Citation Nr: 1329364 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 08-06 118 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an effective date earlier than February 21, 2001, for the award of service connection for tinnitus. 2. Entitlement to an increased rating for the lumbosacral strain, superimposed on spina bifida occulta, currently evaluated as 10 percent disabling prior to March 2, 2007, and 20 percent disabling beginning March 2, 2007. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his spouse ATTORNEY FOR THE BOARD Shauna M. Watkins, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to November 1973, and from July 1975 to November 1978. The Veteran's claims come before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision of the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which denied a disability rating in excess of 10 percent for the lumbar spine disability and which denied an earlier effective date for the service-connected tinnitus. A subsequent July 2007 rating decision increased the Veteran's disability rating for the lumbar spine disability to 20 percent disabling, retroactively effective from March 2, 2007. The Veteran then perfected timely appeals of these issues. In May 2013, the Veteran testified before the undersigned at the local RO (Travel Board hearing). A copy of the hearing transcript has been associated with the claims file. The Board notes that additional VA treatment records were added to the Veteran's Virtual VA paperless claims file after the most recent August 2012 Supplemental Statement of the Case (SSOC), and no waiver from the Veteran or his representative was received. However, these records are not pertinent to the earlier effective date issue being dismissed below. Additionally, as the lumbar spine claim is being remanded for further development, these VA records will be reviewed by the Agency of Original Jurisdiction (AOJ) in the first instance. As such, a waiver for this evidence is not necessary. 38 C.F.R. §§ 20.800, 20.1304 (2012). The Board notes that throughout the Veteran's appeal, he has argued that he is currently unemployable due to his service- connected disabilities. In this regard, a January 2013 rating decision granted entitlement to a total disability rating based on individual unemployability due to service- connected disabilities (TDIU), retroactively effective August 25, 2011. The Veteran has not appealed this grant, and the TDIU issue is not currently before the Board. Regarding entitlement to a TDIU prior to August 25, 2011, this issue was denied by the RO in rating decisions dated in May 2008 and June 2009, during the course of this appeal. Therefore, the Board finds that a TDIU claim does not need to be included in the Veteran's lumbar spine disability appeal, consistent with Rice v. Shinseki, 22 Vet. App. 447 (2009), as this issue has already been considered by the AOJ. The Veteran's Virtual VA records were also reviewed and considered in preparing this decision and remand. The issue of entitlement to an increased rating for the lumbosacral strain, superimposed on spina bifida occulta 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. The Veteran was awarded service connection for tinnitus in a February 2002 rating decision, retroactively effective from February 21, 2001. The Veteran did not voice disagreement with the assigned effective date in the year after he was notified of the rating decision. 2. The effective date for the service connection grant for tinnitus became final in February 2003. 3. The Veteran's claim for an earlier effective date for the grant of service connection for tinnitus was received in October 2006. CONCLUSION OF LAW The claim for an effective date earlier than February 21, 2001 for the grant of service connection for tinnitus is freestanding. 38 U.S.C.A. §§ 5108, 5109A(a), 5110(a), 7104(b), 7105(c) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.104, 20.302, 20.1100, 20.1103, 20.1104 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), upon receipt of a complete or substantially complete application for benefits, VA is required to notify a claimant of the information and evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)(1) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). Under the VCAA, VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). In this case, the Board finds that no further action is necessary pursuant to the VCAA. As described below, the Veteran's appeal must be dismissed as a matter of law. Thus, the Board finds that any deficiency in VA's VCAA notice or development action is harmless error. Pratt v. Nicholson, 20 Vet. App. 252 (2006); Mason v. Principi, 16 Vet. App. 129, 132 (2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001) (holding that the VCAA is not applicable to matters in which the law, and not the evidence, is dispositive). II. Analysis Generally, the effective date for a grant of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. The effective date of an evaluation and award of compensation on an original claim for compensation will be the day following separation from the active duty service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). 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) (2012). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, or a person acting as next friend who is not sui juris may be considered an informal claim. 38 C.F.R. § 3.155 (2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the Veteran contends that he is entitled to an effective date earlier than February 21, 2001, for the award of service connection for tinnitus because he has experienced tinnitus since his active duty discharge in 1978. In a February 2002 rating decision, the RO granted service connection for tinnitus, retroactively effective from February 21, 2001. The Veteran was notified of the decision and of his appellate rights, but he did not initiate an appeal regarding the effective date. Furthermore, new and material evidence pertinent to the issue was not received within the one year following the February 2002 decision. See 38 C.F.R. § 3.156(b) (2012). Therefore, the February 2002 decision became final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.302, 20.1103 (2012). That being the case, the Veteran could attempt to overcome the finality of the February 2002 decision in one of two ways, by a request for revision of the decision based on CUE, or by a claim to reopen based upon new and material evidence. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) citing Cook v. Principi, 318 F.3d 1334, 1339 (Fed. Cir. 2002) (en banc); 38 U.S.C. § 5109A(a) ("A decision by the Secretary . . . is subject to revision on the grounds of clear and unmistakable error. If evidence establishes the error, the prior decision shall be reversed or revised."); 38 U.S.C. § 5108 ("If new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim."); Andrews v. Nicholson, 421 F.3d 1278, 1281 (Fed. Cir. 2005). Of the two, because the proper effective date for an award based on a claim to reopen can be no earlier than the date on which that claim was received, 38 U.S.C. § 5110(a), only a request for revision premised on CUE could result in the assignment of an earlier effective date for the grant of service connection for tinnitus. Rudd, 20 Vet. App. at 299- 300 citing Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ( "[A]bsent a showing of [clear and unmistakable error, 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."); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("When a claim to reopen is successful and the benefit sought is awarded readjudication, the effective date is the date of the claim to reopen."); Bingham v. Principi, 18 Vet. App. 470, 475 (2004). Here, a claim of CUE in the February 2002 rating decision (or any prior rating decision) is not properly before the Board. Rather, the Veteran has essentially requested that his claim be processed as some form of freestanding claim for an earlier effective date. In so doing, the Veteran has improperly raised a freestanding claim for an earlier effective date in an attempt to overcome the finality of the February 2002 RO decision. Consequently, his appeal on this issue must be dismissed. Rudd, 20 Vet. App. at 300 (vacating the decision because the Board erred to the extent that it entertained such an improper claim without imposing the strictures of finality). ORDER The claim of entitlement to an effective date earlier than February 21, 2001 for the grant of service connection of tinnitus is dismissed. REMAND Inasmuch as the Board regrets the additional delay of this appeal, a remand is required before the remaining claim can be properly adjudicated. Initially, at his Board hearing, the Veteran testified that he had recently received medical treatment from Scott and White medical providers for his lumbar spine disability, to include back injections. Upon remand, the RO/AMC should obtain these private treatment records, as they are pertinent to the Veteran's claim. See 38 U.S.C.A. § 5103A(a)(1), (b)(1), (c)(1) (West 2002). Additionally, the Veteran's Social Security Administration (SSA) disability benefits records are contained in the Veteran's Virtual VA paperless claims file. However, the SSA decision associated with these records is not contained in the Virtual VA claims file. The Virtual VA claims file does contain several documents titled, "Medical Treatment Records Furnished by SSA." One of these documents could not be opened and this may be the document containing the SSA decision. However, the SSA CD, from which the documents were scanned into Virtual VA, is also not contained in the paper claims file. Therefore, upon remand, the AMC should locate and associate the Veteran's SSA disability benefits decision with the claims file. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010); see also 38 C.F.R. § 3.159(c)(2) (2012). Finally, the Veteran's lumbar spine disability is currently rated under 38 C.F.R. § 4.71a, DC 5237 (2012), which considers the Veteran's limitation of motion of the lumbar spine in determining the appropriate disability rating. The Court has held that examinations provided to evaluate the extent of a Veteran's functional loss of the musculoskeletal system under rating codes based on limitation of motion must determine whether any pain found to be present could significantly limit functional ability during flare-ups or upon repetitive motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); see 38 C.F.R. § 4.40 (2012); DeLuca v. Brown, 8 Vet. App. 202, 205-6 (1995). These determinations, should, if feasible, be portrayed in terms of the additional range-of-motion loss due to pain on use or flare-ups. Id. Where this information is not provided in the examination report, or the report does not include an explanation for why this information could not feasibly be provided, the examination report is inadequate for rating purposes. Mitchell, 25 Vet. App. at 32. At the recent VA spine examination in October 2011, the Veteran complained of flare-ups. The DeLuca and Mitchell requirements were not adequately addressed. The examiner did not describe any resultant functional loss in range of motion due to flare-ups in terms of degrees. Given the necessary additional development noted above, the time length since the Veteran was last examined, and the aforementioned deficiency in the examination report, the Board finds that the Veteran must be afforded another VA examination. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran to obtain the specific names and addresses of his private medical providers for the treatment of his lumbar spine disability. Following the Veteran's release of these private treatment records, obtain and associate the records, to include the records from Scott and White medical providers. If unable to obtain any identified records, then notice of the same to the Veteran should be in accordance with 38 C.F.R. § 3.159(e). 2. Obtain the decision associated with the SSA disability benefits records on the Veteran's Virtual VA paperless claims file. (While the underlying records are of record, the actual decision is not of record.) 3. After obtaining the above records, provide an appropriate VA examination to the Veteran in order to assist in evaluating the severity of his service- connected lumbar strain. The Veteran's claims folder must be reviewed by the examiner. All indicated tests and studies should be accomplished. All clinical findings should be reported in detail. The examination report must include ranges of motion, with notations as to the degree of motion at which the Veteran experiences pain. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. 4. After the above actions have been completed, readjudicate the Veteran's claim. If the claim remains denied, issue to the Veteran and his representative a Supplemental Statement of the Case (SSOC). Afford them the appropriate period of time within which to respond thereto. 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs