Citation Nr: 1627533 Decision Date: 07/12/16 Archive Date: 07/22/16 DOCKET NO. 13-22 151A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Whether new and material evidence has been received to reopen a previously denied claim for service connection for a low back disability. 2. Entitlement to service connection for a low back disability. 3. Entitlement to an effective date earlier than March 2, 2012 for the assignment of a 20 percent disability rating for a scar of the right knee disability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD James A. DeFrank, Counsel INTRODUCTION The Veteran had active service from January 1973 to July 1975. He has claimed duty in the Reserve, and while he appears to have been assigned to a Reserve Unit after discharge, there is no evidence he had any active training duty as a member of the Reserve Unit. This appeal comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in in Atlanta, Georgia. In March 2013, the Board remanded the issue of entitlement to an earlier effective date for an increased rating for a right knee scar for additional development. Notably, in an April 2014 rating decision, the RO again confirmed and continued the denial of the Veteran's claim for entitlement to service connection for a low back disability. The Veteran requested a hearing before a Veterans Law Judge at the RO. However, the Veteran cancelled this hearing, and has not requested that a new hearing be scheduled. As such, his hearing request is deemed withdrawn. See 38 C.F.R. §§ 20.702(e); 20.704(e) (2015). The issue of entitlement to service connection for a back disorder will be considered in the REMAND section of this document and is REMANDED to the Agency of Original Jurisdiction (AOJ) for appropriate action. FINDINGS OF FACT 1. In an unappealed November 1997 rating decision, the RO confirmed and continued the denial of service connection for a low back disability. This was the last final denial on any basis. 2. Evidence received since the November 1997 rating decision includes evidence that is not cumulative or redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim for service connection for a low back disability. 3. VA received the Veteran's claim for an increased rating for a right knee scar disability on March 2, 2012. 4. In a July 2012 rating decision, the RO granted an increased 20 percent disability evaluation for a scar of the right knee disability, effective March 2, 2012, which was the date of the Veteran's claim for an increased rating. 5. There was no formal or informal claim for an increased rating for this disability prior to the March 2, 2012 claim. 6. With regard to this disability, there is no evidence of treatment showing an increase in severity within the year preceding the March 2, 2012 increased rating claim. CONCLUSIONS OF LAW 1. The November 1997 rating decision is final. 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. § 20.113 (2015). 2. New and material evidence has been received since the November 1997 denial, and the claim of entitlement to service connection for a low back disability is reopened. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). 3. The criteria for an effective date earlier than of May 2, 2012 for the assigned 20 percent rating for a scar of the right knee disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.400, 4.130, Diagnostic Code 7804 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the favorable disposition to reopen the claim for entitlement to service connection for a low back disability, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. Regarding the Veteran's claim for an earlier effective date for a scar of the right knee, the RO provided notice to the Veteran in a May 2012 letter. Furthermore, as this claim deals with an effective date, the notice requirements of the VCAA have been met because the initial intended purpose of the notice has been served. Additional VCAA notice is not required concerning this "downstream" effective date element of the claim. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA's General Counsel has clarified that no additional VCAA notice is required for a downstream issue, including regarding the effective date, and that a Court decision suggesting otherwise is not binding precedent. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). Instead of issuing an additional VCAA notice in this situation, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved. Since the RO issued an SOC in July 2013 addressing the downstream earlier-effective-date claim, no further notice is required. See Goodwin v. Peake, 22 Vet. App. 128 (2008) and Huston v. Principi, 17 Vet. App. (2003). Also of record and considered in connection with the appeal are the various written statements provided by the Veteran. Accordingly, the Board finds that no additional RO action to further develop the record on the claim is warranted. I. Claim to Reopen VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156(a) (2015). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Veteran sought to reopen his claim in July 2009. In this regard, 38 C.F.R. § 3.156(a) defines "new" evidence as evidence not previously submitted to agency decision makers and "material" evidence as evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2015). In the case of Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. In determining whether new and material evidence has been received, VA must initially decide whether evidence received since the prior final denial is, in fact, new. As indicated by the regulation cited above, and by judicial case law, "new" evidence is that which was not of record at the time of the last final disallowance (on any basis) of the claim, and is not duplicative or "merely cumulative" of other evidence then of record. This analysis is undertaken by comparing the newly received evidence with the evidence previously of record. After evidence is determined to be new, the next question is whether it is material. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). In a September 1983 rating decision, the RO denied the Veteran's claim for service connection for a low back disability. In a March 1984 rating decision, the RO confirmed the denial of the Veteran's claim for service connection for a low back disability. The Veteran appealed this denial to the Board. In a decision dated in September 1985 the Board denied the Veteran's claim for service connection for a low back disability. Board decisions are final on the date of the date stamped on the face of the decision, unless the Chairman of the Board ordered reconsideration of the decision. 38 U.S.C.A. §§ 7103(a), 7104(b); 38 C.F.R. § 20.1100. The Veteran did not appeal this decision or request reconsideration. April 1995, October 1996 and November 1997 rating decisions denied reopening the Veteran's claims for service connection for a low back disability as they determined that no new and material evidence had been submitted. The October 1996 rating decision specifically found that there was no evidence relating the Veteran's back disability to his service-connected bilateral knee disability. The Veteran did not file a notice of disagreement with the November 1997 rating decision within a year following notification of the denial. As the Veteran did not appeal the November 1997 rating decision, that decision is now final based on the evidence then of record. See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. In July 2009, the Veteran sought to reopen his claim. Here, the last final denial of the claims is the November 1997 rating decision which confirmed and continued the previous denial of service connection for a low back disability. Furthermore, for purposes of the "new and material" analysis, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The provisions of 38 U.S.C.A. § 5108 require a review of all evidence submitted by or on behalf of a claimant since the last final denial on any basis to determine whether a claim must be reopened. See Evans v. Brown, 9 Vet. App. 273, 282-3 (1996). Here, the last final denial of the claim is the RO's November 1997 rating decision which denied service connection for a low back disability on the basis that this disability was not incurred or aggravated by his service or secondary to his service-connected bilateral knee disability. Evidence received since the November 1997 rating decision includes VA treatment records that reflect that the Veteran has a current low back disability. The evidence also includes statements of the Veteran and his representative in which they contend that the Veteran's low back disability is related to his service and that the Veteran had continuing low back pain since his service. In July 2009 VA outpatient notes, in response to a question asked by the Veteran, a health care provider opined that altered mechanics from the knees could affect the low back. The existence or extent of the aggravation is not described or clinically established, but presuming the credibility of this evidence it is sufficient for reopening the claims. The Board finds that the above-described evidence provides a basis for reopening the claim for a low back disability. Indeed, this evidence is "new" in that it was not before agency adjudicators at the time of the November 1997 denial of service connection, and is not duplicative or cumulative of evidence previously of record. Moreover, this evidence is "material" in that it pertains to the previously unestablished element of a link between current low back disability and service, and raises a reasonable possibility of substantiating the claim. Here, the unestablished facts necessary to substantiate the claim in the November 1997 rating decision would be evidence linking a current low back disability to service. The prior denial of service connection in the November 1997 rating decision was based on a finding that a low back disability was not incurred or aggravated by his service or secondary to his service-connected bilateral knee disability. The subsequent statements of the Veteran and his representative suggest that the Veteran experienced pain in his low back since his service. Hence, this evidence raises a reasonable possibility of substantiating the Veteran's claim for service connection. As noted above, for purposes of determining whether the claim should be reopened, the evidence is presumed to be credible. Under these circumstances, the Board concludes that the criteria for reopening the claim for service connection for a low back disability have been met. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. II. Earlier Effective Date Laws and Regulations A reasonably raised claim remains pending until there is either recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent "claim" for the same disability. See Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006) and Myers v. Principi, 16 Vet. App. 228, 229 (2002); 38 C.F.R. § 3.160(c). VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(o) (1). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C.A. § 5110(b) (2); 38 C.F.R. § 3.400(o) (2). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400(o)(1) ); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400(o)(2) ); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400(o)(2) ). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o) (2). Under applicable laws and regulations, if an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." 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) (1) (2); VAOPGCPREC 12-98 (1998). In making this determination the Board must consider all of the evidence, including that received prior to previous final decisions. Hazan v. Gober, 10 Vet App 511 (1997). VA recognizes formal and informal claims. A formal claim is one that has been filed in the form prescribed by VA. See 38 U.S.C.A. § 5101(a); 38 C.F.R. §3.151(a). An informal claim may be any communication or action, indicating an intent to apply for one or more benefits under VA law. Thomas v. Principi, 16 Vet. App. 197 (2002). See 38 C.F.R. §§ 3.1(p), 3.155(a) (in effect prior to March 24, 2015). An informal claim must be written, see Rodriguez v. West, 189 F. 3d. 1351 (Fed. Cir. 1999), and it must identify the benefit being sought. Brannon v. West, 12 Vet. App. 32, 34-5 (1998). All filings by a claimant must be construed based on a liberal reading. See Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009) (holding that "[i]n direct appeals, all filings must be read 'in a liberal manner' whether or not the veteran is represented"). Furthermore, according to 38 C.F.R. § 3.157(b) (in effect prior to March 24, 2015), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital will be accepted as an informal claim for increased benefits. See Servello, 3 Vet. App. at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b) (in effect prior to March 24, 2015). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. Id. at (b) (2). The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied in this case. Factual Background and Analysis The Veteran contends that he should be entitled to an earlier effective date for the award of a 20 percent rating for his scar of the right knee disability. On March 16, 2010 the Veteran filed a claim for an increased rating for his service-connected osteochondritis of the right knee disability. In an October 2010 rating decision, the RO granted service connection for a scar of the right knee disability as secondary to a now service-connected arthritis of the right knee disability at an initial noncompensable rating, effective March 16, 2010. The rating decision noted that the Veteran's scar on his right knee was not unstable or painful. The rating decision also noted that while the April 23, 2010 VA examination determined that the Veteran's scar was related to his right knee arthritis, an effective date of March 16, 2010 was assigned as this was the date of the Veteran's claim. The Veteran filed a new claim for an increased rating for this service connected right knee disability on March 2, 2012. A July 2012 rating decision granted an increased 20 percent rating for a scar of the right knee disability, effective March 2, 2012. As such, under the law, the earliest the Veteran could be entitled to an effective date for his 20 percent evaluation would be March 2, 2011, which is one year prior to the date of the increased rating claim, if it is factually ascertainable that the increase in severity took place during that year. However, there is simply no evidence of record dated from March 2011 to March 2012 which would indicate an increase in severity of the Veteran's scar of the right knee disability occurred, such that an effective date earlier than March 2, 2012 would be warranted. There are voluminous VA records for this time period but this evidence concerns other disabilities of the Veteran and not his scar of the right knee. As a result, there is simply no evidence of record showing an increase in severity of the Veteran's service connected scar of the right knee disability until he filed a claim for an increased rating on March 2, 2012. As such, the Board finds that this date is the proper effective date for grant of increased rating for this disability. The Board points out that while the Veteran was granted service connection for this disability at an initial noncompensable level in the October 2010 rating decision, he did not appeal that decision. There is nothing of record from that time that could be reasonably construed as a timely notice of disagreement with respect to the disability rating or effective date assigned. From that time, until May 2, 2012, there is no evidence of record indicating that the Veteran ever filed a claim for a higher evaluation. As such, there is simply no basis on which to assign an effective date earlier than May 2, 2012. Accordingly, an effective date prior to May 2, 2012 (the date assigned by the RO), for a rating of 20 percent for a scar of the right knee disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert, 1 Vet. App. at 53-56. ORDER New and material evidence having been received; the claim of entitlement to service connection for a low back disability is reopened. Entitlement to an effective date earlier than March 2, 2012 for the assignment of a 20 percent disability rating for a scar of the right knee disability is denied. REMAND The Veteran's service treatment records are negative for pertinent complaints of findings referable to a back disability. He has asserted that he sustained a back injury in the Reserve, although no active training or inactive training time is shown. If the Veteran has evidence of such training time he should submit it to the AOJ. In March 1978 a VA treatment record noted the presence of spondylolisthesis of the L5-S1. In July 1983 an examiner found no relationship between the knees and the low back pathology. In December 1996 an examiner reported that the Veteran experienced pain in the knees and low back and reported, without further explanation that the spondylolysis of the lumbar spine was aggravated by awkward gait. The extent of aggravation, or further description of the gait was not recorded, and as such, the information on file, and that listed above from July 2009 is inadequate to decide this issue. Further review of the claims folder, possible examination, and a more comprehensive opinion is indicated. As such, this matter is REMANDED for the following actions: 1. Forward the Veteran's electronic claims folders to an appropriate specialist for entry of a medical opinion as to the most likely etiology of any currently demonstrated low back pathology. If it is determined that additional examination is indicated, such examination should be scheduled in accordance with applicable procedures. After reviewing the claims folders and examining the Veteran as needed, please enter findings as to the following: (a) Is it at least as likely as not (50 percent probability or greater) that current low back pathology had its initial onset during a period of service or training? (b) Does the evidence show that the Veteran's bilateral knee pathology resulted in an altered gait during and/or after service? (c) Is it as likely as not that any bilateral knee impairment is the proximate cause of or resulted in the current low back pathology, or the spondylolisthesis noted as soon as 1978? (d) Is it as likely as not that any bilateral knee impairment resulted in the permanent worsening (aggravation) of the current back pathology? (Please comment on the 1996 and 2009 tentative findings reported above) (e) If there is aggravation, is it possible to determine the extent of the aggravation over and above the normal progress of the disorder. 2. Review the record to see that all questions are answered. Then readjudicate the issue of service connection for a low back disorder on the merits. If the benefit sought is not granted, provide the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond thereto. Thereafter, return the case to the Board, if in order. 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 2014). ___________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs