Citation Nr: 18141653 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-57 518 DATE: October 11, 2018 ORDER Entitlement to an effective date prior to February 4, 2008, for service connection for residuals of a T9 compression fracture and dorsal spondylosis, claimed as dorsal spine disability is denied. REMANDED Entitlement to an initial rating in excess of 20 percent disabling for residuals of a T9 compression fracture and dorsal spondylosis, claimed as dorsal spine disability is remanded. FINDINGS OF FACT 1. A final March 1999 rating decision denied service connection for a dorsal spine disability. 2. An informal claim to reopen the issue of service connection for residuals of a T9 compression fracture and dorsal spondylosis was received on February 4, 2008; there is no communication between the final March 1999 rating decision and the Veteran’s informal February 4, 2008 claim that constitutes a formal or informal claim for service connection for a back disability. CONCLUSIONS OF LAW 1. The March 1999 rating decision that denied service connection for a dorsal spine disability is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2018). 2. The criteria for an effective date prior to February 4, 2008 for service connection for residuals of a T9 compression fracture and dorsal spondylosis, claimed as dorsal spine disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Entitlement to an effective date prior to February 4, 2008 for service connection for residuals of a T9 compression fracture and dorsal spondylosis, claimed as dorsal spine disability. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an original claim; a claim reopened after final disallowance; or a claim for increase, will be the date of receipt of the claim, or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) and (b)(2); 38 C.F.R. § 3.400(o)(1). The Veteran requests an effective date prior to February 4, 2008, for the grant of service connection for residuals of a T9 compression fracture. In an April 2015 rating decision, the AOJ granted service connection for residuals of a T9 compression fracture and dorsal spondylosis with an effective date of February 4, 2008 – the date the Veteran’s claim was received. The Veteran filed a January 2016 Notice of Disagreement indicating that his residuals had an entitlement date of November 11, 1994, “right out of active duty.” By way of history, the Veteran was initially denied service connection for a dorsal spine disability in a March 1999 rating decision. The Veteran did not disagree with the decision within one year, nor did he submit new and material evidence within one year of this decision. Therefore, the March 1999 rating decision became final. Thereafter, the first communication that can be construed as a claim for service connection for a dorsal spine disability was received by the VA on February 4, 2008. As noted above, pursuant to 38 C.F.R. § 3.400, the effective date for an award of compensation based on a claim reopened after a final disallowance will be “the date of receipt of the claim or the date entitlement arose, whichever is later.” The Board acknowledges the Veteran’s claim that service connection for his back disability should date back to his active service. However, even assuming that entitlement arose at time of separation from service, the law mandates that the effective date shall be the later of the date entitlement arose or the date that the claim was received following a previous disallowance. For these reasons, the appeal for an earlier effective date for the award of service connection for T9 compression fracture and dorsal spondylosis must be denied. REASONS FOR REMAND Entitlement to an initial rating in excess of 20 percent disabling for residuals of a T9 compression fracture and dorsal spondylosis, claimed as dorsal spine disability. The Veteran was last provided a VA examination in conjunction with his service-connected dorsal spine disability in September 2014. The Court of Appeals for Veterans Claims (Court) held in Correia v. McDonald, 28 Vet. App. 158 (2016), that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. As the previous examination report does not fully satisfy the requirements of Correia and 38 C.F.R. § 4.59, a new examination is necessary to decide the increased rating claim. An additional relevant opinion pertaining to flare-ups was also issued by the Court in Sharp v. Shulkin, 29 Vet. App. 26 (2017). The matters are REMANDED for the following action:  1. Schedule the Veteran for an appropriate VA examination to evaluate the service-connected residuals of a T9 compression fracture and dorsal spondylosis. The Veteran’s claims folder must be reviewed by the examiner. (a) In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain, and the degree at which pain begins. (b) Pursuant to Correia v. McDonald, the examination should record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. If the back cannot be tested on “weight-bearing,” then the examiner must specifically indicate that such testing cannot be done. (c) The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups assessed in terms of the degree of additional range of motion loss. In regard to flare-ups (pursuant to Sharp v. Shulkin, 29 Vet. App. 26 (2017)) if the Veteran is not currently experiencing a flare-up, based on relevant information elicited from the Veteran, review of the file, and the current examination results regarding the frequency, duration, characteristics, severity, and functional loss regarding his flares, the examiner is requested to provide an estimate of the Veteran’s functional loss due to flares expressed in terms of the degree of additional range of motion lost, or explain why the examiner cannot do so. [The Board recognizes the difficulty in making such determinations but requests that the examiner provide his or her best estimate based on the examination findings and statements of the Veteran.] TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel