Citation Nr: 1304229 Decision Date: 02/06/13 Archive Date: 02/19/13 DOCKET NO. 08-13 154A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an effective date earlier than February 26, 2007 for the award of a 20 percent rating for lumbosacral strain. 2. Entitlement to an initial rating in excess of 40 percent for mild traumatic brain injury with no residuals. 3. Entitlement to an increased rating for bilateral hearing loss, currently rated as 40 percent disabling. 4. Entitlement to an increased rating for a lumbosacral strain, currently rated as 20 percent disabling. 5. Whether new and material evidence has been submitted to reopen a claim for service connection for sleep apnea. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1979 to April 1982. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 decision of the Philadelphia, Pennsylvania, Department of Veterans Affairs (VA) Regional Office (RO), which recharacterized the Veteran's service-connected somatization associated with vascular headaches and lumbosacral strain into separate lumbosacral strain and vascular headache disorders. The decision awarded a 20 percent rating for lumbosacral strain and a 0 percent rating for vascular headaches, both effective February 26, 2007. The Veteran disagreed with the effective date of the award of a 20 percent rating for lumbosacral strain and perfected an appeal as to that issue. The Veteran had also perfected an appeal as to the issues of service connection for hearing loss and tinnitus. A January 2010 rating decision granted service connection for hearing loss and tinnitus, thus satisfying the Veteran's appeal as to those issues. In September 2010, the Veteran testified at a Central Office hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. The Veteran submitted additional evidence with a waiver of initial RO consideration. See 38 C.F.R. § 20.1304 (2012). In November 2010, the Board denied the Veteran's claim for an earlier effective date for the award of a 20 percent rating for lumbosacral strain. The Veteran appealed that decision and, in March 2012, the United States Court of Appeals for Veterans Claims granted a joint motion to remand this appeal to the Board. A January 2012 rating decision granted service connection for mild traumatic brain injury with a 40 percent evaluation assigned effective from the June 16, 2011 date of claim. The decision also confirmed the 40 percent evaluation for bilateral hearing loss and the 20 percent evaluation for lumbosacral strain. Additionally, the RO determined that new and material evidence had not been submitted to reopen the claim for service connection for obstructive sleep apnea. The Veteran's attorney filed a timely notice of disagreement with that decision. The Board notes that, in addition to the paper claims file, there is a paperless, electronic 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 issues of entitlement to an initial rating in excess of 40 percent for traumatic brain injury, increased ratings for bilateral hearing loss and a lumbosacral strain, and whether new and material evidence has been submitted to reopen a claim for service connection for sleep apnea, are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. VA will notify the Veteran if further action is required on his part. FINDINGS OF FACT 1. A May 1983 rating decision, which granted service connection for somatization associated with vascular headaches and lumbosacral strain, effectively granted service connection for a low back disability. Although notified of the rating decision later that month, the Veteran did not appeal the decision. 2. The Veteran's claim for an increased rating was received on February 26, 2007. 3. The record contains no evidence, or statement or communication from the Veteran or his representative, between May 1983 and February 26, 2007, that constitutes a pending claim for an increased rating for lumbosacral strain. 4. No increase in lumbosacral strain became factually ascertainable during the year preceding February 26, 2007. CONCLUSION OF LAW The criteria for an effective date earlier than February 26, 2007 for the award of a 20 percent rating for lumbosacral strain have not been met. 38 U.S.C.A. §§ 5110, 5107 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION 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 a March 2007 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for an increased rating, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. 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, VA treatment records and examination reports, and hearing testimony. 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 claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument. Moreover, he is currently represented by an attorney who was offered an opportunity in an August 2012 letter to provide additional argument and evidence on this appeal. Thus, the Veteran 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 this matter 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 of the evidence in the record. 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 Veteran 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 claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran asserts that he should be awarded an earlier effective date for the grant of a 20 percent rating for lumbosacral strain because he was medically discharged from service for this condition. In the alternative, he argues for an earlier date because he filed a claim for a low back disability in 1982. In general, unless specifically provided otherwise, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final adjudication, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2012). With regard to claims for increase, VA laws and regulations provide that the effective date "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore," unless specifically provided otherwise. 38 U.S.C.A. § 5110(a). Section 5110(b)(2) provides otherwise by stating that the effective date of an increased rating "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." Under 38 C.F.R. § 3.400(o)(1), except as provided in paragraph (o)(2), the effective date is "date of receipt of claim or date entitlement arose, whichever is later." Paragraph (o)(2) provides that the effective date is the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date otherwise, date of receipt of claim." 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). A report of examination or hospitalization that meets certain criteria will be accepted as an informal claim for an increase or to reopen provided the report relates to a disability that may establish entitlement. 38 C.F.R. § 3.157(a) (2012). The date of outpatient or hospital examination or date of admission to a VA or uniformed service hospital will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(1) (2012). Evidence received from a private physician or layperson will also be accepted as a claim when the evidence is within the competence of the physician or layperson and shows the reasonable probability of entitlement to benefits. The date of receipt of such evidence will be accepted as the date of receipt of the claim. 38 C.F.R. § 3.157(b)(2) (2012). In this case, service connection for somatization associated with vascular headaches and lumbosacral strain was awarded by a May 1983 rating decision. The Veteran was assigned a 0 percent disability rating, effective April 14, 1982. Although notified of this rating decision later in May 1983, the Veteran did not appeal the decision. The Veteran filed the instant claim for an increased rating on February 26, 2007. He does not contend that he filed a claim prior to this date, other than the claim that prompted the May 1983 rating decision. The record contains no evidence, or statement or communication from the Veteran or his representative, between May 1983 and February 26, 2007, that constitutes a pending claim for an increased rating for lumbosacral strain. In this regard, the only items received during this time period were relevant to the Veteran's claim for service connection for an eye disorder. During this period, the file contains no new treatment records for lumbosacral strain or informal claims for an increased rating for lumbosacral strain. In fact, at his August 2007 VA examination, the Veteran reported that he had not sought treatment for his lower back since service and instead had relied upon over the counter medication. Thus, the date of claim in this case is February 26, 2007. The Board recognizes that an earlier effective date for the grant of the 20 percent rating for lumbosacral strain could be assigned if the evidence showed an increase in severity of lumbosacral strain factually ascertainable in the year preceding the date of claim. Such is not shown in this case. There is no medical evidence showing the severity of the Veteran's service-connected lumbosacral strain during the year prior to his February 26, 2007, claim for an increased rating. Again, the Veteran denies seeking treatment for lumbosacral strain between the time he was discharged from service and the time he filed the present claim. Finally, to the extent that the parties to the March 2012 joint motion have suggested that a claim for service connection for a low back disability may have remained pending at the time the Veteran filed his February 2007 claim for increase, the Board disagrees. A claim for VA benefits, whether formal or informal, remains pending until it is finally adjudicated. See Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009); 38 C.F.R. § 3.160(c) (2012). A claim will also remain pending if VA has failed to notify the claimant of the denial of the claim. Cook v. Principi, 318 F.3d 1334, 1340 (Fed. Cir. 2002) (en banc). In Ingram v. Nicholson, the Court held that "a reasonably raised claim remains pending until there is either a recognition of the substance of the claim in a [regional office] decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent 'claim' for the same disability." 21 Vet. App. 232, 243 (2007). Here, in April 1982, the Veteran filed claims for service connection for inter alia a chronic strain of the lumbosacral spine, adult adjustment reaction, and vascular headaches. In conjunction with the Veteran's service connection claims, the RO obtained a February 1983 opinion from a VA psychiatrist. The psychiatrist reviewed pertinent evidence, to include the Veteran's service treatment records, and noted that, with respect to the claim for vascular headaches, the Veteran did not have true migraines, but rather tension headaches or headaches related to eye problems. Regarding the claimed back disability, the psychiatrist noted that lumbosacral strain is usually a diagnosis not based on organic findings but subjective complaints. The psychiatrist ultimately concluded that the Veteran's appropriate diagnosis was "'somatization disorder' (backpains, headaches)." The RO then issued a May 1983 rating decision granting service connection for "somatization (associated with vascular headaches, lumbosacral strain)" pursuant to 38 C.F.R. § 4.130, Diagnostic Codes, 9499-9402. The RO acknowledged that there was little evidence supporting the Veteran's physical complaints. However, it was noted that the Veteran had received in-service diagnoses to include psychophysiological disorder, musculoskeletal type, backache. The RO further noted that the VA psychiatric review of all pertinent evidence resulted in a diagnosis of somatization disorder (back pains, headaches). The RO then concluded that, because the symptoms of the Veteran's somatization disorder - identified in the rating decision as headaches and back pains - were present in service, service connection was warranted. The Veteran was notified of the May 1983 decision and was informed of his appellate rights by letter dated May 23, 1983. He was notified that his disabilities that were service connected included "Somatization (vascular headaches, lumbosacral strain)," and that his disabilities were less than 10 percent disabling and, therefore, noncompensable. The Veteran did not express disagreement with that decision within the applicable appeal period. Thus, the decision became final. 38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 20.302(a), 20.1103. Based on the foregoing, the Board concludes that service connection for a low back disability was effectively granted by the May 1983 rating decision. See Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991) (holding that when the RO listed a condition as service-connected on a rating sheet, it effectively granted service connection and service connection remained in effect, despite re-characterization of the disability, unless service connection was severed in accordance with VA regulations). Indeed, the RO listed the Veteran's lumbosacral strain on the rating sheet as a service connected condition, albeit as associated with a somatization disorder. Furthermore, as evidence that the RO recognized the substance of the Veteran's April 1982 low back service connection claim, the RO cited in-service evidence of back pains and specifically indicated that the award of service connection was based upon in-service evidence of symptoms associated with the somatization disorder, which included low back symptoms. Ingram, 21 Vet. App. at 243. The Board also finds it significant that, in characterizing the disability for which service connection was granted in May 1983, the RO used the specific terminology "lumbosacral strain" associated with somatization disorder. The Board interprets the RO's characterization as evidencing intent to grant service connection for the claimed low back disorder, albeit under the somatization diagnosis. Moreover, the Board finds that the Veteran was able to deduce from the May 1983 rating decision that his low back service connection claim was adjudicated. Ingram, 21 Vet. App. at 243. Indeed, the Veteran acknowledged that service connection was already established for a low back disability in his February 2007 claim. Specifically, the Veteran stated, "I believe that I am rated as 0% service connected for back problems that started while I was on active duty in the Air Force." Further, the Veteran characterized his low back claim as one for reevaluation of his service-connected back problems. Accordingly, the Board finds that service connection for a low back disability was effectively granted by an unappealed May 1983 rating decision, and that there was no claim for service connection for a low back disability pending at the time of the Veteran's February 2007 claim for an increased rating for his already service-connected low back disability. In summary, no formal or informal claim for an increased rating for lumbosacral strain was received until February 26, 2007 and a factually ascertainable increase in the severity of that disability is not shown in the year prior to that date. Furthermore, there was no service connection claim for a low back disability pending at the time the Veteran's claim for increased rating was received in February 2007. Thus, the proper effective date for the grant of a 20 percent rating for lumbosacral strain is February 26, 2007. 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). ORDER Entitlement to an effective date earlier than February 26, 2007 for the award of a 20 percent rating for lumbosacral strain is denied. REMAND A review of the record reveals that, in March 2012, the Veteran filed a notice of disagreement with a January 2012 rating decision that established service connection for a mild traumatic brain injury with no residuals and assigned an initial 40 percent disability rating, effective June 16, 2011; denied increased ratings for bilateral hearing loss and a lumbosacral strain; and, determined that new and material evidence had not been submitted to reopen a claim for service connection for sleep apnea. However, the RO has yet to issue a statement of the case (SOC) with respect to those matters. Accordingly, the Board is required to remand the issues to the RO for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). After the RO has issued the statement of the case, the claims should be returned to the Board only if the Veteran perfects the appeal in a timely manner. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). Accordingly, the case is REMANDED for the following action: Issue the Veteran a statement of the case on the claims of entitlement to an initial increased rating for traumatic brain injury, increased ratings for bilateral hearing loss and a lumbosacral strain, and whether new and material evidence has been submitted to reopen a claim for service connection for sleep apnea, so that the Veteran may have the opportunity to complete an appeal on those issues (if he so desires) by filing a timely substantive appeal. The issues should only be returned to the Board if a timely substantive appeal is filed 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). ______________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs