Citation Nr: 1001253	
Decision Date: 01/08/10    Archive Date: 01/15/10

DOCKET NO.  07-39 494	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, 
California


THE ISSUES

1. Entitlement to an effective date earlier than October 4, 
2001, for a 60 percent rating for residuals of a lumbar spine 
injury to include degenerative disc disease (DDD).

2. Entitlement to an effective date earlier than October 4, 
2001, for the grant of a total disability rating based on 
individual unemployability (TDIU).

3. Entitlement to an effective date earlier than October 4, 
2001, for the grant of basic eligibility to Dependents' 
Educational Assistance (DEA) under Chapter 35, Title 38, 
United States Code.

4. Entitlement to an effective date earlier than February 20, 
1992, for the grant of service connection for loss of use of 
a creative organ, claimed as secondary to service-connected 
residuals of a lumbar spine injury to include DDD.

5. Entitlement to an effective date earlier than January 5, 
2004, for the grant of service connection for a cervical 
spine disability.

6. Entitlement to an effective date earlier than January 5, 
2004, for the grant of service connection for paralysis, loss 
of use of bilateral lower extremities, claimed as secondary 
to service-connected cervical spine disability.

7. Entitlement to an effective date earlier than January 5, 
2004, for the award of special monthly compensation (SMC) for 
loss of use of both feet with additional disability of 
residuals of lumbar injury with DDD independently ratable at 
more than 50 percent.

8. Entitlement to an effective date earlier than January 5, 
2004, for the grant of service connection for bilateral upper 
extremity weakness, claimed as secondary to service-connected 
cervical spine disability.


REPRESENTATION

Appellant represented by:	Sean A. Ravin, Esq.


ATTORNEY FOR THE BOARD

A. Ishizawar, Associate Counsel


INTRODUCTION

The Veteran had active service from May 1973 to May 1976.  

These matters are before the Board of Veterans' Appeals 
(Board) on appeal from February 2007 and June 2007 rating 
decisions of the San Diego, California Department of Veterans 
Affairs (VA) Regional Office (RO).  

In February 2007, the RO effectuated a January 2006 Board 
decision that granted an increased rating for DDD of the 
lumbosacral spine by assigning a 60 percent evaluation for 
the Veteran's residuals of a lumbar spine injury, to include 
degenerative disc disease (DDD), effective October 4, 2001.  
The February 2007 rating decision also, in pertinent part, 
granted TDIU and basic eligibility to DEA under Chapter 35, 
Title 38, United States Code, both effective October 4, 2001, 
and granted service connection for the loss of use of a 
creative organ, effective February 20, 1992.  

In June 2007, the RO, in pertinent part, granted service 
connection for a cervical spine disability, paralysis (loss 
of use of bilateral lower extremities), bilateral upper 
weakness, and awarded SMC for the loss of use of both feet 
with additional disability of residuals of lumbar injury with 
DDD independently ratable at more than 50 percent, all 
effective January 5, 2004.

Initially, the Board notes that, in February 2009, the 
Veteran's representative requested a 60 day extension of 
time, beyond the expiration of the 90 day period immediately 
following certification of an appeal.  Such motion was 
granted in March 2009, pursuant to 38 C.F.R. § 20.1304, and 
the Veteran's representative was given until July 24, 2009, 
to obtain and review the Veteran's claims file.  A copy of 
the Veteran's complete claims file was mailed to the 
Veteran's representative in May 2009.  In July 2009, he 
requested an additional 60 day extension of time to submit 
new medical evidence/legal argument to the Board.  The Board 
deferred action on the above-enumerated matters until that 
period of time had lapsed; no additional evidence/argument 
was received.  Accordingly, the claims will be considered 
based on the current record.


FINDINGS OF FACT

1.  On August 6, 1991, the RO received the Veteran's claim 
requesting an increased rating for service-connected 
residuals of a lumbar spine injury to include DDD.  

2.  Prior to October 4, 2001, it was not factually 
ascertainable that the Veteran's residuals of a lumbar spine 
injury to include DDD warranted a rating in excess of 60 
percent; entitlement to a 60 percent rating arose on that 
date.

3.  The Veteran did not meet the criteria for a TDIU prior to 
October 4, 2001; the evidence does not show that his service-
connected disabilities, alone, prevented him from performing 
substantially gainful work prior to that date.

4.  The Veteran has been found to be totally disabled as of 
October 4, 2001; thus, an earlier effective date for the 
grant of entitlement to DEA under Chapter 35, Title 38, 
United States Code, is precluded by law.

5.  Prior to February 20, 1992, the medical evidence of 
record did not show that the Veteran suffered from the loss 
of use of a creative organ (which has been found to be 
related to his residuals of a lumbar spine injury to include 
DDD). 

6.  An unappealed November 1997 rating decision denied 
service connection for a cervical spine disability (claimed 
as neck disorder); clear and unmistakable error (CUE) in that 
rating decision is not alleged.  

7.  After the November 1997 rating decision, the first 
communication from the Veteran evidencing an intent to reopen 
a claim of service connection for a cervical spine disability 
was received on August 17, 1998; however, entitlement to 
service connection for such a disability was not established 
until after January 5, 2004 (on April 19, 2007).

8.  Paralysis (loss of use of bilateral lower extremities), 
bilateral upper weakness, and special monthly compensation 
(SMC) based on the loss of use of both feet with additional 
disability of residuals of lumbar injury with DDD 
independently ratable at more than 50 percent were determined 
to warrant service connection as secondary to the Veteran's 
cervical spine disability; service connection for a cervical 
spine disability has not been found to have been in effect 
prior to January 5, 2004, thus an effective date earlier than 
January 5, 2004, for secondary disabilities is not 
permissible.




CONCLUSIONS OF LAW

1.  An effective date prior to October 4, 2001, for the award 
of a 60 percent rating for residuals of a lumbar spine injury 
to include DDD is not warranted.  38 U.S.C.A. § 5110 (West 
2002 & Supp. 2009); 38 C.F.R. § 3.400 (2009).

2.  An effective date prior to October 4, 2001, for the award 
of a TDIU and DEA benefits is not warranted.  38 U.S.C.A. 
§ 5110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.400 (2009).

3.  An effective date prior to February 20, 1992, is not 
warranted for the award of service connection for loss of use 
of a creative organ.  38 U.S.C.A. §§ 5101, 5110, 7105 (West 
2002 & Supp. 2009); 38 C.F.R. § 3.400 (2009).

4.  An effective date prior to January 5, 2004, is not 
warranted for the award of service connection for a cervical 
spine disability.  38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 
& Supp. 2009); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2009).

5.  An effective date prior to January 5, 2004, is not 
warranted for the award of service connection for paralysis 
(loss of use of bilateral lower extremities), bilateral upper 
extremity weakness, or SMC for the loss of use of both feet 
with additional disability of residuals of lumbar injury with 
DDD independently ratable at more than 50 percent.  
38 U.S.C.A. §§ 5101, 5110, 7105 (West 2002 & Supp. 2009); 
38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2009).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, in part, describes VA's duties to notify and assist 
claimants in substantiating a claim for VA benefits.  See 
38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA 
applies to the instant claim.  Upon receipt of a complete or 
substantially complete application for benefits, VA is 
required to notify the claimant and his representative of any 
information, and any medical or lay evidence, that is 
necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 
183 (2002).  Proper VCAA notice must inform the claimant of 
any information and evidence not of record (1) that is 
necessary to substantiate the claim; (2) that VA will seek to 
provide; and (3) that the claimant is expected to provide.  
38 C.F.R. § 3.159(b)(1) (including as amended effective May 
30, 2008; 73 Fed. Reg. 23353 (April 30, 2008)).  VCAA notice 
should be provided to a claimant before the initial 
unfavorable agency of original jurisdiction decision on a 
claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

As the February 2007 and June 2007 rating decisions currently 
on appeal were fully favorable to the Veteran on the issues 
of an increased rating for residuals of a lumbar spine 
injury, service connection for the loss of use of a creative 
organ, a cervical spine disability, paralysis (loss of use of 
bilateral lower extremities), and bilateral upper weakness, 
TDIU, basic eligibility to DEA, and SMC for the loss of use 
of both feet with additional disability of residuals of 
lumbar injury, the Board finds that the statutory notice has 
served its purpose and additional notice was no longer 
required.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 
(2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 
2007).  A December 2007 statement of the case (SOC) provided 
notice on the "downstream" issue of an earlier effective 
date and readjudicated the matter after the appellant and his 
representative responded and further development was 
completed.  Notably, the Veteran has not alleged prejudice 
from any downstream notice defect.  See Goodwin v. Peake, 22 
Vet. App. 128, 137 (2008) (holding that "where a claim has 
been substantiated after the enactment of the VCAA, the 
appellant bears the burden of demonstrating any prejudice 
from defective VCAA notice with respect to the downstream 
issues").  See also Shinseki v. Sanders, 129 S. Ct. 1696 
(2009) (discussing the rule of prejudicial error).

All evidence relevant to the Veteran's claim has been 
secured.  It is noteworthy that determinations regarding 
effective dates of awards are based essentially on what was 
shown by the record at various points in time and application 
of governing law to those findings.  Generally, further 
development of the evidence is not necessary unless it is 
alleged that evidence constructively of record is 
outstanding.  The Veteran has not identified any other 
pertinent evidence that remains outstanding.  Thus, VA's duty 
to assist is met.  Accordingly, the Board will address the 
merits of the claim. 

Legal Criteria, Factual Background, and Analysis

Except as otherwise provided, the effective date of an 
evaluation and award of compensation based on an original 
claim, a claim reopened after final disallowance, or a claim 
for increase 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.  An exception to this rule 
provides that the effective date of an award of increased 
disability compensation shall be the earliest date as of 
which it is factually ascertainable that an increase in 
disability has occurred, if the claim is received within one 
year from such date; otherwise, it is the date of receipt of 
the claim.  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. 
§ 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 
(1997) (When considering the appropriate effective date for 
an increased rating, VA must consider the evidence of 
disability during the period one year prior to the 
application).

A specific claim in the form prescribed by the Secretary must 
be filed in order for benefits to be paid to any individual 
under the laws administered by VA.  38 U.S.C.A. § 5101(a); 
38 C.F.R. § 3.151(a).  A "claim" or "application" is 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).  An informal 
claim must identify the benefit sought.  38 C.F.R. 
§ 3.155(a).  If a formal claim is received within one year of 
an informal claim, it will be considered filed as of the date 
of receipt of the informal claim.  38 C.F.R. § 3.155.  

When all of the evidence is assembled, VA is responsible for 
determining whether the evidence supports the claim or is in 
relative equipoise, with the Veteran prevailing in either 
event, or whether a fair preponderance of the evidence is 
against the claim, in which the case is denied.  Gilbert v. 
Derwinski, 1 Vet. App. 49, 55 (1990).

Initially, the Board notes that it has reviewed all of the 
evidence in the Veteran's claims file, with an emphasis on 
the evidence relevant to these appeals.  Although the Board 
has an obligation to provide reasons and bases supporting its 
decision, there is no need to discuss, in detail, every piece 
of evidence of record.  Gonzales v. West, 218 F.3d 1378, 
1380-81 (Fed. Cir. 2000) (holding that VA must review the 
entire record, but does not have to discuss each piece of 
evidence).  Hence, the Board will summarize the relevant 
evidence where appropriate and the Board's analysis below 
will focus specifically on what the evidence shows, or fails 
to show, as to the claims.

Residuals of a lumbar spine injury to include degenerative 
disc disease

A July 1981 rating decision granted service connection for 
residuals of a lumbar spine injury, rated 20 percent, 
effective July 31, 1980.  A subsequent June 6, 1991 Board 
decision continued the 20 percent rating.  The Veteran did 
not appeal this decision and it became final based on the 
evidence of record at the time.  It is not subject to 
revision in the absence of clear and unmistakable error (CUE) 
in the decision.  38 U.S.C.A. §§ 5109A, 7104; see Rudd v. 
Nicholson, 20 Vet. App. 296 (2006) (finding that only a 
request for revision based on CUE could result in the 
assignment of an effective date earlier than the date of a 
final decision).  CUE in the June 1991 Board decision is 
neither alleged, nor raised by the record.

The earliest documentation in the claims file received after 
the June 1991 Board decision that can be construed as a 
formal claim for an increased rating for residuals of a 
lumbar spine injury to include DDD is the Veteran's 
statement, received on August 6, 1991, requesting re-
evaluation of his "back condition" for an increased rating.  
Under the governing law and regulations outlined above, the 
Board generally reviews the evidence dating back to one year 
prior to the date of the claim to determine whether, within 
that one year period, an increase in a disability was 
factually ascertainable.  However, as noted above, a June 6, 
1991 Board decision denied a rating in excess of 20 percent 
for the Veteran's residuals of a lumbar spine injury 
disability to include DDD.  As that decision is final based 
on the evidence then of record, here, the Board will consider 
the additional evidence submitted since that time to 
determine when the increase in disability was first factually 
ascertainable.

Under the criteria in effect prior to September 26, 2003, 
lumbosacral strain was evaluated under DC 5295, limitation of 
motion of the lumbar spine was evaluated under DC 5292, and 
intervertebral disc syndrome was evaluated under DC 5293.  A 
20 percent rating was warranted for lumbosacral strain where 
there was muscle spasm on extreme forward bending, and loss 
of lateral spine motion, unilateral, in standing position.  A 
40 percent (maximum) rating was warranted for severe 
lumbosacral strain with listing of the whole spine to the 
opposite side; positive Goldthwaite's sign, marked limitation 
of forward bending in a standing position, loss of lateral 
motion with osteo-arthritic changes, or narrowing or 
irregularity of joint space, or some of the above with 
abnormal mobility on forced motion.  38 C.F.R. § 4.71a, 
DC 5295 (2003).

Under the criteria in effect prior to September 26, 2003, 
limitation of motion of the lumbar spine warranted a 20 
percent rating if moderate and a 40 percent (maximum) rating 
if severe.  38 C.F.R. § 4.71a, DC 5292 (2003).  [As ankylosis 
or complete bony fixation of the spine is not shown, DC's 
5289, 5286 do not apply.]

Under the criteria in effect prior to September 23, 2002, 
intervertebral disc syndrome warranted a 20 percent rating 
for moderate disc disease with recurring attacks; a 40 
percent rating for severe disc disease, with recurring 
attacks and intermittent relief; and a 60 percent rating for 
pronounced disease, 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, and 
little intermittent relief.  38 C.F.R. § 4.71a, DC 5293 
(2002).

In April 1993, the Veteran underwent an orthopedic 
consultation for the purpose of determining his qualified 
injured worker status (in association with a workers' 
compensation claim for a postservice February 1989 
occupational injury).  The May 1993 report shows that on 
examination of the lumbar spine, there was normal spinal 
alignment and palpable tenderness around the thoracolumbar 
spine region, sacroiliac joint bilaterally, and buttocks 
bilaterally.  There was no allodynia or evidence of 
paravertebral muscle spasm.  Lumbosacral spine ranges of 
motion were: 50 degrees forward flexion, 10 degrees backward 
extension, and 15-20 degrees bilateral rotation.  The Veteran 
was able to walk on the heels and toes, perform a full squat, 
and sit up without difficulty.  His straight leg testing was 
negative at 80 degrees bilaterally.  Knee and ankle jerks 
were present and equal, bilaterally.

On November 1996 VA examination, the Veteran complained of 
low back pain with multiple joint aches/pains, occasional 
right lower extremity numbness, and not being able to bend 
over well or lift.  He had no bowel/bladder changes.  On 
physical examination, he had no postural abnormalities or 
fixed deformities, and good musculature of the back.  
Lumbosacral spine ranges of motion were:  65 degrees forward 
flexion, 10 degrees backward extension, 25 degrees bilateral 
lateral flexion, and 20 degrees bilateral rotation.  
Neurologically, his motor strength was 5/5 for ankle plantar 
and dorsiflexion, knee flexion and extension, and hip 
flexion; a pinprick test was intact.  L5-S1 DDD with 
spondylosis was diagnosed, and the examiner opined that while 
this disability had "significantly decreased [the Veteran's] 
ability to do manual labor . . . it should not necessarily 
prevent him from working at sedentary occupations."

On March 1997 VA examination, the Veteran complained of 
constant low back pain with right lower extremity pain and 
occasional weakness/numbness. He also complained of being 
unable to bend over or lift well.  He had no bowel or bladder 
incontinence.  On physical examination, there were no 
postural abnormalities or fixed deformities.  He was mild to 
moderately tender to palpation over the lumbosacral spine.  
Lumbosacral ranges of motion were: 65 degrees forward 
flexion, 20 degrees backward extension, and 30 degrees 
bilateral lateral flexion and bilateral rotation; there was 
some grimacing with difficulty straightening on motion.  
Neurologically, his motor strength was 5/5 for extensor 
hallucis longus, tibialis anterior, gastrosoleus, and knee 
flexion and extension.  Light touch was intact from L4-S1 and 
reflexes were symmetrical for Achilles and patellar.  Severe 
L5-S1 DDD was diagnosed.

On March 1999 VA examination, the Veteran complained of 
constant and excruciating pain, weakness, fatigue, lack of 
endurance and stiffness in his low back.  He also complained 
of radiating pain down to the right lower extremity, which 
caused some intermittent numbness in his right thigh area.  
He reported that he could brush his own teeth and bathe, but 
had difficulty dressing himself and could not shower.  He was 
unable to perform household chores or participate in many 
daily activities, as he refrained from all activities that 
required prolonged sitting, standing, walking, bending, 
turning, or lifting.  He also reported that he had not been 
employed since February 1, 1989.  

On physical examination, the examiner noted that the Veteran 
was uncooperative and would not comply with the range of 
motion testing of the lumbar spine; as such, he was unable to 
comment on whether he had painful motion.  The Veteran was 
able to sit up from a supine position though, suggesting a 90 
degree lumbar flexion.  It also appeared that the Veteran had 
muscular spasm in the lumbosacral spine in both paraspinal 
areas and tenderness in the midline and paraspinal areas of 
the lower lumbosacral region.  The examiner could not comment 
on any weakness.  The musculature of the back was otherwise 
normal, but posture was abnormal in that there was a mild 
loss of lumbar lordosis.  

Neurologically, the Veteran's motor function was within 
normal limits.  Residuals of a lumbar injury/lumbosacral 
strain and DDD of L5-S1 were diagnosed.  The examiner opined 
that the Veteran's condition mildly affected him in any 
activities that would require prolonged standing, walking, 
sitting, repetitive bending, or lifting.  The examiner also 
noted that there was "equivocal objective neurological 
impairment due to disc disease, in that there [was] evidence 
of straight leg raising impairment at 30 degrees on bilateral 
lower extremities, but [that the] remainder of the neurologic 
examination [was] intact, without other signs of 
radiculopathy."

On October 4, 2001 VA examination, the Veteran complained of 
sharp, throbbing, and burning pain in the upper and lower 
back.  He did not use a cane, brace, walker, or any type of 
abdominal or cervical support.  He reported difficulty 
walking, standing, sitting, bending, and lifting.  He also 
stated that he could barely dress himself, and could not 
walk, drive, shop, push a lawn mower, or garden.  He could 
brush his teeth, shower, and take out the trash.  But, he 
stated that since the pain was constant, he was afraid "he 
might hurt himself or others if he [continued] to have pain 
and [suffering]."  

On physical examination, the Veteran walked with his head 
flexed and stood with a forward list.  When asked to stand 
straight and walk in an upright manner, he was able to do so 
but complained of pain.  There was no right or left 
paralumbar muscle spasm or evidence of scoliosis, but there 
was dorsal kyphosis and lumbar lordosis.  Lumbosacral spine 
ranges of motion were: 60 degrees forward flexion, -20 
degrees backward extension, 20 degrees bilateral lateral 
bending, and 20 degrees bilateral rotation.  The examiner 
noted that he was "not convinced" that the Veteran was 
demonstrating full effort.  Straight leg testing was negative 
on the left side at 90 degrees and positive on the right at 
60 degrees.  Patrick's test was positive, bilaterally, for 
low back pain.  

On neurological examination, there was no evidence of sensory 
or motor loss in the lower extremities.  The examiner also 
noted that the Veteran was able to sit in an upright 
position, so he assumed that his extension was at least 0 
degrees, even if he would not go through the full motion.  
All deep tendon reflexes were normal and equal; motor 
strength was within normal limits; and sensory examination 
was intact.  Severe degenerative arthritis of the lumbar 
spine with right radiculopathy and DDD with L5 nerve root 
involvement were diagnosed.  Regarding the Veteran's 
functional capacity, the examiner opined, that the Veteran 
could lift and carry 20-25 pounds occasionally and 15-20 
pounds frequently, and he could sit, stand and walk for 4-6 
hours in an 8-hour work day.  He could not climb ladders, 
stoop, kneel, or crouch, and the examiner advised against 
walking on uneven terrain.  He noted that these conclusions 
were "based purely on his orthopedic evaluation," and that 
he did not take into consideration motivation nor any other 
issues that the Veteran might have.

The Veteran and his representative have argued that he should 
be assigned a 60 percent rating since the date of his claim 
for an increased rating.  In support of this argument, they 
submitted a November 2005 private independent medical 
evaluation from Dr. C.N.B., who reviewed the Veteran's claims 
file and opined, "[I]t is my opinion that [the Veteran] has 
been assigned an incorrect medical diagnostic code for his 
spine injuries since 1981 as he should have been assigned the 
medical diagnostic sub code of 60% under code 5293 category 
in 1981 and he has been unemployable since 1987 . . . ."

The Board finds that the preponderance of the evidence is 
against the Veteran's claim for an effective date earlier 
than October 4, 2001, for a 60 percent rating for residuals 
of a lumbar spine injury to include DDD.  The competent 
(medical) evidence of record does not show that prior to 
October 4, 2001, the Veteran's residuals of a lumbar spine 
injury with DDD was manifested by pronounced DDD 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, and little intermittent relief.  
The April 1993 private orthopedic consultation revealed 
normal spine alignment, tenderness around the thoracolumbar 
spine region, no muscle spasm, moderate limitation of motion, 
and present knee and ankle jerks.  The November 1996 VA 
examination revealed no postural abnormalities or fixed 
deformities, moderate limitation of motion, normal motor 
strength, and a pinprick test that showed sensation was 
intact.  The March 1997 VA examination revealed mild to 
moderate tenderness over the lumbosacral spine, no postural 
abnormalities or fixed deformities and moderate limitation of 
motion.  Severe DDD was diagnosed, however, the Veteran's 
neurological examination was normal (motor strength was 5/5 
for extensor hallucis longus, tibialis anterior, 
gastrosoleus,   Achilles and patellar reflexes were 
symmetrical, knee flexion/ extension were normal; and light 
touch was intact from L4-S1).  On March 1999 VA examination, 
the examiner was unable to properly evaluate the Veteran's 
range of motion, but noted that he had some tenderness and 
muscular spasms in the lumbosacral spine, and that his 
posture was abnormal in that there was a mild loss of lumbar 
lordosis.  His motor function was normal.  Noting that some 
neurological impairment was shown, in that impairment was 
shown during the Veteran's leg raising test, the examiner 
observed that the remainder of the neurologic examination was 
intact and that there were no other signs of radiculopathy 
shown.  Based on the foregoing, the medical evidence of 
record for the period prior to October 4, 2001, does not show 
manifestations that meet any criteria for a higher 60 percent 
rating under DC's 5292 or 5293.  38 C.F.R. § 4.71a (2002).  

On October 4, 2001 VA examination, the Veteran walked with 
his head flexed and stood with a forward list.  He was unable 
to stand straight and walk in an upright manner without pain.  
On range of motion testing, his backward extension was -
20 degrees.  Severe degenerative arthritis of the lumbar 
spine with right radiculopathy and DDD with L5 nerve root 
involvement were diagnosed.  Such findings warrant, for the 
first time, a 60 percent rating under 38 C.F.R. § 4.71a, 
DC 5293 (2002).

While the Veteran has complained of low back pain with 
radiating pain down to his right lower extremity since the 
date of his claim in August 1991, the evidentiary weight 
accorded those complaints is far less than that which should 
be given to the objective, medical findings that clinically 
demonstrated that the Veteran's peripheral nerve functioning 
was, at the very most, mildly impaired by any disc disease.  

TDIU and DEA

Applicable statutory and regulatory provisions, fairly 
construed, require the Board to look at all communications in 
the file that may be interpreted as applications or claims, 
formal or informal, for increased benefits and, then, to all 
other evidence of record to determine the earliest date as of 
which, within the one year prior to the filing of a formal 
claim for TDIU, the increase in disability was ascertainable.  
Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992).  In 
this case, the Veteran's formal claim to reopen a claim of 
entitlement to TDIU was received by the RO in October 1992; 
the RO granted a TDIU effective from October 4, 2001, because 
that was the earliest date at which the Veteran met the 
schedular criteria for assignment of a TDIU.

DEA was granted effective the same date because entitlement 
to DEA presupposes total disability.  Accordingly, 
entitlement to an earlier effective date for DEA is 
predicated upon resolution of whether an earlier effective 
date is warranted for the grant of a TDIU.

VA will grant a total rating for compensation purposes based 
on unemployability when the evidence shows that the Veteran 
is precluded, by reason of service-connected disabilities, 
from obtaining and maintaining any form of gainful employment 
consistent with his or her education and occupational 
experience.  38 C.F.R. §§ 3.340, 3.341, 4.16. Under the 
applicable regulations, benefits based on individual 
unemployability are granted only when it is established that 
the service-connected disabilities are so severe, standing 
alone, as to prevent the retaining of gainful employment.  
Under 38 C.F.R. § 4.16, if there is only one such disability, 
it must be rated at least 60 percent disabling to qualify for 
benefits based on individual unemployability.  If there are 
two or more such disabilities, there shall be at least one 
disability ratable at 40 percent or more, and sufficient 
additional disability to bring the combined rating to 70 
percent or more.  38 C.F.R. § 4.16(a).

Where these percentage requirements are not met, entitlement 
to benefits on an extraschedular basis may be considered when 
the Veteran is unable to secure and follow a substantially 
gainful occupation by reason of service-connected 
disabilities, and consideration is given to the Veteran's 
background including his or her employment and educational 
history.  38 C.F.R. § 4.16(b).  The Board does not have the 
authority to assign an extraschedular total disability rating 
for compensation purposes based on individual unemployability 
in the first instance.  Bowling v. Principi, 15 Vet. App. 1 
(2001).  In determining whether unemployability exists, 
consideration may be given to the Veteran's level of 
education, special training, and previous work experience, 
but it may not be given to his or her age or to any 
impairment caused by nonservice-connected disabilities.  
38 C.F.R. §§ 3.341, 4.16, 4.19.

In this case, the Veteran did not satisfy the schedular 
criteria for a TDIU prior to October 4, 2001, in that prior 
to that date his only service-connected disability was rated 
20 percent disabling.  Accordingly, he did not meet the 
schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) until 
October 4, 2001, the current effective date.

It is the established policy of VA that all Veterans who are 
unable to secure and follow a substantially gainful 
occupation by reason of service-connected disabilities shall 
be rated as totally disabled.  Therefore, rating boards 
should submit to the Director, Compensation and Pension 
Services, for extraschedular consideration all cases of 
Veterans who are unemployable by reason of service-connected 
disabilities but who fail to meet the percentage standards 
set forth in 38 C.F.R. § 4.16(a).  See 38 C.F.R. § 4.16(b).

Hence, the Board has considered whether the Veteran is 
entitled to consideration for extraschedular rating under 
38 C.F.R. § 4.16(b) prior to October 4, 2001.  The central 
inquiry is "whether the Veteran's service-connected 
disabilities alone are of sufficient severity to produce 
unemployability."  Hatlestad v. Brown, 5 Vet. App. 524, 529 
(1993).  Neither nonservice-connected disabilities nor 
advancing age may be considered in the determination.  
38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 
361, 363 (1993).  A claim for a TDIU presupposes that the 
rating for the service-connected disabilities is less than 
100 percent, and only asks for a TDIU because of 
"subjective" factors that the "objective" rating does not 
consider.  Vittese v. Brown, 7 Vet. App. 31, 34-35 (1994).

In various statements, including the Veteran's formal claim 
to reopen a claim for entitlement to TDIU, he has asserted 
that he has not worked since February 1989, as a result of 
his service-connected back disability.  The evidence of 
record shows that the Veteran was injured in a February 1989 
postservice occupational accident in which he fell backwards 
onto his back and lost consciousness; he has not worked since 
that time.  In October 1990, the Veteran was awarded Social 
Security Administration (SSA) disability compensation as a 
result of this injury; the primary diagnosis was chronic 
brain syndrome and the secondary diagnosis was sprains and 
strains.  The Veteran is not service-connected for a chronic 
brain syndrome, so the award of SSA benefits does not, by 
itself, show unemployability due to service-connected 
disabilities.

On November 1996 VA examination, the examiner opined that 
while the Veteran's service-connected residuals of a lumbar 
spine injury with DDD significantly decreased his ability to 
do manual labor, it did not necessarily prevent him from 
working at sedentary occupations.  On March 1999 VA 
examination, the Veteran reported that he had difficulty 
performing many household chores and participating in daily 
activities; however, the examiner opined that based on an 
objective examination, his ability only "mildly affected" 
him in activities that required prolonged standing, walking, 
sitting, repetitive bending, or lifting.  These findings do 
not suggest that referral for extraschedular consideration is 
necessary.

On October 4, 2001 VA examination, the examiner opined that 
the Veteran's service-connected residuals of a lumbar spine 
injury with DDD did not prevent him from lifting and carrying 
20-25 pounds occasionally and 15-20 pounds frequently, or 
from sitting, standing, and walking for 4-6 hours in an 8-
hour work day.  As discussed above, however, the Veteran was 
found to meet the schedular criteria for a 60 percent rating 
as of the date of this examination.  Therefore, an award of 
TDIU was granted, also effective from October 4, 2001.  See 
38 C.F.R. § 4.16(a).  

The Board finds that the preponderance of the evidence is 
against the Veteran's claim for an effective date earlier 
than October 4, 2001, for the award of a TDIU.  In support of 
this claim, the Veteran submitted a November 2005 private 
independent medical evaluation from Dr. C.N.B., in which he 
opined that the Veteran had been unemployable since 1987.  As 
part of his rationale for this opinion, he stated that since 
1987, "[the Veteran] had several unsuccessful visits to 
medical professional to treat his spine and he was unable to 
do manual work and he did not have educational abilities to 
do alternative work."  The Board finds this opinion to be 
lacking in probative value as Dr. C.N.B. failed to consider 
the impact of the Veteran's postservice February 1989 injury 
on his employability, and also did not discuss the findings 
of the November 1996 and March 1999 examiners, who opined 
that the Veteran's service-connected residuals of a lumbar 
spine injury with DDD did not render him unable to perform 
all types of work.  See Prejean v. West, 13 Vet. App. 444, 
448-49 (2000) (finding that a physician's access to the 
claims file and the thoroughness and detail of the opinion 
are important factors in assessing the probative value of a 
medical opinion).  

Regarding the Veteran's claim for an earlier effective date 
for DEA benefits, the regulations provide that DEA benefits 
under Chapter 35, Title 38, United States Code, may be paid 
to dependents of a Veteran who meet certain basic eligibility 
requirements.  As pertinent to this appeal, basic eligibility 
for DEA exists if the Veteran has a permanent, total service-
connected disability.  38 U.S.C.A. §§ 3500, 3501; 38 C.F.R. 
§§ 3.807(a), 21.3021.  A total disability may be assigned 
where the Veteran's service-connected disabilities are rated 
100 percent disabling under the rating schedule, or if the 
Veteran is unemployable due to service-connected 
disabilities.  38 C.F.R. §§ 3.340, 3.341.  Permanence of 
total disability will be taken to exist when such impairment 
is reasonably certain to continue throughout the life of the 
disabled person.  38 C.F.R. § 3.340(b).

In this case, as discussed above, the Veteran was not 
entitled to a total disability rating prior to October 4, 
2001.  By awarding entitlement to DEA effective the same 
effective date as the grant of the TDIU rating, the RO found 
that he was permanently and totally disabled as of that date.  
Since a total disability rating is not warranted prior to 
that date, he cannot be assigned a permanent, total 
disability rating prior to that date.  There is no legal 
basis on which the Veteran's claim can be granted.  As the 
law and not the evidence is dispositive in this case, the 
claim must be denied as a matter of law.  Sabonis v. Brown, 6 
Vet. App. 426 (1994).

Loss of use of a creative organ

The February 2007 rating decision granted service connection 
for the loss of use of a creative organ.  While the Veteran 
did not specifically file a claim for this disability, the RO 
inferred a claim for it based on the evidence of record and 
found that it was secondary to the Veteran's service-
connected residuals of a lumbar spine injury to include DDD.   

The Veteran's claim for an increased rating in the matter of 
his service-connected residuals of lumbar spine injury to 
include DDD was received in August 1991.  VA outpatient 
treatment records show that the Veteran first complained of 
incompetence on February 20, 1992.  At a November 2005 Board 
hearing, the Veteran's medical expert, Dr. C.N.B., testified 
that, in his opinion, the Veteran's impotence was "very 
likely" linked to his service-connected residuals of a 
lumbar spine injury, as sexual function was "run by the 
lumbar spine nerves."

The effective date of an award based on a claim for increase 
is generally the date of receipt of the claim or the date 
entitlement arise, whichever is later.  38 U.S.C.A. § 5110; 
38 C.F.R. § 3.400 (emphasis added).  Although the Veteran's 
claim for an increased rating was received in August 1991, 
complaints of impotence were not shown until February 20, 
1992.  Therefore, the Board finds that the Veteran is not 
entitled to an effective date prior to February 20, 1992, for 
the award of service connection for the loss of use of a 
creative organ.

Cervical spine disability

An unappealed November 1997 rating decision denied the 
Veteran's claim of service connection for a cervical spine 
disability (claimed as neck disorder).  That decision is 
final and not subject to revision in the absence of CUE in 
the decision.  38 U.S.C.A. §§ 5109A, 7105; see Rudd v. 
Nicholson, 20 Vet. App. 296 (2006) (finding that only a 
request for revision based on CUE could result in the 
assignment of an effective date earlier than the date of a 
final decision).  CUE in the November 1997 rating decision 
has not been alleged and that rating decision is a legal bar 
to an effective date prior to the date of the decision.

What remains for consideration before the Board is whether 
following the November 1997 rating decision, and prior to 
January 5, 2004, the Veteran was entitled to service 
connection for a cervical spine disability.  As noted above, 
the effective date for a claim to reopen after final 
disallowance is the date of claim to reopen or the date 
entitlement arose, whichever is later.  38 C.F.R. 
§ 3.400(q)(2), (r) (emphasis added).  

After the November 1997 disallowance, private treatment 
records showing that the Veteran had a cervical spine 
disability were received on August 17, 1998.  Thus, the 
Veteran's claim to reopen a claim of service connection for a 
cervical spine disability may be considered filed as of that 
date.  See 38 C.F.R. § 3.157 (a report of an examination or 
hospitalization which meets certain requirements may be 
accepted as an informal claim for benefits).  However, the 
evidence of record does not show that entitlement to service 
connection for a cervical spine disability arose until April 
19, 2007, the date of an addendum opinion to the Veteran's 
May 2006 VA examination, as that was the first competent 
(medical) evidence in the record to establish a nexus between 
the Veteran's current cervical spine disability and his 
service.  Notably, cervical spine-related treatment records 
associated with the claims file prior to that date only noted 
the diagnosis and treatment of such disability without 
relating it to his service (or, related the Veteran's 
cervical spine disability to his postservice February 1989 
occupational injury).  As the date of entitlement is the 
later date, that should be the effective date assigned for 
the grant of service connection for a cervical spine 
disability (see 38 C.F.R. § 3.400(q)(2), (r)); however, here, 
the RO has assigned an effective date of January 20, 2004.

In the Veteran's December 2007 VA Form 9, substantive appeal, 
his representative argues that the Veteran is entitled to an 
effective date earlier than January 5, 2004, because he had 
filed a claim to reopen a claim of service connection for a 
cervical spine disability in August 1991.  Citing Ashford v. 
Brown, 10 Vet. App. 120, 123 (1997), the Veteran's 
representative asserts that the Veteran's August 1991 claim 
for an increased rating for his "service connected back 
condition" encompassed the cervical disability as well as 
the lumbar/low back disability.  The Board finds this 
argument to be irrelevant in consideration of the November 
1997 rating decision which, as noted above, serves as a legal 
bar to an effective date prior to that date in the absence of 
an allegation (and showing) of CUE in that decision.  

There is no statutory authority that would allow VA to grant 
the Veteran an effective date earlier than January 5, 2004, 
for the award of service connection for a cervical spine 
disability under the circumstances in this case, or for the 
reasons he has alleged.  Accordingly, as a matter of law, the 
appeal seeking an effective date prior to January 5, 2004, 
for the grant of service connection for a cervical spine 
disability must be denied.  Sabonis v. Brown, 6 Vet. App. 426 
(1994).

	(CONTINUED ON NEXT PAGE)



Paralysis, bilateral upper extremity weakness, and SMC for 
loss of use of both feet with additional disability of 
residuals of lumbar injury with DDD

The July 2007 rating decision granted service connection for 
paralysis (loss of use of bilateral lower extremities) and 
bilateral upper weakness.  SMC based on loss of use of both 
feet also was granted.  These disabilities were claimed as 
secondary to the Veteran's service-connected cervical spine 
disability.  Secondary service connection is warranted where 
a disability is proximately due to or the result of a 
service-connected disease or injury.  38 C.F.R. § 3.310(a).  
The threshold legal requirements for a successful secondary 
service connection claim are: (1) Evidence of a current 
disability for which secondary service connection is sought; 
(2) a disability for which service connection has been 
established; and (3) competent evidence of a nexus between 
the two.  

Here, service connection for a cervical spine disability was 
established effective January 4, 2004.  The medical evidence 
of record shows that the Veteran's claimed secondary 
disabilities existed at that time and were related to his 
cervical spine disability.  Therefore, entitlement to 
secondary service connection for paralysis, bilateral upper 
extremity weakness, and SMC for loss of use of both feet 
arose on January 4, 2004, as that was the date that all the 
requirements for secondary service connection were met.  See 
38 C.F.R. § 3.310.  As service connection for a cervical 
spine disability was not in effect prior to January 5, 2004, 
the Veteran is not entitled to an effective date prior to 
that date for the award of service connection for any 
disability secondary to the cervical spine disability.

As the preponderance of the evidence is against the Veteran's 
claims, the benefit-of-the-doubt doctrine does not apply. 38 
U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 
1361, 1364, 1365 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 
Vet. App. 49 (1990).

ORDER

Entitlement to an effective date earlier than October 4, 
2001, for a 60 percent rating for residuals of a lumbar spine 
injury to include DDD is denied.

Entitlement to an effective date earlier than October 4, 
2001, for the grant of a TDIU and DEA is denied.

Entitlement to an effective date earlier than February 20, 
1992, for the grant of service connection for loss of use of 
a creative organ is denied.

Entitlement to an effective date earlier than January 5, 
2004, for the grant of service connection for a cervical 
spine disability, paralysis (loss of bilateral lower 
extremities), and bilateral upper extremity weakness, and the 
award of SMC, is denied.



____________________________________________
MICHAEL T. OSBORNE
Acting Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs