Citation Nr: 1805193 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 13-06 895 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for the service-connected lumbar strain. 2. Entitlement to an effective date prior to June 29, 2009, for the award of service connection for lumbar strain, to include on the basis that failure to grant service connection for this disability in an October 1987 decision constituted clear and unmistakable error (CUE). 3. Entitlement to a total disability rating based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD R. Dodd, Counsel INTRODUCTION The Veteran had active military service in the U.S. Army from August 1980 to August 1984. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. The Veteran provided hearing testimony before the undersigned in October 2016. A transcript of the hearing is a part of the record before the Board. These claims were previously before the Board in March 2017, at which time they were remanded for additional development. That development having been completed, these claims are once again before the Board. 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 issues of entitlement to an increased initial evaluation for lumbar strain and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The October 9, 1987, RO administrative decision was supported by the evidence then of record and it is not shown that the applicable statutory and regulatory provisions were incorrectly applied. 2. On June 1985, the RO received the Veteran's claim for entitlement to service connection for a back condition. The RO denied the Veteran's claim in an October 1987 administrative decision. The Veteran did not provide any additional evidence or intention to appeal within one year and the administrative decision was finalized in October 1988. 3. The Veteran filed a claim to reopen in April 1996. The RO denied the Veteran's claim in a September 1996 rating decision. The Veteran did not provide any additional evidence or intention to appeal within one year and the administrative decision was finalized in September 1997. 4. The Veteran filed a claim to reopen in February 2002. The RO reopened the Veteran's claim, but denied it on the merits in an August 2002 rating decision. The Veteran then appealed this decision and it was also reopened, but denied on the merits by the Board in January 2007. The Veteran did not provide any additional evidence or intention to appeal within one year and the Board decision was finalized in January 2008. 5. The Veteran filed a claim to reopen in June 2009. The RO reopened the Veteran's claim and granted service connection on the merits effective June 29, 2009, the date of the claim to reopen. 6. There is no earlier communication than June 29, 2009 since the last final decision of record, via the January 2007 Board decision, contained in the claims file from the Veteran showing evidence of an intention to file a claim to reopen for his back disability. CONCLUSIONS OF LAW 1. Clear and unmistakable error is not shown in the October 9, 1987, RO administrative decision. 38 U.S.C. § 7111 (2012); 38 C.F.R. §§ 20.1400 -20.1411 (2017). 2. The criteria for an effective date earlier than June 29, 2009 for the grant of service connection for lumbar strain are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.159, 3.400(r) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Legal Criteria CUE Clear and unmistakable error (CUE) is a very specific and rare kind of error; it is the kind of error of fact or law, that when called to the attention of later reviewers compels the conclusion to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See, e.g., Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Allegations of CUE must be raised with sufficient particularity. See Phillips v. Brown, 10 Vet. App. 25 (1997). To establish CUE in a prior, final decision, all three of the following criteria must be met: (1) either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied; (2) the error must be undebatable; and (3) the error must be of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made. See Stallworth v. Nicholson, 20 Vet. App. 482, 487 (2006); Damrel, supra; Russell, supra. Additionally, 38 C.F.R. § 20.1403 (d) gives examples of situations that are not CUE. CUE is not a: changed medical diagnosis; failure to fulfill the duty to assist; disagreement as to how the facts were weighed or evaluated; change in interpretation of a statute or regulation. 38 C.F.R. § 20.1403 (c) also indicates that, where it is not absolutely clear that a different result would have ensued, but for the error, the error complained of cannot be CUE. The benefit of the doubt provisions of 38 U.S.C. § 5107 (b) are inapplicable in CUE. See 38 C.F.R. § 20.1411 (a). In fact, the moving party bears the burden of presenting specific allegations of error that would amount to CUE. Thus, for a moving party to make a successful CUE showing is an extremely difficult burden. Earlier Effective Date The effective date of an award of compensation based on original claim (received beyond one year after service discharge) or a claim reopened after final adjudication (such as the claim in this case) shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application thereof. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Effective on March 24, 2015, 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 the Secretary. See 38 U.S.C.A. § 5101(a). However, prior to that date, a "claim" was defined as "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). An informal claim was "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). VA was to look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). If VA failed to forward an application form to the claimant after receipt of an informal claim, then the date of the informal claim was accepted as the date of claim for purposes of determining an effective date. Id. at 200. Analysis CUE In October 9, 1987, the RO denied the Veteran's claim of entitlement to service connection for a back condition. The RO denied such in an administrative decision because the Veteran failed to appear for a VA examination or otherwise demonstrate any further intention to prosecute his claim. The Veteran did not file any appeal to such decision, despite having up to one year from the date of such to do so. As such, the October 1987 administrative decision was finalized in October 1988. Therefore, the decision is final absent a showing of CUE. The Veteran specifically has argued that he believes the October 1987 decision was the product of a CUE because the facts that were in existence at the time of the July 2011 rating decision that granted service connection for lumbar strain were also in existence at the time of the October 1987 administrative decision that denied service connection. However, the Veteran has not more particularly provided an indication of the exact evidence of which he alleges was before the RO at the time of the October 1987 administrative decision. After a thorough review of the Veteran's claims file, the Board finds that the Veteran's contentions are without merit and his motion for a finding of CUE in the October 9, 1987 administrative decision must be denied. In this regard, the Board notes that the evidence that was contemporaneously before the RO at the time of the October 1987 decision consisted of the Veteran's statements that he suffered from a back condition and service treatment records showing treatment for complaints of back pain and limitation of motion. It is noted that the Veteran was scheduled to report for a September 1987 VA examination in May 1987. In a September 1987 memorandum, it was noted that the Veteran failed to report. Therefore, at the time of the October 1987 administrative decision, the RO only had evidence of the Veteran's service treatment records and his lay statements. At the time of the July 2011 rating decision, however, the RO had before it, in addition to the aforementioned service treatment records and lay statements, outpatient treatment records showing treatment for a current low back disability beginning in 2002 as well as the results of a June 2011 VA examination with a favorable medical opinion linking the Veteran's current condition to his service - an essential element necessary to grant service connection under the law. Because the RO finally had before it, not only evidence of in-service complaints and uncorroborated lay statements of a current disability, but also medical evidence corroborating a current disability and medical evidence of a connection between the two, the RO was able to grant service connection. The evidence in existence at the time of the October 1987 administrative decision was incomplete and did not form an appropriate basis at that time for a grant of service connection. As such, the Board does not agree with the Veteran's argument that the same facts were before the RO in October 1987 as were in July 2011. The Board can find no indication of any such evidence - specifically medical evidence of a diagnosis and a medical opinion linking the current disability to that diagnosis - that has been broadly asserted by the Veteran in this manner. Ultimately, the point of divergence in the Veteran's motion appears to be in relation to how the RO interpreted the facts, or rather lack thereof, that were before it and not any actual misapplication or non-consideration of the facts, as they were known at the time. 38 C.F.R. § 20.1403 (d) provides that CUE is not a disagreement as to how the facts were weighed or evaluated. It appears that the RO did have the correct facts before it, but merely arrived at its conclusion because the Veteran's claim was incomplete. As such, any disagreement as to how the facts were weighed or evaluated is found to not warrant consideration of any error within the context of the motion for CUE. No other errors have been specifically alleged. There is no showing of an undebatable or outcome determinative error in the October 9, 1987 administrative decision. Thus, the Board finds there has been no showing of clear and unmistakable error in the October 9, 1987 administrative decision; the determination is final. Earlier Effective Date The Veteran contends that an effective date earlier than June 29, 2009, for the grant of service connection for lumbar strain is warranted. In this regard, he contends that he should be afforded compensation for the period of time prior to his June 29, 2009 grant of service connection for the fact that he has complained of a back condition since leaving military service. Historically, the Veteran initially filed a claim for service connection for his back in June 1985. The RO denied the Veteran's claim in an October 1987 administrative decision. The Veteran did not appeal that decision. Applicable law provides that an RO decision which is unappealed becomes final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. Once a decision becomes final, new and material evidence is required to reopen the claim which was denied. As the Veteran did not provide any additional evidence or intention to appeal within one year, the administrative decision was finalized in October 1988. The Veteran then filed a claim to reopen in April 1996. The RO denied the Veteran's claim in a September 1996 rating decision. The Veteran did not provide any additional evidence or intention to appeal within one year and the administrative decision was finalized in September 1997. The Veteran then filed a claim to reopen in February 2002. The RO reopened the Veteran's claim, but denied it on the merits in an August 2002 rating decision. The Veteran then appealed this decision and it was also reopened, but denied on the merits by the Board in January 2007. The Veteran did not provide any additional evidence or intention to appeal within one year and the Board decision was finalized in January 2008. In a correspondence received by VA on June 29, 2009, the Veteran again initiated a claim to reopen the previously denied claim for his lower back. The RO initially denied reopening the Veteran's claim in an April 2010 rating decision. The Veteran then requested reconsideration in a January 2011 correspondence. By a July 2011 rating decision, the RO reopened the Veteran's claim and, after developing the claim and obtaining a positive VA examination nexus opinion, granted service connection for lumbar strain with an evaluation of 20 percent effective June 29, 2009, the date of the claim to reopen. The Veteran then filed a notice of disagreement (NOD) on March 2012, was provided a statement of the case (SOC) on January 2013, and perfected his appeal with the timely submission of a VA Form 9 (Substantive Appeal) on March 2013. The present appeal, thus, stems from the Veteran's June 29, 2009 claim. Because the Veteran's June 2009 claim was a claim to reopen, he is entitled to the later of these dates: the date of claim or the date entitlement arose. 38 C.F.R. § 3.400(r). Here, the date the entitlement arose, which would have been the first documented manifestations of his current lumbar strain post service with his first complaints in 1985 in conjunction with his initial claim or at the very least in 2002 when he first sought medical treatment for his complaints, was clearly prior to his June 2009 claim to reopen. Therefore, the later date of the date of claim versus the date entitlement arose is the date of claim, as the Veteran "by definition had an entitlement to benefits that existed before the date of the relevant application to reopen." Accordingly, June 29, 2009 is the appropriate effective date for the Veteran's claim in accordance with 38 C.F.R. § 3.400(r). The Board has reviewed the claims file and found no evidence of communications dated prior to the June 29, 2009 claim after the final January 2007 Board decision. The Board must read a Veteran's claim and documents in a liberal manner to identify and adjudicate all reasonably raised claims. A review of the record in this case does not show that the Veteran expressly raised a claim to reopen service connection for a low back condition prior to the claim received on June 29, 2009 after the final January 2007 Board decision. Nor does the record indicate a claim that could be reasonably construed as a reopened service connection claim for a low back condition prior to June 29, 2009 after the January 2007 Board decision. The Board concludes that the Veteran's June 29, 2009 claim to reopen was the first attempt to notify VA that he was seeking to reopen a claim for service connection for a low back condition since the January 2007 Board decision. See Bastien v. Shinseki, 599 F.3d 1301, 1306 (Fed. Cir. 2010). In summary, the Board concludes that an effective date earlier than June 29, 2009, for a grant of service connection for lumbar strain is not warranted. While the Board understands the Veteran's contention that the back disability he has now is the same back disability he had at the time of his first claim in 1985, the facts of this case are not in dispute. The law requires evidence of an in-service event or occurrence, evidence of a current disability, and evidence of a nexus or connection between the two in order to grant service connection. Until his 2009 claim, all three of those elements had not been met. ORDER Entitlement to an effective date prior to June 29, 2009, for the award of service connection for lumbar strain, to include on the basis that failure to grant service connection for this disability in an October 1987 decision constituted a CUE, is denied. REMAND With respect to the Veteran's claim for an increased evaluation for the lumbar spine, the Board notes that evidence has been associated with the record after the issuance of the last supplemental statement of the case (SSOC) in October 2017. In this regard, it appears that the RO independently developed evidence that is relevant to the Veteran's claims by virtue of recently obtained VA outpatient treatment records. These records, that appear to have been obtained and associated with the claims file in November 2017, detail the Veteran's treatment for his lumbar spine since treatment shown in his last October 2017 SSOC, which only shows treatment up to his April 2017 VA examination. In particular, such records detail that the Veteran has complained of worsening pain. As such, the Board finds that these records are pertinent to the Veteran's claims. The Board observes that that section 501 of the Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, which amends 38 U.S.C. § 7105 by adding new paragraph (e), has addressed new procedures for claims in which new evidence was received after the last SSOC without a waiver of AOJ consideration. Under that provision, if new evidence is submitted with or after a Substantive Appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. Therefore, such claims should not be remanded solely for consideration of such new evidence without a request from the Veteran. In this case, the Veteran's appeal was perfected on March 2013, after the February 2, 2013 date, and thus, this provision would normally be applicable to the instant case. However, VA has not interpreted the aforementioned amendment to extend to evidence that was not submitted by the Veteran, such as evidence that was suggested by a submission, but gathered separately pursuant to the duty to assist. The Veteran did not submit the evidence in question (i.e. the VA outpatient treatment records). Rather, this evidence was developed by VA based upon its duty to assist. The appellate scheme set forth in 38 U.S.C. § 7104 (a) (2012) contemplates that all evidence will first be reviewed at the RO so as not to deprive the claimant of an opportunity to prevail with his claim at that level. See generally Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). When the agency of original jurisdiction receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the statement of the case or a supplemental statement of the case, it must prepare a SSOC reviewing that evidence. 38 C.F.R. § 19.31 (b)(1). Further, as in the instant case, when evidence is received prior to the transfer of a case to the Board a SSOC must be furnished to the veteran, and his or her representative, if any, as provided in 38 C.F.R. § 19.31 unless the additional evidence is duplicative or not relevant to the issue on appeal. 38 C.F.R. § 19.37 (a). There is no legal authority for a claimant to waive, or the RO to suspend, this requirement. 38 C.F.R. § 20.1304 (c). Moreover, in its prior remand, the Board specifically directed the AOJ to consider all additional evidence received since the last SSOC and provide the Veteran and his representative with a new SSOC. As such, in order to afford the Veteran his full procedural rights, on remand, the AOJ must consider and address all of the evidence of record including previously obtained VA and treatment records in an appropriate SSOC. See 38 C.F.R. § 19.31. Additionally, it is noted that the Veteran submitted to a VA examination in April 2017 as directed by the March 2017 Remand. However, the Veteran refused to complete range of motion testing at that time due to a recent injury to his back. Because such range of motion testing would be highly relevant to the evaluation of the Veteran's disability in light of the applicable rating criteria and because it appear that the Veteran would have complied, but for his recent injury, the Board finds that the Veteran should be afforded another opportunity to submit to a VA examination. This would also be particularly relevant in light of the Veteran's assertion that his back was further injured and affected his range of motion. Furthermore, in this regard, the Board observes that a new precedential opinion that may impact this case was issued by the Court. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities. The final sentence provides that "[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." The Court found that, to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59. In this case, the examination forms used in the administration of the Veteran's last VA examination in 2014 appears to have used a format that did not contain any discussion of these presentations as appear to have been contemplated by the holding in Correia. Accordingly, the Veteran should be afforded a new VA examination for the lumbar spine to comply with this case. As to the issue of entitlement to a TDIU, the claim being remanded herein, entitlement to an increased evaluation for lumbar strain, is inextricably intertwined with the Veteran's claim for a TDIU. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The issue on remand must be addressed by the agency of original jurisdiction before the Board renders a decision on the TDIU, as such outcome will affect whether the Veteran's entitlement is thus warranted. Additionally, as this case must be remanded for the foregoing reasons, any recent VA records should also be obtained. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (c) (2017); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992). Accordingly, the case is REMANDED for the following action: (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. Appropriate efforts must be made to obtain all available VA treatment records that have not already been associated with the record. 2. Thereafter, schedule the Veteran for an appropriate VA examination to evaluate the service-connected lumbar strain. The electronic record should be made available to the examiner. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner should conduct range of motion testing of the lumbar spine (expressed in degrees) in active motion, passive motion, weight-bearing and nonweight-bearing. The examiner should note the point at which pain begins in the range of motion. The examiner should also render specific findings as to whether, during the examination, there is objective evidence of pain on motion, weakness, excess fatigability, and/or incoordination associated with the lumbar spine. If pain on motion is observed, the examiner should indicate the point at which pain begins. In addition, the examiner should indicate whether, and to what extent, the Veteran experiences likely functional loss of the lumbar sprain due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. Any opinions expressed in the report should be fully explained. 3. After completing the above actions, the Veteran's claims should be readjudicated on the merits based on the entirety of the evidence, to include all evidence received since the issuance of the October 2017 SSOC. If the claims remain denied, the Veteran and his representative should be issued a SSOC. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the 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. §§ 5109B, 7112 (2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs