Citation Nr: 1746955 Decision Date: 10/20/17 Archive Date: 10/31/17 DOCKET NO. 14-10 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an effective date earlier than May 12, 2004 for the award of service connection for hypertension. 2. Entitlement to an initial disability rating (or evaluation) in excess of 20 percent for lumbar spine degenerative arthritis (narrowing), anteriorspondylolisthesis, and intervertebral disc syndrome (a back disability). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L.M. Yasui, Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1962 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2005 and August 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In January 2010, the Board remanded the issue of entitlement to an effective date earlier than May 12, 2004 for the award of service connection for hypertension to the RO via the Appeals Management Center (AMC) in Washington, DC for additional development. The matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). After reviewing the contentions and evidence of record, including the applicable regulations and case law, the Board finds that the issues on appeal are more accurately stated as listed on the title page of this decision. In this regard, the Board notes that, in addition to the issue of a higher initial rating for a back disability, the RO construed the September 2013 Notice of Disagreement, via VA Form 21-0958, as a disagreement as to an increased rating for renal dysfunction with microalbuminuria and hypertension, and entitlement to a TDIU. See January 2014 Statement of the Case. Pursuant to the January 2014 Statement of the Case, in a February 2014 correspondence, via VA Form 9, the Veteran clarified that VA adjudicated the wrong claim and he had never filed a claim for a higher evaluation of the service-connected renal dysfunction with microalbuminuria and hypertension. Instead, the Veteran indicated that the appeal is for an earlier effective date for the grant of hypertension. As noted above, in a January 2010 decision, the Board remanded the issue of an effective date earlier than May 12, 2004 for the award of service connection for hypertension. As such, the Veteran did not perfect the appeal with a timely Substantive Appeal as to the issue of a higher evaluation of the service-connected renal dysfunction with microalbuminuria and hypertension; therefore, this issue is not in appellate status, and is not before the Board. In addition, while the RO also construed the September 2013 Notice of Disagreement, via VA Form 21-0958, as a disagreement as to entitlement to a TDIU, the Veteran was awarded entitlement to a TDIU in the August 2013 rating decision, effective August 30, 2004 to September 2, 2008. Pursuant to the January 2014 Statement of the Case, in a February 2014 correspondence, via VA Form 9, the Veteran clarified that he simply did not recall being paid for the award of a TDIU from August 30, 2004 to September 2, 2008. It is clear from this correspondence that the Veteran misunderstood the August 2013 rating decision and could not recall a payment from VA in August 2004 for a TDIU. Indeed, the Veteran was paid retroactively (for the period of August 30, 2004 to September 2, 2008) for entitlement to a TDIU pursuant to the August 2013 rating decision that awarded a TDIU. See August 2013 Notification Letter (listing the monthly entitlement amount and payment start date). As such, the Veteran did not perfect the appeal with a timely Substantive Appeal as to the issue of entitlement to a TDIU (for the period other than August 30, 2004 to September 2, 2008); therefore, this issue is not in appellate status, and is not before the Board. In the February 2014 Substantive Appeal, the Veteran requested a Board hearing at a local VA office (Travel Board hearing). In a January 2017 correspondence, the Veteran withdrew the request for a Travel Board hearing; therefore, the appeal will proceed as the hearing request is considered to have been withdrawn. 38 C.F.R. § 20.702(e) (2016). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2014) and 38 C.F.R. § 20.900(c) (2016). The issue of a higher initial disability rating in excess of 20 percent for a 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. An initial claim for service connection for hypertension was received in May 2002. 2. In a March 2003 rating decision, service connection for hypertension was denied. 3. In January 2010, the Board denied the appeal of whether the Veteran filed a timely substantive appeal to the March 2003 rating decision denying service connection for hypertension and found that the March 2003 rating decision was final. The Veteran did not file a motion for reconsideration, did not file a motion to revise the January 2010 Board decision based on clear and unmistakable error (CUE), and did not appeal the January 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). 4. After the March 2003 rating decision (final disallowance), no application to reopen service connection for hypertension was received prior to May 12, 2004. CONCLUSION OF LAW The criteria for an effective date earlier than May 12, 2004 for service connection for hypertension are not met. 38 U.S.C.A. §§ 5107, 5110, 7105 (West 2014); 38 C.F.R. §§ 3.155, 3.400 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Effective Date Analysis for Service connection for Hypertension Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application thereof. 38 U.S.C.A. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for 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 the later. 38 C.F.R. § 3.400. In May 2002, the Veteran originally filed a formal claim for service connection for hypertension. In the March 2003 rating decision, the RO denied service connection for hypertension. The Veteran did not submit any new and material evidence with respect to this claim within the applicable one-year period. See 38 C.F.R. § 3.156(b); Jennings v. Mansfield, 509 F.3d 1362, 1368 (Fed. Cir. 2007). Nor have additional service records been received since the March 2003 rating decision; therefore, 38 C.F.R. § 3.156(c) does not apply. In January 2010, the Board denied the appeal of whether the Veteran filed a timely substantive appeal to the March 2003 rating decision denying service connection for hypertension, and concluded that the March 2003 rating decision, which denied service connection for hypertension, became final. 38 U.S.C.A. § 7105. The Veteran did not file a motion for reconsideration, did not file a motion to revise the January 2010 Board decision based on clear and unmistakable error, and did not appeal the January 2010 Board decision to the United States Court of Appeals for Veterans Claims (Court). As such, the January 2010 Board decision is final. 38 U.S.C.A. § 7104(b) (West 2014); 38 C.F.R. § 20.1100 (2016). As the January 2010 Board decision effectively rendered, as final, the March 2003 rating decision (that denied service connection for hypertension), the effect of such finality is to preclude an award of an effective date prior to this (March 2003) decision. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff'd, 349 F.3d 1326 (Fed. Cir. 2003); Flash v. Brown, 8 Vet. App. 332 (1995). Once a rating decision is final, only a request for a revision premised on CUE could result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("absent a showing of CUE, [the appellant] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("when a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."); Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). In this regard, in the January 2010 decision, the Board also remanded, for initial adjudication by the RO, the issue of whether there is CUE in the March 2003 rating decision that denied service connection for hypertension. In a March 2011 rating decision, the RO denied revision of the March 2003 rating decision based on CUE. Pursuant to a March 2011 Notice of Disagreement, the Veteran was provided a Statement of the Case in August 2013. The Veteran did not perfect the appeal with a timely Substantive Appeal; therefore, there is no outstanding request for a revision of the March 2003 rating decision premised on CUE. In this case, there simply is no legal authority for the Board to assign an earlier effective date, as the RO has already assigned the earliest possible effective date for the grant of benefits. As discussed in the January 2010 Board decision, the March 2003 rating decision is final and it is no longer the appropriate point from which to determine the effective date of an award. See Rudd, 20 Vet. App. at 296; 38 C.F.R. § 3.400. Indeed, in Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. As the Federal Circuit explained, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Id. at 248. After review of the record, the Board finds that there was no communication received prior to May 12, 2004 that established an informal or formal application to reopen the previously denied claim of service connection for hypertension. On May 12, 2004, the Veteran submitted a statement in which he mentioned that his doctor told him his cataracts will not improve because of the Veteran's diabetes, high blood pressure, and age. The RO liberally construed this statement as an informal claim to reopen service connection for hypertension. Service connection for hypertension was awarded in a December 2005 rating decision and the effective date assigned was May 12, 2004. The Veteran did not file an application seeking to reopen service connection for hypertension until May 12, 2004, the effective date for the award of service connection for hypertension. Although entitlement to the benefit may have arisen (i.e., hypertension may have arisen or begun) earlier than May 12, 2004, the request to reopen service connection was not received until May 12, 2004. The effective date will be the date of receipt of the claim to reopen, or the date entitlement arose, whichever is later. Because the application to reopen service connection for hypertension was not received until May 12, 2004, and the effective date can be no earlier than the claim to reopen, an earlier effective date for the grant of service connection for hypertension is legally precluded. Furthermore, to the extent that the Veteran complained of, or was treated for, hypertension prior to the effective date assigned, the Board notes that the date of a treatment record does not constitute an informal claim when service connection has not yet been established. See 38 C.F.R. § 3.157; Lalonde v. West, 12 Vet. App. 377 (1999). In cases such as this, where the law is dispositive and the case turns on undisputed facts regarding a prior final decision and the date of receipt of a claim to reopen, the appeal should be denied because of the absence of legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). ORDER An effective date earlier than May 12, 2004 for the award of service connection for hypertension is denied. REMAND A remand is required in this case to ensure that there is a complete record upon which to decide the Veteran's appeal of a higher initial rating for a back disability. VA has a duty to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2014); 38 C.F.R. § 3.159(c), (d) (2016). The Veteran last underwent a VA examination of the service-connected back disability in a December 2011 VA examination. The fact that a VA examination is nearly six years old is not a valid basis, unto itself, to provide the Veteran with another VA examination of the service-connected disability. In this case, however, since the last VA examination in December 2011, the Veteran has asserted that the service-connected back disability has worsened. Specifically, in a correspondence, via VA Form 9, received in September 2013, the Veteran stated that an MRI from 2012 indicated that the back disability has gotten worse and that surgery was suggested. In light of the specific assertion of worsening since the last VA examination (in December 2011), a VA examination should be obtained to assist in determining the severity of the service-connected back disability. See 38 C.F.R. § 3.159(c)(4); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (finding a veteran is entitled to a new examination where the veteran specifically alleged the disability had increased in severity since the last examination two years earlier); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the issue of a higher initial disability rating in excess of 20 percent for a back disability is REMANDED for the following actions: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Schedule the appropriate VA examination to assist in determining the current level of severity of the service-connected back disability. The relevant documents in the electronic file should be made available to, and be reviewed by, the examiner. A detailed history of relevant symptoms should be obtained from the Veteran. Range of motion testing, in degrees, should be performed. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the specific excursion(s) of motion, if any, accompanied by pain. The VA examiner is asked to test the ranges of motion of the back in active motion, passive motion, as well as in weight-bearing, and nonweight-bearing. If the VA examiner is unable to conduct the required testing, the VA examiner should explain why the required testing cannot be conducted. The extent of any incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during a flare-up, the VA examiner must explain why it is not feasible to render such an opinion. In short, the VA examiner should opine as to any resultant loss in range of motion that would occur during flare-ups, or explain why it is not feasible to render such an opinion. A rationale should be given for all opinions and conclusions rendered. The opinions should address the particulars of this Veteran's medical history and the relevant medical science as applicable to this claim. 2. After completion of the above and any additional development deemed necessary, readjudicate the issue of a higher initial rating for a back disability in light of all the evidence of record. If the determination remains adverse to the Veteran, he and the representative should be furnished with a Supplemental Statement of the Case. An appropriate period of time should then be allowed for a response before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ A. P. SIMPSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs