Case 23036133

COLLEEN M. GLASER-ALLEN · 2023 · Case ID: 23036133

MIXED

Summary

The veteran, who served in the U.S. Army Reserve from August 1983 to November 1983, including active duty for training (ACDUTRA) in September 1984, appeals the denial of effective dates prior to April 27, 2009, for service connection for thoracolumbar spine degenerative joint and disc disease and bilateral lower extremity radiculopathy. He also appeals the denial of service connection for a neck condition. The Board granted service connection for tension headaches, finding them secondary to his service-connected thoracolumbar spine condition and lumbar radiculopathy, resolving doubt in his favor based on a private medical opinion. The Board denied service connection for a neck condition, noting the absence of in-service complaints or treatment for a neck injury, and finding the VA examiner's negative nexus opinion, which was based on a review of service treatment records and a lack of in-service complaints or diagnosis of cervical arthritis, to be highly probative. The Board found no evidence of a neck injury during service or a diagnosis of cervical arthritis within one year of service termination. The Board also noted that the veteran's civilian employment as a mechanic, carpenter, and truck driver might have contributed to his neck condition. Several other claims, including arthritis, erectile dysfunction secondary to the spine condition, a mental health condition, increased ratings for the spine and radiculopathy conditions, TDIU, and shoulder conditions, were remanded for further development and adjudication.

Service Branch

ARMY

Special Benefit

TDIU

Docket No.

18-21 618

Full Decision Text

Citation Nr: 23036133
Decision Date: 06/27/23 Archive Date: 06/27/23

DOCKET NO. 18-21 618
DATE: June 27, 2023

ORDER

An effective date prior to April 27, 2009 for entitlement to service connection for thoracolumbar spine degenerative joint and disc disease is denied.

An effective date prior to April 27, 2009 for entitlement to service connection for radiculopathy of the left lower extremity is denied.

An effective date prior to April 27, 2009 for entitlement to service connection for radiculopathy of the right lower extremity is denied.

Service connection for tension headaches is granted.

Service connection for a neck condition is denied.

REMANDED

Entitlement to service connection for arthritis is remanded.

Entitlement to service connection for erectile dysfunction, secondary to service-connected thoracolumbar spine degenerative joint and disc disease, is remanded.

Entitlement to service connection for a mental health condition is remanded.

Entitlement to a rating in excess of 20 percent for service-connected thoracolumbar spine degenerative joint and disc disease is remanded.

Entitlement to a rating in excess of 10 percent for service-connected right lower extremity radiculopathy is remanded.

Entitlement to a rating in excess of 20 percent for service-connected left lower extremity radiculopathy is remanded.

Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) is remanded.

Entitlement to service connection for a right shoulder condition is remanded.

Entitlement to service connection for a left shoulder condition is remanded.

FINDINGS OF FACT

1. The Veteran's initial claim for service connection for a back condition was denied in an April 1990 rating decision. The Veteran did not file a notice of disagreement (NOD) and new and material evidence was not submitted within the appeal period. As such, the June 2006 decision became final.

2. The Veteran sought to reopen his claim for entitlement to service connection for a back condition on April 27, 2009. See April 27, 2009 Report of General Information. The request to reopen was denied in a November 2009 rating decision. The Veteran filed a timely NOD. In April 2014, the Board reopened the Veteran's claim for entitlement to service connection for a back condition and remanded the issue of entitlement to service connection for residuals of a low back injury. In a December 2014 Board decision, service connection for residuals of a low back injury was granted.

3. A January 2015 rating decision was issued to effectuate the December 2014 Board decision. The January 2015 rating decision granted service connection for thoracolumbar spine degenerative joint and disc disease, with an evaluation of 20 percent, effective April 27, 2009. The January 2015 rating decision also granted service connection for lumbar radiculopathy of the bilateral lower extremities as neurological manifestations of the Veteran's thoracolumbar spine degenerative joint and disc disease. Accordingly, an effective date of April 27, 2009 was granted for radiculopathy of the bilateral lower extremities.

4. The Veteran's tension headaches are related to his service-connected thoracolumbar spine degenerative joint and disc disease and lumbar radiculopathy of the bilateral lower extremities.

5. The Veteran's neck condition is not shown to be causally or etiologically related to any disease, injury, or incident during service, and did not manifest within one year of the Veteran's separation from active duty.

CONCLUSIONS OF LAW

1. The criteria for an effective date prior to April 27, 2009 for the award of service connection for thoracolumbar spine degenerative joint and disc disease are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.104, 3.151, 3.400.

2. The criteria for an effective date prior to April 27, 2009 for the award of service connection for lumbar radiculopathy of the left lower extremity are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.104, 3.151, 3.400.

3. The criteria for an effective date prior to April 27, 2009 for the award of service connection for lumbar radiculopathy of the right lower extremity are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.104, 3.151,
, 3.400.

4. The criteria for entitlement to service connection for tension headaches are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310.

5. The criteria for entitlement to service connection for a neck condition are not met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from August 1983 to November 1983. Thereafter, he served in the United States Army Reserve, including a period of active duty for training (ACDUTRA) from September 15, 1984 to September 29, 1984.

These matters come to the Board of Veterans' Appeals (Board) on appeal from January 2015 and November 2016 rating decisions issued by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ).

This case was previously before the Board in June 2019, at which time the issues currently on appeal were remanded for additional development. The case has now been returned to the Board for further appellate action.

1. An effective date prior to April 27, 2009 for entitlement to service connection for thoracolumbar spine degenerative joint and disc disease, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity

The evidence shows that the Veteran's initial claim for service connection for a back condition was filed in October 1989. In an April 1990 rating decision, the RO denied service connection for a back condition. In May 1990, the RO notified the Veteran of the determination. The Veteran did not file a timely NOD within one year of receiving notice of the determination; therefore, the decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 19.52, 20.1103. Further, the Veteran did not submit new and material evidence within one year following the April 1990 rating decision.

The Veteran sought to reopen his claim for entitlement to service connection for a back condition on April 27, 2009. See April 27, 2009 Report of General Information. The Veteran's request to reopen his claim was denied in a November 2009 rating decision. The Veteran filed a timely NOD. In April 2014, the Board reopened the Veteran's claim for entitlement to service connection for a back condition and remanded the issue of entitlement to service connection for residuals of a low back injury. In a December 2014 Board decision, service connection for residuals of a low back injury was granted.

A January 2015 rating decision was issued to effectuate the December 2014 Board decision. The January 2015 rating decision granted service connection for thoracolumbar spine degenerative joint and disc disease, with an evaluation of 20 percent, effective April 27, 2009. The January 2015 rating decision also granted service connection for lumbar radiculopathy of the bilateral lower extremities as neurological manifestations of the Veteran's thoracolumbar spine degenerative joint and disc disease. Accordingly, an effective date of April 27, 2009 was granted for radiculopathy of the bilateral lower extremities.

Under the law, the effective date for a grant of service connection on the basis of the receipt of new and material evidence following a final prior disallowance is the date of receipt of the application to reopen, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). For VA compensation purposes, a "claim" is defined as 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). The essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

An effective date earlier than April 27, 2009 is not warranted because this was the first date that VA received a written communication from the Veteran seeking to reopen his previously denied claim of service connection for a back condition. See Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005); Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003). Because the Veteran's back condition was related to service, service connection was established. It does not follow, however, that because service connection is warranted; that the effective date of service connection be the date he filed his original claim because doing so would render meaningless many of the provisions of 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. In Sears, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that pursuant to 38 C.F.R. § 3.400(q), which it declared was a valid gap-filling regulation, there was no conflict between 38 U.S.C. §§ 5108 and 5110, and thus the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. Id. at 1332. While the Board is sympathetic to the Veteran's contentions, this appeal must be denied because the AOJ has already assigned the earliest possible effective date provided by law for entitlement to service connection for the Veteran's thoracolumbar spine degenerative joint and disc disease and its associated lumbar radiculopathy of the bilateral lower extremities.

2. Service connection for tension headaches

Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also Spicer v. McDonough, No. 2022-1239 (Fed. Cir. March 8, 2023) (invalidating the requirement of "proximate cause" and instead held a "but for" causation or aggravation is enough to show entitlement to secondary service connection).

The Veteran has a diagnosis of tension headaches. See January 2019 headaches disability benefits questionnaire (DBQ).

The Veteran contends that his headaches are triggered by flareups of pain. Id.

Service connection is in effect for thoracolumbar spine degenerative joint and disc disease and lumbar radiculopathy of the bilateral lower extremities.

Based on experience, an interview with the Veteran, and a review of the medical records and supporting literature, a private physician, Dr. M.B., opined that that Veteran's service-connected thoracolumbar spine degenerative joint and disc disease and lumbar radiculopathy of the bilateral lower extremities aided in the development of and permanently aggravated his headache condition. See January 2019 headaches DBQ.

The Board notes that that Veteran was afforded a VA examination in August 2019. The VA examiner diagnosed cervicogenic tension headaches and opined that the headaches are secondary to his degenerative cervical arthritis. Service connection is not in effect for degenerative cervical arthritis. The examiner did not provide an opinion as to whether the Veteran's tension headaches are secondary to his service-connected thoracolumbar spine degenerative joint and disc disease and lumbar radiculopathy of the bilateral lower extremities.

In light of the Veteran's contentions and the January 2019 private medical opinion, the Board resolves doubt in the Veteran's favor and finds that service-connection is warranted for tension headaches.

3. Service connection for a neck condition

The Veteran seeks entitlement to service connection for a neck condition. See September 2016 claim; December 2016 notice of disagreement (NOD); May 2018 VA Form 9; December 2020 Appellant's Post-Remand Brief.

Establishing 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).

The Veteran has a current diagnosis of degenerative arthritis of the cervical spine and suffers from neck pain. See VA treatment records; August 2019 VA examination.

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 arthritis, 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. 38 U.S.C. §§ 1101, 1112; 38 C.F.R.§§3.307, 3.309

As noted above, the Veteran served in the United States Army Reserve, including a period of ACDUTRA from September 15, 1984 to September 29, 1984. Active military service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in the line of duty, or any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in the line of duty. 38 U.S.C. § 101 (21), (22), (24); 38 C.F.R. § 3.6. Service connection, thus, may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101 (24), 106, 1131.

When a claim for service connection is based only on a period of ACDUTRA or INACDUTRA, there must be evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. § 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnelan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466,
result of a disease or injury incurred or aggravated in the line of duty during that period of ACDUTRA or INACDUTRA. See 38 U.S.C. § 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnelan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008) (citing Mercado-Martinez v. West, 11 Vet. App. 415, 419 (1998); Paulson v. Brown, 7 Vet. App. 466, 470 (1995)). In the absence of such evidence, the period of ACDUTRA or INACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" for that period of ACDUTRA or INACDUTRA service alone. 38 U.S.C. § 101 (2), (24); see Acciola, 22 Vet. App. at 324.

The Veteran's service treatment records (STRs) show no complaints of or treatment for a neck condition. The Board notes that the STRs show that the Veteran was injured on September 21, 1984 in the line of duty when a projectile dropped on him. See September 1984 medical report. At that time, a contusion to the right arm, thigh, and left knee; and pain in the arm, thigh/leg, and back were documented. There is no evidence of a neck injury at that time. Id.

The evidence does not show a diagnosis of arthritis of the cervical spine within one year, from the date of termination of such service; nor does the Veteran contend that he had arthritis in his neck within one year of his termination of such service.

A December 1989 private treatment record notes that the Veteran complained of chronic neck pain and stiffness due to a fall from a roof which occurred one year prior. Diagnosis of cervical sprain and left lower cervical brachial syndrome were rendered.

The Veteran was afforded a VA neck examination in August 2019. The examiner provided a negative nexus opinion regarding the relationship between the Veteran's cervical degenerative arthritis and his service. He explained that the STRs do not document any cervical arthritis or complaints about the neck in relation to his September 1984 shell-related injury. He further noted that the Veteran had no cervical complaints at his November 1986 examination and his March 2002 and April 2003 cervical x-rays were normal. He stated that the June 2005 cervical x-ray showed cervical degenerative arthritis and the records show neck pain in 2009. However, he also noted that the Veteran worked as a mechanic, carpenter, and truck driver. Significantly, at the examination, the Veteran reported that his neck condition began two years prior to the August 2019 examination.

The Board finds that August 2019 medical opinion to be highly probative. The opinion was based on an in-person examination and a review of the claims file, and the examiner provided detailed rationale in support of his opinion. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There is no competent medical opinion of record to the contrary.

The Board notes that the Veteran, as a lay person, is competent to provide evidence regarding the symptoms he observed; however, he is not competent to offer an opinion as to the etiology of his neck condition because this matter falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 n. 4 (Fed. Cir. 2007).

Accordingly, entitlement service connection for neck condition is denied.

REASONS FOR REMAND

1. Entitlement to service connection for arthritis; service connection for erectile dysfunction, secondary to the Veteran's service-connected thoracolumbar spine degenerative joint and disc disease; service connection for a mental health condition; a rating in excess of 20 percent for service-connected thoracolumbar spine degenerative joint and disc disease; a rating in excess of 10 percent for service-connected right lower extremity radiculopathy; a rating in excess of 20 percent for service-connected left lower extremity radiculopathy; and TDIU

The most recent adjudication of the issues of entitlement to service connection for arthritis; service connection for erectile dysfunction, secondary to the Veteran's service-connected
is denied.

REASONS FOR REMAND

The most recent adjudication of the issues of entitlement to service connection for arthritis; service connection for erectile dysfunction, secondary to the Veteran's service-connected thoracolumbar spine degenerative joint and disc disease; service connection for a mental health condition; a rating in excess of 20 percent for service-connected thoracolumbar spine degenerative joint and disc disease; a rating in excess of 10 percent for service-connected right lower extremity radiculopathy; a rating in excess of 20 percent for service-connected left lower extremity radiculopathy; and TDIU occurred in a June 29, 2020 Supplemental Statement of the Case (SSOC). Subsequently, in December 2022, VA treatment records were added to the claims file that are relevant to these claims. The Board sent the Veteran a waiver solicitation letter on March 13, 2023 to ascertain whether it could review this evidence. On March 23, 2023, the Veteran requested that his case be sent back for AOJ review of the additional evidence that was submitted in his appeal.

As such, the Veteran's claims for entitlement to service connection for arthritis; service connection for erectile dysfunction, secondary to the Veteran's service-connected thoracolumbar spine degenerative joint and disc disease; service connection for a mental health condition; a rating in excess of 20 percent for service-connected thoracolumbar spine degenerative joint and disc disease; a rating in excess of 10 percent for service-connected right lower extremity radiculopathy; a rating in excess of 20 percent for service-connected left lower extremity radiculopathy; and TDIU must be remanded to the AOJ for consideration of this additional evidence and the issuance of an SSOC. See 38 C.F.R. § 19.37.

2. Service connection for a right and left shoulder conditions

The Veteran contends that his right and left shoulder conditions are related to his active duty service. The Veteran has current diagnoses of degenerative arthritis of the right and left shoulders and surgical repair of the right shoulder. See August 2019 VA examination.

The STRs show that the Veteran was injured on September 21, 1984 in the line of duty when a projectile dropped on him. See September 1984 medical report. At that time, a contusion to the right arm and arm pain were documented.

The Veteran was afforded a VA examination in December 1989, at which time he reported burning in his shoulder blades.

The Veteran was afforded an additional VA examination of his shoulder and arm conditions in August 2019. The examiner provided a negative nexus opinion. In the examiner's rationale for his opinion, he stated that the available STRs do not document any shoulder injury or complains about the shoulder in relation to the September 1984 shell-related injury. The examiner did not consider the September 1984 STR showing a contusion to the right arm and arm pain related to the September 1984 projectile dropping on him in the line of duty. Further, the examiner did not acknowledge the Veteran's report of burning in his shoulder blades in December 1989. As such, a medical opinion is warranted to consider this evidence in determining whether the Veteran has a current right and/or left shoulder condition that is related to his service.

The matters are REMANDED for the following action:

1. Readjudicate the Veteran's claims of entitlement to service connection for arthritis; service connection for erectile dysfunction, secondary to the Veteran's service-connected thoracolumbar spine degenerative joint and disc disease; service connection for a mental health condition; a rating in excess of 20 percent for service-connected thoracolumbar spine degenerative joint and disc disease; a rating in excess of 10 percent for service-connected right lower extremity radiculopathy; a rating in excess of 20 percent for service-connected left lower extremity radiculopathy; and TDIU, with consideration of all additional evidence associated with the claims file after the June 29, 2020 SSOC, to include all VA treatment records.

2. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's right and left
thoracolumbar spine degenerative joint and disc disease; service connection for a mental health condition; a rating in excess of 20 percent for service-connected thoracolumbar spine degenerative joint and disc disease; a rating in excess of 10 percent for service-connected right lower extremity radiculopathy; a rating in excess of 20 percent for service-connected left lower extremity radiculopathy; and TDIU, with consideration of all additional evidence associated with the claims file after the June 29, 2020 SSOC, to include all VA treatment records.

2. Forward the Veteran's claims file to an appropriate VA clinician to provide a medical opinion regarding the nature and etiology of the Veteran's right and left shoulder conditions. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. If the clinician believes that a physical examination should be conducted in order to provide the requested opinion, one should be provided.

Thereafter, the clinician must opine whether it is at least as likely as not that the Veteran's right and/or left shoulder condition had its onset in, was caused by, or is otherwise related to service, to include his September 1984 injury during ACDUTRA.

In offering any opinion, the clinician should consider medical and lay evidence dated both prior to and since the filing of the claim. The clinician must specifically address and consider: 1) the September1984 STR showing that the Veteran was injured in the line of duty when a projectile dropped on him, and the documented contusion to the right arm and arm pain at that time; and 2) the December 1989 VA examination report showing the Veteran complained of burning in his shoulder blades.

The clinician should provide a complete rationale for any opinion rendered. If he or she cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so.

Colleen M. Glaser-Allen

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board C. Samuelson, 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.

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