Citation Nr: 0601686 Decision Date: 01/19/06 Archive Date: 01/31/06 DOCKET NO. 96-42 103 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an effective date, prior to April 8, 1996, for a rating higher than 20 percent for degenerative disc disease of the lumbosacral spine with lumbosacral strain. REPRESENTATION Appellant represented by: Sean Kendall, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. A. Wasik, Counsel INTRODUCTION The veteran served on active duty from January 1954 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1996 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). The issue on appeal has been before the Board in November 1997, December 1999, July 2000, November 2002, and March 2005 when it has either been denied by the Board and then vacated by a subsequent decision of the United States Court of Appeals for Veterans Claims (the Court); or remanded by the Board to cure a procedural defect and/or for additional evidentiary development. In January 2006, the veteran's representative submitted additional evidence in support of his claims. Included in the evidence was a waiver of the veteran's right to have the RO review the evidence. FINDINGS OF FACT 1. Clinical records dated August 15, 1994, constituted an informal claim of entitlement to a rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine with lumbosacral strain. 2. It is not factually ascertainable that the veteran's degenerative disc disease of the lumbosacral spine with lumbosacral strain increased in severity prior to April 8, 1996. CONCLUSION OF LAW The criteria for an effective date prior to April 8, 1996, for a rating in excess of 20 percent for degenerative disc disease of the lumbosacral spine with lumbosacral strain have not been met. 38 U.S.C.A. §§ 1155, 5110 (West 2002); 38 C.F.R. § 3.400 (2005). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations set forth certain notice and assistance provisions. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a). After reviewing the claims folder, the Board finds that the appellant has been notified of the applicable laws and regulations which set forth the criteria for entitlement to VA benefits. Specifically, the discussions in the statement of the case and the April 2005 VCAA letter, have informed the appellant of the information and evidence necessary to warrant entitlement to the benefit sought. Moreover, in the statement and supplemental statements of the case and in the VCAA letter the appellant was advised of the types of evidence VA would assist in obtaining as well as the appellant's own responsibilities with regard to identifying the relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board also notes that the April 2005 letter implicitly notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was repeatedly advised to identify any source of evidence and that VA would assist in requesting such evidence. The Board believes that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. In this case, the RO's decision came before notification of the veteran's rights under the VCAA. It is arguable that the VCAA notice was not timely. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds, however, that any defect with respect to the timing of the VCAA notice in this case was harmless error for the reasons specified below. After the rating action on appeal was promulgated, the RO did provide notice to the claimant in April 2005 regarding what information and evidence was needed to substantiate the claim, as well as what information and evidence must be submitted by the claimant, what information and evidence will be obtained by VA, and the need for the claimant to submit any evidence in his possession that pertains to the claim. Under these circumstances, the Board finds that all notification and development action needed to render a fair decision on this claim have been accomplished and that adjudication of the claim, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). All the VCAA requires is that the duty to notify is satisfied, and that claimants are given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the new law and regulation. The record demonstrates that that all available VA and private treatment records have been obtained. The requirements of 38 C.F.R. § 3.159(c)(4) have been met. The veteran has submitted additional evidence. Significantly, no additional pertinent evidence has been identified by the appellant as relevant to the issue on appeal. Under the circumstances of this particular case, no further action is necessary to assist the appellant. Criteria The veteran has claimed entitlement to an effective date prior to April 8, 1996 for assignment of a rating in excess of 20 percent for his service-connected lumbosacral spine disability. The assignment of effective dates for increased disability evaluations is governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. The statute provides, in pertinent part, that: (a) Unless specifically provided otherwise in this chapter, 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. (b)(2) The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C.A. § 5110. The pertinent provisions of 38 C.F.R. § 3.400 clarify that the effective date of an increase in compensation will be determined as follows: (o) Except as provided in paragraph (o)(2) of this section and § 3.401(b), date of receipt of claim or date entitlement arose, whichever is later. A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. (2) Disability compensation. Earliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o). The Court and the VA General Counsel, have interpreted the laws and regulations pertaining to the effective date of an increase as follows: If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). The regulations provide that a veteran may receive benefits by filing an informal claim, which is defined by "[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant ... may be considered an informal claim." 38 C.F.R. § 3.155. Such an informal claim must identify the benefit sought; and, upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Id. Once a formal claim for compensation has been allowed, receipt of a VA hospitalization report, a record of VA treatment or hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). Except as provided in 38 C.F.R. § 3.652, where evidence requested in connection with an original claim, a claim for increase or to reopen or for the purpose of determining continued entitlement is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Should the right to benefits be finally established, pension, compensation, dependency and indemnity compensation, or monetary allowance under the provisions of 38 U.S.C. 1805 based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158(a). Analysis In March 1961, the RO granted entitlement to service connection for lumbosacral strain, superimposed on congenital Spondylolisthesis, rated as 10 percent disabling under Diagnostic Code 5295. In June 1983, the RO increased the rating to 20 percent under Diagnostic Code 5293, effective November 1, 1982, and described the service- connected back disability as DDD, lumbar, postoperative laminectomy, L4-5, with lumbar strain. On April 9, 1990, the RO received a statement from the veteran that his back disability had worsened and that he would therefore like to "get it checked over." The veteran has argued the April 9, 1990 submission constituted an informal claim. The Board, however, finds that it cannot amount to an informal claim for an increased rating because the benefit sought was identified as treatment and evaluation, for which the RO provided information only weeks later. In VA correspondence dated April 20, 1990, the RO notified the veteran that he was entitled to free treatment for his back disability. No further correspondence ensued between the veteran and the RO until 1996. Because the 1990 submission by the veteran failed to identify a request for an increase and was essentially abandoned, the date of April 9, 1990 cannot be considered the date of receipt of the claim. See 38 C.F.R. §§ 3.155, 3.158(a); see also Fleshman v. Brown, 9 Vet. App. 548, 553 (1996). Associated with the claims file are VA clinical records dated August 15, 1994. The records demonstrate that the veteran reported he had had on and off back pain over the previous three to four years. An x-ray study conducted that date was interpreted as showing moderate degenerative changes in the spine with disc space narrowing at L4-5. The Board finds that the August 15, 1994, VA clinical records constitutes an informal claim for an increased rating for the service-connected lumbosacral spine disability under 38 C.F.R. § 3.157(b). The pertinent rating criteria for evaluation of the veteran's back disability extant in 1994 were Diagnostic Codes 5293 and 5295. Diagnostic Code 5293 provides for the evaluation of intervertebral disc syndrome. Intervertebral disc syndrome is assigned a noncompensable rating when it postoperative, cured. A 10 percent evaluation is assigned when it is mild. A 20 percent evaluation is warranted when the intervertebral disc syndrome is moderate with recurring attacks. A 40 percent evaluation is assigned when there are severe symptoms with recurring attacks and intermittent relief. A 60 percent rating requires pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc with little intermittent relief. 38 C.F.R. Part 4, Code 5293. Diagnostic Code 5295 provides criteria for rating lumbosacral strain. Diagnostic Code 5295 provides a zero percent rating for lumbosacral strain with slight subjective symptoms only. A 10 percent rating is assigned for lumbosacral strain with characteristic pain on motion. A 20 percent evaluation is warranted for lumbosacral strain where there is muscle spasm on extreme forward bending and unilateral loss of lateral spine motion in a standing position. A 40 percent evaluation requires severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of the joint space. A 40 percent evaluation is also warranted if only some of those manifestations are present if there is also abnormal mobility on forced motion. 38 C.F.R. Part 4, Code 5295. It is noted that 40 percent is the maximum rating provided under this Code. Looking first to the one year period prior to the August 15, 1994, informal claim, it does not appear that there is any clinical evidence of record dated between August 15, 1993 and August 15, 1994. The veteran did not reference any such treatment at the time of his June 1997 RO hearing. The Board finds there is no evidence of record upon which to base a rating in excess of 20 percent between August 15, 1993 and August 15, 1994. The evidence of record dated between August 15, 1994 and April 8, 1996 consists of VA clinical records. A VA clinical record dated August 15, 1994 demonstrates that the veteran reported he had had intermittent back pain which had been present for three to four years. It was also noted that he had had disc surgery in the 1980's and a motor vehicle accident in 1957. Physical examination showed no back tenderness. The assessment was back pain. A separate clinical record dated the same day indicates that the veteran was complaining of having difficulty getting up due to his back. The veteran was steady. A report of an X-ray examination of the veteran's lumbosacral spine was interpreted as revealing moderate degenerative changes in the spine with disc narrowing at L4-5. A clinical history of back pain was noted. A March 1995 record references the presence of chronic low back pain with intermittent left lower extremity pain. Clinical records dated in August 8, 1995 include complaints of back pain and reference the presence of degenerative joint disease. In March 8, 1996, the veteran sought treatment with complaints of low back pain. In September 1997, a private physician wrote that she was consulted for a second opinion regarding the status of the veteran's low back pain. The author noted that the veteran injured his back in 1957 and in 1982, he underwent discectomy with excellent pain relief. Approximately three years later, the pain returned and had become progressively worse. She noted that the veteran worked part time from 1993 to June 1997 when he was no longer able to work due to back pain. The physician opined that the veteran might be able to perform sedentary work. A July 2000 letter from a private physician indicates that the veteran injured his back in1957 and underwent surgery in 1982. The veteran had marked resolution of his back symptomatology for approximately two or three years when the symptoms appeared again and became progressively worse to the point where the veteran was no longer able to perform his occupation as a truck driver in 1997. In November 2005, a private neuro-radiologist promulgated what was titled an independent medical examination. He reported that he had reviewed the veteran's post-service medical records, imaging reports, other medical opinions, lab reports, medications and medical literature. It was the author's opinion that that the veteran's "current medical codes, which are currently assigned to the year of 1996, should be assigned to the year of 1982 or at least to the legally allowed date between 1982 and his current date of 1996 because he has serious spine symptoms from 1982 to 2005. The author noted that it was clear that the veteran had decades of spine degenerative changes which are mostly localized to the L4-L5 level. He also reported that it was well known that injuries to the spine degenerate over time. He opined that the veteran's spine problems clearly extended back to 1982 based on imaging documenting spine problems at the L4-L5 level. In December 2005, the private physician promulgated another opinion. It was noted that, in addition, to the evidence of record he listed as having reviewed above, he had also conducted a telephone interview with the veteran in December 2005. The author opined that the 20 percent disability evaluation assigned from 1994 to 1996 was inaccurate as the veteran clearly had constant pain, sciatica and leg weakness consistent with a 60 percent evaluation under Diagnostic Code 5293 from 1994 forward. In the body of the report, it was noted that, from 1984 to 1994, the veteran just lived with his spine problems which became progressively worse until 1994 when he was unable to work full time and had to take a part time job with his brother due to leg pain and spasms. The Board finds the pertinent evidence of record does not demonstrate that an increased rating in excess of 20 percent prior to April 8, 1996 was factually ascertainable when the service-connected lumbosacral spine disability is evaluated under Diagnostic Code 5293. The contemporaneous evidence of the presence of any potential symptomalogy attributable to intervertebral disc syndrome is the complaint of back pain with radiation into the left lower extremity. However, the evidence between August 15, 1995, and April 8, 1996, does not, in the Board's view, reflect severe disability so as to warrant a 40 percent rating, nor is there persuasive evidence of the presence of pronounced intervertebral disc syndrome with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk or other neurological findings appropriate to the site of the diseased disc with little intermittent relief so as to warrant a 60 percent rating prior to April 8, 1996. The Board further finds that it was not factually ascertainable that a rating in excess of 20 percent prior to April 8, 1996 was warranted when the service-connected disability is evaluated under Diagnostic Code 5295. There is no persuasive evidence of the presence of severe lumbosacral strain manifested by listing of the whole spine to the opposite side, a positive Goldthwait's sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritis changes, or narrowing or irregularity of the joint space nor is there any competent evidence of abnormal mobility on forced motion. The clinical records document complaints of pain but no other significant symptomalogy. The Board notes that a March 1997 record refers to a report of an April 1994 X-ray examination of the veteran's spine. A review of the evidence of record indicates that no such report of examination has been associated with the claims file. The RO specifically requested records from this time period in order to obtain the X-rays report without success. The records received in response to the RO's request only included the above referenced August 1994 X-ray report. The Board further finds that the private medical opinions associated with the claims files do not support a finding that the veteran's back symptomatology warranted a rating in excess of 20 percent prior to April 8, 1996. The September 1997, July 2000, and November 2005 letters only indicated that the veteran had back problems which were diminished by surgery in 1982 but then returned a few years later and had steadily increased since that time. The records do not quantify the level of disability associated with the pain nor do they reference specific symptomatology. The fact that the veteran experienced pain in his back a few years after his 1982 back surgery is well established. In an apparent effort to correct the November 2005 opinion, Dr. Bash promulgated another letter in December 2005, indicating that the veteran experienced constant pain, sciatica and leg weakness in his leg as a result of his back disability beginning in 1994. The Board finds, however, that the contemporaneous medical records do not support the physician's opinion. The physician alleged that the veteran experienced constant back pain since 1994. However, the August 1994 VA clinical record indicates that the veteran only reported intermittent back pain. To the extent that the December 2005 letter can be construed as indicating that the veteran experienced constant sciatica and left leg weakness, the Board notes that the only one clinical record dated for the pertinent time period is the March 1995 record which references not constant but intermittent left lower extremity pain. As noted above, the Board has found that this symptomatology is insufficient to find that a rating in excess of 20 percent was warranted prior to April 8, 1996. In fact, the private physician did not even reference this record in formulating his opinion. It is not apparent upon what basis the opinion's foundation is laid upon other than the veteran's own reports of symptomatology he provided to private physician in December 2005. This self-reported history was provided was many years after the fact and at time when the veteran had a claim for VA benefits with the potential for pecuniary gain based on the evidence provided by the veteran. The clinical records do not support the veteran's current allegations or the physician's opinion. The Board is not bound to accept medical opinions that are based on history supplied by the veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458, 460- 61 (1993). The Board finds no basis to assign an earlier effective date for the evaluation of the service connected degenerative disc disease of the lumbosacral spine with lumbosacral strain. While the Board notes that the August 1994 clinical records have been construed as an informal claim for an increased rating for his spine, it was not factually ascertainable that a rating in excess of 20 percent was warranted for the service-connected lumbosacral spine disability prior to April 8, 1996. After a review of the evidence of record, the Board is of the opinion that a preponderance of the evidence is against the veteran's claim for an earlier effective date. In this regard, although he is entitled to the benefit of the doubt where the evidence is in approximate balance, the benefit-of-the-doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. See Gilbert, supra. ORDER The appeal is denied. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs