Citation Nr: 1754720 Decision Date: 11/29/17 Archive Date: 12/07/17 DOCKET NO. 09-30 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE Entitlement to an earlier effective date, prior to September 29, 2006, for the grant of service connection for degenerative disc disease of the lumbar spine. REPRESENTATION Veteran represented by: Mary Ann Royle, Attorney at Law ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran had active service from July 1970 to March 1972. This matter comes to the Board of Veterans' Appeals (Board) from a February 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Board denied entitlement to an earlier effective date, prior to September 29, 2006, for the grant of service connection for degenerative disc disease of the lumbar spine. The Veteran appealed to the United States Court of Appeals for Veterans Claims (the Court). In May 2017, the Court issued a memorandum decision vacating the Board's decision and remanding it for readjudication consistent with that decision. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. The evidence is in equipoise as to whether as of January 22, 1973, the Veteran had a pending informal claim for entitlement to service connection for a low back disorder. 2. The evidence is in equipoise as to whether entitlement to service connection for degenerative disc disease of the lumbar spine arose the day following separation from active service. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the criteria for an assignment of an effective date of March 5, 1972, for the grant of service connection for degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 511, 5107, 5101, 5110 (West 2014); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Governing law and regulations The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award of compensation based on an original claim shall be fixed in accordance with facts found but shall not be earlier than the date of receipt of application therefor. See 38 U.S.C.A. § 5110(a). The implementing VA regulation provides that the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(a). The effective date for an award of service connection for a disability shall be the day following separation from active service or date entitlement arose if the claim was received within one year after separation from service; otherwise, the effective date shall be date of receipt of claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran that may be interpreted as applications or claims - formal and informal - for benefits. In particular, VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 511(b)(2); 38 C.F.R. §§ 3.1(p), 3.155(a); Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means 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). Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such 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 from the date it was sent to a veteran, it will be considered filed as of the date of receipt of the informal claim. When a claim has been filed that meets the requirements of 38 C.F.R. §§ 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155. Analysis In February 2012, the Board granted service connection for a low back disability. Later in the February 2012 rating decision implementing that Board decision, the RO assigned an effective date of September 29, 2006, for the grant of service connection for degenerative disc disease of the lumbar spine. In March 2016, the Board denied entitlement to an earlier effective date, prior to September 29, 2006, for the grant of service connection for degenerative disc disease of the lumbar spine. In May 2017, the Court issued a memorandum decision vacating the Board's decision and remanding it for readjudication consistent with that decision. The Veteran's counsel argues that the effective date should be March 5, 1972, the day following separation from active duty, because the Veteran filed a claim for service connection for a low back disorder in 1973 and within one year of separation from active service. The counsel argues that a January 1973 VA Form 21-2507 (request for physical examination) and a February 1973 VA examination report reveal that the Veteran had filed a claim of entitlement to service connection for a low back disorder. A January 22, 1973, VA Form 21-2507 shows that a VA examination was to be scheduled for low back pain based on an original claim for service connection. The February 1973 examination report reflects that "[t]his is an original examination for service-connected disability." In its memorandum decision, the Court notes that the January 1973 request for physical examination and the February 1973 VA orthopedic examination reasonably raises the possibility that the Veteran did in fact file a claim for benefits for a back disability. The Court stated that at a minimum the Board should have explained why evidence that VA ordered a service-connection examination for a low back disability weighs against a finding that the Veteran filed a claim for benefits for that disorder. The Board has reviewed the record to determine whether any communication to VA made by or on behalf of the Veteran prior to September 29, 2006, which could be construed as a claim for service connection for a low back disorder. See Servello v. Derwinski, 3 Vet. App. 196, 198- 200 (1992); see also EF v. Derwinski, 1 Vet. App. 324, 326 (1991) (noting that VA must liberally construe all documents filed by a claimant in order to determine, or even to infer, what claims have been filed). The Veteran did not claim entitlement to service connection for a low back disorder in his September 1972 formal claim, and there is no formal claim for a low back disorder dated prior to September 2006. Although a December 1972 VA Form 23-8386 (request for information and assistance) notes that the Veteran filed a compensation claim in May 1972, that form does not indicate the nature of that claim that was supposedly filed several months prior to the September 1972 claim for hearing loss. In a March 1973 rating decision, the RO did not adjudicate a claim for a low back disorder. While there was no formal claim received in or earlier than January 1973, the RO nonetheless undertook development in early 1973 on a purported claim of entitlement to service connection for low back strain. This development by the RO suggests that there was a communication or action from the Veteran indicating an intent to file a claim of entitlement to service connection for a low back disorder. If, as this development suggests, the Veteran had filed an informal claim that is not of record, VA should have provided the Veteran an application form for him to file his formal claim of entitlement to service connection for a low back disorder. Given the conflicting evidence, the Board finds that the evidence is in equipoise as to whether as of January 22, 1973, the Veteran had a pending informal claim for entitlement to service connection for a low back disorder. Given that there was no development initiated by the RO regarding sending the Veteran an application form for a formal claim in the time period between January 22, 1973, and September 29, 2006, when the Veteran submitted a formal claim on his own initiative, the date of claim is January 22, 1973, or earlier. The Veteran was discharged on March 4, 1972. Therefore, the Veteran had a pending claim filed within one year of separation from active service. The remaining matter is what is the date that entitlement arose. The February 1973 VA examination report reflects that X-rays showed normal disc spacing with no arthritic or disc degenerative disease and that the diagnosis was history of chronic low back strain. A June 2012 statement from a private doctor reiterates that doctor's previous opinion in a June 2011 statement that the Veteran's lumbar degenerative spondylosis was in part related to his service-connected activities, starting with an injury in 1970. The June 2011 statement was the basis of the Board's grant of service connection for a low back disability in its February 2012 decision. The Board noted that the doctor concluded that the 1970 injury was the initiating cause of the current low back disorder. Based on the private doctor's statement, the Board finds that the evidence is in equipoise as to whether the date of entitlement of service connection for degenerative disc disease of the lumbar spine arose the day following separation from active service. In conclusion, for reasons stated above, the Board finds that the effective date for the grant of service connection for degenerative disc disease of the lumbar spine is March 5, 1972. The benefit sought on appeal, entitlement to an earlier effective date, is accordingly granted. ORDER Entitlement to an effective date of March 5, 1972, for the grant of service connection for degenerative disc disease of the lumbar spine is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs