Citation Nr: 1315826 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 02-04 905A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for neurological manifestations in the left upper extremity to include as secondary to service-connected degenerative disc disease of the cervical spine. 2. Entitlement to an effective date earlier than June 17, 1999, for the award of a 10 percent rating for service-connected left inguinal hernia. 3. Entitlement to an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the cervical spine. 4. Entitlement to an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the thoracic spine. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran, who is the Appellant, served on active duty from March 1978 to April 1986. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2001 of a Department of Veterans Affairs (VA) Regional Office (RO). As a preliminary matter, the current file is a rebuilt file and there are some records referenced herein, which are no longer in the Veteran's file. In March 2010, the Board remanded the claim of service connection for neurologic manifestations in the left upper extremity as secondary to service-connected degenerative disc disease of the cervical spine. As the requested development has been completed, no further action is necessary to comply with the Board's remand directive. The claims for entitlement to an effective date earlier than June 17, 1999, for the award of a 10 percent rating for service-connected left inguinal hernia; an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the cervical spine; and an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the thoracic spine, are REMANDED to the RO via the Appeals Management Center in Washington, DC. FINDINGS OF FACT 1. Radial nerve neuropathy of the left upper extremity is proximately due to the Veteran's electrical injury in service. 2. In a rating decision in 1986, the RO denied service connection for a back disability, which became final. 3. In a rating decision in November 2000, the RO awarded an increased rating of 10 percent, effective June 17, 1999, for a service-connected left inguinal hernia, which became final. 4. In a rating decision in September 2001, the RO awarded service connection for degenerative disc disease of the thoracic and cervical spine segments, effective May 8, 2001, which became final. 5. In a rating decision in February 2012, the RO assigned an effective date of April 16, 2001, for the award of service connection for degenerative disc disease of the thoracic spine on the basis of clear and unmistakable error in the rating decision in September 2001. CONCLUSIONS OF LAW 1. The criteria for service connection for radial nerve neuropathy of the left upper extremity are met. 38 U.S.C.A. §§ 1131, 1154(a), (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for legal entitlement to an effective date earlier than June 17, 1999, for a 10 percent rating for service-connected left inguinal hernia have not been met. 38 U.S.C.A. § 5110 (West 2002). 3. The criteria for legal entitlement to an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the cervical spine have not been met. 38 U.S.C.A. § 5110 (West 2002). 4. The criteria for legal entitlement to an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the thoracic spine have not been met. 38 U.S.C.A. § 5110 (West 2002). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented, in part, at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. As the claim of service connection for neurological manifestations in the left upper extremity to include as secondary to service-connected degenerative disc disease of the cervical spine is resolved in the Veteran's favor, further discussion here of compliance with the VCAA is not necessary. As the facts about the date of the receipts of the claims for earlier effective dates are not disputed; the law is dispositive, and the provisions of the VCAA do not apply. Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). I. Service Connection Principles and Theories of Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. § 1131 (peacetime service). Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be warranted for a disability proximately due to or the result of a service-connected disorder and where aggravation of a nonservice-connected disability is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) do not apply. Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and weight, factual determinations going to the probative value of the evidence, that is, does the evidence tend to prove a fact, once the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competency is a question of fact, which is to be addressed by the Board. Jandreau, v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Evidence Most of the service treatment records are unavailable. The available records show that in September 1981 the Veteran suffered a fracture and dislocation of his right shoulder in an electrical injury. There was no finding of left upper extremity involvement in the limited records available. After service VA records show that the Veteran complaints of left upper extremity pain, tingling, and burning. In September 2000 on VA examination, there was significant diminishment of sensation throughout the shoulders and upper extremities and the diagnosis was possible cervical spine degenerative disease. In November 2002 VA records show that the Veteran complained of paresthesia in his hands. The diagnosis was cervical radiculopathy. Following electromyography and nerve conduction studies (EMG/NCS), the diagnosis was left carpal tunnel syndrome. On VA neurologic examination in March 2004, the VA examiner did not find any neurological residuals of the electrical injury. On VA neurological examination in June 2008, the diagnosis was degenerative disc and spondylosis from C4-T1 with neural foraminal encroachment. The VA examiner stated that there was electrophysiological evidence of bilateral median nerve neuropathy, which was associated with the service-connected right shoulder disability and with cervical spine degenerative disc disease. The VA examiner did not comment on the left upper extremity neuropathy. In a statement in June 2009, the Veteran stated that he had experienced left upper extremity symptoms for 15 years. In April 2011 on VA examination, the Veteran stated that he had paresthesia in his arms. The diagnosis was bilateral radial neuropathy and nonspecific neuropathy not related to the cervical spine, but consistent with trauma or other nerve damage. In an addendum in May 2011, the VA examiner stated that it was possible that the electrical injury affected most nerves, not just the nerves closest to the injury. The VA examiner stated that the NCS results supported a finding of left radial nerve neuropathy. In December 2012, a VA physician expressed the opinion that it was more likely than not that the Veteran's arm symptoms were consistent with nerve damage from the accident in service, based on the EMG/NCS findings in June 2008. Analysis There is competent medical evidence of record which indicates that radial nerve neuropathy of the left upper extremity, first documented after service, is etiologically related to the injury during service. In May 2011, the VA examiner stated that the NCS results supported a finding of left radial nerve neuropathy. In December 2012, a VA physician expressed the opinion that it was more likely than not that the Veteran's arm symptoms were consistent with nerve damage from the accident in service, based on the EMG/NCS findings in June 2008. As there is competent medical evidence, which is uncontroverted by any other medical evidence of record, that the Veteran's radial nerve neuropathy of the left upper extremity is causally related to his in-service electrical injury, service connection is warranted. II. Earlier Effective Dates A. Entitlement to an effective date earlier than June 17, 1999, for the award of a 10 percent rating for service-connected left inguinal hernia; Entitlement to an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the cervical spine. In a rating decision issued in May 1986, the RO awarded service connection for a left inguinal hernia. A noncompensable (0 percent) percent rating was assigned, effective May 23, 1986. In an application for VA disability compensation in July 1999, the Veteran sought service connection for a hernia and a right shoulder disability. In a rating decision issued in November 2000, the RO awarded an increased rating for the left inguinal hernia. A 10 percent rating was assigned, effective June 17, 1999. The Veteran was notified of the decision and of his appellate rights by letter in December 18, 2000. The Veteran did not appeal the rating or the effective date assigned for the left inguinal hernia. A formal claim for a neck disability secondary to a service-connected right shoulder disability was received by VA on May 8, 2001. In a rating decision issued in September 2001, the RO awarded service connection for degenerative disc disease of the cervical spine and assigned an effective date of May 8, 2001. The Veteran was notified of the decision and of his appellate rights by letter in November 2001. He did not appeal the effective date assigned. In a statement received in March 2006, the Veteran noted that he recently had been awarded a "50% SC combined rating," and stated his belief that the effective date of this 50 percent rating should have been in 1986, when he first opened his compensation claim. In a statement received in June 2006, the Veteran stated that he wished to clarify his March 2006 statement. He indicated that with respect to all issues he was service-connected for, it was his contention that they should be effective back to 1986, including the compensable evaluation for the left inguinal hernia and service connection for the degenerative disc disease of cervical spine. In a February 2009 rating decision, the RO awarded an increased rating (of 30 percent) for the degenerative disc disease of the cervical spine and assigned an effective date of April 16, 2001. The RO indicated that the Veteran had presented new evidence at a hearing that was held in April 2001. Analysis The rating decision of November 2000, wherein the RO awarded a 10 percent rating for the service-connected left inguinal hernia with an effective date of June 17, 1999, is final. The Veteran only appealed the rating assigned for his right shoulder in that decision. He did not appeal the rating or the effective date assigned for the left inguinal hernia. Therefore, the November 2000 rating decision became final as to those matters. See Sagnella v. West, 13 Vet. App. 313 (2000) (per curiam) (the issue of disability rating and effective date are discrete elements of a claim, each one capable of giving rise to its own notice of disagreement); 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The rating decision of September 2001, wherein the RO awarded service connection for degenerative disc disease of the cervical spine and assigned an effective date of May 8, 2001, is also final. The Veteran was notified of the decision and of his appellate rights by letter in November 2001, but did not appeal the assigned effective date. Therefore, the September 2001 rating decision became final as to this matter. Id. The only remedy to overcome finality is by a request for revision based on clear and unmistakable error. 38 C.F.R. § 3.105(a). Otherwise, a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed RO decision. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). When such a freestanding claim for an earlier effective date is raised, the United States Court of Appeals for Veterans Claims (the Court) has held that such an appeal should be dismissed. The Veteran has raised claims of CUE with respect to the effective dates assigned for the award of a 10 percent rating for service-connected left inguinal hernia and for the award of service connection for degenerative disc disease of the cervical spine. Those CUE matters have been remanded to the RO for appropriate action and are not currently before the Board. In light of Rudd, the Board is without legal authority to take jurisdiction of the Veteran's claims. Accordingly, the claims for an effective date earlier than June 17, 1999, for the award of a 10 percent rating for service-connected left inguinal hernia, and an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the cervical spine, must be dismissed. B. Entitlement to an effective date earlier April 16, 2001, for the award of service connection for degenerative disc disease of the thoracic spine. Information from the National Personnel Records Center shows that the Veteran filed claims for service connection within one year after separation from service. While a copy of the original rating decision in 1986 is not available, there is a copy of a letter in May 1986 in which the RO notified the Veteran that his claim for a back disability was denied. There is no record that the Veteran appealed the initial rating decision. No other correspondence was received from the Veteran until July 1999. In an application for VA disability compensation in July 1999, the Veteran sought service connection for a hernia and a right shoulder disability. In a later statement, the Veteran clarified that he only sought an increased rating for the right shoulder disability as it was already service-connected. The application and later statement did not refer to a back disability. On April 16, 2001, at a hearing, the Veteran's representative raised a claim of service connection for a back disability secondary to the service-connected right shoulder disability. A formal claim for a back disability, as secondary to the service-connected right shoulder disability, was received by VA on May 8, 2001. In a rating decision issued in September 2001, the RO awarded service connection for degenerative disc disease of the thoracic spine and assigned an effective date of May 8, 2001. The Veteran was notified of the decision and of his appellate rights by letter in November 2001. He did not appeal the assigned effective date. In April 2005, the Veteran submitted a claim for an earlier effective date for the award of service connection for degenerative disc disease of the thoracic spine. In a statement received in June 2006, the Veteran contended that all of his service-connected claims should be effective back to 1986, specifically including the effective date of service connection for degenerative disc disease of the thoracic spine. In a statement in December 2006, the Veteran argued that his claim was not properly processed in 1986. In a statement in September 2007, he stated that "a lot was overlooked" between 1986 and 1999. In a statement in May 2008, he reported that after he received notification of the rating decision in 1986 he was not given additional instruction as how to appeal the decision. In another statement, the Veteran asserted that he was not given proper advice when he filed his claim in 1986. In a rating decision in February 2012, the RO found clear and unmistakable error in the September 2001 rating decision that had assigned the effective date for the grant of service connection for degenerative disc disease of the thoracic spine. The RO did revise the effective date to April 16, 2001, the date of an informal claim for service connection. Analysis The rating decision in May 1986 by the RO, denying service connection for a back disability, became final because the Veteran did not appeal it within one year of being notified of the adverse determination. 38 U.S.C.A. § 7105; 38 C.F.R. § 3.104. And the Veteran has not argued that he filed an appeal to the rating decision in May 1986, rather he has argued that he was not notified of the right to appeal. A final rating decision by the RO may be revised on grounds that the rating decision was clearly and unmistakably erroneous. Absent a showing of CUE, there is no legal authority to adjudicate an earlier effective date claim in an attempt to overcome the finality of an unappealed rating decision by the RO. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). With respect to the Veteran's assertion that there was CUE in the rating decision in 1986, that matter is being remanded to the RO for appropriate action, and is not addressed in this decision. As for CUE in the rating decision in September 2001, the RO did find CUE in the application of the law and revised the effective date to April 16, 2001, the date of the informal claim, for the award of service connection for degenerative disc disease of the thoracic spine. This is in accordance with the governing law. If there is prior final denial of benefit sought, the effective date cannot be earlier than the subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); see also 38 C.F.R. §§ 3.1(p); 3.155(a). The Board is otherwise without legal authority to take jurisdiction of the Veteran's claim, as it is a freestanding claim for an earlier effective date. Accordingly, the claim for an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the thoracic spine, must be dismissed. Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006). (The Order follows on the next page.). ORDER Service connection for radial nerve neuropathy of the left upper extremity is granted. The claim of entitlement to an effective date earlier than June 17, 1999, for the award of a 10 percent rating for service-connected left inguinal hernia, is dismissed. The claim of entitlement to an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the cervical spine, is dismissed. The claim of entitlement to an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the thoracic spine, is dismissed. REMAND The Veteran seeks entitlement to an effective date earlier than June 17, 1999, for the award of a 10 percent rating for service-connected left inguinal hernia; entitlement to an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the thoracic spine; and entitlement to an effective date earlier than April 16, 2001, for the award of service connection for degenerative disc disease of the cervical spine. The Veteran has raised an alternative theory of entitlement with respect to his claims for earlier effective dates. He generally argues that there was CUE in the manner in which VA processed his claims at the time of his 1986 claim for compensation. Although entitlement to earlier effective dates was addressed in the February 2012 supplemental statement of the case, the RO did not address the theory of CUE with respect to the Veteran's claims. Therefore, the claims are REMANDED for the following action: 1. Ask the Veteran to clarify whether he is claiming CUE in any rating decision other the 1986 rating decision, as it relates to his claims for earlier effective dates. 2. Adjudicate the claims for earlier effective dates for the award of the 10 percent rating for service-connected left inguinal hernia, and the award of service connection for degenerative disc disease of the cervical and thoracic spine segments, considering whether there is CUE in the rating decision that was issued in 1986, and any other rating decision identified by the Veteran after seeking clarification. 3. If any benefit is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims 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). ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs