Citation Nr: 18160569
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 16-62 906
DATE:	December 27, 2018
ORDER
The appeal seeking to reopen a claim of service connection for a right knee condition is granted.
Entitlement to a compensable rating for a fracture of the left third and fourth fingers is granted.
Entitlement to an effective date prior to December 17, 2014, for the grant of service connection for a chronic back disability is denied.

REMANDED
Entitlement to service connection for a right hip condition is remanded.
Entitlement to service connection for a left hip condition is remanded.
Entitlement to service connection for a right knee condition is remanded.
Entitlement to service connection for a cardiac disability (manifested as A-Fib arrhythmia) as a result of exposure to herbicides is remanded.


FINDINGS OF FACT
1. A June 1991 rating decision denied the Veteran’s original claim of service connection for a right knee disability because there was no evidence of a chronic right knee disability.  The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of that rating decision.
2. Evidence received since the June 1991 rating decision (1) includes evidence not of record at that time, including a June 2015 VA examination and which shows that the Veteran now has a diagnosis of right knee degenerative arthritis (2) relates to an unestablished fact necessary to substantiate the underlying claim of service connection, and (3) raises a reasonable possibility of substantiating that claim.
3. The Veteran has reported pain in his left third and fourth fingers; there is no evidence of ankylosis or limitation of motion in the third and fourth fingers.
During a June 2015 VA hand and finger conditions examination, the Veteran asserted that he has frequent pain in the third and fourth fingers of his left hand that “shoots to his elbow with pressure applied to his hand.” There was no ankylosis or limitation of motion. The Board notes that the Veteran is competent to report on factual matters and observable symptoms of which he had firsthand knowledge, including pain, and the Board finds that the Veteran is credible.  See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Therefore, the Board grants the minimal compensable rating for pain in the third and fourth fingers of the left hand based on an application of 38 C.F.R. § 4.59. The Board also notes that the Veteran meets no other criteria for a higher rating.
4. Service connection for a back disability was first denied in a June 1991 rating decision.  The Veteran did not appeal that decision and new and material evidence was not received within one year of that rating decision.  Accordingly, it became final.
5. The Veteran filed a statement in support of claim noting an intent to apply for benefits under the Fully Developed Claim (FDC) program on December 17, 2014, seeking to reopen a claim of service connection for a back disability.  Service connection for a back disability was granted in a July 2015 rating decision, effective December 18, 2014.  A May 2017 rating decision subsequently granted an earlier effective date of December 17, 2014. The Veteran did not file a (formal or informal) claim seeking service connection for a back disability prior to December 17, 2014.
CONCLUSIONS OF LAW
1. New and material evidence has been received; the claim of service connection for a right knee condition may be reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110, 121 (2010) (the Court has held that the requirement of new and material evidence raising a reasonable possibility of substantiating the claim is a low threshold and that the phrase “raises a reasonable possibility of substantiating the claim” is “enabling rather than precluding reopening”).  
2. The criteria for an initial disability rating of 10 percent (but no higher) for pain in the left third and fourth fingers have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5227.  
3. The criteria for an effective date earlier than December 17, 2014, for the grant of service connection for a chronic back disability have not been satisfied.  38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active service from January 1971 to February 1991.
This case comes before the Board of Veterans’ Appeals (Board) on appeal of rating decisions in July 2015 and December 2015 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.  The Veteran was previously represented by a veterans’ service organization, but revoked that representation in a May 2017 correspondence and is now proceeding pro se.
For the reasons outlined above, the appeal seeking to reopen a claim of service connection for a right knee condition and the increased rating claim for a fracture of the left third and fourth fingers is granted.
Earlier Effective Date
Entitlement to an effective date prior to December 17, 2014, for the grant of service connection for a chronic back disability is denied.
The Veteran asserts that he is entitled to an earlier effective date for the grant of service connection for a chronic back disability under the provisions of 38 C.F.R. § 3.156(c).
Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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. § 5110(a). 
The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C. § 5110(a); 38 C.F.R. §§ 3.400(q)(2), 3.400(r); see also Sears v. Principi, 16 Vet. App. 244, 248 (2002) (“the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed”). 
The Veteran’s original claim of service connection for a back disability was received in March 1991.  A June 1991 rating decision denied service connection based on a finding of no chronic back disability.
On December 17, 2014, the Veteran filed an informal claim seeking service connection for a back disability.  A July 215 rating decision subsequently granted service connection for a back disability and assigned an effective date of December 18, 2014.  However, a May 2017 rating decision subsequently granted an earlier effective date of December 17, 2014 (the date of the Veteran’s informal claim).
As there is no evidence of any unadjudicated formal or informal claim of service connection for a foot disability subsequent to the June 1991 rating decision that first denied service connection for a back disability and prior to December 17, 2014 (the date the Veteran filed his informal claim to reopen), the Board finds that the Veteran is not entitled to an effective date earlier than December 17, 2014, for the grant of service connection for a chronic back disability and the appeal in this matter is denied.
REMAND
Upon review of the record, the Board concludes that further evidentiary development is necessary to ensure VA provides the Veteran with appropriate process and assistance in developing his claim prior to final adjudication. 
As an initial matter, the Board notes that the medical evidence associated with the record is incomplete.  Specifically, in May 2017 correspondence, the Veteran identified several private providers, including his family doctor, Dr. Preet Karin, physical therapy at PT Solutions, and treatment from Southern Orthopedic Surgeons LLC with Dr. Mattox.  Additionally, one treatment record identified Dr. Sims as the Veteran’s cardiologist.  To date, records from these providers/physicians have not been obtained.  Accordingly, because such records are pertinent, they must be obtained, in addition to any updated records of any VA treatment the Veteran received for the disabilities on appeal.

1. Entitlement to service connection for bilateral hip and right knee disabilities is remanded.
VA is obliged to provide an examination or obtain a medical opinion in a claim of service connection when the record contains competent evidence that the claimant has a current disability that may be associated with active service, and the record does not contain sufficient information to make a decision on the claim.  See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).  The evidentiary requirement that the record indicates that the claimed disability may be associated with active service is a “low threshold.”  McLendon, 20 Vet. App. at 83.
In his May 2017 VA Form 9, the Veteran stated that his bilateral hip condition is secondary to his service-connected low back disability.  He reported that his hips  “are painful in part due to the bulging discs I have …, I basically have pain from my back to my hips and knees.”  To date, the Veteran has not been afforded a VA examination in conjunction with this claim. Accordingly, an examination to obtain a medical opinion is necessary.  Id. at 83.
Additionally, a February 2015 private treatment record noting back pain and right hip pain extending down to the Veteran’s knee. Although the Veteran was examined in June 2015, the Board finds that another examination is needed to determine the cause of the Veteran’s right knee disability, and specifically whether such could be caused or aggravated by either his service-connected back disability or a right hip condition.  
2. Entitlement to service connection for a cardiac disability is remanded.
The Veteran’s VA and private treatment records show diagnoses of various heart disabilities.  The Veteran has alleged that his heart symptoms began in service, to include as due to exposure to herbicide agents while working on C-123 planes. 
Effective June 19, 2015, VA amended its regulation governing individuals presumed to have been exposed to certain herbicides by expanding the regulation to include an additional group consisting of individuals who performed service in the Air Force or Air Force Reserve under circumstances in which they had regular and repeated contact with C-123 aircraft known to have been used to spray an herbicide agent (“Agent Orange”) during the Vietnam era.  Specifically, the new regulation states that an individual who performed service in the Air Force or Air Force Reserve under circumstances in which the individual concerned regularly and repeatedly operated, maintained, or served onboard C-123 aircraft known to have been used to spray an herbicide agent during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent.
For purposes of this paragraph, “regularly and repeatedly operated, maintained or served onboard C-123 aircraft” means that the individual was assigned to an Air Force or Air Force Reserve squadron when the squadron was permanently assigned one of the affected aircraft and the individual had an Air Force Specialty Code (AFSC) indicating duties as a flight, ground maintenance, or medical crew member of such aircraft. 38 C.F.R. § 3.307(a)(6)(v).  A review of the Federal Register reveals that some C-123s were used to actually spray herbicide in Vietnam. 80 Fed. Reg. 35,246 (June 19, 2015). For this reason, the presumption of herbicide exposure under 38 C.F.R. § 3.307(a)(6)(v) is limited to contact with C-123 aircraft known to have been used to sprayed an herbicide agent during the Vietnam era. 
The affected reserve units and dates of service for affected crew members were assigned to several locations, including Langley Air Force Base, Virginia (1962-1963, 1970-1973) and Howard Air Force Base, Panama (1970-1973).  VA has published a list of specialty codes for military personnel who had regular and repeated exposure to contaminated Operation Ranch Hand (ORH) C-123s, used to spray Agent Orange in Vietnam, as flight, maintenance, or medical crew members. Those codes are for enlisted personnel are as flight engineer/aircraft loadmaster (1130-1149), aircrew life support specialist (1220-1229), and aircraft maintenance specialist/flight technicians (4314-4359). See http://www.benefits.va.gov/compensation/docs/AO_C123_AFSpecialityCodesUnits.pdf. 
Thus, to warrant presumptive exposure based on contact with a C-123, a veteran must have had duties at one of the above listed places but also have had a duty which entailed that he or she regularly and repeatedly operated, maintained or served onboard C-123 aircraft
The Veteran’s military occupation specialty was aircraft maintenance specialist. A November 1972 special order assigned the Veteran to 24 CAM squadron, which he claims is part of the 24th Special Operations Wing at Howard Air Force Base in Panama.  There is no indication that VA specifically determined whether the Veteran was exposed to herbicide agents in this capacity. As such, remand is necessary to develop the record in accordance with the M21-1 procedures to determine the likelihood the Veteran was exposed to an herbicide agent while service as an aircraft maintenance specialist.  The Board also finds that the low threshold standard for when the Board should order a VA examination to provide a medical opinion is met.  McLendon, 20 Vet. App. at 27.
The matters are REMANDED for the following action:
1. Ask the Veteran to identify the provider(s) of all evaluations and treatment he has received for the disabilities remaining on appeal since his discharge from service (records of which are not already associated with the claims file or established to be unavailable), and to provide all releases necessary for VA to obtain the complete clinical records of all such treatment or evaluation, to specifically include medical authorizations for Dr. Preet Karin, PT Solutions, Southern Orthopedic Surgeons LLC (with Dr. Mattox), and cardiologist Dr. Sims.
The Veteran should also be asked to specifically identify when the disabilities on appeal were first diagnosed and the diagnosing physician and/or facility, as well as the identity of his primary care physician. With his cooperation (by providing releases) the AOJ should obtain for the record complete clinical records of all such evaluations and treatment. If any private records identified are not received pursuant to the AOJ’s request, the Veteran should be so notified and advised that ultimately it is his responsibility to ensure that private records are received.
2. The AOJ should specifically obtain for the record complete clinical records of all VA evaluations and treatment the Veteran has received for the disabilities remaining on appeal (i.e., update to the present all records of VA evaluations and treatment for his disabilities from all VAMCs).
3. Verify the Veteran’s claimed exposure to herbicide agents and exposure to other harmful chemicals or toxins in service with the appropriate agency(ies), to the extent possible.
4. Thereafter, schedule the Veteran for an examination to determine the cause of his bilateral hip and right knee disabilities.  The claims file must be reviewed by the examiner. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following:
(a) Identify (by diagnosis) each bilateral hip and right knee disability.
(b) For each hip disability diagnosed, is it at least as likely as not (a 50 percent or better probability) that the such either began during or was otherwise caused by his military service?
(c) If not, is it at least as likely as not (a 50 percent or better probability) that the Veteran’s right or left hip disability was either caused OR aggravated (the opinion MUST specifically discuss the concept of aggravation, and “aggravation” means the disability increased in severity beyond its natural progression) by his service-connected back disability?
If aggravation is found, the opinion provider should indicate, to the extent possible, the approximate baseline level of disability before the onset of aggravation.
(d) For each right knee disability diagnosed, is it at least as likely as not (a 50 percent or better probability) that the such either began during or was otherwise caused by his military service?
(e) If not, is it at least as likely as not (a 50 percent or better probability) that the Veteran’s right knee disability was either caused OR aggravated (the opinion MUST specifically discuss the concept of aggravation, and “aggravation” means the disability increased in severity beyond its natural progression) by his service-connected back disability or left knee disability AND/OR his right or left hip disability?
If aggravation is found, the opinion provider should indicate, to the extent possible, the approximate baseline level of disability before the onset of aggravation.
All opinions and conclusions must be supported by a rationale.

5. Schedule the Veteran for a VA cardiac examination to determine the cause of his heart condition. The claims file must be reviewed by the examiner. Based on review of the record and examination of the Veteran, the examiner should provide opinions that respond to the following:
(a) Identify (by diagnosis) each heart disability shown. 
(b) For each heart disability diagnosed, is it at least as likely as not (a 50 percent or greater probability) that such either began during or was otherwise caused by his military service, to include as due to exposure to herbicide agents in service (if exposure to such is confirmed)?
All opinions and conclusions must be supported by a rationale.
 
T. MATTA
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Banks, Associate Counsel 

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