Citation Nr: 1753380 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-32 628 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUE Entitlement to an effective date earlier than May 31, 2011, for the grant of service connection for lumbosacral degenerative disc disease, status post L5 laminectomy. REPRESENTATION The Veteran represented by: AMVETS WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Franke, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Marine Corps from September 1968 to July 1970, during which, among other decorations, he was awarded the Combat Action Ribbon. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In January 2015, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. An earlier RO hearing was also held. Transcripts of both hearings are associated with the file. This matter was remanded in June 2015. This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager Documents (LCMD) (formerly Virtual VA) electronic claims files. FINDINGS OF FACT 1. The July 1974, the Board denied service connection for a low back disorder. 2. The Veteran applied to reopen a claim for service connection for a low back disorder on May 31, 2011. Service connection was subsequently granted by the RO on the basis of new and material evidence being received. 3. The evidence of record fails to reflect a basis for awarding an effective date prior to May 31, 2011 for the grant of service connection for lumbosacral degenerative disc disease, status post L5 laminectomy. CONCLUSION OF LAW The criteria for an effective date prior to May 31, 2011 for the grant of service connection for lumbosacral degenerative disc disease, status post L5 laminectomy, have not been met. 38 U.S.C. §§ 1110, 5107, 5110 (West 2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) provides that VA will notify the Veteran of the need of necessary information and evidence and assist him or her in obtaining evidence necessary to substantiate a claim, as well as obtaining a medical examination or opinion of the Veteran's disability when necessary. 38 U.S.C. § 5103 (a); 38 C.F.R. § 3.159 (b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA has assisted the Veteran in obtaining evidence to the extent possible, in collecting service treatment records, arranging examinations and obtaining opinions. The Board notes that, although its previous remand directed that the rating decision which increased the Veteran's rating from 10 percent to 40 percent be found and associated with the claims file, it is as of yet still not of record and appears to be unavailable. Nonetheless, the findings supporting the increased rating have been explained adequately and in some detail in the August 2013 Supplemental Statement of the Case (SSOC). Reference to the missing rating decision is not in fact germane to the issue now before the Board and there appears to be in no way any prejudice to the Veteran. See Stegall v. West, 11 Vet. App. 268 (1998). Therefore, the Board finds that that there has been substantial compliance with the directives of its previous remand. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Lay Evidence Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran's Assertions The Veteran contends essentially that he did not have a back injury prior to service, he was inducted and presumed sound, injured his back during service, submitted medical documents indicating treatment directly after service, and underwent back surgery two years after service. He therefore asserts that his grant of service connection should be effective prior to May 31, 2011. Facts and Analysis Service connection for a low back disorder was denied by the Board in July 1974. That decision is final. There has been no request to Reconsider that decision, nor has there been any contention that there was clear and unmistakable error in the decision. The RO reopened the Veteran's claim in an April 2013 rating decision, based on new and material evidence, and granted service connection at 10 percent, effective May 31, 2011. This was the date of the application to reopen the claim. As noted the RO has treated the Veteran's May 31, 2011 Statement in Support of Claim as a request to reopen his claim for back disorder. The April 2013 rating decision reopened the claim, based on new and material evidence and granted service connection at 10 percent, effective May 31, 2011. An effective date for a reopened claim of entitlement to service connection can be no earlier than the date the request to reopen the claim was filed. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (r). See also Comer v. Peake, 552 F.3d 1362, 1370 (Fed. Cir. 2009) ("The earliest effective date for an award based on a veteran's request to reopen a final decision based on new and material evidence is generally the date that the application to reopen was filed"). The clear contention of the Veteran is that the effective date should be based on the date entitlement arose and, based on his argument, that should be as far back as the in-service injury. The regulations make clear that whether the grant of service connection was based on a claim or an application to reopen, the effective date is the date of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(ii), (r). Indeed, the RO could not do other than assign the current effective date as the date of receipt of the claim to reopen from which this appeal stems. There is no provision in either the statute or the regulations that allows for an earlier effective date based on a reopened claim unless a clear and unmistakable error was committed in a prior decision or unless the new and material evidence resulted from receipt of additional relevant military records. 38 U.S.C. § 5110 (i); 38 C.F.R. §§ 3.105, 3.156(c). Neither the Veteran nor his representative has presented an argument that clear and unmistakable error was committed in the earlier final decision, nor have they presented an alternative legal theory as the basis for an earlier effective date. For the reasons stated, the Board finds that an effective date prior to May 31, 2011, for the grant of service connection for lumbosacral degenerative disc disease, status post L5 laminectomy, is not warranted under 38 C.F.R. § 3.400. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. The preponderance of the evidence is against the claim, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. ORDER Entitlement to an effective date earlier than May 31, 2011, for the grant of service connection for lumbosacral degenerative disc disease, status post L5 laminectomy, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs