Citation Nr: 1623463 Decision Date: 06/13/16 Archive Date: 06/29/16 DOCKET NO. 13-28 912 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to an effective date prior to February 23, 2005 for the grant of service connection for degenerative disc disease and osteoarthritis of the lumbosacral spine (claimed as a back injury). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Delhauer, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1964 to June 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In May 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the evidentiary record. The Veteran's file has been scanned, and converted from a hybrid paper and electronic file to a purely electronic file located on the Veterans Benefits Management System. Documents contained on the Virtual VA paperless claims processing system include notice letters regarding the Travel Board hearing; other documents are duplicative of the evidence of record. FINDINGS OF FACT 1. On February 23, 2005, VA received the Veteran's formal claim of entitlement to service connection for a back injury. 2. There was no claim of entitlement to service connection for a back disorder, either formal or informal, prior to February 23, 2005. CONCLUSION OF LAW The criteria for an effective date prior to February 23, 2005 for service connection of degenerative disc disease and osteoarthritis of the lumbosacral spine have not been met. 38 U.S.C.A. §§ 5101, 5107, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. VA's duty to notify was satisfied by a letter in May 2010. See 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2015); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Further, the Board finds that all necessary development of this downstream earlier effective date claim has been accomplished and, therefore, that appellate review of this claim may proceed without prejudicing the Veteran. Legal Criteria The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C.A. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is the latter. 38 C.F.R. § 3.400. In cases involving direct service connection, the effective date will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). A specific claim in the form prescribed by the Secretary of 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). Any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. Under 38 C.F.R. § 3.155(a), the veteran or a representative of the veteran can file an informal claim by communicating an intent to apply for one or more VA benefits. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An "application" is used synonymously with "claim" and defined 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); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by the claimant). The United States Court of Appeals for the Federal Circuit has emphasized that VA has a duty to fully and sympathetically develop a veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). Analysis The Board has thoroughly reviewed all the evidence. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). In a December 2011 decision, the Board granted entitlement to service connection for a back disorder. In a January 2012 rating decision, the RO implemented the grant of service connection for degenerative disc disease and osteoarthritis of the lumbosacral spine, effective February 23, 2005, and assigned a 10 percent rating. The Veteran contends that the effective date for the grant of service connection should date back to the date of his first claim for VA benefits regarding his back, in January 1977. See May 2016 Travel Board hearing testimony; see also October 2013 Veteran statement; March 2012 notice of disagreement. In January 1977, VA received a VA Form 21-526, Veteran's Application for Compensation or Pension, from the Veteran. In that May 1975 version of VA Form 21-526, there was not a specific box in which the Veteran could select which benefit(s) for which he was filing a claim, as is available on more recent versions of VA Form 21-526. See, e.g., February 2005 claim (question 1). On the January 1977 VA Form 21-526, under the heading "NATURE AND HISTORY OF DISABILITIES," in response to question 25, "NATURE OF SICKNESS, DISEASE OR INJURIES FOR WHICH THIS CLAIM IS MADE AND DATE EACH BEGAN," the Veteran typed only, "See Attached Letter." The Veteran also reported hospitalization from August 1976 to September 1976 at John D. Archbold Memorial Hospital. The VA Form 21-526 then included the following note: "Items 27, 28, and 29 need NOT be completed unless you are now claiming compensation for a disability incurred in service" (emphasis in original). Under items 27, 28, and 29, the Veteran typed that each item was not applicable, "N/A." The Veteran then indicated in item 30 that he was not employed. Finally, the form included the following note: "Items 34A through 38C should be completed only if you are applying for nonservice-connected pension." The Veteran completed items 34 through 38, including providing income and net worth information. In January 1977, along with the VA Form 21-526, the Veteran submitted a January 1977 letter from Dr. J.F.P. of Thomasville Orthopedic Clinic. Dr. J.F.P. reported the Veteran "has had recurrent difficulty with low back pain," and discussed the Veteran's back surgeries performed in August 1976, as well as recurrent back pain and problems since the surgeries. Dr. J.F.P. concluded, "At the present time, it is my recommendation that the patient do no prolonged sitting. He has also been warned about doing any heavy lifting or bending." On January 25, 1977, the Atlanta RO sent what appears to be a form letter to the medical records librarian at John D. Archbold Memorial Hospital, which began, "This veteran has applied for disability benefits showing treatment at your facility." The RO then typed "August 23, 1976" on the blank line for "period of treatment," and "Laminectomy at L/4-L/5" on the blank line for "condition requiring treatment." In February 1977, the RO received copies of the Veteran's treatment records from John D. Archbold Memorial Hospital. In an August 1976 history and physical examination, Dr. H.L.F. stated, "Started with leg pain and back pain approximately two months ago...." The physician's impression was a possible herniated nucleus pulposus, L-4/5, left. In the August 1976 operative report, the surgeon, Dr. J.P., noted that during the procedure, there was found to be a large amount of scar tissue in the L-4 L-5 interspace, which was removed. In January 1977, the RO requested a physical examination of the Veteran. On the VA Form 21-2507, the RO official checked the box indicating the priority of the examination as "Original (N.S.C. [nonservice-connected])." The RO official also stated, "General medical for pension purposes with employment history." Upon the March 1977 VA examination, on the VA Form 21-2545, Report of Medical Examination for Disability Evaluation," under Section B, "MEDICAL HISTORY SINCE LATEST VA EXAMINATION AS RELATED BY PERSON EXAMINED," the examiner noted the Veteran left active duty service in June 1968. The examiner then noted the Veteran's report, "Veteran has history of pain in back from several strains and injuries to back over the years. Pain would last a day or so and with rest and heatpack [sic], pain would go away." The examiner then noted the Veteran's August 1976 back surgeries, and well as the Veteran's back and leg symptoms since the surgeries. Associated with the March 1977 VA examination report were copies of the Veteran's treatment records from Dr. J.F.P. In a May 1976 note, the physician stated the Veteran was seen "because of an injury to his back. Apparently, the patient was throwing a 100 pound feed sack into the back of a truck when he felt sudden severe pain in his back. Since then, he has had pain in his left leg." In April 1977, the Veteran was informed of the RO's April 1977 rating decision denying entitlement to nonservice-connected pension benefits because his disabilities were not of sufficient severity to permanently prevent him from engaging in substantially gainful employment. The evidentiary record indicates the next communication received by VA from the Veteran was a VA Form 21-526 received on February 23, 2005, in which the Veteran stated he was seeking compensation for a back injury. The Board finds the Veteran did not file a claim, either formal or informal, for entitlement to service connection for a back disorder prior to his February 23, 2005 VA Form 21-526. Again, any communication or action indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155. However, for the reasons explained below, no statement received from the Veteran prior to February 23, 2005 indicated an intent to apply for disability compensation benefits for a back disorder. Further, a claim of entitlement to pension benefits may be accepted as a claim for compensation benefits in certain circumstances. See 38 C.F.R. § 3.151(a) ("A claim by a veteran for compensation may be considered to be a claim for pension; and a claim by a veteran for pension may be considered to be a claim for compensation."). However, as was clarified by the United States Court of Appeals for Veterans Claims in Stewart v. Brown, VA is "not automatically required to treat every compensation claim as also being a pension claim or vice versa." 10 Vet. App. 15, 18 (1997). VA may exercise its discretion to determine whether a claim for pension also includes evidence that could be construed as a claim for compensation. Id. at 18-19. Evidence that such a claim could be inferred could include a statement of intent to request service connection, an indication of a link between service and the disorder, or medical evidence showing that a disability began in service or was related to service. See id. at 19. In this case, for the reasons explained below, the Board finds that the January 1977 claim submitted by the Veteran was one for pension benefits only. First, the Board finds that nothing in the January 1977 VA Form 21-526 indicated the Veteran was seeking compensation for a back disorder, instead of or in addition to a pension claim. The Veteran specifically indicated that items 27, 28, and 29, which the form instructed were to be completed if he was claiming compensation for a disability incurred in service, were not applicable. Instead, he completed the portions of the form which indicated he was not working, and that he was applying for nonservice-connected pension benefits. During the May 2016 hearing before the Board, the Veteran testified that he did not have any help completing the January 1977 VA Form 21-526, and that he may have completed the form incorrectly, but that he was filing for compensation. However, the Veteran further testified that he would have put "N/A" if he thought a question was irrelevant. As the Veteran did put "N/A" for items 27, 28, and 29, the Board finds this indicates the Veteran found those questions regarding treatment in or since service for the claimed back injury to be irrelevant to the claim he was filing at that time. Further, the Veteran testified that when he got the January 1977 statement from Dr. J.F.P., he intended to show that there was a current back condition that was related to what happened to him in the military. However, the Veteran made no mention of a back injury during service, or any connection between his current back disorder and his active duty service, in the January 1977 VA Form 21-526, and he did not submit any other statements to VA in connection with that claim. Further, the Board finds that none of the medical evidence submitted by the Veteran or obtained by the RO in relation to the January 1977 claim indicated any relationship between the Veteran's back disorder and his active duty service. The January 1977 letter from Dr. J.F.P. noted only that the Veteran had recurrent back pain, and did not indicate that pain was in any way related to his service or an injury in service, but did discuss the functional effects of his current back pain. The May 1976 treatment note from Dr. J.F.P. reported the Veteran suffered a back injury while throwing a feed sack. The August 1976 history and physical examination from Dr. H.L.F. stated the Veteran's leg and back pain had begun approximately two months prior. The August 1976 operative report noted the presence of scar tissue, but the treatment records did not include any indication as to the etiology of that scar tissue. See also August 2005 Veteran statement (arguing for the first time that in 1976 his doctor told him the scar tissue was from an old injury). Finally, the March 2011 VA examiner noted the Veteran's report of a history of pain in the back from several strains and injuries to his back "over the years," but there is no indication the Veteran reported any back injuries or pain during or continuing since his active duty service. Although the January 1977 RO letter to John D. Archbold Memorial Hospital stated the Veteran had applied for disability benefits, the Board finds this was a form letter completed by the RO to request the Veteran's treatment records, and therefore did not accurately portray the claim filed by, or being developed by, the RO at that time. See also January 1977 VA Form 21-2507 (requesting a general VA examination of the Veteran for pension purposes). Further, as this letter was sent directly to the hospital, and was not sent to the Veteran, it would not have indicated to the Veteran that his claim was being construed by VA as one for disability benefits. Accordingly, the Board finds there is no evidence that a claim of service connection could be inferred from the Veteran's January 1977 claim for pension benefits, or evidence submitted or obtained in support of that claim. Therefore, the Board finds that the Veteran did not file a claim, either formal or informal, seeking entitlement to service connection for a back disorder prior to the VA Form 21-526 received on February 23, 2005. For these reasons, the Board finds that the preponderance of the evidence is against the claim for an effective date prior to February 23, 2005 for the grant of entitlement to service connection for degenerative disc disease and osteoarthritis of the lumbosacral spine. Because the preponderance of the evidence is against the claim, the doctrine of reasonable doubt is inapplicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, the claim is denied. ORDER Entitlement to an effective date prior to February 23, 2005 for the grant of service connection for degenerative disc disease and osteoarthritis of the lumbosacral spine is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs