Citation Nr: 18142870 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 15-35 510 DATE: October 17, 2018 ORDER Entitlement to an effective date prior to January 7, 2013, for the grant of service connection for degenerative disc disease of the lumbar spine is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to the service-connected disabilities (TDIU), for purposes of receiving special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s) is remanded. FINDING OF FACT 1. The Veteran filed a claim for service connection for lower back strain in November 1996, which was denied in a June 1997 rating decision. The Veteran received notification of this decision, but did not file an appeal; thus, the June 1997 rating decision is final. 2. The Veteran submitted a claim to reopen his claim for entitlement to service connection for a low back condition in January 2013. 3. No communication received between the last final decision in June 1997 and the Veteran’s request to reopen in January 2013 may be interpreted as an informal claim of entitlement to service connection for a low back condition. CONCLUSION OF LAW The criteria for an effective date prior to January 7, 2013, for the award of service connection for lumbar spine degenerative disc disease have not been met. 38 U.S.C. §§ 5110, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1966 to August 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a Department of Veterans Affairs (VA) Regional Office (RO) rating decision in January 2014. The Veteran perfected an appeal. See July 2014 Notice of Disagreement (NOD); June 2015 Statement of the Case (SOC); August 2015 VA Form-9. 1. Entitlement to an effective date prior to January 7, 2013, for the grant of service connection for lumbar spine degenerative disc disease The Veteran seeks an effective date prior to January 7, 2013 for the grant of service connection for lumbar spine degenerative disc disease. He asserts that he is entitled to an earlier effective date because he filed his original claim for compensation in November 1996. The Veteran filed a claim for lower back strain in November 1996, which was denied in a June 1997 rating decision. The Veteran was notified of the decision in a June 1997 notification letter, which also contained information about how to appeal the decision. The Veteran did not initiate a substantive appeal of the rating decision. The Board notes that, while the Veteran has disagreed with the effective date assigned for the grant of service connection, he has not filed a motion for revision on the basis of clear and unmistakable error (CUE) with regard to the June 1997 rating decision that denied service connection. As no CUE has been alleged in this unappealed prior decision, this decision is final and the date of the claim for service connection necessarily must be after the date of the last final decision in June 1997. See 38 C.F.R. §§ 3.105, 3.400. In correspondence received on January 3, 2013, the Veteran submitted a claim to reopen the claim for entitlement to service connection for a low back condition. In a January 2014 rating decision, the RO granted service connection for lumbar spine degenerative disc disease, effective January 7, 2013. The RO stated that the evaluation was effective the date VA received the Veteran’s request to reopen. 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 on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110 (a); 38 C.F.R. §§ 3.400, 3.400(b)(2). The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peake, 21 Vet. App. 537, 539-40 (2008) (citing Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995)). As stated previously, an original claim for low back strain was received in November 1996; however, that claim was denied by the RO in a June 1997 rating decision. The Veteran did not complete a substantive appeal and the June 1997 rating decision became final. In January 2013, the Veteran submitted his claim to reopen, and the RO granted service connection for lumbar spine degenerative disc disease, effective January 7, 2013. The Veteran asserts that he is entitled to an earlier effective date based on the date of his original claim for service connection for low back strain. Specifically, he asserts that as his preexisting back disability was found to have been permanently worsened as a result of service, he should be retroactively compensated to the date of his original claim in 1996. However, based on the evidence of record and the application of the laws and regulations governing the assignment of effective dates, the Board finds that the appropriate effective date is the date of the receipt of the claim to reopen, since it is later than the date entitlement arose. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2). The Board has also considered whether any evidence of record prior to January 7, 2013 could serve as an informal claim, in order to entitle the Veteran to an earlier effective date. In this regard, any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. The Board has reviewed the evidence to determine whether any communication submitted by the Veteran indicates an attempt to reopen his claim for service connection for a low back condition. However, after the June 1997 rating decision, he did not indicate that he wished to seek entitlement to service connection for a low back condition until January 2013. In light of the foregoing, the prior decision regarding a low back condition in this case is final. While the Board is cognizant and sympathetic to the Veteran's arguments, the presently assigned effective date is appropriate and there is no basis for an award of service connection for a low back condition, diagnosed as lumbar spine degenerative disc disease, prior to that date. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND In a September 2018 Informal Hearing Presentation (IHP), the Veteran’s representative raised the issue of entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114 (s). He argued that, although the Veteran does not have one disability rated as totally disabling, the Veteran’s lumbar spine degenerative disc disease alone renders him unable to work. Thus, it was contended that the lumbar spine condition alone would qualify for a total disability rating based on individual unemployability (TDIU), and, if then considered in conjunction with the Veteran’s other service connected disabilities, which combine to 60 percent, the Veteran would be entitled to SMC under 38 U.S.C. § 1114 (s). See September 2018 IHP. The Board notes that the Veteran is currently in receipt of a combined schedular rating of 100 percent for his service-connected disabilities, as well as special monthly compensation under 38 U.S.C. § 1114 (k) on account of loss of use of a creative organ. Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the United States Court of Appeals for Veterans Claims (Court) has held that if the record evidence supports a finding of TDIU based solely upon a single service-connected condition (rated at less than 100 percent under the rating schedule), then such a TDIU rating may serve as the factual predicate for an award of SMC pursuant to 38 U.S.C. § 1114 (s). Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In other words, while a finding of TDIU based on a single service-connected disability is implicated, the ultimate determination is one of whether entitlement to SMC is warranted under section 1114(s). Based on the forgoing discussion and the ruling in Bradley, the Board finds that additional development must be undertaken before it can be determined whether the Veteran's service-connected lumbar spine degenerative disc disease alone is of sufficient severity to render him incapable of performing the mental and physical acts required to secure or follow a substantially gainful occupation, considering his education, experience, and skills, and, by extension, whether the Veteran is entitled to SMC. Therefore, the Board is of the opinion that the AOJ should address the matters of a TDIU rating and entitlement to SMC in the first instance, to avoid any prejudice to the Veteran. The matters are REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice that informs him of the evidence and information necessary to establish entitlement to a TDIU and entitlement to SMC. He should also be requested to complete and return VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). Each executed form should be returned to VA. Advise the Veteran and his representative (if any) that it is ultimately the Veteran's responsibility to submit his employment records, particularly those relating to the facts and circumstances of his separation, termination, or retirement from employment; and that he should submit evidence such as pay stubs, W2 Forms, tax returns, etc., documenting marginal employment, if any, relating to post or prospective employment that has resulted in earned income that does (or did) not exceed the poverty threshold for one person. 2. Send the Veteran and his representative a letter requesting that he provide information and, if necessary, authorization, to obtain any additional (VA or non-VA) records and/ or evidence pertinent to the claims on appeal that is not currently of record. Specifically request that the Veteran furnish, or furnish appropriate authorization to obtain, all outstanding, pertinent private (non-VA) records. If the Veteran responds, assist him in obtaining any additional evidence identified, following current procedures set forth in 38 C.F.R. § 3.159. All records/responses received should be associated with the claims file. If any records sought are not obtained, explain the efforts taken to obtain them, and describe further action to be taken. (Continued on next page) 3. Following the completion of the foregoing, and any other development deemed necessary, the RO/AMC should adjudicate the Veteran's claims for entitlement to a TDIU due to service-connected lumbar spine degenerative disc disease and entitlement to SMC pursuant to 38 U.S.C. § 1114 (s). If the claims are denied, supply the Veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. Thereafter, the claims folder should be returned to the Board for further appellate review, if otherwise in order. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Lewis