Citation Nr: 1743583	
Decision Date: 09/29/17    Archive Date: 10/10/17

DOCKET NO.  13-33 678	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to an effective date earlier than March 10, 2004 for the award of service connection for a low back disability.  

2.  Entitlement to a disability rating in excess of 10 percent for a low back disability, to include strain.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

J. T. Sprague, Counsel




INTRODUCTION

The Veteran had active service in the United States Air Force from April 1973 to August 1980; and from January 1983 to August 1994.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  

The issue of entitlement to a higher disability rating for a low back disability is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  The Veteran was denied service connection for a back disability by the Board in August 1983.  

2.  Following his second period of active duty in the Air Force, the Veteran petitioned to reopen the claim for service connection for a back disability, which was denied in February 1995.  

3.  Following the 1995 RO denial, the Veteran was afforded appellate rights, and he did not file a notice of disagreement with the RO's action; the decision became final within a year of notification to him.  

4.  The Veteran filed a petition to reopen a claim for entitlement to service connection for a back disability on March 10, 2004; the claim was ultimately granted, and the effective date of award set to this date of claim.  



CONCLUSION OF LAW

Entitlement to an effective date prior to March 10, 2004 for the award of service connection for a back disability is not warranted.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran was awarded service connection for a low back disability in November 2011.  He filed a notice of disagreement following this award, alleging that he had filed a claim for compensation in 1994 following his separation from the most recent period of service, and that "back pay" should be awarded.  The appeal will be denied.  

Following the Veteran's discharge from his first period of active duty, he filed a claim for service connection for a back disability.  In August 1983, the Board denied the claim.  At that time, there was no available judicial review of Board decisions, and the 1983 decision is final.  The Veteran re-entered the Air Force proximate to the time of the Board's 1983 denial, and he served until 1994.  

In February 1994, the Veteran filed a petition to reopen his claim for entitlement to service connection for a back disability.  The RO explained to the Veteran the need to submit new and material evidence given that the claim had been previously and finally denied, and in a February 1995 rating action, the petition to reopen was denied.  The Veteran was provided appellate rights; however, no notice of disagreement was filed regarding the February 1995 RO action, and the decision became final within one year of notice to him.  

The Veteran again filed a petition to reopen a claim for entitlement to service connection for a back disability on March 10, 2004.  Ultimately, the claim was reopened and granted in November 2011.  The date of claim for the petition to reopen was established as the effective date of award for service connection.  

Generally, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim, or the date entitlement arose, whichever is later.  See 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. 

The effective date of an award of disability compensation shall be the day following separation from service or the date entitlement arose if the claim is received within one year of separation, otherwise the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(b)(2).  

If a Veteran files a claim with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board.  See 38 U.S.C.A. § 7105; 38 C.F.R. 
§§ 20.200, 20.201, 20.202, 20.302 (2016).  If the Veteran does not perfect an appeal, however, the disallowance issued by the RO becomes final.  See 38 U.S.C.A. § 7105.  Similarly, denials of claims by the Board are final on the date the decision is issued by the Board. 38 U.S.C.A. § 7104 (West 2014).  The finality of that rating decision can only be upset upon a finding of clear and unmistakable error (CUE). See 38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 3.104, 3.105 (2016).  The effective date of an award based on a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.

As a matter of law, March 10, 2004 is the date of the receipt of the application to reopen a claim for entitlement to service connection for a low back disability.  It is the earliest possible effective date for service connection allowed by law in this case.  See 38 C.F.R. § 3.400.  A review of the record does not show any pending and unadjudicated claim for a back disability existing prior to this time, and the Veteran has not asserted that any RO or Board action was decided in a clearly and unmistakably erroneous manner.  

The Veteran's argument is essentially grounded in equitable considerations. However, the Board is not empowered to provide such equitable relief, and is bound by the statutes and regulations it enforces.  See Moffitt v. Brown, 10 Vet. App. 214, 225 (1997) ("[The] Court [and, by extension, the Board] is not a [forum] of equity and cannot provide equitable relief" (Harvey v. Brown, 6 Vet. App. 416, 425 (1994)); Suttmann v. Brown, 5 Vet. App. 127, 138 (1993) (holding that the Board lacks jurisdiction to review the Secretary of VA's exercise of 38 U.S.C.A. § 503 (a) to provide equitable relief at his discretion).  

VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue.  That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. § 5107 (b); see also Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).


ORDER

Entitlement to an effective date earlier than March 10, 2004 for the award of service connection for a low back disability is denied.  


                                                            REMAND

The Veteran maintains that he experiences back symptoms not seen during his last VA examination of record, and alleges a more severe disability picture than what is currently noted.  Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a comprehensive VA orthopedic examination to determine the current severity of the service-connected low back disability picture.  The following is to be addressed:

*Range of motion studies of the entire thoracolumbar spine should occur, and the examiner should take care to note both active and passive range of motion findings.  If possible, at least three repetitions of the exercises should occur, and to the extent pain manifests during such exercises, the examiner must note the degree at which such pain has an onset.  

*The examiner should note the presence of flare-ups or of other symptoms such as weakness, fatigability, or incoordination in the spine.  The frequency of flare-ups must be expressly noted, and any additional limitation of motion associated with any of these limiting factors must be expressly described.  

*Functional impairment of the spine, to include limitations as to lifting, standing, etc., should be expressly described.  The examiner should comment as to if the service-connected back disability picture causes interference with employment or mandates frequent hospitalizations.

*The existence of arthritis and degenerative disc disease must be addressed, and commentary should be made as to if such factors are part and parcel of the service-connected low back disability picture.  Any physician-prescribed bed rest must be expressly noted.  

*The existence of muscle spasms should be addressed, and if such symptoms are objectively found, the frequency of attacks should be described.  

2.  Following the above-directed development, re-adjudicate the claim for a higher disability rating.  Should the claim not be granted in its entirety, issue an appropriate supplemental statement of the case and forward the claim to the Board for adjudication.  

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).


______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs