 38 C.F.R. � 3.400(b)(2)(i).  The effective date for an award of benefits based upon new and material evidence is the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C.A. � 5110; 38 C.F.R. � 3.400(q)(2).

A "claim" includes a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 C.F.R. � 3.1(p) (2014).  A formal claim is a specific claim in the form prescribed by the Secretary.  38 C.F.R. � 3.151 (2014).  Also, as it relates to this appeal, any communication or action indicating the intent to apply for a benefit under the laws administered by VA may be considered an informal claim, provided that it identifies generally, although not necessarily with specificity, the benefit sought.  38 C.F.R. �� 3.155, 3.1(p) (2014).

Analysis

The Veteran initially filed a claim for PTSD in September 1988, but one month later he advised VA that he decided not to pursue the claim.  Therefore, the Board finds the Veteran abandoned the claim.  38 C.F.R. � 3.158 (2016).

On September 24, 2007 the Veteran filed a claim for service connection for PTSD and also service connection for ischemic heart disease.  He now asserts this should be the effective date for the grant of service connection for PTSD.

In a September 2008 rating decision, the RO denied service connection for PTSD.  The Veteran expressed disagreement with this denial and the RO issued a statement of the case in October 2009.  The Veteran did not file a VA Form 9, or other document that could be construed as a substantive appeal within one year of notification of the September 2008 rating decision or sixty days after notification of the statement of the case, nor was any relevant evidence received after the statement of the case but prior to the expiration of time to appeal.

The Veteran argues that he never received the October 2009 statement of the case.  To the extent the Veteran's argument is that the RO sent the statement of the case to the wrong address, in every correspondence since October 2009 the Veteran indicated that he lived at the same street address and city with the same zip code that the RO used to mail the statement of the case.  Correspondence was sent to the same address both before and after the October 2009 statement of the case was mailed to the Veteran.  The file does not document any returned mail during the relevant period.

To the extent that the Veteran may be asserting that VA never actually mailed the statement of the case, there is a legal presumption of administrative regularity that VA properly discharged its official duties by mailing a copy of the statement of the case and instructions to the Veteran at his last known address.  Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found. Ind. 272 U.S. 1, 14-15 (1926).  The Board may presume that VA staff competently discharged their duties.  Id.  The presumption is rebuttal by clear evidence to the contrary.  Schoolman v. West, 12 Vet. App. 307, 310 (1999).  The Veteran has not presented evidence that VA did not mail the statement of the case as the file suggests.  A mere allegation of nonreceipt does not constitute the clear evidence required to rebut the presumption of administrative regularity that VA properly discharged its official duties by mailing to the Veteran at the last known address a copy of a statement of the case and instructions about the need to file a substantive appeal.  For these reason, the Board rejects the Veteran's allegation that he did not receive proper notice of the October 2009 statement of the case.

As the Veteran was properly notified of the adverse determinations and of his right to appeal but did not submit a timely substantive appeal or relevant evidence during the prescribed period, the September 2008 rating decision became final.  38 C.F.R. � 20.302 (2008).

As noted above, the effective date for a claim to reopen a claim for service connection based upon new and material evidence is the date of receipt of the new claim or the date entitlement arose, whichever is later.  38 U.S.C.A. � 5110; 38 C.F.R. � 3.400(q)(2).

On September 13, 2010, VA received from the Veteran a claim for service connection for PTSD.  The current effective date for the grant of service connection is properly based on the date this claim was received as no claim, formal or informal, was filed after the September 2008 rating decision became final but before September 13, 2010.

The effective date exception in 38 C.F.R. � 3.156(c) (regarding the receipt of service department records) does not apply in this case.  The Veteran's claim for service connection for PTSD was not ultimately granted based on the receipt of relevant service department records that existed at the time of the prior denial but were not part of the Veteran's file.  Instead, the claim was granted based on a change in law which essentially loosened the evidence requirements for establishing a stressful event occurred during service.  See 38 C.F.R. � 3.309(f)(3); see also 75 Fed. Reg. 39843 (July 13, 2010).  The regulation change became effective July 13, 2010.  75 Fed. Reg. 41092 (July 15, 2010).  The regulation change only applies to an application for service connection for PTSD that is received by VA on or after the rule's effective date, was received by VA before the rule's effective date but has not been decided by a VA regional office as of that date, is appealed to the Board on or after the rule's effective date, was appealed to the Board before the rule's effective date but has not been decided by the Board as of that date, or is pending before VA on or after the rule's effective date because the Veterans Court vacated a Board decision on the application and remanded it for readjudication.  75 Fed. Reg. 39843 (July 13, 2010).

The Board recognizes the Veteran's argument concerning the targeted review by the RO of the Veteran's claim for service connection for ischemic heart disease in conjunction with the federal court order in Nehmer v. United States Veterans Administration (Nehmer).  See 38 C.F.R. � 3.816; see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III).  As a result of that review, the RO awarded service connection for ischemic heart disease with an effective date in September 2007 as ischemic heart disease was not at that time a disability presumptively considered due to herbicide agent exposure.  The Veteran asserts that when the RO conducted its review of the ischemic heart disease pursuant to Nehmer, it should have made the same analysis regarding his PTSD claim as he raised both claims at the same time.  PTSD is not a covered herbicide diseases as defined by Nehmer and 38 C.F.R. � 3.816(b).  Thus, the final stipulation, orders, and guidance provided in the Nehmer cases and VA's resulting regulations simply have no applicability here.  38 C.F.R. � 3.816.

For all of the foregoing reasons, the Board finds that the effective date for service connection for the Veteran's PTSD is September 13, 2010, which is the date he filed the claim to re-open the claim for service connection for PTSD.

ORDER

Entitlement to an effective date earlier than September 13, 2010, for the grant of service connection for PTSD, is denied.

REMAND

In a March 2011 rating decision, the Veteran was awarded service connection for ischemic heart disease with an effective date of September 24, 2007.  The Veteran, later asserted that he should be awarded an effective date earlier than September 24, 2007, for the grant of service connection for his ischemic heart disease.  The RO denied the claim for an earlier effective date in a January 2014 rating decision.  After the Board hearing in January 2017, the Veteran perfected his appeal for the claim for an earlier effective date for the grant of service connection for ischemic heart disease and the RO recently certified the issue to the Board in February 2017.

The Veteran, however, has requested a hearing before the Board on this issue.  To date, no hearing has been provided to the Veteran.

It is a basic principle of veterans law that the Board shall decide an appeal only after affording the claimant an opportunity for a hearing.  38 U.S.C.A. � 7104 (West 2014).  Thus, the Veteran should be scheduled for the next available hearing at the RO before a Veterans Law Judge from the Board.

Regarding TDIU, as the Veteran asserts the effective date for service connection for his ischemic heart disease should be the date of diagnosis in 1999, the Board finds the outcome on the heart disease claim could affect the outcome of the claim for an earlier effective date for TDIU.  Therefore, the Veteran's claim for an earlier effective date for TDIU is inextricably intertwined with the claim for an earlier effective date for the grant of service connection for ischemic heart disease.  See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered).

Accordingly, the case is REMANDED for the following action:

Schedule the Veteran for a hearing to be conducted at the RO before a member of the Board or via videoconference on the issue of entitlement to an earlier effective date for the grant of service connection for ischemic heart disease, and notify him of the scheduled hearing at the current address of record.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

______________________________________________
Nathan Kroes
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: K CONNER

disposition: granted

condition: back

text: Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records. [is remanded]

text:
Citation Nr: 1741000
Decision Date: 09/20/17    Archive Date: 10/02/17

DOCKET NO.  15-00 066A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California

THE ISSUES

1.  Entitlement to an effective date prior to April 23, 2013 for the award of service connection for degenerative arthritis of the spine.

2.  Entitlement to service connection for a kidney disability, claimed as due to exposure to radiation and/or diesel fuel.

REPRESENTATION

Veteran represented by:	California Department of Veterans Affairs

ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel

INTRODUCTION

The Veteran served on active duty from June 1954 to December 1973.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated March 2013 and September 2015 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.

The issue of entitlement to service connection for a kidney disability was remanded by the Board for additional development in July 2015 and December 2015.  The VA Appeals Management Center (AMC) most recently continued the previous denial in a March 2017 supplemental statement of the case (SSOC).  The Veteran's VA claims file has been returned to the Board for further appellate proceedings.

The issue of entitlement to service connection for a lumbar spine disability was also remanded in the Board's July 2015 decision.  Service connection for degenerative arthritis of the lumbar spine was granted in a September 2015 rating decision and a 20 percent evaluation was assigned.  In a subsequent January 2017 rating action, service connection for degenerative arthritis of the lumbar spine was severed, effective from April 1, 2017; however, service connection was reestablished in a March 2017 rating decision.  Accordingly, the matter of entitlement to service connection for degenerative arthritis of the lumbar spine has been resolved and will be addressed no further herein.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c) (2016).  38 U.S.C.A. � 7107(a)(2) (West 2014).

The issue of entitlement to service connection for a kidney disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).  The Veteran will be notified if further action on his part is required.

FINDINGS OF FACT

1.  Service connection for degenerative arthritis of the lumbar spine was granted in a September 2015 rating decision; an effective date of April 23, 2013 was assigned.

2.  An October 2016 rating decision granted an earlier effective date of August 19, 2010 for the award of service connection for degenerative arthritis of the lumbar spine.

3.  In a January 2017 rating decision, the RO severed the award of service connection for degenerative arthritis of the lumbar spine, effective from April 1, 2017.

4.  In a March 2017 rating decision, the RO restored the original grant of service connection for degenerative arthritis of the lumbar spine; however, the effective date of April 23, 2013 was assigned.

5.  The Veteran filed an original claim of entitlement to back pain on August 19, 2010.

CONCLUSION OF LAW

The criteria for the assignment of an effective of August 19, 2010 for the award of service connection for degenerative arthritis of the lumbar spine are met.  38 U.S.C.A. �� 101, 1110, 1113, 5110, 7105(c) (West 2014); 38 C.F.R. �� 3.6, 3.105(d), 3.151, 3.155, 3.303, 3.400, 20.302, 20.1103 (2016).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

II. Analysis

Service connection will be severed only where evidence establishes that the grant service connection itself was clearly and unmistakably erroneous (the burden of proof being upon the Government).  See 38 C.F.R. � 3.105(d); see also Stallworth v. Nicholson, 20 Vet. App. 482 (2006); Daniels v. Gober, 10 Vet. App. 474 (1997).

The assignment of effective dates of awards is generally governed by 38 U.S.C.A. � 5110 and 38 C.F.R. � 3.400.  Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. � 5110(a).  The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later."  38 C.F.R. � 3.400.

The "date of the claim" means the date of receipt of the application based upon which benefits are awarded, not the original claim for service connection.  See Sears v. Principi, 16 Vet. App. 244, 246-47 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003).  In this context, it should be noted that the provisions of 38 U.S.C.A. � 5110 also refer to the date an application is received.  While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit."  38 C.F.R. �� 3.1(p), 3.155; Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

The Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises.  See 79 Fed. Reg. 57660 (Sept. 25, 2014).  The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015.  As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case.

In August 2010, the Veteran filed a claim of entitlement to service connection for an abdominal disability, in which he asserted that he had suffered from back pain since his military service.  In a September 2015 rating decision, the RO granted service connection for degenerative arthritis of the lumbar spine, effective from April 23, 2013 (the date of a statement of the Veteran, in which he addressed his continuing lumbar spine claim).  In a December 2015 statement, the Veteran disagreed with the assigned effective date; he maintained entitlement to an effective date of August 19, 2010, the date of his original low back pain claim.  In an October 2016 rating decision, the RO granted an earlier effective date of August 19, 2010 for the award of service connection for degenerative arthritis of the lumbar spine; in so doing, the RO determined that there was clear and unmistakable error (CUE) in the prior assignment of the April 23, 2013 effective date.

However, in a November 2016 rating decision, the RO proposed to sever service connection for the lumbar spine disability, based upon a misunderstanding of the findings of a September 2015 VA examination report.  While that action was pending, the RO issued a SOC in December 2016 as to the issue of entitlement to an earlier effective date for the award of service connection for degenerative arthritis of the lumbar spine.  The Veteran perfected a timely appeal in a December 2016 VA Form 9.
In response to the proposed severance, the Veteran submitted positive nexus statements to sustain his award of service connection for a lumbar spine disability.  Nevertheless, in a January 2017 rating decision, service connection for degenerative arthritis of the lumbar spine was severed, effective April 1, 2017.

The Veteran expressed his disagreement with the severance and filed two additional positive nexus statements as to his claimed lumbar spine disability in March 2017.  In a March 2017 rating decision, the RO reinstated the prior award of service connection for degenerative arthritis of the lumbar spine; however, the RO assigned an effective date of April 23, 2013.

After review of the record, the Board finds that the reinstated effective date of April 23, 2013 for the award of service connection for degenerative arthritis of the lumbar spine was incorrect.  To the extent that the March 2017 rating decision determined the severance of service connection to be improper, the Veteran's award of service connection must be reestablished effective from the original date of service connection.  See 38 C.F.R. � 3.105(d).  Moreover, as described above, the effective date of August 19, 2010 was assigned in an October 2016 rating decision, which found CUE in the assignment of the April 23, 2013 effective date.  The Board therefore finds that the effective date of August 19, 2010 is warranted for the award of service connection for degenerative arthritis of the lumbar spine.

As noted above, the assignment of an effective date for service connection is essentially governed by the date of filing with VA of a claim.  See 38 U.S.C.A. � 5110; 38 C.F.R. � 3.400.  Significantly, the evidence does not show that the Veteran filed a claim of entitlement to service connection for a low back disability prior to August 19, 2010, nor has he so contended.  See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits).  Consequently, the only effective date for award of service connection that may be assigned for the Veteran's degenerative arthritis of the lumbar spine is August 19, 2010, the date of his original claim of entitlement to service connection for low back pain.

To the extent that the Veteran's treatment records may document a diagnosis of a lumbar spine disability prior to August 2010, 38 C.F.R. � 3.157 does not avail the Veteran.  Under � 3.157(a), a report of examination or hospitalization may be accepted as an informal claim for benefits if it meets the requirements of � 3.157(b).  38 C.F.R. � 3.157(b) provides:  Once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of [evidence listed under (b)(1), (2), or (3)] will be accepted as an informal claim for increased benefits or an informal claim to reopen.  In the instant case, the grant of service connection for degenerative arthritis of the lumbar spine stems from an original claim.  As such, 38 C.F.R. � 3.157 is not for application.

The Board is bound by the law and is without authority to grant benefits on an equitable basis.  See 38 U.S.C.A. �� 503, 7104 (West 2014); see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994).  The Board further observes that "no equities, no matter how compelling, can create a right to payment of the United States Treasury which has not been provided for by Congress."  Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992), citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990).  The Board does not dispute that the Veteran experienced low back symptoms prior to the assigned effective date; that he did was evidence that provided a basis for the grant of service connection.  However, the Board is obligated to apply the law as Congress has created it.  As explained above, the law does not support the assignment of an effective date prior to August 19, 2010.

In conclusion, for the reasons and bases set forth above, the Board finds that the proper effective date for the grant of service connection for degenerative arthritis of the lumbar spine is August 19, 2010, but no earlier.  Accordingly, the benefit sought on appeal is granted to that extent.

ORDER

Entitlement to an effective date of August 19, 2010, but no earlier, for the award of service connection for degenerative arthritis of the lumbar spine is granted.

REMAND

Regrettably, a remand is necessary for further evidentiary development of the Veteran's remaining claim on appeal - entitlement to service connection for a kidney disability.  The Board is cognizant that the Veteran's case has been in adjudicative status for years and that it has already been twice remanded in the past.  Consequently, the Board wishes to assure the Veteran that it would not be remanding this case again unless it was essential for a full and fair adjudication of his pending claim.

The Veteran has asserted entitlement to service connection for a kidney disability as due to exposure to radiation and diesel engine fumes during his military service.  See, e.g., the Veteran's statements dated January 2011, June 2013, and February 2015.  In support of his contentions of exposure to diesel fumes, the Veteran submitted a lay statement from fellow service member, Mr. V.B., who endorsed similar exposure.  See the statement of Mr. V.B. dated January 2015.  To this end, the Board does not dispute the Veteran's exposure to diesel fumes during his active duty service.

Pursuant to the July 2015 Board Remand, the Veteran was afforded a VA medical opinion in September 2015 at which time the examiner concluded that claimed kidney disability is at least as likely as not related to the Veteran military service.  However, in making this determination, the examiner relied on a May 1964 treatment record of another veteran.  The Veteran submitted this record in an effort to show that submarines did result in exposure to radiation; this medical record is not, in fact, the Veteran's, and to date exposure to radiation has not been established.  See, e.g., the letters from the Department of the Navy dated August 2012 and November 2016.  The Board additionally notes that despite her signature as "Medical Officer," the September 2015 VA addendum opinion was obtained from Dr. L. T.-C., who is a podiatrist.  Although "VA benefits from a presumption that it has properly chosen a person who is qualified to provide a medical opinion in a particular case," Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013), the Board finds that the examining podiatrist in this case has not been shown to be qualified in matters related to internal medicine.  See also Barr v. Nicholson, 21 Vet. App. 303 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).  As such, the Board finds that this matter must be remanded in order to obtain an adequate VA medical opinion from an appropriately qualified physician as to the etiology of the claimed kidney disability.

Prior to arranging for the Veteran to undergo further VA examination, to ensure that all due process requirements are met, and that the record is complete, the AOJ should undertake appropriate action to obtain all pertinent, outstanding records.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  Expedited handling is requested.)

1. Obtain all outstanding records of VA evaluation and/or treatment of the Veteran.  Follow the procedures set forth in 38 C.F.R. � 3.159(c) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the claims file.

2. The AOJ shall refer the VA claims file to a physician with appropriate expertise.  The physician is requested to review the claims file in its entirety including all service treatment records, VA, and private treatment records.  Then, the physician should respond to the following:

Is it at least as likely as not that the Veteran's current kidney disability was incurred in his active duty service, to include the conceded exposure to diesel fumes and/or the claimed exposure to radiation?

The physician 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 opinions.  If the physician rejects the Veteran's reports of symptomatology, he or she must provide a reason for doing so.

Should the physician decide that a physical examination of the Veteran is required to address these questions, one should be scheduled.

If the physician is unable to provide an opinion without resort to speculation, he or she should explain why this is so and what if any additional evidence would be necessary before an opinion could be rendered.  The physician must provide a rationale for each opinion given.

3. After conducting any additional development deemed necessary, the AOJ should readjudicate the claim, considering all the evidence of record.  If any benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims (Court) for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112 (West 2014).

______________________________________________
K. CONNER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs


judge_norm: RYAN T KESSEL

text:
Citation Nr: 1742000
Decision Date: 09/25/17    Archive Date: 10/04/17

DOCKET NO.  14-21 163	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida

THE ISSUES

1.  Entitlement to service connection for lumbar spondylosis.

2.  Entitlement to an initial rating higher than 10 percent for right wrist tenosynovitis.

3.  Entitlement to a rating higher than 10 percent for service-connected lumbar strain.

REPRESENTATION

The Veteran represented by:     Veterans of Foreign Wars of the United States

WITNESS AT HEARING ON APPEAL

The Veteran
ATTORNEY FOR THE BOARD

Nicole L. Northcutt, Counsel

INTRODUCTION

The Veteran served on active duty from August 1966 to February 1977.

These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 1977 and March 2014 issued by a Regional Office (RO) of the Department of Veterans Affairs (VA).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. � 20.900(c).  38 U.S.C.A. � 7107(a)(2).

In June 2017, the Veteran testified at a hearing conducted at the RO before the undersigned Veterans Law Judge.  The Veteran submitted additional evidence with a waiver of initial RO consideration.

The appeal is REMANDED to the RO.  VA will notify the Veteran if further action is required.

REMAND

With regard to the Veteran's service connection claim for lumbar spondylosis and right wrist tenosynovitis, the record reflects that these claims were initially adjudicated in an April 1977 rating decision.  The Veteran disagreed with the initial right wrist evaluation and the denial of service connection for lumbar spondylosis in a June 1977 statement.  This statement can reasonably be read to constitute a notice of disagreement (NOD) based on the regulations at that time.  See 38 C.F.R. � 19.113 (1977).  While letters issued in January 1978 acknowledge receipt of the Veteran's NOD and indicate that the issuance of a statement of the case (SOC) was forthcoming, the Veteran was never provided with a related SOC.  Indeed, in a more recent, October 2014 letter, the RO again acknowledged this pending NOD.  Accordingly, the claims must be remanded for the issuance of an SOC.  See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999).

With regard to the Veteran's claim seeking a higher rating for her service-connected lumbar strain, before this claim may be adjudicated, VA must obtain more detailed range of motion findings and findings regarding functional loss, per the recent precedential decisions of Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint), and Sharp v. Shulkin, No. 16-1385, (U.S. Vet. App. Sept. 6, 2017) (outlining VA examiners' obligation to elicit information regarding flare-ups of a musculoskeletal disability if the examination is not conducted during such a flare-up, and to use this information to characterize additional functional loss during flare-ups).

Additionally, as the Veteran receives ongoing VA treatment for her service-connected lumbar strain, the Veteran's recent, outstanding VA treatment records must also be obtained.

Accordingly, the case is REMANDED for the following actions:

1.  Issue an SOC adjudicating the Veteran's service connection claim for lumbar spondylolysis and initial increased rating claim for right wrist tenosynovitis, per her pending June 1977 NOD with the April 1977 rating decision that initially adjudicated these claims.  When adjudicating the service connection claim for lumbar spondylosis, consideration should be given the Veteran's in-service diagnoses of spondylosis, as reflected in her 1975 permanent physical profile and as noted on her separation examination; the January 1978 statement by the Veteran's in-service treating physician stating that the Veteran developed spondylolysis during service as a result of her in-service motor vehicle accident; and the recent diagnoses of spondylolisthesis, an advanced form of spondylolysis.  Inform the Veteran that if she wishes to have the Board consider these claims, she must file a timely substantive appeal (VA Form 9).

2.  Obtain the Veteran's VA treatment records from September 2014.

3.  Schedule a VA examination by an appropriate medical professional to assess the current severity of the Veteran's service-connected lumbar strain, to include specific findings regarding pain on range of motion testing and an estimation of functional loss, per Correia and Sharp.

After reviewing the Veteran's claims file and eliciting the history of the Veteran's lumbar strain symptoms, to specifically include any symptoms and functional impact that she experiences during flare-ups of lumbar strain, the examiner should conduct a relevant clinical examination.  Specifically, the Veteran's lumbar spine should be tested for pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion.  If this cannot be performed, the examiner should explain why.

If the examination is not conducted during a flare-up, the functional impact of a flare-up should be estimated based on the Veteran's reports.  If this cannot be done, the examiner should explain why.

To the extent possible, the examiner should also differentiate between symptoms attributable to the Veteran's service-connected lumbar strain and those attributable to any nonservice-connected back disability.

4.  Finally, readjudicate the Veteran's lumbar strain increased rating claim.  If the full benefit sought remains denied, issue a statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. �� 5109B, 7112.

_________________________________________________
RYAN T. KESSEL
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. � 7252, only a decision of the Board is appealable to the United States Court of Appeals for Veterans Claims.  This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. � 20.1100(b).