Citation Nr: 1326819 Decision Date: 08/22/13 Archive Date: 08/29/13 DOCKET NO. 11-30 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an effective date prior to October 30, 2007 for the award of service connection for a lumbar spine disability, to include as secondary to service-connected thoracic disability. 2. Entitlement to an effective date prior to October 30, 2007 for the award of a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: David A. Tuggle, Attorney ATTORNEY FOR THE BOARD M. N. Hyland, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1977 to October 1979. This claim is on appeal from March and April 2009 rating decisions (RD) by the Chicago, Illinois, Department of Veterans Affairs (VA) Regional Office (RO). This case has a complicated procedural history. There are two earlier effective date (EED) issues on appeal: one pertaining to a lumbar spine disability and one pertaining to a TDIU. The RO has characterized the lumbar spine issue as entitlement to an EED for the award of an increase in disability rating for residuals compression fracture T7 with recurrent muscle spasm and degenerative joint disease of the lumbar spine. However, the Board believes the issue is more accurately characterized as entitlement to an EED for the award of service connection for a lumbar spine disability claimed as secondary to service-connected thoracic (T7) compression fracture residuals. The Veteran has been service connected for the residuals of a thoracic spine (T7) fracture for many years. He has repeatedly tried to obtain service connection for a lumbar spine disability as well, arguing that it was secondary to the service-connected thoracic spine disability. Ultimately, in the March 2009 rating decision currently on appeal, the RO granted entitlement to service connection for a lumbar spine disability based on it being secondary to the Veteran's already service-connected thoracic spine disability. The RO then proceeded to rate the two spine disabilities together as one disability, which it characterized as "residuals compression fracture T7 with recurrent muscle spasm and degenerative joint disease of the lumbar spine." The Veteran's argument is that the secondary service connection claim for the lumbar spine has been pending since June 1999 when he filed a statement referencing his contention that the lumbar spine disability is secondary to the thoracic spine disability. He argues that this June 1999 document is a claim that should serve as the basis for the establishment of the effective date for the secondary service-connected lumbar spine disability. Therefore, the Board finds that it is more accurate to characterize the issue before the Board as entitlement to an EED for the award of service connection for a lumbar spine disability, claimed as secondary to service-connected thoracic disability, rather than entitlement to an EED for the award of an increased rating to 50 percent for service-connected residuals compression fracture T7 with recurrent muscle spasm and degenerative joint disease of the lumbar spine. The Board has characterized the issue accordingly on the title page of this decision. FINDINGS OF FACT 1. In a December 2001 rating decision, the RO denied the Veteran's claim of entitlement to service connection for a lumbar spine disability, based on a finding that new and material evidence had not been submitted to reopen the claim. 2. The December 2001 rating decision is final. 3. The May 2006 correspondence from the Veteran's service organization representative to the RO did not constitute an informal claim to reopen the Veteran's claim of entitlement to service connection for a lumbar spine disability. 4. The Veteran filed a claim to reopen his service connection claim for a lumbar spine disability, to include as secondary to service-connected thoracic spine disability, and for entitlement to a TDIU, on October 30, 2007. 5. Entitlement to service connection for a lumbar spine disability and a right lower extremity neurological disability of the lateral and sural femoral cutaneous nerves was established effective October 30, 2007. 6. Entitlement to a TDIU was based on the service-connected lumbar spine and right lower extremity neurological disabilities. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to October 30, 2007, for the award of service connection for a lumbar spine disability, to include as secondary to service-connected thoracic spine disability, have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.104, 3.151, 3.155, 3.400 (2012). 2. The criteria for an effective date prior to October 30, 2007 for the grant of a TDIU have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.1(p), 3.151, 3.155, 3.340, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The VCAA, codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to 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. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran's claims for an earlier effective date arise from an appeal of the initial grant of a TDIU and service connection for a lumbar spine disability. Because a TDIU and service connection were granted, the claims are substantiated and no additional notice is required as to the downstream issue involving entitlement to an earlier effective date. Nevertheless, a September 2011 Statement of the Case (SOC) provided notice on the "downstream" issue of entitlement to an earlier effective date and readjudicated the matter. 38 U.S.C.A. § 7105 (West 2002); see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). The Veteran has had ample opportunity to respond and supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, post-service VA and private treatment records, and his own lay statements have been obtained. Neither the Veteran nor his representative has identified any outstanding evidence, to include any other medical records, that could be obtained to substantiate the Veteran's claims. With respect to the VA examinations conducted in conjunction with this appeal, the Board observes that the findings contained therein are more than adequate to adjudicate the Veteran's claims. In fact, the March and August 2008 VA examination findings and the January 2009 addendum to the examination findings resulted in entitlement to service connection for lumbar spine disability and a TDIU being awarded. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issues on appeal were nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2012). Earlier Effective Date Claims Lumbar Spine Claim As noted earlier, this appeal has a complicated procedural history. With respect to the service connection claim for a lumbar spine disability, the Veteran has filed multiple claims for this disability over the years. Entitlement to service connection for a lumbar spine disability was denied by the RO in an August 1996 rating decision. A June 1997 "deferred rating decision" notes that the August 1996 rating decision only addressed entitlement to service connection for a lumbar spine disability on a secondary service connection theory of entitlement and that the Veteran's service treatment records contain evidence of lumbar spine complaints. The same document notes that a VA examination is needed to address the direct service connection issue. In a June 1997 rating decision on the issue of entitlement to an increased rating for the service-connected thoracic spine disability, there is a notation stating: "In order to determine if service connection should be granted for the veteran's degenerative joint disease of the lumbosacral spine, or low back, it is necessary to have him undergo a VA examination to determine if that condition is in fact related to his military service. The veteran will be notified by separate correspondence of the exact date and place to report for the examination." The file reflects that the Veteran was examined by VA in September 1997 and the examiner provided a negative opinion regarding the relationship between the Veteran's lumbar spine condition and his military service. Accordingly, in a January 1998 rating decision, the RO denied entitlement to service connection for a lumbar spine disability. In June 1999, the Veteran submits a statement that requested "an evaluation for service connected compensation for lower back problems as secondary to my service connected residuals of T-7 fracture as stated in your rating decision dated 6/17/97." In August 2000, the Veteran submits an additional statement again referencing the claim for the lower back and stated that to date he had not been scheduled (presumably for an examination). In February 2001, the Veteran again submits a statement regarding the lower back claim. He states that he is "appealing the fact that you have not even considered my request for service connection for lower back problems as secondary to" the service-connected thoracic spine disability. In a December 2001 rating decision, the RO adjudicates the lumbar spine issue and indicates that because no new and material evidence has been submitted to reopen the claim, it remains denied. The Veteran was provided notice of his appeal rights with this decision and did not file a timely appeal. In a February 2002 letter to the Veteran, the RO states that his "notice of disagreement" regarding service connection for arthritis and sciatica of the lumbar spine was not timely received. The letter states: "You were notified of our decision on January 21, 1998. You had one year from the date of our notification to file your notice of disagreement. However, your notice of disagreement was not received by us until August 29, 2000." A May 24, 2006 letter from Veterans of Foreign Wars (VFW), who was the Veteran's representative at the time, indicates that it had received correspondence from the Veteran regarding his "pending appeal" for service-connected back condition secondary to service-connected T7 fracture. The letter requests that the claim be expedited because the Veteran's appeal "has been pending since 2001." In November 2006 correspondence to the Veteran, the RO again explains that the appeal regarding service connection for lumbar spine was not timely received and that the Veteran was notified of the denial on January 21, 1998 but did not file an appeal until August 29, 2000 and that no further action was taken on the appeal since it was not received within the one year appeal period and he was previously notified of the untimely finding regarding the notice of disagreement in a February 2002 letter. Then, in a letter from the Veteran received by the RO on October 30, 2007, the Veteran requests that the RO "re-open" his claim filed on June 11, 1999 for lower back problems secondary to service-connected T-7 fracture. In the letter, the Veteran contends that this claim was never developed and that the letter the RO sent to him in 2002 referred to the denial of the disability on a direct service connection basis, not secondary, and that the claim for secondary service connection from June 11, 1999 was never addressed. The RO treated this document as a claim to reopen the service connection claim for a lumbar spine disability and the current appeal arises from this claim. Generally, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). When service connection is awarded on a direct basis, the effective date may not be earlier than the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service; otherwise, it is the date of receipt of claim, or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2). The effective date of an evaluation and an award of compensation based on a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(r) (2012). A specific claim in the form prescribed by VA 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); 38 C.F.R. § 3.151. A "claim" is 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). Any communication or action indicating an intent to apply for one or more benefits administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). For the reasons explained below, the Board finds that an earlier effective date prior to October 30, 2007 is not assignable for the award of service connection for a lumbar spine disability, to include as secondary to service-connected thoracic spine disability. As a threshold matter, the Board notes that the Veteran's claim for a lumbar spine disability, to include as secondary to his service-connected thoracic spine disability, was denied by the RO in August 1996 and January 1998 rating decisions. These rating decisions were not appealed by the Veteran in a timely manner and became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.156(b), 20.302, 20.1103. Although the RO has historically focused on the issue of whether the January 1998 denial of entitlement to service connection for a lumbar spine disability was timely appealed (which it was not), the Veteran's contention is not that he timely filed an appeal to either the August 1996 or January 1998 denials of entitlement to service connection for a lumbar spine disability. Rather, his argument is that he filed a claim in June 1999 for entitlement to service connection for a lumbar spine disability (to include a secondary service connection theory of entitlement) and that it was never adjudicated by the RO until 2009. However, the evidence of record reflects that the RO did adjudicate the Veteran's June 1999 claim for entitlement of service connection for a lumbar spine disability prior to the 2009 rating decision here on appeal. Specifically, the December 2001 rating decision denied the claim of entitlement to a lumbar spine disability because the Veteran did not submit any new and material evidence to reopen the claim since the last denial in 1998. The Veteran focuses on the fact that in the December 2001 rating decision, the RO appears to only reference the direct service connection theory of entitlement for his lumbar spine claim. The Veteran argues that this demonstrates that the RO never adjudicated his claim for a lumbar spine disability as secondary to the service-connected thoracic spine disability. However, when VA denies a claim for service connection, it denies the claim on all plausible theories of entitlement. The United States Court of Appeals for Veterans Claims (Court) has held that alternative theories of entitlement to the same benefit do not constitute separate claims, but are instead encompassed within a single claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006); see also Bingham v. Principi, 18 Vet. App. 470, 474 (2004), aff'd 421 F.3d 1346 (Fed. Cir. 2005). As such, when the RO denied the lumbar spine claim in December 2001, it denied all alternative theories of entitlement to those benefits. Thus, the June 1999 claim for service connection for a lumbar spine disability, to include as secondary to service-connected thoracic spine disability, was denied in the December 2001 rating decision. As the record does not reflect, nor does the Veteran contend, that either the December 2001 rating decision was timely appealed or that new and material evidence was received within the appeal period, this rating decision became final. See 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103; see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the June 1999 claim cannot serve as the basis for assigning the effective date for the current award of entitlement to service connection for a lumbar spine disability. Subsequent to the December 2001 final denial of entitlement to service connection for a lumbar spine disability, the Veteran filed a claim to reopen on October 30, 2007. This claim is currently on appeal. The record does not show, nor does the Veteran contend, that there is an earlier formal or informal claim for service connection for a lumbar spine disability at any point between the current October 30, 2007 claim and the final rating decision in December 2001. With respect to the May 24, 2006 letter from VFW, the Board finds this correspondence does not constitute an informal claim for a service connection for a lumbar spine disability. The document simply indicates that VFW had received correspondence from the Veteran regarding his "pending appeal" for service-connected back condition secondary to service-connected T7 fracture and requests that the claim be expedited because the Veteran's appeal "has been pending since 2001." When the RO responded to this document in November 2006 correspondence to the Veteran and explained that the claim was not on appeal, the Veteran then filed a claim in October 2007. Importantly, at no time did the Veteran indicate, even after being notified by the RO that he had no service connection claim for lumbar spine pending, that he ever intended the May 2006 letter to be a claim to reopen a lumbar spine disability. Also of significance is the fact that in the May 2006 correspondence, the Veteran never expresses an intent to reopen his claim; whereas in the October 2007 correspondence, the Veteran expressly articulates his desire to reopen his claim for a lumbar spine disability. For these reasons, the Board finds the May 2006 correspondence is not an informal claim for benefits for a lumbar spine disability. Accordingly, the Board finds that entitlement to an effective date prior to October 30, 2007 for the award of service connection for a lumbar spine disability, to include as secondary to service-connected thoracic spine, is not warranted. TDIU Claim The Veteran contends that an effective date for the award of a TDIU is assignable prior to October 30, 2007. He alleges that the award of TDIU should be linked to the June 1999 claim for a lumbar spine disability. However, as explained in detail above, contrary to the Veteran's contentions that the June 1999 claim is still pending, the record actually shows that the June 1999 claim for a lumbar spine disability was denied by the RO in a December 2001 rating decision which became final when it was not timely appealed and no new and material evidence was received within the appeal period. A TDIU rating may be assigned where a claimant's schedular disability rating is less than total if it is found that the claimant 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 service-connected disabilities, provided that one of those disabilities is ratable 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, 3.341, 4.16. Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). An effective date for increased disability compensation, which includes a TDIU rating, shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application for TDIU is received within one year from such date. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Norris v. West, 12 Vet. App. 413, 420 (1999). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim; if the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b) (2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o). "An effective date earlier than the date of claim may be assigned if an increase in disability is shown within the one year ("look-back") period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim." See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In the instant case, the Veteran satisfied the schedular rating criteria for assignment of a TDIU as of October 30, 2007, the date of his claim for TDIU as well as the effective date of the grant of service connection for a lumbar spine disability and for neurological involvement of lateral and sural femoral cutaneous nerves of the right lower extremity. Effective October 30, 2007, the RO assigned a 50 percent rating for his thoracic and lumbar spine disability and a 10 percent rating for the right lower extremity neurological disability, bringing the Veteran's overall disability rating to 70 percent when combined with the 20 percent for gastroesophageal reflux disease and the 10 percent for post operative residuals right inguinal hernia repair. In the April 2009 rating decision which granted entitlement to a TDIU effective October 30, 2007, the RO noted that the medical evidence showed the Veteran was unable to work because of back pain, spasms and right lower extremity radiculopathy. As the Veteran was not service connected for the lumbar spine disability or the right lower extremity radiculopathy disability until October 30, 2007, and these are the very same disabilities which qualify him for a TDIU, the Board finds that the effective date of the award of TDIU cannot be prior to October 30, 2007. In summary, the RO found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability of back pain, spasms and right lower extremity radiculopathy. Because these disabilities were not service connected prior to October 30, 2007, there is no basis for awarding a TDIU prior to October 30, 2007. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to an effective date prior to October 30, 2007 for the award of service connection for a lumbar spine disability, to include as secondary to service-connected thoracic spine, is denied. Entitlement to an effective date prior to October 30, 2007 for the award of a TDIU is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs