Citation Nr: 18142552 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-31 819 DATE: October 17, 2018 ORDER Entitlement to an effective date, prior to December 23, 2014, for the grant of service connection for degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine with intervertebral disc syndrome (IVDS) is denied. Entitlement to an effective date, prior to December 23, 2014, for the grant of service connection for sciatic radiculopathy of the left lower extremity, to include as secondary to the lumbar spine disability is denied. Entitlement to an effective date, prior to December 23, 2014, for the grant of service connection for sciatic radiculopathy of the right lower extremity, to include as secondary to the lumbar spine disability is denied. FINDINGS OF FACT 1. The Veteran’s initial claim of entitlement to service connection for a low back disability was denied in an August 1996 rating decision. He submitted a timely notice of disagreement (NOD) in October 1996. In the same month, the RO issued a statement of the case (SOC), which continued the denial of entitlement to service connection for a low back disability. The Veteran did not submit a timely substantive appeal. 2. On December 23, 2014, the Veteran submitted a claim of entitlement to service connection for a back disability. 3. The record does not contain evidence that a claim of entitlement to service connection for a back disability was filed after 1996 and before December 23, 2014. 4. The record does not contain evidence that a claim of entitlement to service connection for sciatic radiculopathy of the left lower extremity was filed before December 23, 2014. 5. The record does not contain evidence that a claim of entitlement to service connection for sciatic radiculopathy of the right lower extremity was filed before December 23, 2014. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date, prior to December 23, 2014, for the grant of service connection for DDD and DJD of the lumbar spine with IVDS have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2017). 2. The criteria for entitlement to an effective date, prior to December 23, 2014, for the grant of service connection for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2017). 3. The criteria for entitlement to an effective date, prior to December 23, 2014, for the grant of service connection for sciatic radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.156, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to May 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. Duties to Notify and Assist As a preliminary matter, the Board has reviewed the electronic claims file and finds there exist no deficiencies in VA’s duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159/ (b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). Entitlement to an effective date, prior to December 23, 2014, for the grant of service connection for DDD and DJD of the lumbar spine with IVDS, and sciatic radiculopathy of the left and right lower extremities. The Veteran seeks an effective date prior to December 23, 2014, for the grant of service connection for the above listed claims. The Veteran’s initial claim of entitlement to service connection for a low back disability was denied in an August 1996 rating decision. He submitted a timely NOD in October 1996. In the same month, the RO issued a SOC, which continued the denial of entitlement to service connection for a low back disability. The Veteran did not submit a timely substantive appeal for this claim. On December 23, 2014, the Veteran again filed a claim of entitlement to service connection for a back disability. Eventually, in an April 2015 rating decision, the Veteran’s claim of entitlement to service connection for a low back disability and sciatic radiculopathy of the left and right lower extremities associated with the Veteran’s low back disability was granted, effective December 23, 2014. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation (DIC) 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. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If a claim for disability compensation, i.e., service connection, is received within one year after separation from service, the effective date of entitlement is the day following separation from service, or else, it is (at the earliest) whenever the Veteran eventually filed a claim. 38 U.S.C. § 5110 (a), (b); 38 C.F.R. § 3.400 (b)(2). The provisions of 38 U.S.C. § 5101 (a) mandate that a claim must be filed in order for any type of benefit to be paid. Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998). A “claim” includes 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). The law regarding informal claims changed, effective March 24, 2015, requiring the use of formal standard claims. This is inapplicable in this case. The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). The effective date for an award of benefits based upon new and material evidence is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2). A claim, whether “formal” or “informal,” must be “in writing” in order to be considered a “claim” or “application” for benefits. Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). Moreover, the Court has explicitly stated that the “mere presence” of a diagnosis of a specific disorder in a VA medical report “does not establish an intent on the part of the Veteran” to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32, 35 (1998); see MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006) (VA medical examination reports standing alone can constitute informal claim only with regard to claims that previously have been granted service connection); 38 C.F.R. § 3.155. Accordingly, the mere existence of medical records in a case cannot be construed as an informal claim. Id; Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007), aff’d Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008). Between the time of the unappealed October 1996 SOC and the December 23, 2014 claim of entitlement to service connection for a low back disability, there is nothing that can represent a formal or informal claim for benefits. Prior to December 23, 2014, there was a claim for non-service connected pension, in which the Veteran listed his back disability as a cause for his inability to work. There are also VA treatment records which addressed the Veteran’s complaints of low back pain. However, there are no other records that could be construed as an intent to file a claim or identification of a benefit sought. As the record does not contain a formal or informal claim of entitlement to service connection for a low back disability and sciatic radiculopathy of the left and right lower extremities prior to December 23, 2014, the claims of entitlement to an earlier effective date must be denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDuffie, Associate Counsel