Citation Nr: 0812084 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-02 540 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an effective date earlier than November 13, 2002, for service connection for a lumbar spine disability. 2. Entitlement to an initial disability rating higher than 20 percent for a lumbar spine disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL Appellant and his sons ATTORNEY FOR THE BOARD B. Adams, Associate Counsel INTRODUCTION The veteran served on active duty from February 1964 to February 1967. His awards and medals include the Distinguished Flying Cross. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In February 2008, the veteran testified at Travel Board hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. At the hearing, the veteran submitted additional evidence pertaining to his claims and waived his right to have this evidence initially considered by the originating agency. The issue of entitlement to an initial disability rating higher than 20 percent for a lumbar spine disability is addressed in the remand that follows the order section of this decision. FINDINGS OF FACT 1. Service connection for a lumbar spine disability was denied in an unappealed rating decision of April 1978. 2. Thereafter, no relevant service department records were received. 3. The veteran's claim to reopen was received on November 13, 2002. CONCLUSION OF LAW The criteria for an effective date earlier than November 13, 2002, for service connection for a lumbar spine disability have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.155, 3.156, 3.400 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2007), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2007), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. In addition, VA also must request that the claimant provide any evidence in the claimant's possession that pertains to the claim. As explained below, the pertinent facts in this case are not in dispute and the law is dispositive. Consequently, there is no additional evidence that could be obtained to substantiate the claim, and no further action is required to comply with the VCAA or the implementing regulation. See Manning v. Principi, 16 Vet. App. 534, 542 (2002); VAOPGCPREC 5-2004 (June 23, 2004). Analysis The effective date of an award of compensation on a claim to reopen after a final disallowance of the claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Under some circumstances, if relevant service department records are received after a final disallowance of a claim, the effective date will be the later of the date of receipt of the previously denied claim or the date entitlement arose. 38 C.F.R. § 3.156. Any communication or action from a claimant which indicates intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The record reflects that the veteran's original claim of entitlement to service connection for a lumbar spine disability was denied by the RO in an April 1977 rating decision based on its determination that there was no evidence of a current disability. The denial of service connection was confirmed and continued by the RO in April 1978. The veteran did not submit a notice of disagreement with either decision, and the denials became final. Thereafter, a claim to reopen was not received until November 13, 2002, and no relevant service department records were received. The veteran has not disputed the facts set forth above, and the law is clear that absent the receipt of relevant service department records after the last final disallowance of the claim, the earliest possible effective date is the date of receipt of the claim to reopen. Therefore, the currently assigned effective date of November 13, 2002, is proper. ORDER Entitlement to an effective date earlier than November 13, 2002, for service connection for a lumbar spine disability is denied. REMAND The Board finds that the veteran is entitled to a new VA examination in order to determine the current level of severity of his lumbar spine disability. The veteran was afforded a VA examination in July 2007, but the veteran testified at the February 2008 hearing that the examiner did not review his claims folder or accurately measure his range of motion. The examination report confirms that the examiner did not review the claims folder. The veteran also testified that he received additional treatment at a VA medical facility since August 2007 and that he experiences neurological symptoms, including urinary frequency and erectile dysfunction, which he believes are related to his lumbar spine disability. In addition to a new VA examination, the Board finds that the veteran's most recent VA outpatient treatment records should be obtained since they may contain information concerning his current level of disability. 38 C.F.R. § 3.159(c)(2) (2007). Accordingly, this case is REMANDED to the RO or the Appeals Management Center (AMC), in Washington, D.C., for the following actions: 1. The AMC or RO should undertake appropriate development to obtain any pertinent evidence identified but not provided by the veteran, including VA outpatient treatment records for the period since August 2007. If it is unable to obtain any such evidence, it should so inform the veteran and his representative and request them to provide the outstanding evidence. 2. When all indicated record development has been completed, the veteran should be afforded an examination by a physician with appropriate expertise to determine the current degree of severity of his lumbar spine disability. The claims folder must be made available to and reviewed by the examiner. The examiner should describe all symptomatology and functional impairment due to the veteran's lumbar spine disability. Any indicated studies, including X-ray studies and range of motion testing, should be performed. The examiner should note the exact measurements for forward flexion, extension, lateral flexion, lateral rotation and specifically identify any excursion of motion accompanied by pain. The examiner should identify any objective evidence of pain and provide an assessment of the degree of severity of any pain. The examiner should specifically address whether there is abnormality of spinal contour and/or guarding. If guarding or muscle spasm is found, the examiner should indicate whether it is sufficiently severe to result in an abnormal gait. Tests of joint motion against varying resistance should be performed. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible the functional impairment due to incoordination, weakened movement and excess fatigability should be assessed in terms of additional degrees of limitation of motion. If this is not feasible, the examiner should so state. The examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups (if the veteran describes flare-ups), and, if feasible, express this in terms of additional degrees of limitation of motion on repeated use or during flare- ups. If this is not feasible, the examiner should so state. The examiner should specifically identify any evidence of neuropathy due to the service-connected disability, to include reflex changes, characteristic pain, and muscle spasm. Any functional impairment of the lower extremities or genitourinary system due to the disc disease should be identified, and the examiner should assess the frequency and duration of any episodes of intervertebral disc syndrome disability, and in particular should assess the frequency and duration of any episodes of acute signs and symptoms of intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. The examiner should also provide an opinion concerning the impact of the disability on the veteran's ability to work. The rationale for all opinions expressed also should be provided. 3. The RO or the AMC also should undertake any other development it determines to be warranted. 4. Then, the RO or the AMC should readjudicate the veteran's claim for an initial disability rating higher than 20 percent for a lumbar spine disability based on a de novo review of the record. If the benefit sought on appeal is not granted to the veteran's satisfaction, he and his representative should be furnished a supplemental statement of the case and afforded the requisite opportunity to respond before the case is returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the appellant until he is otherwise notified, but he has the right to submit additional evidence and argument on the matter the Board has remanded. See 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 of Veterans' Appeals 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 Supp. 2007). ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs