Citation Nr: 1317068 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 09-15 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUE Entitlement to an effective date prior to July 10, 2008, for a 40 percent rating for intervertebral disc syndrome with left lumbar radiculopathy. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from January 1983 to February 1987. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. Jurisdiction of this case belongs to the RO in Baltimore, Maryland. In May 2012 the Veteran testified at a Board hearing at the VA Central Office in Washington, D.C., before the undersigned. A transcript of that hearing is of record. At the May 2012 Board hearing (pages 19-20) the Veteran raised the issue of entitlement to service connection for Marfan's syndrome and also expressed desire to reopen a claim of entitlement to service connection for bilateral hearing loss. As these issues have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ), the Board does not have jurisdiction over them and they are referred to the AOJ for appropriate action. FINDINGS OF FACT 1. VA received the Veteran's application for an increased evaluation for his low back disability on January 9, 2008. 2. It was factually ascertainable for the one year period prior to January 9, 2008, that an increase in the Veteran's low back disability had occurred. CONCLUSION OF LAW The criteria for an effective date of January 9, 2007, for a 40 percent rating for intervertebral disc syndrome with left lumbar radiculopathy have been met. 38 U.S.C.A. §§ 5107(b), 5110, 7105 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). While the VCAA applies in the instant case, the Board notes that this decision essentially grants the Veteran's claim in full. Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in July 2008 and July 2010 the Veteran was informed of the evidence and information necessary to substantiate his increased rating claim. Further, and pertinent to the specific matter at issue in this case, in the July 2008 letter the Veteran received notice regarding the assignment of an effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice was completed prior to the initial AOJ adjudication of the claim. Duty to Assist The Veteran's service treatment records are associated with the claims file, as is an August 2008 VA examination. During the May 2012 Board hearing, to assist the Veteran, the undersigned reviewed in detail the steps the Veteran had taken in filing his claim. The Veteran's medical history concerning his low back treatment was also reviewed. The undersigned also informed the Veteran that the record would be held open for 30 days in an effort to give the Veteran additional time to submit evidence in support of his appeal. These actions fulfilled the duties in Bryant v. Shinseki, 23 Vet. App. 488 (2010), and the Veteran has not asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2) or identified any prejudice in the conduct of the hearing. As such, the Board finds that, consistent with Bryant, the Board complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. At the May 2012 Board hearing the Veteran referenced pertinent evidence that remained outstanding. While the record was held open for the Veteran to obtain the evidence, no such evidence has been received. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Analysis The statutory and regulatory guidelines for determining the effective date of an award of disability compensation are set forth in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Except as otherwise provided, the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. In cases involving a claim for higher compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if the claim is received within one year from that date; otherwise, the effective date is the date the claim is received. 38 C.F.R. § 3.400(o)(2). A March 1992 RO decision granted service connection for residuals of a fracture, T12-L1, and assigned a rating of 10 percent, effective January 16, 1992. The September 2008 rating decision on appeal recharacterized the Veteran's low back disability as intervertebral disc syndrome with left lumbar radiculopathy and assigned a rating of 40 percent, effective July 10, 2008. The 40 percent rating was assigned based on the Veteran's limited range of spine motion as recorded on an August 2008 VA examination. VA has determined that the Veteran's increased rating claim was received on July 10, 2008. The Veteran essentially asserts that he filed his low back increased rating claim on January 9, 2008. At his May 2012 Board hearing the Veteran testified that on January 9, 2008, he had gone to the office of the New Jersey Department of Military and Veterans Affairs to discuss his claim with a representative from that office. The Veteran indicated that he signed some forms and then watched as the representative had dialed a number on a fax machine and then essentially informed the Veteran that the materials had been sent and that he would hear from VA when his forms had made it through the system. At the end of June the Veteran followed-up on his claim and called VA's "800" number; VA informed the Veteran that they had no pending claim pertaining to the Veteran. On July 10, 2008, the Veteran returned to this representative's office and the forms were sent to the RO by fax at that time. The Veteran stated that the claims materials had only involved the Philadelphia RO and that the Baltimore RO had not been involved in his claim paperwork at that time. It was noted that a document (dated July 10, 2008) from the State of New Jersey Department of Military and Veterans Affairs referencing the Veteran's claim had stated that they (State of New Jersey Department of Military and Veterans Affairs) called VA and informed them that the office had previously "sent a 4138 requesting a reevaluation on January 9, 2008." The Veteran acknowledged that he had not originally had direct contact with anyone from the VA regional office himself but had gone through his representative. As for the Veteran's low back condition itself, the Veteran stated that his low back condition symptomatology from January 2007 through July 2008 was essentially the same. The Veteran indicated that he was quite certain that he had been receiving treatment for his back condition beginning at least in January 2007. Resolving doubt in the Veteran's favor, the Board finds that the Veteran, through his representative, sent a claim for an increased rating for his low back disability to VA on January 9, 2008. The Veteran testified that he saw an individual from his representative's office dial a number and send documents by fax machine. In making this finding, the Board acknowledges that the Veteran's testimony does not conclusively prove that VA received the materials, and the Board notes that VA has indicated that no such claim is of record as having been received on January 9, 2008. Having found that the Veteran's claim was received on January 9, 2008, the Board must now determine whether it is factually ascertainable that an increase in disability occurred within one year prior to the date of receipt of the claim for an increased rating that would warrant a rating of 40 percent for low back disability prior to July 10, 2008. The September 2008 rating decision assigned a rating of 40 percent for the Veteran's low back disability on the basis of the limited range of lumbar spine motion (flexion to just 30 degrees, with no extension) as demonstrated on an August 2008 VA examination. Intervertebral disc syndrome (preoperatively or postoperatively) will be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation. Forward flexion of the thoracolumbar spine to 30 degrees or less warrants a 40 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Codes 5237-5243. The Board finds that there is credible and competent evidence showing that the Veteran had increased problems with his low back in the year prior to the January 2008 claim. For example, the August 2008 VA examination report noted that the Veteran had been having increased pain prior to December 2007 as a result of performing the activities required for his employment. Additionally, the Veteran has given credible testimony that his low back condition symptomatology from January 2007 through July 2008 was essentially the same. As such, an effective date of January 8, 2007, is warranted for the disability evaluation of 40 percent for the Veteran's low back disability. ORDER An effective date of January 8, 2007, for a 40 percent rating for intervertebral disc syndrome with left lumbar radiculopathy is granted, subject to the applicable law governing the award of monetary benefits. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs