Citation Nr: 1648042 Decision Date: 12/27/16 Archive Date: 01/06/17 DOCKET NO. 15-03 599 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 for a thoracic/lumbar spine disorder. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for a mental disorder. 3. Entitlement to an effective date earlier than September 23, 2002, for award of a 10 percent disability rating, and earlier than September 26, 2005, for the award of a 20 percent disability rating, for radiculopathy, left lower extremity. 4. Entitlement to an effective date earlier than September 23, 2002, for the award of a 10 percent disability rating, and September 26, 2005, for the award of a 20 percent disability rating, for radiculopathy, right lower extremity. 5. Whether the Notice of Disagreement received on April 25, 2015, with the rating decision of January 6, 2011, was timely. (The issue of entitlement to a disability rating in excess of 40 percent for service-connected residuals of herniated nucleus pulposus T7-8, postoperative with neuralgia, ankylosing spondylitis, degenerative arthritis of the thoracolumbar spine, and intervertebral disc syndrome is the subject of a separate appellate decision.) WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. M. Kreitlow INTRODUCTION The Veteran had honorable active military service with the U.S. Navy from August 1989 to April 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In a November 2012 rating decision, the RO denied the Veteran's claims for compensation under 38 U.S.C.A. § 1151 for a thoracic/lumbar spine condition and a mental disorder that he contends is the result of VA negligent healthcare and denial of benefits through the VA. In January 2013, the Veteran submitted a Notice of Disagreement. The RO issue a Statement of the Case in January 2015 in response to which the Veteran timely perfected his appeal by filing a VA Form 9 within the same month. In April 2015, the RO issued a rating decision granting service connection for radiculopathy of the right and left lower extremities and evaluating these now service-connected disabilities as 20 percent disabling effective February 19, 2015, the date of the VA examination the RO stated showed these disabilities. The Veteran filed a Notice of Disagreement in April against the effective date of February 19, 2015 arguing that the medical evidence shows he has had radiculopathy of the bilateral lower extremities for many years prior to February 19, 2015. In an August 2015 rating decision, the RO awarded an earlier effective date for the grant of service connection of September 23, 2002 and assigned a 10 percent disability rating from that date until the current assigned 20 percent disability rating assigned on February 29, 2015, for each lower extremity. A Statement of the Case was issued to the Veteran shortly thereafter, and the Veteran perfected his appeal by filing a timely VA Form 9 in October 2015. Furthermore, in the April 2015 Notice of Disagreement, the Veteran disagreed with the effective date assigned to the grant of service connection for his cervical spine disability. The Board notes that, in a January 2011 rating decision, the RO granted service connection for cervical degenerative disc disease, along with cervical radiculopathy of the bilateral upper extremities, effective September 27, 2004. In June 2015, the Veteran was sent a letter advising him that his Notice of Disagreement was untimely and not accepted. In July 2015, he submitted a Notice of Disagreement as to that decision. This issues was included by the RO in the August 2015 Statement of the Case and the Veteran perfected an appeal by filing a VA Form 9 in October 2015. On his VA Form 9, the Veteran requested a Board video-conference hearing. The Veteran appeared and testified at such a hearing before the undersigned Veterans Law Judge in September 2016. The transcript of this hearing is associated with the claims file. Finally, the Board points out that, in disagreeing with the effective dates for the grant of service connection for radiculopathy of the bilateral lower extremities, the Veteran also disagreed with the evaluation of these disabilities. However, the Board finds that the evaluation of the radiculopathy of the bilateral lower extremities is an aspect of the Veteran's appeal for an increased disability rating for his back disability, which is the subject of a separate decision that is being issued simultaneously with this one. Consequently, that issue is already on appeal and will be adjudicated with the Veteran's claim for an increased disability rating for his service-connected back disability. Thus, no action need by taken on his Notice of Disagreement on the evaluations of the disability ratings of the radiculopathy of the bilateral lower extremities. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The Veteran does not have an additional thoracic/lumbar spine or mental health disability for which compensation under 38 U.S.C.A. § 1151 can be awarded. 2. At the Board hearing held in September 2016, prior to the promulgation of a decision in the appeal, the Veteran notified the Board that a withdrawal of the appeal related to claims for an earlier effective date for grant of service connection for radiculopathy of the right and left lower extremities is requested. 3. The Veteran's April 25, 2015, Notice of Disagreement constitutes a freestanding claim for an earlier effective date, which is barred as a matter of law. CONCLUSIONS OF LAW 1. Compensation under 38 C.F.R. § 1151 for a thoracic/lumbar spine condition or mental condition is not warranted. 38 U.S.C.A. § 1151 (West 2014); 38 C.F.R. § 3.361 (2015). 2. The criteria for withdrawal of an appeal by the Veteran related to claims for earlier effective dates for grant of service connection for radiculopathy of the right and left lower extremities have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 3. Entitlement to an effective date earlier than September 27, 2004, for the grant of service connection for cervical degenerative disc disease and cervical radiculopathy of the bilateral upper extremities is dismissed. 38 U.S.C.A. § 7266 (West 2002); 38 C.F.R. § 20.1103 (2011); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS § 1151 Claims The Veteran contends that he has a disability due to the negligent care through the VA and denial of benefits through the VA. He claims he has been neglected and abused verbally and mentally through VA medical physicians, facilities and through the VA benefits side. Although not completely clear as to what disability or disabilities he is seeking compensation for, the RO has characterized his claims as for a thoracic/lumbar disability and a mental disability. The Board notes that the Veteran is service-connected for a back disability characterized as residuals of herniated nucleus pulposus T7-8, postoperative with neuralgia, ankylosing spondylitis, degenerative arthritis of the thoracolumbar spine, and intervertebral disc syndrome, which has been service-connected since June 1998. However, prior to April 2015, the Veteran's service-connected back disability was only residuals of herniated nucleus pulposus T7-8, postoperative with neuralgia. In an April 2015 rating decision, the RO granted service connection for the remaining conditions, which were combined with the previously service-connected disability. The RO did not establish a different effective date for the grant of service connection for these new conditions and, therefore, the prior effective date for the present rating of June 17, 1998 also applies to these new conditions as well. In addition to being service-connected for the above back disability, the Veteran has been service-connected for a mood disorder (claimed as major depression and inability to sleep) as secondary to his service-connected back disorder since October 30, 2008. Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a veteran in the same manner as if such additional disability were service connected. A disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the veteran's willful misconduct and either: 1) the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the veteran under any law administered by the Secretary, either by a Department employee or in a Department facility, and the proximate cause of the disability or death was either A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination; or B) an event not reasonably foreseeable; or 2) the disability or death was proximately caused (A) by the provision of training and rehabilitation services by the Secretary as part of an approved rehabilitation program or (B) by participation in a compensated work therapy program. 38 U.S.C.A. § 1151. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran's additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran's additional disability or death; and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran's informed consent. 38 C.F.R. § 3.361(d)(1). In considering the veteran's claims, the Board must first determine whether there is an additional disability. In determining whether the veteran has an additional disability, the veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based is compared to the veteran's condition after such care, treatment, examination, service, or program has stopped. 38 C.F.R. § 3.361(b). It is not sufficient, however, to merely show that a veteran received care, treatment or examination and that the veteran has an additional disability or died therefrom. 38 C.F.R. § 3.361(c)(1). The evidence must also establish that the proximate cause of the veteran's additional disability was either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination or that it was an event not reasonably foreseeable. 38 C.F.R. § 3.361(d). The Veteran is already being compensated for the disabilities for which he is seeking § 1151 compensation. He has not established that he has any other additional disability outside of what he is service-connected for that would be a qualifying additional disability for which compensation under § 1151 could be granted. In essence, 38 U.S.C.A. § 1131 and 38 U.S.C.A. § 1151 provide separate and alternative methods of obtaining VA compensation benefits. Because the Board has granted service connection for the Veteran's thoracic/lumbar disability and a mental disability under the provisions of 38 U.S.C.A. § 1131, the matter of the Veteran's alternative claim of entitlement to compensation benefits for any thoracic/lumbar disability and a mental disability manifested by the same symptoms under 38 U.S.C.A. § 1151 is rendered moot. Indeed, any separate compensation for thoracic/lumbar disability and/or a mental disability would constitute pyramiding under 38 C.F.R. § 4.14. At his Board hearing in September 2016, the Veteran stated he did not make a claim for a mental disorder, but then went on to say that this is part of his claim, but a small part. Rather, his main contention is the physical part that relates to his disease, ankylosing spondylitis. He stated that, from 1991 to 2008, his disease went untreated and he contends that VA, along with the Navy, "dropped the ball" because they did not diagnose or treat the disease for many years and his body deteriorated because of the lack of health care provided from the VA. The Veteran went on to relate a few incidents that occurred during his treatment at VA. However, the Veteran started off the hearing talking about the effective date for the award for the grant of service connection for ankylosing spondylitis and that he believes it should be back to 1998, not April 2015, and how he believes the "the negligence of the VA in Dorn, the negligence of the VA on the benefits side, I believe the Department of fence [sic] discharging me after treating me with autoimmune diseases medications and not informing me what they were treating me for or why they discharged me, and this service connection on April 15, 2015, is tied into to my T7/T8, which is my original claim, my back pay on my ankylosing spondylitis, it should go back to that." Thus he clearly indicated that his § 1151 claim has to do with his ankylosing spondylitis claim and it appears that he is trying to use § 1151 to get compensation earlier than for this condition than he thinks he has been given. The Veteran was awarded service connection for his ankylosing spondylitis in the April 2015 rating decision and, as stated above, the effective date of that award is June 17, 1998. The Board acknowledges that the Veteran has argued that he wants a separate 10 percent disability rating for his ankylosing spondylitis but that is an argument to be made in his increased rating claim, not in an § 1151 claim, and such argument has been considered in the separate decision issued simultaneously with this one. In addition, the Board acknowledges the Veteran's contentions and belief that the VA failed to diagnose him or treat his ankylosing spondylitis for many years and that such failure has likely caused his body to deteriorate more than if he had been properly treated. However, the Veteran has been compensated under the service-connected disability for any worsening in his condition, even assuming, without deciding, that there is any additional disability due to the failure to treat. Thus, any additional disability has been and will be compensated when his service connected disabilities are rated. This is true even if the Veteran does not see an increase in his overall compensation because his combined disability rating may not change or because he is already being paid at the 100 percent rate based on individual unemployability. He is advised that there are special monthly compensation rates that may afford him additional compensation in the future if his condition worsens. As for his mental disability, the Veteran has not shown that he has any mental disability as a result of VA negligence. At the Board hearing, despite being asked, the Veteran could not provide an answer as to what, if any, mental disorder he may have other than the one for which he is service-connected, a mood disorder due to his medical condition. The only mental conditions the Veteran acknowledged a mood disorder due to his medical condition in addition to anxiety. As to any other mental diagnosis seen in his treatment records, he contended that he did not have any of those conditions, such as bipolar disorder, posttraumatic stress disorder (PTSD), manic depressive disorder, etc. The Veteran's medical records do show he has had multiple diagnoses over the years to include major depressive disorder, bipolar disorder, PTSD, dysthymic disorder, depression, and, most recently, anxiety disorder due to general medical condition and mood disorder due to general medical condition. Furthermore, as to his contentions that VA was negligent in its treatment or acted in a negligent and careless manner, the Board need not address that at this time given that it need not reach the question of whether there was negligence or carelessness on the part of VA in the Veteran's treatment as the preponderance of the evidence is against a finding that he has any additional psychiatric disability due to negligent care by VA. Finally, as to the Veteran's claim for § 1151 compensation based upon the denial of VA benefits, it appears the Veteran's claim has to do with the denial of his VA claims and the long battle he has had to obtain VA service-connected benefits. There is nothing in the law that permits compensation for such a claim. The law only permits compensation in relation to VA treatment (i.e., VA hospital care, medical or surgical treatment, or examination). There is no provision in the law for additional mental health disability caused by the VA disability benefits system. Consequently, as a matter of law, that aspect of the Veteran's claim must be denied as well. The bottom line is that the Veteran cannot get compensation twice for the same disabilities. The Veteran is awarded service-connected compensation for his ankylosing spondylitis and his psychiatric symptomatology, diagnosed as a mood disorder due to his service-connected back disability. He has not shown that he has any other disability upon which § 1151 compensation may be awarded. The Board appreciates that the Veteran has grievances against the VA, both the healthcare and benefits sides, that he desires to have addressed. Unfortunately, this is not the manner in which those grievances can be heard. The Board is sorry that it cannot assist the Veteran in this respect but is sympathetic to him and the difficulties he believes he has had in receiving both the medical care and benefits he deserves. For the foregoing reasons, the Board finds that the preponderance of the evidence is against finding that entitlement to compensation pursuant to 38 C.F.R. § 1151 is warranted for either a thoracic/lumbar spine disorder or a mental disorder. The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. The Veteran's appeal is, therefore, denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Earlier Effective Date Claims The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at the September 2016 Board hearing, the Veteran submitted his request that the claims for earlier effective dates for the grant of service connection for radiculopathy of the right and left lower extremities be withdrawn. In response to questioning by the undersigned, the Veteran explained that he was satisfied with the staged ratings of 10 percent from September 23, 2002 and 20 percent from September 26, 2005, for radiculopathy of each lower extremity that were granted by the RO during the pendency of the appeal. Further, he testified that he understood that he could not refile the earlier effective date claims because by law there are no "freestanding" claims for earlier effective dates. As such, the Board finds that the Veteran's withdrawals were reasoned, knowing, and voluntary. Hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal as to those claims, and the appeal is dismissed as to these issues. Whether the April 2015 Notice of Disagreement was Timely In April 2015, the Veteran filed a Notice of Disagreement in which he disagrees with the effective date for the award of service connection for his cervical spine disability and appears to contend that the effective date should be from his discharge from service because this condition was listed at the time of his discharge. In June 2015, the Veteran was notified by the RO that it was not accepting his April 2015 Notice of Disagreement with regard to seeking an earlier effective date for the grant of service connection for cervical degenerative disc disease and cervical radiculopathy of the bilateral upper extremities as it was not timely because he was notified of the decision granting service connection on January 24, 2011 and, therefore, he had until January 24, 2012 to submit his Notice of Disagreement. Thus, since his April 25, 2015 Notice of Disagreement was more than one year from the date he was notified of the rating decision granting service connection, it was not timely, and the decision on his claim is final. The Veteran disagreed with this decision in a July 2015 Notice of Disagreement and perfected an appeal in October 2015. At the September 2016 Board hearing, the Veteran appeared to express understanding that he did not submit the Notice of Disagreement in a timely manner and that, because he waited five years to disagree with the effective date, he was "ineligible." However, the Veteran did not withdraw his claim as he did his other effective date claims. Service connection for cervical degenerative disc disease and cervical radiculopathy of the bilateral upper extremities was granted in a rating decision issued by the RO on January 24, 2011. There is no other correspondence from the Veteran within one year of the date that rating decision was issued that could be construed as a Notice of Disagreement. Thus, the January 2011 rating decision is final. See 38 U.S.C.A. § 7105 . The Court of Appeals for Veterans Claims (Court) has made it clear that there can be no freestanding claims for earlier effective dates absent a claim of clear and unmistakable error. See Rudd v. Nicholson, 20 Vet. App. 296, 300 (2006); Leonard v. Nicholson, 405 F.3d 1333 (Fed. Cir. 2005). The Court further indicated that, because "there is no proper claim in this case," the matter is to be dismissed. As this discussion of the procedural history of the current appeal indicates, the Veteran attempted in his April 2015 Notice of Disagreement to raise a freestanding earlier effective date claim. In light of Rudd, however, the Board has no alternative but to dismiss the appeal as to this issue, as there is no legal right to the benefit sought. At this stage, in order for the Veteran to attack the effective date of the grant of service connection for his cervical spine degenerative disc disease and radiculopathy of the bilateral upper extremities, he must collaterally attack it by alleging clear and unmistakable error in the January 2011 rating decision's assignment of September 24, 2004 as the effective date. He has not done this. Rather he merely relies upon earlier evidence of the existence of symptoms of a cervical spine disorder. However, an effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). The effective date of an award based on an original claim for service connection "shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). See also 38 C.F.R. § 3.400 ("the date of receipt of the claim or the date entitlement arose, whichever is the later."). The Board acknowledges the Veteran's statements that the service treatment records show he had problems with his neck in service and that there is likely medical evidence prior to September 27, 2004 that shows the Veteran had symptoms related to his cervical spine disability. However, he did not file a claim with VA for service connection until September 27, 2004. VA is bound by the law and can only award effective dates in accordance with the law. The RO, however, gave the Veteran the full benefit of the law that it was able to as it the effective date it assigned was the date his claim for service connection was received. For the foregoing reasons, the Board finds that the Veteran's claim must be denied as a matter of law, and the appeal is dismissed. ORDER Entitlement to compensation under 38 U.S.C.A. § 1151 for a thoracic/lumbar spine disorder is denied. Entitlement to compensation under 38 U.S.C.A. § 1151 for a mental disorder is denied. The appeal as it relates to the claim for entitlement to an effective date earlier than September 23, 2002, for award of a 10 percent disability rating, and earlier than September 26, 2005, for the award of a 20 percent disability rating, for radiculopathy, left lower extremity, is dismissed. The appeal as it relates to the claim for entitlement to an effective date earlier than September 23, 2002, for award of a 10 percent disability rating, and earlier than September 26, 2005, for the award of a 20 percent disability rating, for radiculopathy, right lower extremity, is dismissed. The claim of whether the Notice of Disagreement received on April 25, 2015, with the rating decision of January 6, 2011, was timely is dismissed. ____________________________________________ M.C. GRAHAM Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs