Citation Nr: 1334231 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 09-22 963A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to an initial evaluation for degenerative disc disease with degenerative joint disease of the lumbar spine in excess of 10 percent prior to, and in excess of 20 percent from June 1, 2009. 2. Entitlement to an effective date earlier than October 4, 2004 for the grant of service connection for degenerative disc disease with degenerative joint disease of the lumbar spine. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Christopher Maynard, Counsel INTRODUCTION The Veteran had active service from January 1976 to November 1988. By rating action in March 1989, the RO, in part, denied service connection for a low back disability. The Veteran was notified of this decision and did not appeal. Subsequent requests to reopen the claim for a low back disability were denied by the RO in August 1999, June 2000, and September 2003. The Veteran and his representatives were notified of these decisions and did not appeal. This matter comes before the Board of Veterans' Appeals (Board) on appeal, in part, from a February 2008 rating decision that reopened the claim and granted service connection for the low back disability, and assigned a 10 percent evaluation; effective from October 4, 2004, the date of receipt of the Veteran's reopened claim. By rating action in April 2012, the RO assigned an increased rating to 20 percent; effective from June 1, 2009. A hearing before the undersigned was held at the RO in May 2013. The issue of an increased evaluation for the Veteran's low back disability 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. An original claim of service connection for a low back disability was received in November 1988. 2. Service connection for a low back disability was initially denied by the RO in March 1989; subsequent requests to reopen the claim were denied by the RO in August 1999, June 2000, and September 2003 and were not appealed. 3. Additional official service department records, not previously associated with the claims file at the time of the March 1989 rating decision were received by VA in May 2005, and showed treatment for chronic, recurrent low back strain in service. CONCLUSION OF LAW An effective date of November 3, 1988, for the grant of service connection for degenerative disc disease with degenerative joint disease of the lumbar spine is warranted. 38 U.S.C.A. §§ 5101(a), 5102, 5103, 5103A, 5107, 5110(a) (West 2002); 38 C.F.R. § 3.156(c) (2005); 38 C.F.R. §§ 3.1(r), 3.151(a), 3.159, 3.400(b)(2) (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012). This must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Given that this decision is a full grant of the Veteran's claim for an earlier effective date for the grant of service connection for a low back disability to the day following his discharge from service, an exhaustive analysis of VA's compliance with these statutes is not in necessary at this time, as the Veteran is not prejudiced in any regard. Earlier Effective Date In this case, in February 2008, the Veteran was awarded service connection for a low back disability, and the RO assigned an effective date of October 4, 2004, the date of his most recent claim to reopen. Accordingly, the old version of 38 C.F.R. § 3.156(c) applies. See New and Material Evidence, 71 Fed. Reg. 52,455 (Sept. 6, 2006); Cline v. Shinseki, 26 Vet. App. 18, 23 (2012) (providing that the amendments to § 3.156(c) became effective on October 6, 2006, and were not expressly made retroactive); Adams v. Shinseki, No. 11-2843, 2012 WL 4774824 (Vet. App. Oct. 9, 2012) (single-judge disposition) ("Therefore, given that the appellant submitted his claim to reopen prior to October 2006, when amendments to § 3.156(c), including the addition of subsection (c)(2), took effect, the Court is compelled in this case to conclude that the Board erred in retroactively applying that regulation's exception.") (emphasis added). Furthermore, because the Veteran filed a timely notice of disagreement with the February 2008 rating decision that established the effective date for the grant of service connection and perfected his appeal, the Board properly has jurisdiction over the effective date issue. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (providing that there is no such thing as a freestanding claim for an earlier effective date). The determination of the effective date of an award is generally governed by 38 U.S.C.A. § 5110(a), which states that, "[u]nless specifically provided otherwise . . . , 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." Section 3.156(c) may apply in cases in which VA receives certain records after it has already issued a decision on a claim. Under the old version of 38 C.F.R. § 3.156(c) (2005), "[w]here the new and material evidence consists of a supplemental report from the service department, received before or after the decision has become final, the former decision will be reconsidered by the adjudicating agency of original jurisdiction. This comprehends official service department records which presumably have been misplaced and have now been located and forwarded to the Department of Veterans Affairs. Also included are corrections by the service department of former errors of commission or omission in the preparation of the prior report or reports and identified as such. The retroactive evaluation of disability resulting from disease or injury subsequently service connected on the basis of the new evidence from the service department must be supported adequately by medical evidence. Where such records clearly support the assignment of a specific rating over a part or the entire period of time involved, a retroactive evaluation will be assigned accordingly except as it may be affected by the filing date of the original claim." Under either pre-amendment or amended § 3.156(c), a claimant whose claim is reconsidered based on newly discovered service department records may be entitled to an effective date as early as the date of the original claim. Mayhue v. Shinseki, 24 Vet. App. 273, 279 (2011). Historically, the Veteran filed an original claim of service connection for a low back disability in November 1988, which was denied by the RO in March 1989. Subsequent requests to reopen the claim were denied by the RO in August 1999, June 2000, and September 2003. Because the Veteran did not file a timely disagreement, nor was new and material evidence submitted within one year under 38 C.F.R. § 3.156(b), these rating decisions at the time became final. As will be explained below, notwithstanding the finality of the above-mentioned rating decisions, however, the Board finds that an earlier effective date is warranted under 38 C.F.R. § 3.156(c) (2005) in this case because additional official service department records that had not been associated with the claims file when VA previously denied the claim in March 1989, were obtained by the RO in May 2005. At the time of the March 1989 rating decision, service treatment records showed treatment for back problems. The service department records added to the record in 2005 showed a substantial amount of additional treatment for back problems, including the Veteran's placement on limited profiles. Thus, the additional STRs fall under the umbrella of newly discovered official service department records referred to in 38 C.F.R. § 3.156(c) (2005). As the claim is being reconsidered, not reopened, the effective date is affixed by operation of 38 C.F.R. § 3.400(b)(2)(i) for entitlement to service connection arising on a direct basis. The effective date to be assigned is the day following separation from active service or date entitlement arose if claim is received within 1 year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. Id. The Board finds that the claim received on November 7, 1988 was the Veteran's original claim for service connection of a low back disorder. Having found the original date of claim to have been November 7, 1988, the Board is now left to consider whether the day following separation from active service or the date entitlement arose is the appropriate effective date for the establishment of service connection. See 38 C.F.R. § 3.400(b)(2)(i). In DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011), the Court clarified that "entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." See Brokowski v. Shinseki, 23 Vet. App. 79, 90 (2009) ("[A] medical diagnosis is not necessary to initiate a claim."); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that a medical diagnosis is not required to substantiate a claim in certain circumstances). The Court also explained that there are instances where the "facts found" or alternatively, "date entitlement arose" may be later than the date of claim. DeLisio, 25 Vet. App. at 51-52. These included (1) the date the disability first manifested and (2) the date entitlement to benefits was authorized by law and regulation. Id. Although no back condition was diagnosed on VA examination in January 1989, the Veteran complained of intermittent back pain at that time and continued to complain of back pain thereafter. Further, service connection was established based on a VA opinion obtained in February 2008. The VA examiner found that the Veteran gave a history consistent with chronic unrelenting lower back pain following a strain. The VA examiner maintained that the Veteran's military health records and documents contained in the claims file chronicled a progressive lower back condition that had been present since its onset. The VA examiner observed that there appeared to be ample documentation to support the conclusion that the Veteran's condition had its origins during his military service. There was also ample documentation supporting the conclusion that his condition had been persistent and progressive in nature since its onset. The VA examiner therefore concluded that given the Veteran's history, the well documented history contained in the military health records, and the claims file, the Veteran's condition began while in service in 1976 and his condition had been persistent, unrelenting in nature, and progressive over the years. Thus, the Board concludes that the evidence demonstrates that at the time of the day following the Veteran's discharge from service he continued to manifest symptoms of a back condition, and that the back condition was incurred in service. Accordingly, the Board finds that entitlement to service connection for a back condition arose prior to the Veteran's claim for service connection. As the November 7, 1988 claim was received within one year of the Veteran's November 2, 1988 discharge from service, the Veteran is entitled to an earlier effective date of November 3, 1988, the day following the Veteran's separation from active service, for his service-connected low back disability. U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2013). ORDER Entitlement to an earlier effective date of November 3, 1988, for the award of service connection for degenerative disc disease with degenerative joint disease of the lumbar spine is granted. REMAND At the hearing in May 2013, the Veteran testified that his low back disability had worsened since the most recent VA examination in June 2009, manifested by increased pain radiating into his lower extremities. He testified that he has been getting spinal injections for the past three to four years, reinjured his back a couple of times since his last examination, and has been receiving physical therapy at the Austin Pain Clinic. Given the Veteran's allegations of worsening symptoms and additional treatment since his last VA C & P examination more than four years ago, the Board finds that a more current, comprehensive examination should be undertaken prior to appellate review. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). Accordingly, the case is REMANDED for the following action: 1. The AMC/RO should take appropriate steps to obtain the names and addresses of all medical care providers who treated the Veteran for his low back disability since 2009. After securing the necessary release, obtain copies of all medical records from the identified treatment sources, including any VA treatment records not already of record. Of particular interest are all records from the Austin Pain Clinic since 2009. 2. The Veteran should be afforded VA orthopedic and neurological examinations to determine the current severity of his low back disability and sciatica of the lower extremities. All indicated tests and studies are to be performed, including an EMG/NCV study. The claims folder must be made available to the examiners for review, and a notation to the effect that this record review took place should be included in the report. The examiners should provide a response to each of the following questions/instructions. The orthopedic examiner should respond to the following: a) Note any limitations of motion in the thoracolumbar spine and the degree at which pain is demonstrated. b) Indicate whether the thoracolumbar spine exhibits weakened movement, excess fatigability, or incoordination. If feasible, these determinations should be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any excess fatigability, weakened movement or incoordination. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. c) Lastly, the examiner should express an opinion on whether pain of the thoracolumbar spine could significantly limit functional ability during flare-ups or when the spine is used repeatedly over a period of time. These determinations should also, if feasible, be portrayed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on repetitive use or during flare-ups. If this is not feasible to determine without resort to speculation, the examiner must provide an explanation for why this is so. The neurological examiner should identify any neurological complaints or findings attributable to the service-connected lumbar spine disability and provide a written discussion of the degree of any residual weakness or sensory disturbance, and how it impacts on motor function of the lumbar spine. The examiner should also: a) Indicate whether the Veteran has recurring attacks of intervertebral disc syndrome referable to the lumbar spine disability. If so, indicate the degree of intermittent relief he experiences between those attacks. b) The examiner should note whether any intervertebral disc syndrome that may be present in the thoracolumbar spine results in incapacitating episodes, and indicate the total duration of any episodes for each spinal segment. The examiners must provide a clear rationale for all opinions, to include a discussion of the facts and medical principles involved. If a requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion cannot be provided without resort to speculation. 3. After the requested development has been completed, the AMC should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. (CONTINUED ON NEXT PAGE) Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise notified. The Veteran 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). ____________________________________________ TANYA A. SMITH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs