Citation Nr: 1300260 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 08-06 351 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for a lumbar spine disability. 2. Entitlement to service connection for a left ankle disability. 3. Entitlement to an effective date earlier than February 19, 2008 for the award of service connection for bipolar disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Jennifer Hwa, Counsel INTRODUCTION The Veteran served on active duty from February 2001 to September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2006 and November 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Wichita, Kansas, which denied service connection for a lumbar spine disability and a left ankle disability and granted service connection for bipolar disorder, effective February 19, 2008. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the Veteran's claims. A review of the documents in such file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. The issue of entitlement to service connection for a lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. There is no competent and credible evidence establishing that the Veteran currently has a left ankle disability. 2. The Veteran's initial claim for service connection for bipolar disorder was filed at the RO on October 12, 2005. That claim was denied in a March 2006 rating decision. The Veteran did not appeal that decision, nor has he filed a claim for revision of the March 2006 denial of service connection based upon clear and unmistakable error (CUE), and the decision became final. 3. The Veteran filed to reopen his previously denied claim for service connection for bipolar disorder on February 19, 2008, more than one year after his separation from service. Service connection subsequently was granted, effective February 19, 2008. 4. There is no competent evidence of record that the Veteran's bipolar disorder was related to his period of service that is dated prior to February 19, 2008 and subsequent to the Veteran's separation from service. 5. There was no informal or formal claim, or written intent to file a claim, for service connection for bipolar disorder dated after the March 2006 denial and prior to the February 19, 2008 claim. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a left ankle disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1117, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). 2. The criteria for an effective date earlier than February 19, 2008 for the award of service connection for bipolar disorder have not been met. 38 U.S.C.A. §§ 1101, 5103, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. See Pelegrini, 18 Vet. App. at 121. In this case, in October 2005, March 2006, and March 2008 letters issued prior to the decisions on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The March 2006 and March 2008 letters also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The case was last readjudicated in April 2011. However, with respect to the claim for an earlier effective date for the grant of service connection, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, Social Security Administration reports, VA medical reports, VA examination reports, and the Veteran's statements. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Service Connection Service connection may be established 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. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Service treatment records show that the Veteran sprained his left ankle on a run in July 2002. He received treatment for left ankle sprain and left ankle pain in July 2002, March 2003, April 2003, May 2003, June 2003, August 2003, September 2003, October 2003, December 2003, January 2004, April 2004, September 2004, October 2004, November 2004, February 2005, and May 2005. At an October 2004 medical board examination, the Veteran reported that he had hurt his ankle 2 years previously and complained that it still hurt even when he was not using it. Post-service medical records show that the Veteran complained of left ankle pain in an October 2005 VA medical report. However, on VA examination in February 2006, the examiner found that there was no objective evidence of a left ankle condition. Post-service medical records are otherwise negative for any complaints, diagnoses, or treatment for a left ankle disability. Additionally, while the Veteran is competent to describe his symptoms, the Veteran has not been shown to have medical expertise to render a competent medical opinion as to the diagnosis or etiology of a left ankle disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, ankle pain can have many causes and requires medical testing to diagnose and medical expertise to determine the etiology of the pain. In any event, the Board concludes that the medical evidence, which reveals no complaints or findings of a left ankle disability, is of greater probative value than the lay contentions of the Veteran. In this case, while there is current medical evidence of record dating from October 2005 through December 2010, none of this evidence reflects findings of a left ankle disability. Accordingly, in the absence of objective evidence of a current left ankle disability during the period of the claim, service connection for a left ankle disability is not warranted on any basis and must be denied. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. §§ 1110; 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). The Board notes that the RO did not seek a VA medical opinion for the claim for service connection. However, as explained above, there is no competent evidence of a current left ankle disability. Accordingly, a VA examination is not required. See 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet App. 79, 81 (2006); see also Duenas v. Principi, 18 Vet. App. 512 (2004). In reaching the conclusion above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Earlier Effective Date Generally, a specific claim in the form prescribed by VA must be filed in order for VA benefits to be paid. 38 U.S.C.A. § 5101(a); 38 C.F.R. §§ 3.151, 3.160 (2012). 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) (West Supp. 2012); 38 C.F.R. § 3.151(a) (2012). The term "claim" or "application" means 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) (2012). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui generis may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2012). The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 (West 2002) and 38 C.F.R. § 3.400 (2012). Unless specifically provided otherwise, the effective date of an award based on a claim reopened after final disallowance shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2) (2012). However, if a claim is received within one year from the date of discharge or release from service, the effective date of an award for disability compensation to a veteran shall be the day following the date of discharge or release. 38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2) (2012); see also Wright v. Gober, 10 Vet. App. 343, 346-48 (1997). Service treatment records show that the Veteran had an assessment of depression in November 2002. However, the Veteran did not submit evidence of a current psychiatric disability and failed to show up to a January 2006 VA examination. The Veteran's original claim for service connection for bipolar disorder was therefore denied in a March 2006 rating decision because there was no evidence of a current diagnosis of bipolar disorder (or any other psychiatric disorder). The Veteran did not appeal that decision, nor has he alleged CUE with respect to that decision. The March 2006 decision is therefore final. The Veteran filed a claim to reopen his previously denied claim for service connection for bipolar disorder on February 19, 2008, more than one year after his separation from active service in September 2005. Where a claim has been filed more than one year after the date of separation from service, the effective date of service connection is the date of the receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b) (2012). The effective date of service connection where a claim is reopened and allowed after a final denial is the date of the receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q) (2012). Here, the record shows that an October 2010 VA examination found that the Veteran's bipolar disorder was related to his period of service. Thus, the later date is the date the evidence demonstrates that entitlement existed. In this case, however, service connection has been established as of February 19, 2008, the date the claim for service connection was received. The Board can find no basis to assign an earlier effective date. The medical evidence shows that the Veteran's bipolar disorder had its onset during service. However, there was no evidence that the Veteran had a current psychiatric disability related to his period of service at the time of his October 2005 claim for service connection for bipolar disorder. His bipolar disorder was not found to be related to service until October 2010, after the October 2005 claim had been denied by a final decision. Although the date that entitlement arose is the later date in this case, the date that served as a basis for the award of service connection was the date of receipt of the Veteran's application to reopen his claim. There is no legal entitlement to an earlier effective date. Furthermore, with regard to whether any informal or formal claim, or written intent to file an application to reopen the Veteran's previously denied claim for service connection for bipolar disorder, was filed after the March 2006 denial and prior to the February 19, 2008 application to reopen, the Board finds no evidence of there being such a claim. After the March 2006 decision denying claim for service connection, it was not until February 19, 2008 that the Veteran submitted a statement again alleging entitlement to service connection for bipolar disorder. Thus, the Board finds that in this case, the only date that could serve as a basis for the award of service connection is the date of receipt of the Veteran's application to reopen his claim for service connection on February 19, 2008. There is no legal entitlement to an earlier effective date for bipolar disorder. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date, and the claim must be denied. ORDER Entitlement to service connection for a left ankle disability is denied. Entitlement to an effective date earlier than February 19, 2008 for the grant of service connection for bipolar disorder is denied. REMAND Additional development is needed prior to further disposition of the claim for service connection for a lumbar spine disability. VA's duty to assist includes a duty to provide a medical examination or obtain a medical opinion where it is deemed necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2012). In a claim for service connection, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits still triggers the duty to assist if it indicates that the Veteran's condition may be associated with service. McLendon v. Nicholson, 20 Vet. App. 79 (2006) (38 C.F.R. § 3.159(c)(4) presents a low threshold for the requirement that evidence indicates that the claimed disability may be associated with in-service injuries for the purposes of a VA examination). Service treatment records show that in November 2004, the Veteran was noted to have a chronic history of low back pain. He was found to have slightly decreased range of motion of the back. At his October 2004 Medical Board examination, the Veteran complained of recurrent back pain. The examiner indicated that the Veteran had recurrent and now chronic low back pain from heavy lifting, but the Veteran's spine was found to be within normal limits. In February 2005, the Veteran was put on limited physical profile due partly to his low back pain. Post-service VA medical records dated from October 2005 to April 2009 show that the Veteran received intermittent treatment for chronic low back pain. In a May 2008 medical report, the Veteran was diagnosed with low back pain with lumbar spondylolysis. On VA examination in February 2006, the Veteran was found to have subjective low left lateral back muscle strain without objective evidence. However, a February 2006 x-ray of the lumbar spine revealed very minimal decrease in the height of the anterior portion of L1 and questionable pars defect at L5. The requirement that a claimant have a current disability before service connection may be awarded for that disability is satisfied when a claimant has a disability present at any time since the filing of the claim, even if no disability is present at the time of the claims adjudication. McClain v. Nicholson, 21 Vet. App. 319 (2007). Even though the February 2006 VA examiner found no back disability, as noted, spinal defects in the form of decrease in the height of L1 and questionable pars defect at L5 were found on this examination. Additionally, the evidence shows that subsequently in May 2008, the Veteran was diagnosed with lumbar spondylolysis. Given that the evidence outlined above indicates that the Veteran does have a current lumbar spine disability (lumbar spondylolysis), it remains unclear to the Board whether the Veteran's lumbar spine disability is related to his period of active service. Therefore, the Board finds that the Veteran should be afforded an additional VA joints examination with medical opinion concerning whether the Veteran's lumbar spine disability arose during service or is otherwise related to any incident of service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA joints examination to obtain a medical opinion as to whether his current lumbar spine disability is possibly related to his period of service. The claims file must be provided to and be reviewed by the examiner in conjunction with the examination. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that a current lumbar spine disability arose during service or is otherwise related to any incident of service, including due to heavy lifting. The examiner should explain the medical basis for the conclusion reached. 2. After the development requested above as well as any additional development deemed necessary has been completed, the record should again be reviewed. If the benefits sought on appeal remain denied, then the Veteran and his representative should be furnished with a supplemental statement of the case and be given the opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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. 2012). ______________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs