Citation Nr: 1040775 Decision Date: 10/29/10 Archive Date: 11/04/10 DOCKET NO. 05-28 655 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for a cervical spine disorder, to include as secondary to degenerative disc disease of the lumbar spine at L4-5 and L5-S1. 2. Entitlement to service connection for a left shoulder disorder, to include as secondary to degenerative disc disease of the lumbar spine at L4-5 and L5-S1. 3. Entitlement to service connection for a cardiac disorder. 4. Entitlement to a higher initial rating for degenerative disc disease of the lumbar spine at L4-5 and L5-S1, evaluated as 10 percent disabling, effective January 3, 2003; 20 percent disabling, effective December 2, 2005; and 10 percent disabling, effective December 12, 2007. 5. Entitlement to an effective date prior to January 3, 2003, for the grant of service connection for degenerative disc disease of the lumbar spine at L4-5 and L5-S1. REPRESENTATION Veteran represented by: Sean A. Ravin, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Jaeger, Counsel INTRODUCTION The Veteran had active service from January 1975 to July 1975, May 1984 to March 1987, and December 1990 to April 1991, with additional service in the Air Force Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2003, January 2008, and May 2008 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In the August 2003 rating decision, the RO denied service connection for lumbar spine, cervical spine, and left shoulder disorders. In a July 2006 decision, the Board affirmed the RO's denials of service connection for such disorders. Thereafter, the Veteran appealed the Board's denial of his claims to the United States Court of Appeals for Veterans Claims (Court) and in an Order dated in February 2007, the Court granted a Joint Motion for Remand that requested the Board's decision be vacated. As such, the case returned to the Board for further appellate review and, in June 2007, the Board remanded the case for further development. With respect to the Veteran's claim of entitlement to service connection for a lumbar spine disorder, in a February 2008 rating decision, the RO granted service connection for degenerative disc disease of the lumbar spine at L4-5 and L5-S1 and assigned an initial rating of 10 percent, effective January 3, 2003. Subsequently, the Veteran appealed with respect to the initially assigned rating and the effective date of the grant of service connection. During the course of the appeal, staged ratings were assigned in a September 2009 rating decision. See Fenderson v. West, 12 Vet. App. 119 (1999). Specifically, the Veteran has been assigned a 10 percent rating, effective January 3, 2003; a 20 percent rating, effective December 2, 2005; a 100 percent rating based on surgical treatment necessitating convalescence, effective January 24, 2006; a 20 percent rating, effective September 1, 2006; and a 10 percent rating, effective December 12, 2007. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board has characterized the issue as shown on the first page of this decision. Pertinent to the Veteran's claims of entitlement to service connection for cervical spine and left shoulder disorders, such now return to the Board for appellate review following the June 2007 remand. However, for the reasons discussed below, the Board finds that such claims, as well as the Veteran's claim of entitlement to a higher initial rating for his back disability, require further development. Therefore, these issues are addressed in the REMAND portion of the decision below and are REMANDED to the VA RO. Regarding the issue of entitlement to service connection for a cardiac disorder, such claim was denied in a January 2008 rating decision, which the Veteran subsequently appealed to the Board. In connection with the appeal regarding the issues of entitlement to service connection for cervical spine and left shoulder disorders, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge sitting at the RO in May 2006; a transcript of that hearing is associated with the claims file. In June 2010, the Veteran's attorney submitted new evidence relevant to his claim for a higher initial rating for his back disability that consisted of a May 2010 statement from Dr. Dunn, which was accompanied by a waiver of agency of original jurisdiction (AOJ) consideration. 38 C.F.R. § 20.1304 (2010). Therefore, the Board can properly consider the newly received evidence. The Board also notes that additional evidence relevant to the Veteran's back disability and the impact of such on his employability has been associated with the claims file subsequent to the issuance of the September 2009 supplemental statement of the case and the Veteran has not waived AOJ consideration. However, as this issue is being remanded, the AOJ will have the opportunity to review all the evidence of record, to include such newly received documents, in the readjudication of the Veteran's claim. FINDINGS OF FACT 1. The Veteran does not have a current diagnosis of a cardiac disorder. 2. The Veteran's original claim of entitlement to service connection for degenerative disc disease in the back was first received by VA on January 3, 2003. 3. In a rating decision issued in May 2008, the RO granted service connection for degenerative disc disease of the lumbar spine at L4-5 and L5-S1, effective January 3, 2003, the date of receipt of the Veteran's original service connection claim. CONCLUSIONS OF LAW 1. A cardiac disorder was not incurred in or aggravated by the Veteran's active duty military service and may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2010). 2. The criteria for an effective date prior to January 3, 2003, for the grant of service connection for degenerative disc disease of the lumbar spine at L4-5 and L5-S1 have not been met. 38 U.S.C.A. § 5110 (West 2002 & Supp. 2010); 38 C.F.R. § 3.400 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable AOJ decision on the claim for VA benefits. Relevant to the Veteran's claim of entitlement to service connection for a cardiac disorder, the Board finds that VA has satisfied its duty to notify under the VCAA. Specifically, an October 2007 letter, sent prior to the initial unfavorable AOJ decision issued in January 2008, advised the Veteran of the evidence and information necessary to substantiate his service connection claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, such letter informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Pertinent to the Veteran's claim for an earlier effective for the grant of service connection for his back disability, service connection for degenerative disc disease of the lumbar spine at L4-5 and L5-S1 was granted, effective January 3, 2003, in the May 2008 rating decision. Following the issuance of the rating decision, the Veteran entered a notice of disagreement as to the propriety of the assigned effective date. The Board observes that a claim for an earlier effective date for the grant of service connection is a downstream issue from the original award of such benefit. Grantham v. Brown, 114 F.3d 1156 (1997). VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006); see also Goodwin v. Peake, 22 Vet. App. 128 (2008) (the Court held that as to the notice requirements for downstream earlier effective date claims following the grant of service connection, "that where a claim has been substantiated after enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements"). In this case, the Veteran's service connection claim was granted and an effective date was assigned in the May 2008 rating decision on appeal. As such, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. In this regard, the Board notes that in May 2008 and August 2008 correspondence, the Veteran's attorney requested that VA obtain the Veteran's records from the Social Security Administration (SSA). As such, the RO completed an SSA inquiry in February 2009; however, such revealed that the Veteran's claim was denied and he was not in receipt of SSA disability benefits. Therefore, there is no duty on behalf of VA to obtain records from SSA. Pertinent to his claim of entitlement to service connection for a cardiac disorder, the Veteran was afforded a VA examination in March 2009. The Board notes that the Veteran's attorney indicated in a June 2010 statement that the VA examinations of record are inadequate in that they did not consider all the favorable evidence and did not contain a complete rationale for all findings and conclusions. Outside of such general statement, the Veteran's attorney does not specifically state how the March 2009 VA examination is inadequate. Moreover, as the examiner reviewed the claims file, interviewed the Veteran, conducted a physical examination, and performed diagnostic testing, the Board finds that the March 2009 examination sufficient to adjudicate the Veteran's claim and further examination is not necessary. The Board notes that the examiner indicated that a pharmacological stress test should be considered, as the Veteran did not wish to use the routine Bruce protocol; however, the Board finds that such is not necessary as the examiner determined that the Veteran's exercise tolerance was good and the remainder of the physical examination and diagnostic testing failed to even suggest the presence of a cardiac disorder. In fact, while the cardiolite stress test was submaximal and nondiagnostic, the examiner stated that overall clinical impression was that the likelihood of coexisting coronary artery disease at the present time was quite low. The Board also observes that the Veteran brought additional medical reports regarding his heart to his March 2009 VA examination that do not appear to be of record. However, the Board finds that a remand is not necessary to request that the Veteran submit them as he was previously given ample opportunity to do so and, moreover, the March 2009 VA examiner described the findings contained in the reports such that the relevant information was properly considered. Regarding the Veteran's effective date claim, as he has been assigned the earliest possible effective date under VA regulations, namely the date of receipt of his original claim for service connection, and his arguments on appeal are limited to his interpretation of governing legal authority, all pertinent information and evidence is already contained in the claims file. There is no outstanding information or evidence that would help substantiate the Veteran's claim. VA's General Counsel has held that in cases where a claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit, VA is not required to provide notice of, or assistance in developing, the information and evidence necessary to substantiate such a claim under 38 U.S.C.A. §§ 5103(a) and 5103A. See VAOPGCPREC 5-04 (June 23, 2004). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, such as cardiovascular-renal disease, to include hypertension, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran's service treatment records are negative for any complaints, treatment, or diagnoses relevant to a cardiac disorder. A March 1989 enlistment examination for the Air Force Reserves reflects that the Veteran's cholesterol was 208 in July 1989. Additionally, his February 1993 periodic examination revealed elevated cholesterol at 225 and LDL at 169. A post-service October 2002 Exercise Stress Test reflects that the Veteran's resting electrocardiogram (EKG) was within normal limits. Additionally, the examining physician concluded that the Veteran had a negative stress test for any evidence of exercise inducible myocardial ischemia by EKG criteria; normal heart rate and blood pressure response; and good exercise tolerance. A June 2003 EKG report reflects the following conclusions: the left ventricle appeared normal in six with normal ventricular systolic function; the estimated ejection fraction is 70 percent; the left atrium, right atrium, and right ventricle appeared normal in size; the valvular structures showed mild mitral annular calcification with mild aortic sclerosis noted, without any significant obstruction noted; and Doppler findings showed trace tricuspid regurgitation. Laboratory findings in October 2002, June 2003, February 2004, and July 2004 revealed elevated cholesterol and LDL. A January 2006 pre-operative examination, conducted contemporaneously with the Veteran's back surgery, reflects no history of heart disease or hypertension. On physical examination, he had a regular rate and rhythm without murmur. In January 2007, Dr. Bash indicated that he had reviewed the Veteran's claims file and that it was his opinion that the Veteran's current cardiac disease began while he was in service as there were at least two notations documenting his elevated cholesterol and LDL. Dr. Bash indicated that such are known to cause coronary artery disease and numerous types of cardiac dysfunction as per Cecil's and Harrison's textbooks of medicine. At the time of VA examination in March 2009, the examiner noted that, upon a review of the claims file, there was very little, if any, documentation of any cardiac disease. He noted that there was reference to elevated lipids, namely elevated total cholesterol and LDL in the claims file. The examiner also noted that Dr. Bash had indicated that the Veteran may have cardiac problems due to elevated cholesterol and LDL, but no additional information was cited. He stated that the he found Dr. Bash's statement to be generic and hollow, as he did not submit any additional documentation of underlying cardiac disease. The examiner noted that the Veteran presented additional medical records at the time of his examination which included a March 2008 EKG that revealed normal left ventricular function, mild pulmonary hypertension, and increased left ventricular outflow tract velocity consistent with increased cardiac output, which the examiner noted to be a normal and benign finding for the most part. Chamber size was normal and left ventricular ejection fraction was noted to be normal at 65 percent. The examiner also observed that a February 2008 24-hour Holter monitor was unremarkable without any significant arrhythmias. A set of pulmonary function tests revealed only mild ventilator impairment, not improved post-bronchodilatation. The examiner noted that the test result did not seem to be very significant. The oxygen saturation was 95.5, which he noted was normal. A March 2008 chest X-ray seemed to be unremarkable. The examiner stated that the Veteran was very vague as to symptoms and complaints. He denied palpitations and described some very mild shortness of breath with heavy exertion only. The examiner noted that it appeared that the Veteran was capable of walking at least a mile and climbing two flights of stairs at a regular pace without any difficulty. There was no history of paroxysmal nocturnal dyspnea, orthopnea, chest pain, presyncope, or syncope. The examiner noted that the Veteran did not provide any history to suggest any prior cardiac disease. On physical examination, the Veteran's blood pressure was 128/80 taken on the right arm in a sitting position, using a regular sized cuff on three separate measurements five minutes apart. The Veteran was also afebrile with respirations 18 per minute nonlabored. Neurological and ear, nose, and throat examinations were normal. The neck was supple and there were normal jugular venous pulses and carotid pulses bilaterally without bruits. Lungs were clear to auscultation and percussion without wheezes, rales, or crepitation. Inspection of the chest was unremarkable. Cardiac palpation was normal and the apical pulse was not displaced. Heart rate was regular at 58 per minute without definite murmurs, gallops, friction rub, or clicks. Examination of the abdomen and lower extremities was normal. Laboratory findings revealed room air pulse oximetry was 97 percent. EKG showed sinus bradycardia at 58 per minute and was unremarkable. There was no evidence of ischemia, chamber enlargement, etc. The examiner's impression was history of dyslipidemia; shortness of breath, minimal and non-specific; and question of very mild pulmonary hypertension on a prior EKG. Relevant to the Veteran's shortness of breath, the examiner noted that there was no clear history of exertion-induced shortness of breath, paroxysmal nocturnal dyspnea, or orthopnea. The examiner ordered an EKG Doppler for assessment of chamber size and left ventricular function and a cardiolite stress test in order to determine the functional capacity as expressed in METS. He also indicated that such test would determine whether there is evidence of exercise-induced arrhythmias and the blood pressure response to exertion. The EKG was noted to be unremarkable. Normal chamber size was noted. The left ventricular ejection fraction was normal at 62 percent. There was no clear evidence of left ventricular hypertrophy or pulmonary hypertension. Doppler screening revealed trivial mitral insufficiency only. The examiner concluded that the EKG was felt to be unremarkable. Pertinent to the cardiolite stress test, the examiner noted that the Veteran was exercised using the manual protocol as he refused to exercise according to the Bruce protocol, stating that any elevation may be detrimental to his back and joints. He was able to exercise for 10 minutes and 55 seconds, achieving approximately 5 METS of energy expenditure. The Veteran was able to achieve 65 percent of his target heart rate only. Blood pressure response to exertion was physiological with a peak blood pressure of 150/80. No chest pains were reported, nor was there evidence of ischemic ST-T changes. The ejection fraction was approximately 55 percent. Normal post-stress wall motion was attenuation. There was no clear evidence of exercise-induced reversible ischemia. The examiner noted that such test was subdiagnostic due to the failure to achieve diagnostic workloads. Following a review of the claims file, an interview with the Veteran, a physical examination, and diagnostic testing, the examiner concluded that the cardiac evaluation failed to document any significant underlying cardiovascular pathology. He noted that blood pressure at rest and with exertion was normal. There was no evidence of exercise-induced arrhythmias. Ejection fraction was normal without clinical evidence of cardiac decompensation. The examiner stated that, clinically, he strongly doubted underlying angina pectoris in the absence of symptoms. He stated that the cardiolite stress test was submaximal and nondiagnostic, yet his overall clinical impression was that the likelihood of coexisting coronary artery disease at the present time was quite low. The examiner indicated that, perhaps a pharmacological stress test should be considered, as the Veteran did not wish to use the routine Bruce protocol; however, his exercise tolerance was good. Based on the foregoing, the Board finds that the preponderance of the evidence fails to demonstrate a current diagnosis of a cardiac disorder. In this regard, while the Veteran had elevated cholesterol and LDL during and after service, such are laboratory findings and are not subject to service connection. Specifically, VA has found that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities for compensation purposes. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). Additionally, while Dr. Bash stated that it was his opinion that the Veteran's "current cardiac disease" began in service, he did not provide a diagnosis of such cardiac disease. In contrast, the March 2009 VA examiner took into account the evidence in the Veteran's complete claims file, his self-reported history, medical records the Veteran brought to the examination, a physical examination, laboratory findings, and diagnostic testing, and determined that the evaluation failed to document significant underlying cardiovascular pathology and the likelihood of coexisting coronary artery disease at the present time was quite low. As the VA examiner took into account all the relevant evidence and conducted appropriate diagnostic testing in reaching his conclusion, the Board accords such great probative weight. The Board notes that the Veteran has contended on his own behalf that he has a cardiac disorder. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed and is within the realm of his or her personal knowledge, but not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet.App. 465, 469-70 (1994). In the instant case, the Board finds that the question regarding whether the Veteran has a current diagnosis of a cardiac disorder to be complex in nature. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Specifically, while the Veteran is competent to describe the types of symptoms that may be consistent with a cardiac disorder, to include shortness of breath, the Board accords his statements regarding a diagnosis little probative value as he is not competent to opine on such a complex medical question. Specifically, where the determinative issue is one of medical causation, only those with specialized medical knowledge, training, or experience are competent to provide evidence on the issue. See Jones v. Brown, 7 Vet. App. 134, 137 (1994). Moreover, the Veteran has only offered conclusory statements regarding the presence of a cardiac disorder. In contrast, the March 2009 VA examiner took into consideration all the relevant facts, to include the results of specialized diagnostic testing, in providing his opinion. As such, the Board finds that the Veteran's contentions regarding the presence of a cardiac disorder are outweighed by the competent and probative March 2009 VA examiner's findings. Therefore, based on the foregoing, the Board finds that there is no evidence of a current diagnosis of a cardiac disorder. In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007) (the current disability requirement for a service connection claim is satisfied if the claimant has a disability at the time the claim is filed or during the pendency of that claim). Accordingly, the Veteran's claim of entitlement to service connection for a cardiac disorder must be denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for a cardiac disorder. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. III. Effective Date Claim Generally, the effective date for an award of service connection and disability compensation is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, for an award based on an original claim, a claim reopened after a final allowance, or a claim for an increase, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. An application for VA compensation must generally be a specific claim in the form prescribed by the VA Secretary, i.e., VA Form 21-526. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). However, any communication or action received from the claimant or certain specified individuals on the claimant's behalf which indicates an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155(a). Such informal claim must identify the benefit sought. Id. In the instant case, the Veteran was discharged from his last period of active duty service in April 1991. No claim was received from him until July 2002 when VA received his formal claim, VA Form 21-526, for service connection for scars on the tip of his nose. As such document did not reference the Veteran's back, it cannot be construed as a claim of entitlement to service connection for a back disorder. Thereafter, on January 3, 2003, VA received the Veteran's original claim of entitlement to service connection for degenerative disc disease in the back. The RO granted service connection for degenerative disc disease of the lumbar spine at L4-5 and L5-S1, evaluated as 10 percent disabling, effective January 3, 2003, in the May 2008 rating decision. The Board notes that the effective date of an award of service connection is assigned not based on the date the Veteran claims the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). In the instant case, VA first received the Veteran's original claim of entitlement to service connection for degenerative disc disease in the back on January 3, 2003. Therefore, based on the above-stated facts and regulations, the Board finds that the correct date for the grant of service connection for degenerative disc disease of the lumbar spine at L4-5 and L5-S1is January 3, 2003, the date the Veteran's original claim of entitlement to service connection for degenerative disc disease in the back was first received. As such, the Veteran is not entitled to an earlier effective date and his claim must be denied. ORDER Service connection for a cardiac disorder is denied. An effective date prior to January 3, 2003, for the grant of service connection for degenerative disc disease of the lumbar spine at L4-5 and L5-S1 is denied. REMAND Relevant to the Veteran's claims for service connection for cervical spine and left shoulder disorders, and a higher initial rating for his back disability, the Board finds that a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. With respect to the Veteran's service connection claims, the Board observes that he was afforded a VA examination in September 2007. At such time, he was diagnosed with multiple level degenerative disc disease of the cervical spine and traumatic chronic strain of the left shoulder. The examiner opined that such disorders are less likely as not caused by, a result of, or precipitated by active military service. Rather, he concluded that the Veteran did not have a significant cervical and/or left shoulder disorder until he sustained a work-related injury in 1999. Subsequently, in May 2008, service connection was granted for degenerative disc disease of the lumbar spine at L4-5 and L5- S1. Thereafter, the Veteran's attorney submitted argument in May 2008 in which he requested that the effect of aggravation be considered in adjudicating the Veteran's claims for service connection for cervical spine and left shoulder disorders. The Court has held that, when determining service connection, all theories of entitlement, direct and secondary, must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004). Therefore, the Board finds that a remand is necessary in order to afford the Veteran a VA examination so as to determine whether his cervical spine and left shoulder disorders are secondary to his service-connected degenerative disc disease of the lumbar spine at L4-5 and L5-S1. The Board also notes that the Veteran has not been provided with proper VCAA notice regarding the secondary aspect of his claims of entitlement to service connection for cervical spine and left shoulder disorders. Additionally, as relevant to such claims, he has not been provided with notice as to the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Therefore, such should be accomplished on remand. Regarding the Veteran's initial rating claim, the Board finds that a remand is necessary in order to afford the Veteran a contemporaneous VA examination so as to determine the current nature and severity of his back disability. In this regard, the Board observes that he was last examined by VA in March 2009; however, in a May 2010 statement, the Veteran's treating physician, Dr. Dunn, indicated that he had loss of motion that was 50 percent of his normal range. Moreover, the record demonstrates that the Veteran's back disability is manifested by disc involvement and the March 2009 examiner noted that the Veteran had urinary urgency, frequency, and nocturia; erectile dysfunction; numbness; and leg or foot weakness, but indicated that such were unrelated to his back disability and their etiology was radicular, which appears to be a contradiction in terms. Additionally, the March 2009 VA examiner diagnosed lumbar radiculopathy to the lower extremities as a result of various back disorders, to include degenerative disc disease of the lumbar spine. Furthermore, the examiner also diagnosed intervertebral disc syndrome, which he indicated resulted in incapacitating episodes for 50 to 80 days of the prior year; however, it is unclear whether such is part and parcel or otherwise related to his service-connected degenerative disc disease of the lumbar spine at L4-5 and L5-S1. Therefore, as the Veteran's back disability has disc involvement, which can result in radicular symptoms and intervertebral disc syndrome, the Board finds that a new examination is necessary in order to determine the nature and extent of any neurologic manifestations of the Veteran's service-connected degenerative disc disease of the lumbar spine at L4-5 and L5-S1. Likewise, as Dr. Dunn indicated that such may have also increased in severity since March 2009, a remand is necessary in order to schedule the Veteran for an appropriate VA examination in order to assess the current nature and severity of his service-connected back disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). The Board also observes that, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim when such claim is raised by the record. The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. In the instant case, the Veteran is currently unemployed. Additionally, in various correspondence, his attorney has argued for consideration of a TDIU on an extraschedular basis as his back disability has rendered him unemployable. Furthermore, at the March 2009 VA examination, the examiner noted that the Veteran retired in June 2008 due to his low back disorder. As such, the question of TDIU is raised by the record. In this regard, the Board observes that the Veteran's claim for a TDIU was denied in a December 2009 rating decision; however, as the Court has held that a TDIU is part of an initial rating claim, it is appropriate for the Board to address this aspect of the Veteran's pending claim. Therefore, while on remand, any necessary development with respect to the TDIU aspect of the Veteran's initial rating claim should be conducted. In this regard, as the Veteran is being afforded a VA examination in order to assess the current nature and severity of his service- connected back disability, the examiner should also be requested to offer an opinion regarding his employability. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). As noted in the Introduction, the Board also observes that additional evidence relevant to the Veteran's back disability and the impact of such on his employability has been associated with the claims file subsequent to the issuance of the September 2009 supplemental statement of the case and the Veteran has not waived AOJ consideration. Therefore, on remand, the AOJ must review all the evidence of record, to include such newly received documents, in the readjudication of the Veteran's claim. Additionally, as relevant to all remanded claims, the Veteran should be requested to identify any outstanding treatment records, to include current treatment records from Dr. Dunn, and, thereafter, all identified records should be obtained for consideration in his appeal. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claims of entitlement to service connection for cervical spine and left shoulder disorders as secondary to his service- connected degenerative disc disease of the lumbar spine at L4-5 and L5-S1. Such letter should also included notice regarding the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. 2. Request that the Veteran identify any outstanding treatment records relevant to his cervical spine, left shoulder, and back disabilities. After securing any necessary authorization from him, obtain all identified treatment records, to include current treatment records from Dr. Dunn. All reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and etiology of his cervical spine and left shoulder disorders. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. Following evaluation of the Veteran, the examiner must express an opinion as to whether it is at least as likely as not (50 percent or greater likelihood) that his cervical spine and left shoulder disorders are caused or aggravated, i.e., worsened beyond the natural progression, by his service-connected degenerative disc disease of the lumbar spine at L4-5 and L5-S1. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements regarding the incurrence of his cervical spine and left shoulder disorders, and the continuity of symptomatology. The rationale for any opinion offered should be provided. 4. After all outstanding records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the current nature and severity of his back disability. The claims file, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of the Veteran's service-connected back disability. The examiner should indicate whether he has any associated objective neurological abnormalities and, if so, the severity of such manifestations. The examiner should also state whether the Veteran has intervertebral disc syndrome that is part and parcel or otherwise related to his service-connected degenerative disc disease of the lumbar spine at L4-5 and L5-S1. The examiner should also offer an opinion regarding whether it is at least as likely as not that the Veteran's service- connected disabilities, to specifically include his degenerative disc disease of the lumbar spine at L4-5 and L5-S1, either singularly or jointly, render him unable to secure and follow substantially gainful employment. In offering any opinion, the examiner must consider the full record, to include the Veteran's lay statements and all medical evidence. The rationale for any opinion offered should be provided. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence, to include all evidence received since the issuance of the September 2009 supplemental statements of the case. With respect to the Veteran's initial rating claim, such should include consideration of a TDIU per Rice, supra. If the claims remain denied, the Veteran and his attorney should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2009). ______________________________________________ JOAQUIN AGUAYO-PERELES Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs