Citation Nr: 1800704 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 16-62 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to a rating in excess of 20 percent for a service-connected lumbar spine disability. 2. Entitlement to an effective date earlier than January 27, 2015, for the grant of service connection for a lumbar spine disability. 3. Entitlement to service connection for a bilateral lower extremity disorder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel INTRODUCTION The Veteran had active service in the Army from June 1979 to August 1979, May 1980 to September 1980, August 1985 to February 1990, and January 1991 to March 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The issues of entitlement to service connection for fibromyalgia, for a left wrist disorder, and for a cervical spine disorder have been raised by the record in a December 2016 VA Form 9 - Appeal to the Board of Veterans' Appeals, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). 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) (2012). The issue of entitlement to an increased rating for a lumbar spine disability is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's initial claim for service connection for a lumbar spine disability was received on January 27, 2015. 2. The Veteran is not shown to have a diagnosis of a bilateral lower extremity disorder. CONCLUSIONS OF LAW 1. The criteria for an effective date earlier than January 27, 2015, for the grant of service connection for a lumbar spine disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156, 3.400 (2017). 2. The criteria for service connection for a bilateral lower extremity disorder have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. §§ 3.303, 3.304 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, required notice was met, and neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009). Thus, adjudication of the claims at this time is warranted. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service treatment records (STRs), VA treatment records, and private treatment records have been obtained. Additionally, the Veteran was offered the opportunity to testify before the Board, but she declined. The Veteran was also provided VA examinations and neither she, nor her representative, has objected to the adequacy of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011). As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. Earlier Effective Dates The September 2015 rating decision granted the Veteran service connection for a lumbar spine disability. Service connection was assigned with an effective date of January 27, 2015, the date the claim for service connection for a lumbar spine disability was received by VA. The Veteran asserts that she is entitled to an earlier effective date. At the outset, it is important to consult the general rule for earlier effective dates for service connection, to determine if it allows the benefit sought. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement will be either the day following separation or the date entitlement arose. 38 U.S.C. § 5110 (b)(1). The Veteran asserts that she attempted to file a claim in May 1991, but was asked to leave the VA office as she was not in the system. However, the record contains no evidence that the Veteran attempted to file a claim in May 1991. If a claim is not received within a year of separation, VA regulations provide that the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C. § 5101 (a). A "claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). A review of the record shows that the first communication from the Veteran indicating an intent to apply for benefits for a lumbar spine disability was received on January 27, 2015. While the Veteran reported that she attempted to file a claim in May 1991, she did not actually file her claim for benefits until January 27, 2015. An intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Despite the fact that the Veteran's lumbar spine disability is clearly due to her active service, the date entitlement arose, she did not file a claim for service connection until January 27, 2015. As such, the date of receipt of claim is the later of the date of entitlement and the date of claim, and VA regulations dictate that the date of receipt of claim should be the effective date that is assigned. Accordingly, the claim for an effective date earlier than January 27, 2015, for the grant of service connection for a lumbar spine disability is denied. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran seeks service connection for a bilateral lower extremity disorder, which she asserts is due to her active service. The Veteran's STRs show that that in July 1979, she treated for bilateral lower extremity pain. X-rays of her hips were normal. At later physical examinations in August 1980, August 1984, January 1988, and September 1988, she had normal examinations of her lower extremities and denied having any lower extremity symptoms. At her March 1991 separation physical, she had a normal examination of her lower extremities and continued to deny having any lower extremity symptoms. As such, the Veteran's STRs do not show a diagnosis of a chronic lower extremity disorder. After her separation from service, the Veteran's treatment records do not show any complaints, symptoms, treatment, or diagnoses of a bilateral lower extremity disorder. In August 2015, the Veteran was afforded a VA examination for her bilateral lower extremities. After reviewing the Veteran's claims file, interviewing the Veteran, and conducting a physical examination, the examiner reported that the Veteran had no objective evidence of a bilateral lower extremity disorder. The Veteran has not submitted any medical evidence supporting her contention that she has a diagnosis of a bilateral lower extremity, or that any bilateral lower extremity disorder was due to or the result of her active service. As such, the record does not show any current diagnosis of a bilateral lower extremity disorder. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied "when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary's adjudication of the claim." McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Accordingly, the Board finds that the evidence is against the claim and entitlement to service connection for a bilateral lower extremity disorder is denied. ORDER An effective date earlier than January 27, 2015, for the grant of service connection for a lumbar spine disability is denied. Service connection for a bilateral lower extremity disorder is denied. REMAND Regarding the Veteran's increased rating claim for a lumbar spine disability, the Veteran was last afforded a VA examination in August 2015. However, in December 2016, she reported having increased lumbar spine disability symptoms. As such, a new spine examination is required. Accordingly, the case is REMANDED for the following action: (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 Veteran for a VA examination to determine the current nature and severity of her service-connected lumbar spine disability. In so doing, the examiner should ensure to the extent possible, consistent with 38 C.F.R. § 4.59, that the examination report include the results of the Veteran's active and passive motion, in addition to the results following repetitive motion testing. If it is not possible to complete any of the range of motion testing described above, it should be explained why. Failure to do so will result in an examination report being found inadequate. 2. Then readjudicate the appeal. If the claim remains denied, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate time for response. 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. §§ 5109B, 7112 (2012). ______________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs