Citation Nr: 1301530 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 09-06 988 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for radiculopathy of the bilateral lower extremities, to include as secondary to lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1. 2. Entitlement to an effective date prior to January 17, 2007, for the grant of service connection for lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. R. dela Rosa, Associate Counsel INTRODUCTION The Veteran had active military service from October 1993 to December 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Board observes that the Informal Hearing Presentation in November 2012 shows the Veteran's national representative included the issues of entitlement to an extension of a temporary total evaluation based on convalescence for the period from January 17, 2007, through April 23, 2007, and entitlement to an initial disability rating in excess of 20 percent for lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1, and the RO certified these issues to the Board. The Board, however, finds that these issues are not before the Board. The statement of the case was issued in December 2008 which addressed the convalescence and higher initial rating issues as well as issues of entitlement to service connection for radiculopathy of the bilateral lower extremities and entitlement to an effective date prior to January 17, 2007, for the grant of service connection for lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1. In VA Form 9 received in April 2009, the Veteran checked box 9.B., specifically limiting his appeal to the service connection and earlier effective date issues. His arguments set forth therein were also limited to the service connection and earlier effective date issues. For these reasons, the Board does not find that the Veteran perfected an appeal on the convalescence and higher initial rating issues. Cf. Percy v. Shinseki, 23 Vet. App. 37 (2009); Evans v. Shinseki, 25 Vet. App. 7 (2011). Indeed, the Veteran's local representative only addressed the service connection and earlier effective date issues in VA Form 646 dated in May 2009. In a statement with evidence received in July 2012, the Veteran indicated that he wanted to be reevaluated for his service connected low back disability and considered for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Accordingly, the issues of entitlement to an increased rating for service connected lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1 and entitlement to TDIU have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. On November 19, 1996, a claim for entitlement to vocational rehabilitation was received in connection with the Veteran's participation in the Disabled Transition Assistance Program. 2. On January 17, 2007, the Veteran filed a claim for entitlement to service connection for a low back disorder. 3. In February 2008, the RO granted entitlement to service connection for lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1 effective January 17, 2007. 4. The records do not contain an unadjudicated claim, formal or informal, for entitlement to service connection for a low back disorder prior to the Veteran's January 17, 2007, claim. 5. There is medical evidence of record that shows that the Veteran's complained of radicular pain experienced in both extremities is associated with service connected lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1 for which he takes medication. CONCLUSIONS OF LAW 1. An effective date prior to January 17, 2007, for the grant of service connection for lumbar disc degeneration and herniation, status-post anterior fusion L5-S1 anteriorly is not warranted. 38 U.S.C.A. §§ 5108, 5110, 7104 (West 2002); 38 C.F.R. §§ 3.156, 3.400 (2012). 2. Bilateral lower extremity disability manifested by radicular pain is proximately due to or the result of service-connected lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist 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 duties to notify and 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). 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. In regard to the service connection claim, in light of the favorable determination being reached, the Board finds that no further discussion of VCAA compliance is necessary as any error that was committed as to either the duties to notify or assist is harmless. In regard to the earlier effective date claim, the Board notes that the Veteran was provided the requisite notice with respect to the underlying service connection claim in a March 2007 letter. The Veteran is challenging the initial effective date assigned following the grant 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 38 C.F.R. § 3.159(b)(3)(i) (2009). Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (providing that where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). Accordingly, the Board finds that VA's duty to notify has been met. The Board also finds that VA has fully satisfied the duty to assist. The relevant evidence necessary to decide the earlier effective date claim is of record. For these reasons, the Board did not develop the record further in connection with the suggestion in the claims file that the Veteran was denied social security benefits. Cf. Golz v. Shinseki, 590 F.3d 1317, 1323 (2010). The Veteran was an active participant in the claims process, submitting argument and evidence in support of his contentions. Thus, he has been provided with a meaningful opportunity to participate in the claims process and has done so. For these reasons, VA's duty to assist has been met. Earlier effective date The Veteran claims that an earlier effective date is warranted for the grant of service connection for lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1. The Veteran served on active duty from October 1993 to December 24, 1996. Prior to service discharge, on November 19, 1996, the Veteran filed a claim (VA Form 28-1900) for vocational rehabilitation benefits. Thereafter, in a claim (VA Form 21-526) for compensation benefits received by the RO on January 10, 1997, the Veteran indicated that he wanted service connection for a fracture of the right fibula. In a January 29, 1997 rating decision, the RO considered whether the Veteran was entitled to vocational rehabilitation under 38 U.S.C. chapter 31. The RO noted that a service connected disability evaluated as 20 percent or more disabling will establish entitlement to vocational rehabilitation. The RO found that entitlement was granted because a 20 percent rating has been assigned for the following: status post right fibula fracture and low back disorder. This finding was based on the RO's review of the Veteran's service treatment records which showed complaints and treatment for low back pain and a right fibula fracture. In the January 31, 1997 notice of decision, the Veteran was advised that recently he had participated in a Disabled Transition Assistance Program (DTAP) and that at the meeting he requested a rating in order to expedite his evaluation for possible Vocational Rehabilitation and Counseling benefits under the Chapter 31 program. The RO advised the Veteran that a preliminary assessment of his disabilities had enabled the RO to move forward with his vocational rehabilitation claim. The RO also reminded the Veteran that he should make sure to file his claim for compensation and pension benefits. A copy of the January 29, 1997 rating decision was included. Thereafter, the Veteran did not express any intent to file a claim for service connection for his low back disability or request compensation benefits for his low back disability until 2007. On January 17, 2007, the Veteran filed a claim for service connection for low back pain, in addition to bilateral leg pain (sciatica secondary to low back pain), and limited motion and weakness due to his back. In a January 2007 statement, the Veteran indicated that his service-connected low back disorder had increased in severity to include constant, sharp pain in both his legs. He also indicated that he was awarded a disability rating of 20 percent on January 31, 1997, and should have received disability compensation retroactive to the day after his discharge from the Army, December 25, 1996, in addition to Vocational Rehabilitation. A February 2008 rating decision granted service connection for lumbar disc degeneration and herniation, status-post anterior fusion L5-S1 anteriorly and assigned a 20 percent disability rating effective January 17, 2007. In VA Form 9, the Veteran's representative essentially argued that because the Veteran's service treatment records showed that he was seen in service for low back problems and because the RO had already made a determination that the Veteran had a low back disorder for purposes of entitlement to vocational rehabilitation benefits, the RO should have sua sponte evaluated the Veteran for service connected compensation benefits with respect to the low back disorder. In the Informal Hearing Presentation, the Veteran's representative argued that VA failed to fully and sympathetically develop the Veteran's claim to its optimum citing Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004), Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). Applicable regulations provide that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." See 38 C.F.R. § 3.1(p) (2012); see also MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have an intent to file a claim for VA benefits). A claim, whether "formal" or "informal," must be "in writing" in order to be considered a "claim" or "application" for benefits. See Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Any claim for VA benefits must be submitted in the form prescribed by the Secretary. 38 U.S.C.A. § 5101(a) (West 2002). Section 5101(a) is a clause of general applicability and mandates that a claim must be filed in order for any type of benefit to accrue or be paid. See Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). Moreover, the Court has explicitly stated that the "mere presence" of a diagnosis of a specific disorder in a VA medical report "does not establish an intent on the part of the veteran" to seek service connection for that disorder. See Brannon v. West, 12 Vet. App. 32, 35 (1998). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit 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 veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155. When all 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 preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the grant of an effective date earlier than January 17, 2007, for the award of service connection for lumbar disc degeneration and herniation, status-post anterior fusion L5-S1 anteriorly. The reasons follow. The Board has thoroughly reviewed the evidence to see if the Veteran filed a formal claim, informal claim, or expressed an intent to file a claim for service connection for a low back disability but the evidence does not support a finding that a claim was made. See 38 C.F.R. §§ 3.1(p), 3.155. While the Veteran avers that his claim for entitlement to vocational rehabilitation in November 1996 and grant of vocational rehabilitation in January 1997 implies a de facto claim for entitlement to service connection for a low back disability, the Board finds this is not the case. The Board is cognizant of the arguments made by the Veteran and his representative. The issuance of the rating decision in January 1997 was solely for purposes of determining the Veteran's entitlement to vocational rehabilitation benefits. The assessment in regard to the evaluation of any service related disability made therein was preliminary. The Veteran was advised of this in the January 1997 notice letter and advised that the onus was on him to file a claim for compensation benefits. The record reflects that the Veteran understood this process as he filed a separate compensation claim in connection with the right fibula fracture at that time. This action was not done with respect to the low back disability. In addition, while there may have been evidence that the Veteran had a low back disorder that was caused by service prior to January 2007, this is not synonymous with filing a claim for service connection for a low back disorder. See Brannon v. West, 12 Vet. App. 32, 35, (1998) ("The mere presence of the medical evidence does not establish an intent on the part of the [claimant] to seek . . . service connection. . . ."). Moreover, the mere mention of a condition in a medical record alone cannot be construed as a claim for service connection. See MacPhee. Rather, a medical examination report will only be considered an informal claim for an increase in disability benefits if service connection has already been established for the disability. See 38 C.F.R. § 3.157(b)(1) (providing that medical records can serve as informal claim "when such reports relate to examination or treatment of a disability for which service-connection has previously been established.") In other words, case law and VA regulations are clear that a VA medical record does not constitute an informal claim except for when the disability being treated was already service connected. In the current case, the Veteran was not service-connected for a low back disorder prior to January 2007. Moreover, STRs are not a communication from the Veteran, his representative, a Member of Congress, or an agent communicating an intent to file a claim for compensation benefits. See 38 C.F.R. §§ 3.1(p), 3.155(a), (b). Thus, even if STRs show evidence of a low back disorder prior to January 2007, they cannot be deemed to be a claim for service connection. See Brannon, supra. The record reflects that a claim for compensation benefits for a low back disability was not received until January 17, 2007. The effective date assigned the service connected low back disability is January 17, 2007. For reasons discussed above, the Board finds that the assigned effective date is appropriate. Accordingly, the Veteran is not entitled to an effective date earlier than January 17, 2007 for service connected lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See Gilbert, 1 Vet. App. at 55. Service Connection The Veteran seeks entitlement to service connection for radiculopathy of the bilateral lower extremities, to include as secondary to lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1. He indicated that he experienced a constant, sharp pain in both legs that made sitting very uncomfortable. Service connection may be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a) (2012). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). In October 2007 the Veteran was accorded a C&P spine examination. During the examination the Veteran reported that he had pain in his lower back that radiated across his back and down his right leg to about his mid thigh. He also reported occasional sharp pain that radiated down his left leg. The diagnoses were lumbar disc degeneration and lumbar disc herniation. The examiner opined that the Veteran's lower back condition was most likely caused by or the result of the low back condition he had in service. He did not provide a diagnosis, opinion, or rationale for the Veteran's reported radicular symptoms. Private medical records dated in 2007 and 2008 show complaints of pain radiating down both the Veteran's legs for which he was prescribed medication, including Lyrica although in May 2008, it was noted that there were no physical findings of radiculopathy. Private medical records dated in 2012 continue to show that the Veteran suffers from "bilateral lower extremity radicular pain" associated with his low back disability although none of the reported impressions noted a separate diagnosis of radiculopathy. The Board acknowledges that there is no diagnostic testing of record that confirms radiculopathy. Clearly the Veteran's treating physician believes the Veteran's symptoms are truly present as the Veteran was prescribed medication. Thus, this is not a situation in which the Veteran is merely complaining of "pain alone." Rather, an identifiable underlying malady-the Veteran's service-connected low back disability-has been indicated as the cause for his symptoms. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), dismissed in part and vacated in part on other grounds sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed.Cir.2001). As radicular symptoms have been medically related to the service-connected low back disability, the Board finds that service connection for bilateral lower extremity disability manifested by radicular pain secondary to service-connected lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1 is warranted. (CONTINUED ON NEXT PAGE) ORDER An effective date prior to January 17, 2007, for the grant of service connection for lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1 is denied. Service connection for bilateral lower extremity disability manifested by radicular pain secondary to service-connected lumbar disc degeneration and herniation, status-post anterior fusion, L5-S1 is granted. ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs