Citation Nr: 1327509 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 09-46 147 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to an effective date prior to May 8, 2006, for the award of service connection for degenerative change at L5-S1 with scar. 2. Entitlement to an increased initial rating for a low back disability characterized as degenerative change at L5-S1 with scar. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Fagan, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1993 to July 1994, and in the Air National Guard from August 21, 1995, to September 30, 1995, and from April 16, 2001, to April 28, 2001, with additional periods of active duty for training. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2002 and February 2008 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island. The Veteran testified before the undersigned Veterans Law Judge at a hearing held at the RO in April 2013. During the hearing, the Veteran submitted additional evidence accompanied by a waiver of RO consideration. The Board notes that during the pendency of the appeal, in a July 2010 rating decision, the RO granted an increased 20 percent rating for the Veteran's low back disability. The RO further noted that the grant represented a complete grant of the benefit sought on appeal. However, the Veteran did not indicate that the increased 20 percent rating satisfied his appeal. Since that grant does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The issue of entitlement to a higher initial disability evaluation a low back disability characterized as degenerative change at L5-S1 with scar, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In April 2001, during a period of active duty for training, the Veteran aggravated a preexisting back injury. 2. On May 15, 2001, the Veteran filed an original service connection claim for a back disability, within one year of his discharge from a period of active duty for training. 3. A December 2002 rating decision denied service connection for a low back disability, and the Veteran perfected an appeal of that denial. 4. In May 2006, during a period of active duty for annual training for the National Guard, the Veteran reinjured his low back. 5. A February 2008 rating decision granted service connection for degenerative change at L5-S1 with scar, effective May 8, 2006. CONCLUSION OF LAW The criteria for an effective date of April 29, 2001, for the award of service connection for a low back disability have been met. 38 U.S.C.A. §§ 5103A, 5107, 5110 (West 2002); 38 C.F.R. § 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to assist and notify Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In the present matter, the Veteran's claim seeks an earlier effective date for the award of service connection for degenerative change at L5-S1 with scar, which arises from the grant of the initiating claim for such benefits. As the Veteran's present appeal relates to the downstream issue of the assigned effective date, the notice provisions of 38 U.S.C.A. § 5103 are not applicable. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (VA's notice obligations do not apply to claims that could not be substantiated through notice and assistance). The Board also finds that all relevant facts have been properly developed and that all evidence necessary for equitable resolution of the issues has been obtained. The Veteran has provided relevant evidence and records pertinent to his claim. Additionally, the Veteran's available service and post-service treatment records have been obtained. The Veteran has also been provided an appropriate VA examination. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his effective date claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ/DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not note the bases of the prior determinations or the elements that were lacking to substantiate the effective claim. However, the VLJ identified the issue and, along with the Veteran's service representative, elicited testimony from the Veteran regarding his theories as to why an earlier effective date is warranted for his low back service connection claim. The Veteran also identified relevant treatment records and submitted an additional copy of the same for association with his claims file. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has not identified any additional relevant evidence VA should seek to obtain on his behalf, nor are any such records reasonably identified by the record. For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim and no further assistance to the Veteran with the development of evidence is required. Analysis The Veteran seeks entitlement to an effective date prior to May 8, 2006, for the award of service connection for a low back disability. Specifically, as conveyed by the Veteran during his April 2013 Board hearing, he maintains that the appropriate effective date is in April 2001 because that is when he first went to sick call for low back problems. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). In a December 2002 rating decision, the RO denied service connection for back disability. The Veteran filed a Notice of Disagreement in February 2003 and following the RO's issuing him a Statement of the Case in October 2004 later that month he filed a timely Substantive Appeal regarding the December 2002 rating decision. Thus, he perfected a timely appeal of the December 2002 rating decision that denied service connection for back disability and continued to challenge that determination, stating that he was entitled to service connection for back disability at that time. He did all that was required to appeal the decision to deny service connection in 2004 and he is entitled to Board review and an appellate decision on this issue. The effective date for a grant of compensation will be the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. 38 C.F.R. § 3.400(b)(2)(i). Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a). A "claim" is defined in the VA regulations as "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). An informal claim is "[a]ny communication or action indicating intent to apply for one or more benefits." 38 C.F.R. § 3.155(a) (2012). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). On May 15, 2001, the Veteran submitted a claim of entitlement to service connection for a back disability. In a December 2002 rating decision, the RO denied the Veteran's claim. While there was some question as to whether the Veteran perfected a timely appeal, as the Veteran timely filed his hearing election form in conjunction with his appeal but not the actual VA Form 9, the record shows that the RO treated the Veteran's low back service connection claim as if it remained on appeal. In this regard, in January 2005, the RO gave the Veteran an additional sixty days within which to file a substantive appeal, and a VA Form 9 was received in February 2005. Thereafter, the RO issued a subsequent SSOC in October 2005 listing the back claim as on appeal. Thus, VA waived any objection it might have had to the adequacy of the substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009) (to file a substantive appeal is not jurisdictional, and thus VA may implicitly or explicitly waive any issue of timeliness in the filing of a substantive appeal). In any event, in a February 2008 rating decision, the RO granted service connection for a back disability effective May 8, 2006, the first day following the Veteran's release from a period of active duty. The grant was based on a January 2008 VA examiner's opinion that a back injury sustained during active duty for training in May 2006 aggravated a preexisting back condition. However, the Board finds that the appropriate effective date is April 29, 2001, the first day following the Veteran's release from an earlier period of active duty for training, as the evidence shows that the Veteran aggravated a low back injury during that period of service and as the Veteran filed a service connection claim within one year of his release from that period of active duty for training. The record confirms that the Veteran had annual training for the National Guard from April 16, 2001, through April 28, 2001. Service treatment records during that period show that on April 16, 2001, the Veteran reported physical symptoms related to an injury sustained weeks prior, but notably, he did not report any low back symptoms. Two days later, on April 18, 2001, the Veteran presented to sick call again for treatment but now with complaints of back pain. He specifically noted that he had injured his back weeks prior and had experienced persistent low back pain. However, the pain was limited to the lower back and he did not have associated leg symptoms. Then, on April 19, 2001, the Veteran presented with complaints of low back pain with radiation to his left buttocks. He again reported his history of injury weeks prior, but clarified that he initially sustained improvement. However, he experienced an increase in symptoms over the last two to three days. Similarly, during sick call on April 23, 2001, the Veteran reported increased back pain and feeling "pins [and] needles" radiating down his left leg. A quarters authorization further notes that on the Veteran's trip on a C130, his back started getting worse. Thereafter, following release from active duty for training, private August 2001 magnetic resonance imaging revealed a herniated disc for which the Veteran underwent surgery in January 2002. In connection with his May 2001 service connection claim, the Veteran submitted written statements dated in June 2002 and February 2003 during which he acknowledged sustaining an injury to his low back prior to annual training. However, in his February 2003 statement, he reported that he sought private treatment for that initial injury, but that nothing was wrong and he had almost fully recovered. Then, while lifting military baggage during his annual training, he felt a popping sensation in his lower back after which he sought treatment. The Veteran further indicated that, despite his January 2002 surgery, he continued to experience low back pain and left leg radiculopathy. The Veteran provides a competent and credible account of low back symptoms, including in-service worsening of a preexisting back following reinjury in April 2001, and symptoms since. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He has provided a generally consistent account of symptoms and the objective medical evidence of record from service tends to corroborate his account. Taken together, these factors provide competent, credible and highly probative evidence in favor of the claim. See Buchanan, supra.; see also Waters v. Shinseki, 601 F.3d 1274, 1278 (Fed. Cir. 2010) (elucidating that VA must consider lay evidence, but may give it whatever weight it concludes the evidence is entitled to). In light of the foregoing, the Board concludes the proper effective date for the grant of service connection for a low back disability is April 29, 2001. The competent and credible evidence shows that the Veteran aggravated his low back in April 2001 during a period of active duty for annual training for the National Guard. His initial May 2001 service connection claim remained pending until the February 2008 rating action ultimately granting service connection claim for a low back disability. Under the law, the effective date for a grant of compensation will be the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. As the Veteran's original claim was received within one year after his separation from service, the day following separation from his period of active service is the proper effective date in this case. The Veteran was released from active duty for training on April 28, 2001. Accordingly, the proper effective date for the award of service connection is April 29, 2001. ORDER An effective date of April 29, 2001, for the award of service connection for a low back disability is granted. REMAND In light of the Board's decision to grant an earlier April 29, 2001, effective date for the award of service connection for a low back disability, remand is required of the Veteran's appeal seeking a higher initial disability evaluation for consideration of the merits of the claim. See Hickson v. Shinseki, 23 Vet. App. 394, 399 (2010); see also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). This is so because the RO has not assessed all relevant evidence, considered all relevant laws and regulations or properly assessed the scope of the Veteran's claim for higher initial ratings in the first instance. Consideration of these matters at the present time would require evaluation of law and evidence the RO has not already considered, implicating 38 C.F.R. § 20.903(b) (2012). Id. The Board thus is without discretion and must remand the Veteran's claim seeking higher initial disability evaluation for the low back disability to the RO to develop, considered and readjudicate the matters, so as to preserve his one review on appeal, as provided by 38 U.S.C.A. § 7104 (West 2002). Id. at 399. The Board notes out that since the Veteran filed his initial May 2001 claim for service connection for a low back disability, the schedular criteria for rating the spine have been amended twice; once in September 2002 and again in September 2003. See 67 Fed. Reg. 54,345 - 54,349 (August 22, 2002); 68 Fed. Reg. 51,454 -51,458 (August 27, 2003); see also corrections at 69 Fed. Reg. 32, 449 (June 10, 2004). In reviewing the Veteran's claim, the RO must apply the version most favorable to the Veteran, absent congressional or Secretarial intent to the contrary; however, the amended versions may only be applied as of their effective date and, before that time, only the former version of the regulation should be applied. See DeSousa v. Gober, 10 Vet. App. 461, 467 (1997); VAOPGCPREC 3-2000 (Apr. 10, 2000). Thus, the claim must also be remanded to provide the Veteran with adequate notice of the relevant law and regulations that govern his claim, including notice of the schedular rating criteria for the spine in effect prior to September 23, 2002; from September 23, 2002, to September 26, 2003; and since September 26, 2003. The record also suggests that there may be relevant VA and private treatment records generated after April 2001 not of record. In particular, it does not appear that all private treatment records relevant to the Veteran's January 2002 back surgery have been obtained. Under the law, VA must attempt to obtain these records. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). Thus, the Board has no discretion and must remand this case to attempt to obtain any outstanding VA and private records. Further, the Board finds that a retrospective medical opinion addressing the nature, extent and severity of the Veteran's low back disability since April 2001 is necessary to adjudicate the appeal. See Chotta v. Peake, 22 Vet. App. 80 (2008). Significantly, January 2008 and December 2012 VA examination reports provide clear assessments of the disability picture, but were not provided with the benefit of likely outstanding relevant medical evidence. Thus, the Board is without discretion and must remand the matters as to obtain additional information related to the nature, extent and severity of the Veteran's low back disability for the aforementioned period. See Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the relevant time period). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran notice of the laws and regulations governing his claim, to include the rating criteria for the spine in effect prior to September 23, 2002; in effect from September 23, 2002, to September 25, 2003; and effective since September 26, 2003. Such notice should be associated with the claims folder. 2. Notify the Veteran that he may submit lay statements from individuals that have first-hand knowledge of the nature, extent and severity of his low back symptoms and the impact of the condition on his ability to work since April 29, 2001. He should be provided an appropriate amount of time to submit this lay evidence. 3. Request the Veteran identify all sources of private treatment or evaluation for low back disability since April 2001, to include the private physicians D. Mayer, M.D., and J. F. Harrington, Jr., M.D. Then, undertake all necessary efforts to obtain any identified private medical records. The RO must make two attempts for the relevant private treatment records or make a formal findings that a second request for such records would be futile. See Pub. L. No. 112-154, § 505, 126 Stat. 1165, 1193 (2012). All development efforts should be associated with the claims file, to include obtaining notation that no additional records are available on the Virtual VA system if VA treatment records are identified. 4. Obtain, physically or electronically, all outstanding VA treatment and/or hospitalization records related to the Veteran's low back conditions. Any negative response should be in writing and associated with the claims folder. 5. After the aforementioned development has been completed and all outstanding records and/or any negative responses have been associated with the claims folder, the Veteran should be afforded a new VA spine examination, to determine the current nature and severity of low back condition. The claims folder must be made available to and reviewed by the examiner. The examiner should record the full history of the conditions, including the Veteran's account of his symptoms and the relevant medical evidence of record. The examiner should perform an appropriate range of motion examination, expressing all findings in degrees and noting the degree where painful motion, if at all. Additionally, the examiner should discuss the Veteran's documented low back history from April 29, 2001, to May 8, 2006. For this period, the examiner should report all pertinent symptoms and findings and estimate the level of functional impairment present during this period. In providing the requested information, the examiner should specifically consider and address the Veteran's competent account of symptomatology. All necessary tests and studies should be conducted and associated with the claims file. In addition, if possible, the examiner should state whether the back disability has been productive of any incapacitating episodes, which are defined as periods of acute signs and symptoms that require bed rest prescribed by a physician or treatment by a physician, and if so, the frequency and duration of those episodes. Further, the examiner should also discuss the nature and severity of any right or left-sided radiculopathy or neuropathy found to be present. The examiner must also state whether the veteran has bowel or bladder problems related to his low back disability. The examiner must also indicate the impact the Veteran's low back disability has on his ability to secure or follow a substantially gainful occupation. All findings and conclusions should be set forth in a legible report. 6. Then readjudicate the appeal. If the benefits sought on appeal are not granted in full, the Veteran and his representative should be provided with a Supplemental Statement of the Case. An appropriate period of time should be allowed for response 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). ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs