Citation Nr: 1325900	
Decision Date: 08/15/13    Archive Date: 08/26/13

DOCKET NO.  11-30 209	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an effective date prior to March 18, 2002 for service connection for chronic lumbosacral strain with degenerative joint and disc disease (low back disability).

2.  Entitlement to an effective date prior to June 17, 2008 for a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Appellant represented by:	Jeany Mark, Attorney


ATTORNEY FOR THE BOARD

J. W. Loeb


INTRODUCTION

The Veteran served on active military duty from July 1967 to September 1974.  

This case comes before the Board of Veterans Appeals (Board) on appeal from January 2009 and October 2009 rating decisions of the Department of Veterans Affairs (VA) regional office in Cleveland, Ohio (RO).  The January 2009 rating decision, in pertinent part, granted entitlement to a TDIU effective from June 17, 2008.  The October 2009 rating decision adjudicated the claim for an earlier effective date for service connection for low back disability.

In statements dated in March 2009 and November 2011, it has been asserted that there was clear and unmistakable error (CUE) in a February 24, 1975 rating decision that denied service connection for a low back disability because the rationale was based on pure speculation and is contrary to the pertinent medical evidence.  This matter has not been specifically adjudicated by the RO.  As such, it is not for appellate consideration, and is referred to the RO for appropriate action.  It is further noted that inasmuch as there does not exist a valid claim for an earlier effective date for the award of service connection for a low back disability, as discussed below, the CUE claim does not warrant remand as an inextricably intertwined claim as there exists no valid earlier effective date claim to which it may be deemed intertwined.  In this regard, the Board further notes that the CUE claim is not inextricably intertwined with the valid TDIU earlier effective date claim as the February 1975 rating decision that is the subject of the CUE claim predates the TDIU claim, as outlined below.  As such, the Board is not precluded from proceeding with appellate adjudication of the TDIU earlier effective date claim.


FINDINGS OF FACT

1.  No appeal was taken from the September 2002 rating decision which granted service connection for degenerative changes to the lumbar spine with an effective date of March 18, 2002, and as such, the March 2009 claim for an earlier effective date for the award of service connection for the lumbar spine disability constitutes a freestanding claim precluded by law.

2.  A claim for TDIU was received by VA on June 17, 2008.   

3.  There is medical evidence on file that the Veteran was totally disabled due to service-connected disabilities beginning November 10, 2008.


CONCLUSIONS OF LAW

1.  The criteria for an effective date earlier than March 18, 2002, for the grant of service connection for a lumbar spine disability have not been met. 38 U.S.C.A. §§ 5110 , 7105 (West 2002); 38 C.F.R. § 3.400 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006).

2.  The criteria for an effective date prior to June 17, 2008 for TDIU have not been met.  38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.102, 3.155, 3.400(o) (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duty to Notify and Assist

The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA).  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2012).  The regulations implementing VCAA have been enacted.  See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim.  38 U.S.C.A. §§ 5102, 5103.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  

The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).  

The undisputed facts preclude the appellant from entitlement to an effective date earlier than March 18, 2002 for the grant of service connection for a lumbar spine disability.  The claim for an earlier effective date must therefore be denied as a matter of law, and thus, VCAA duties to notify and assist are inapplicable to the claim.

TDIU was granted by the January 2009 rating decision on appeal, effective from June 17, 2008.  Here the veteran is appealing the effective date assigned for the award of TDIU.  In this regard, because the January 2009 rating decision granted the veteran's claim of entitlement to TDIU, such claim is now substantiated.  His filing of a notice of disagreement as to the TDIU effective date assigned in the January 2009 determination does not trigger additional notice obligations under 38 U.S.C.A. § 5103(a).  38 C.F.R. § 3.159(b)(3) (2012).  Rather, the veteran's appeal as to the TDIU effective date assigned triggers VA's statutory duties under 38 U.S.C.A. §§ 5104 and 7105, as well as regulatory duties under 38 C.F.R. § 3.103.  As a consequence, VA is only required to advise the veteran of what is necessary to obtain the maximum benefit allowed by the evidence and the law.  This was accomplished in the statement of the case issued in September 2011.  Therefore, the Board finds that the appellant has been informed of what was necessary to achieve an earlier effective date for the award of a TDIU.

The Board finds that the VCAA duty to assist has been met with regard to the TDIU earlier effective date claim.  The record contains reports of VA treatment, and communications from the Veteran, at the time of award of a TDIU.  VCAA requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim.  38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159 (2012).  The Board concludes an examination is not necessary in connection with the TDIU earlier effective date claim, because a current examination would not show evidence of the severity of the service-connected disabilities at issue during the period at issue (i.e. prior to June 17, 2008).  The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the TDIU earlier effective date issue.  The Veteran has been given ample opportunity to present evidence and argument in support of his claim.  All general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007).


Analysis of the Claims

Earlier effective date for service connection for lumbar spine disability

A rating decision dated in September 2002, granted service connection for degenerative changes to the lumbar spine, effective from March 18, 2002.  Notice of the determination, and his appellate rights were issued to the Veteran and his then representative by letter dated September 30, 2002.  No appeal was taken, including as to the effective date assigned for the award of service connection, within one year from the date of notice of the determination.  As such, that determination, including as to the effective date assigned for the award of service connection for degenerative changes to the lumbar spine, is final. 38 U.S.C.A. § 7105  (West 2002). 

A final and binding RO decision shall not be subject to revision on the same factual basis except by duly constituted appellate authorities, or on the basis of clear and unmistakable error (CUE), as provided in 38 C.F.R. § 3.105 (2012).  Although the Veteran has raised a claim as to CUE in a February 1975 rating decision which denied service connection for a back disability, such matter has not been adjudicated by the RO, and there currently exists no finding of CUE in that determination or subsequent rating decision, to include the September 2002 rating decision.  Moreover, a CUE claim raised in the record may only serve to be inextricably intertwined with a valid earlier effective date claim.  As discussed below, the current claim for an earlier effective date for the award of service connection for degenerative changes to the lumbar spine represents a freestanding claim precluded by law.

By a statement received in March 2009, the Veteran is seeking to revisit the assignment of March 18, 2002 as the effective date for the award of service connection for degenerative changes to the lumbar spine in the September 2002 RO rating decision.  This represents a freestanding claim, and absent a finding of CUE, to allow the Veteran to do so would eviscerate finality of the September 2002 rating decision.  Hence, such a claim is without merit and must be dismissed as a freestanding claim for an earlier effective date.  See Leonard v. Nicholson, 405 F3d 1333 (Fed Cir 2005); Rudd v. Nicholson, 20 Vet. App. 296 (2006).  To hold otherwise would vitiate the rule of finality, which was expounded upon in Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). 

The only means by which to potentially obtain an earlier effective date following a final prior assignment would be to challenge such assignment based on CUE.  See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of [CUE, the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date").  The record does not reflect that a claim has been raised alleging CUE in the September 2002 rating decision.  The Board additionally notes that if the claim of CUE in a February 1975 rating decision, which has been referred herein to the RO for appropriate action, is successful, the assigned effective date may be revisited at that time.

TDIU earlier effective date

It is contended that the Veteran's TDIU should be effective prior to June 17, 2008 because he was assigned Social Security Administration (SSA) disability benefits effective in December 2006 and there is evidence showing total disability due to service-connected disabilities prior to June 2008.

The Court of Appeals for Veterans Claims (Court) has held that a request for TDIU, whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim, or, if the disability upon which entitlement to TDIU is based has already been found to be service connected, as part of a claim for increased compensation.  Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).

A claim for a total rating for compensation purposes based upon individual unemployability is essentially a claim for an increased rating.  See Hurd v. West, 13 Vet. App. 449 (2000).  The law with regard to determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110(a), (b)(2) (West 2002) and 38 C.F.R. § 3.400(o) (2012).  The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application therefor."  38 U.S.C.A. 
§ 5110(a).  This statutory provision is implemented by the regulation, which provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(o)(1).  "Date of receipt" generally means the date on which a claim, information, or evidence was received by VA.  38 C.F.R. § 3.1(r) (2012).

An exception to that general rule applies under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation.  In that circumstance, the law provides that the effective date of the award "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."  38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997); VAOPGCPREC 12-98; 63 Fed. Reg. 56704 (1998).  The term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400 means an increase to a higher disability level.  See Hazan v. Gober, 10 Vet. App. 511 (1997).

The Court has made it clear that the question of when an increase in disability is factually ascertainable is answered by the Board based on the evidence in a Veteran's VA claims folder.  "Evidence in a claimant's file which demonstrates that an increase in disability was 'ascertainable' up to one year prior to the claimant's submission of a 'claim' for VA compensation should be dispositive on the question of an effective date for any award that ensues."  Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992).

In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the Court referred to apparent conflicts in the regulations pertaining to individual unemployability benefits.  Specifically, the Court indicated there was a need to discuss whether the standard delineated in the controlling regulations was an "objective" one based on the average industrial impairment or a "subjective" one based upon the Veteran's actual industrial impairment.  In a pertinent precedent decision, the VA General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances.  Thus, the criteria include a subjective standard.  It was also determined that "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation.  VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992).  

A TDIU may be granted where the schedular rating is less than total and the service-connected disability precludes the Veteran from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience.  38 C.F.R. §§ 3.340, 3.341, 4.16 (2012).  Consideration of TDIU is appropriate where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. §§ 3.340, 4.16(a) (2012).  Where the percentage requirement is not met, but the Veteran is unemployable due to service-connected disability, the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration.  For the above purpose of one 60 percent disability rating, disabilities resulting from a common etiology will be considered as one disability.  38 C.F.R. § 4.16(b).

A January 2009 rating decision granted service connection for radiculopathy of the right lower extremity, with an assigned rating of 10 percent; granted an increased rating of 50 percent for service-connected low back disability; and granted TDIU.  Each of these grants was assigned an effective date of June 17, 2008, which was noted to be the date that a claim for an increased evaluation was received by VA.  

Recent medical evidence reveals a July 2006 notation of low back tenderness with decreased range of motion; the impression was chronic low back pain with radicular pain in the right leg.  There is a January 2007 impression of chronic low back pain with lumbar degenerative disc disease, stable; and a February 2007 notation of chronic low back pain.  

A March 2007 Social Security Administration (SSA) disability determination granted disability benefits, effective December 22, 2006, with a primary diagnosis of disorders of the back, discogenic and degenerative; and the Veteran noted in his SSA Work History Report that he stopped working full time on December 22, 2006.  

According to a July 2007 VA evaluation, the Veteran complained of chronic low back pain with radiation into his right leg and foot for the previous year.  Range of motion included 30 degrees of flexion, 5 degrees of extension, and 15 degrees of lateral bending to each side; there was increased pain in the lumbar paraspinals with all range of motion.  The examiner was unable to elicit ankle jerk reflexes bilaterally.  The Veteran walked with a cane.  The impressions were no evidence of right lower limb radiculopathy and cannot rule out peripheral neuropathy, plexopathy, or mononeuropathy.  An MRI of the lumbar spine showed multilevel degenerative disc disease associated with narrowing of the neural exit foramina bilaterally at several levels, grade 1 spondylolisthesis of L5 and S1 associated with spondylolysis, and diffuse facet joint arthrosis.  

When seen in orthopedic consultation for knee pain in August 2007, there was normal motor strength in both lower extremities; the Veteran could heel and toe raise repetitively without signs of weakness.  There was absent knee jerk on the right and absent ankle jerk bilaterally.  He denied any paresthesias on sensory evaluation.  It was noted that the Veteran had a history of considerable back difficulties.

VA treatment records from January 2008 to January 2009 reveal that the Veteran had lumbar steroid epidural injections beginning in April 2008.

On VA back evaluation in November 2008, the Veteran noted that his low back pain had gotten worse over the last several years, with radiation down his lower extremities.  He used a cane to walk and reported that he was in pain constantly.  The Veteran was unable to comply with a physical examination due to pain.  The examiner noted that nerve conduction testing of the right lower extremity showed evidence of mild chronic right radiculopathy and mild peripheral neuropathy.  An MRI of the lumbar spine showed results similar to the August 2007 MRI.  The examiner concluded that, due to the Veteran's chronic and severe low back pain, with abnormal physical examination and grossly abnormal MRI of the lumbar spine, the Veteran was totally disabled and completely unemployable due to his spine condition.

It has been contended on behalf of the Veteran that the effective date for his TDIU should be based on his SSA grant.  The Board notes that, while a grant of SSA disability benefits is taken into consideration in a claim for TDIU, it is not controlling because relevant SSA and VA regulations are not the same.  Rather the Board must make an independent judgment based on the evidence as a whole.

Although it is contended that the effective date for the Veteran's TDIU should be as early as the date of SSA disability, which is December 22, 2006, the date that he stopped working full time, the Board finds that the Veteran did not meet the schedular requirement for a total disability rating under 38 C.F.R. § 4.16 until June 17, 2008, which is the date that he was granted a combined rating of 60 percent, based on a 50 percent rating for his service-connected low back disability and a 10 percent rating for radicular symptoms due to his low back disability.  Because these disabilities are from a common etiology, as the radiculopathy is due to the low back disability, they are considered one disability under 38 C.F.R. § 4.16.  

Although the Veteran had significant low back disability when examined in July 2007, he was able to flex his low back to 30 degrees and radiculopathy of the right lower extremity was not found.  It was noted in August 2007 that the Veteran had normal motor strength in both lower extremities and that he could heel and toe raise repetitively without signs of weakness.  In fact, it was not until VA evaluation in November 2008, which included nerve conduction studies, that an examiner found that the Veteran was totally disabled and completely unemployable due to his spine condition.  Consequently, the evidence does not support the finding of an effective date for TDIU prior to June 17, 2008.

The preponderance of the evidence is against the claim denied above, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.  See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

The appeal for entitlement to an effective date earlier than March 18, 2002, for the grant of service connection for lumbar spine disability, is dismissed.

An effective date prior to June 17, 2008 for TDIU is denied.  




______________________________________________
U. R. POWELL
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs