Citation Nr: 1750104 Decision Date: 11/03/17 Archive Date: 11/13/17 DOCKET NO. 10-00 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to a rating in excess of 20 percent for low back strain. 2. Entitlement to an effective date earlier than March 29, 2016, for the grant of service connection for right lower extremity (RLE) radiculopathy. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from December 1965 to August 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from March 2010 and April 2016 rating decisions of the Philadelphia, Pennsylvania, Regional Office (RO) of the Department of Veterans Affairs (VA) and Appeals Management Center, respectively. The case is currently under the jurisdiction of the Buffalo, New York, RO. A Travel Board hearing was held in May 2013 before the undersigned Veterans Law Judge (VLJ). A copy of the transcript of that hearing is of record. The procedural history as to the current claims has been provided in previous Board decisions and will not be repeated here. It is noted, however, that the Board remanded the claims in April 2017 for additional evidentiary development, to include a contemporaneous lumbar spine examination. It was also remanded for due process reasons, to include the issuance of a statement of the case (SOC) as to the earlier effective date claim. During remand status and following the VA June 2017 examination regarding the low back, the RO, in a June 2017 rating action, proposed to reduce the disability rating for the low back disability from 20 percent to 10 percent. The Veteran was sent a letter in June 2017 informing him of the proposed reduction in rating. Review of the record as it currently stands does not include a rating action implementing this reduction. Thus, the claims are as listed on the title page of this decision. The case has now been returned to the Board for further appellate consideration. This appeal was processed using the Veterans Benefits Management System (VBMS). Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. In addition to the VBMS file, there is a Virtual VA paperless claims file associated with the Veteran's claims. The issue of entitlement to a rating in excess of 10 percent for low back strain is addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if additional action is required on his part. FINDING OF FACT The Veteran did not submit a claim of entitlement to service connection for RLE radiculopathy prior to VA examination on March 29, 2016; moreover, it was not factually ascertainable that the condition existed prior to that time. CONCLUSION OF LAW The criteria for an effective date earlier than March 29, 2016, for the award of service connection for RLE radiculopathy are not met. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an AOJ, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159 (2016); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Here, the Board notes that the request for an earlier effective date is a downstream issue from the grant of service connection for the underlying disability, which was initiated by a notice of disagreement (NOD). The United States Court of Appeals for Veterans Claims (Court) has held that, once a NOD from a decision establishing service connection and assigning the rating and effective date has been filed, the notice requirements of 38 U.S.C.A. §§ 5104 and 7105 (West 2014) control as to the further communications with the appellant, including as to what "evidence [is] necessary to establish a more favorable decision with respect to downstream elements...." Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). The Veteran has been provided the required statement of the case (SOC) discussing the reasons and bases for not assigning an earlier effective date and citing the applicable statutes and regulations. The Board also finds that all necessary development of the downstream earlier effective date claim has been accomplished, and, therefore, appellate review of this claim may proceed without prejudicing the Veteran. VA's duty to assist under the VCAA includes helping claimants obtain service treatment records (STRs) and other pertinent records, including private medical records (PMRs). See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2016). The claims file contains the Veteran's STRs, PMRs, and VA medical records (VAMRs). The duty to obtain relevant records is satisfied. See 38 C.F.R. § 3.159 (2016). An Effective Date Earlier than March 29, 2016, for the Grant of Service Connection for RLE Radiculopathy. The effective date of an award of service connection based on a claim received more than one year after a claimant's discharge from service will be the later of the date of receipt of claim or the date entitlement arose. 38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016). The Board notes that the Veteran did not separate from service for a physical disability. The Board concludes that 10 U.S.C.A. § 1218 is not applicable. See McGee v. Peake, 511 F.3d 1352, 1358 (Fed. Cir. 2008). A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2014); 38 C.F.R. § 3.151 (2016). A claim is 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) (2016). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). Background The Veteran was granted service connection for his low back disorder in a February 1999 rating action. In connection with his claim for an increased rating for that disorder, a VA examination was conducted on March 29, 2016. It was during this examination that the Veteran was initially noted to have RLE radiculopathy which was secondary to the service-connected low back disorder. Thus, although the Veteran had not filed a claim for this separate disorder, as the radiculopathy was identified as being secondary to the service-connected lumbar spine, service connection was inferred, and service connection was granted in an April 2016 rating decision. The effective date assigned was the date that the RLE radiculopathy was noted upon VA examination on March 29, 2016. In August 2016, the Veteran submitted a NOD with the March 29, 2016, date for grant of service connection ("start date for retro-paid"). He specifically requested a start date of November 22, 2010. Review of the record reflects that the Veteran's VA FORM 9 as to his increased rating claim was filed on that date. It was also at this time that the Veteran requested a hearing. Analysis Entitlement to an effective date earlier than March 29, 2016, is not warranted. As indicated, the Veteran never filed a claim for service connection for RLE radiculopathy. Instead, the condition was first noted upon VA examination, and the RO granted service connection for the condition as secondary to a service-connected low back disorder. The date for the grant of service connection was the date of the examination when the condition was first noted. The applicable criteria in this case state that the appropriate effective date for the award of service connection based on an original claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (2016). As no claim was filed prior to the date of the exam, and as RLE radiculopathy was not even diagnosed as a chronic disability until the March 2016 examination, the Veteran is already in receipt of the earliest possible effective date for the award of service connection for RLE radiculopathy. In this case, the Veteran has been afforded the earliest possible effective date and there is no legal basis to establish an effective date for the award of service connection earlier than the date of examination. Accordingly, the earlier effective date claim for RLE radiculopathy must be denied. See 38 U.S.C.A. § 5110(a) (West 2014); 38 C.F.R. § 3.400 (2016). ORDER Entitlement to an effective date earlier than March 29, 2016, for the grant of service connection for RLE radiculopathy, is denied. REMAND The claim for an increased rating was most recently before the Board in April 2017. The Board remanded the claim for a new examination which was conducted in June 2017. However, as discussed below, the Board finds that the new examination is inadequate for rating purposes and the appeal is remanded again. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks a higher rating for his service-connected spine disability. In April 2017, the Board remanded the Veteran's claim for a new VA examination, in part to determine the manifestations related to the service-connected back disability, to include joint testing for pain on both active and passive motion consistent with 38 C.F.R. § 4.59 (2016) as interpreted in Correia v. McDonald, 28 Vet. App. 158 (2016). Review of the resulting VA examination report from June 2017 reflects that the examiner failed to test the Veteran's range of motion (ROM) in active motion, passive motion, weight-bearing, and non-weight-bearing. The provisions of 38 C.F.R. § 4.59 (2016) create a requirement that certain ROM testing be conducted whenever possible in cases of joint disabilities. Correia, supra. The final sentence of §4.59 reads "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." Therefore, such testing should be completed on remand. Any pertinent treatment records should be obtained on remand. According to the most recent supplemental statement of the case (SSOC) issued in June 2017, the most recent treatment records considered are dated in June 2017. Accordingly, the case is REMANDED for the following action: 1. Obtain updated VA medical records dated from June 2017. 2. Then, schedule the Veteran for an appropriate VA examination to determine the manifestations and current level of severity of his service-connected lumbar/low back strain in accordance with the current disability benefits questionnaire. The electronic claims file must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must record all pertinent medical complaints, symptoms, and clinical findings in detail. With respect to ROM testing, this information must be derived from joint testing for pain on both active and passive motion and on weight-bearing and non-weight-bearing, consistent with 38 C.F.R. § 4.59 (2016) as interpreted in Correia. The examination report must confirm that all such testing has been performed and reflect the results of the testing. Additionally, if pain on ROM is demonstrated, the examiner must indicated at what point during the ROM he began to experience pain and whether there was functional loss as a result of that pain. The examiner must also opine as to whether pain could significantly limit functional ability during flare-ups or when the joint or muscle is used repeatedly over a period of time. If the testing cannot be conducted, the examiner must explain why. The examiner must provide an explanation for any opinions expressed. If the examiner is unable to provide the requested information, he/she must fully explain why this is so. 3. Upon completion of the foregoing, readjudicate the Veteran's claim on appeal based on a review of the entire evidentiary record. If the benefit sought on appeal remains denied, provide the Veteran and his representative with a supplemental statement of the case and the opportunity to respond thereto. Thereafter, the case should be returned to the Board for further appellate review, if otherwise 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). ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs