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