Citation Nr: 18143291 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-20 271 DATE: October 18, 2018 ORDER Service connection for a lumbar spine disorder is denied. Entitlement to an effective date earlier than February 5, 2015, for the award of service connection for bilateral pes planus is denied. FINDINGS OF FACT 1. A lumbar spine disorder was not manifest in service or within the one-year presumptive period following service. A lumbar spine disorder is not attributable to service. 2. The Veteran’s claim of service connection for foot pain was received by VA on February 5, 2015. The December 2013 and February 2015 claims of service connection for a bunionectomy were distinct claims from the February 2015 claim of service connection for foot pain. CONCLUSIONS OF LAW 1. A lumbar spine disorder was not incurred in or aggravated during service and arthritis may not be presumed to have been incurred in or aggravated by service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for an effective date earlier than February 5, 2015, for the award of service connection for bilateral pes planus have not been met. 38 U.S.C. §§ 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to November 1983. She had additional service in the U.S. Army reserves. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The RO denied the Veteran’s claim of service connection for a lower back disorder in a November 2014 rating decision. The Veteran’s August 2015 notice of disagreement was received within one year of the rating decision, thus, new and material evidence is not required to consider the claim on its merits. See 38 C.F.R. §§ 3.156, 20.302, 20.1103. Additional evidence has been associated with the claims file since the last RO adjudication in the November 2015 Statement of the Case. This evidence is either duplicative of the evidence already of record, or it is not pertinent to the issues on appeal. Therefore, RO consideration of the evidence in the first instance is not necessary and the Board can proceed with adjudication of the case on the merits. Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Service connection for a lumbar spine disorder. The Veteran seeks service connection for a lumbar spine disorder. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of mild discogenic disease, spondylosis, and diffuse posterior bulge with spinal stenosis and mild levoscoliosis, and evidence shows that she was treated for back pain in service in June 1982, the preponderance of the evidence weighs against finding that the Veteran’s lumbar spine disorder began during service or is otherwise related to an in-service injury, event, or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). VA treatment records show the Veteran was not diagnosed with a lumbar spine disorder, specifically minimal scoliosis, until October 2008, many years after her separation from both active and reserve service. In October 2008, degenerative arthritis and disc disease was not present. There is affirmative, credible evidence against the claim, as well. In June 1982, she complained of back pain since running during physical training. Her ranges of motion were unlimited but painful. She was returned to duty. This was the only mention of back symptoms in her service treatment records. In May 1986 and March 1990 medical history reports, the Veteran denied recurrent back pain. In a March 1990 report of medical examination for reserve duty, the examiner found the Veteran’s spine was normal. To the extent the Veteran contends as part of her claim for compensation that she had back pain since service, the Board finds the May 1986 and March 1990 medical history reports contradict her current contentions and are more credible than them as they were recorded at persuasive points in time. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). The same reasoning applies to the March 1990 report of medical examination, which found a normal spine many years after service. While the Veteran is competent to report having experienced symptoms of back pain after service, she is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of the current lumbar spine disorder. The issue is medically complex, as it requires knowledge of the internal anatomy and the multiple causes of pain, as well as interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran in this case has not been shown to have the skills, experience, or medical training needed to make such a determination. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Here, however, the single instance of treatment for back pain in service is not enough to identify the disease as arthritis, one of the relevant chronic diseases. As noted above, the Board finds that the Veteran’s lumbar spine disorders manifested many years after service. Thus, the chronic disease presumption is not available. 2. Entitlement to an effective date earlier than February 5, 2015, for the award of service connection for bilateral pes planus. The Veteran contends that she is entitled to an effective date earlier than February 5, 2015, for the award of service connection for bilateral pes planus. She contends, that she is entitled to an effective date of December 27, 2012. See October 2015 correspondence. The Board notes that this date is one year prior to the date she filed her first claim of service connection for any disability. Alternatively, she contends that she is entitled to an effective date of February 11, 1982, which is the date she was first diagnosed with pes planus. See July 2018 appellate brief. Generally, the effective date for the grant of service connection based on an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100(b)(1) (2012); 38 C.F.R. § 3.400 (2017). Effective dates assigned as part of the initial award of service connection, i.e. “initial evaluations,” are considered to belong in this category. “[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011) (citing to the rule of 38 U.S.C. § 5110(a) that the effective date shall be fixed in accordance with “facts found”). Regulations defining a “claim” were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. Prior regulations held that a claim was 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) (2013). Effective for claims filed on or after March 24, 2015, a specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Because the Veteran first filed a claim of any type for service connection on December 27, 2013, and it was not within one year of separation from active duty, the earliest date on which service connection could be granted is December 27, 2013. She has not asserted that she filed a claim for benefits prior to that date, nor does the record show such a claim. Next, the Board looks at whether the Veteran is entitled to an effective date as early as December 27, 2013. A review of the procedural history is warranted. As noted, the Veteran filed a claim of service connection in December 2013. Among other disabilities, she claimed service connection for a bunionectomy. In a November 2014 rating decision, the RO denied the claim. The Veteran did not appeal the decision. On February 5, 2015, the Veteran submitted a new claim. The disabilities included bunionectomy (again) and foot pain. It is this “foot pain” claim that was interpreted as the bilateral pes planus disorder for which the Veteran was awarded service connection. The Board finds that an effective date earlier than February 5, 2015, is not warranted. In that regard, the claim for service connection associated with pes planus was not received until February 5, 2015. The Board finds that the Veteran’s December 2013 claim of service connection for a bunionectomy was not broad enough in scope to include pes planus. The Board acknowledges the holding in Clemons v. Shinseki, 23 Vet. App. 1 (2009), that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim; symptoms described; and the information submitted or developed in support of the claim. Id. at 5. Here, the description of the claim was very specific and related to two surgical procedures the Veteran underwent. In her February 2015 claim, she listed both bunionectomy and foot pain as disabilities, suggesting that she considered them distinct disorders. As a bunionectomy is a surgical procedure and thus a significant life event, the specificity with which the Veteran described the claim is persuasive. As to the information submitted or developed, a number of VA medical records developed at the time of the December 2013 claim report the significant history of the bunionectomy procedure in July 2003. Although a VA medical record associated with the claims file in October 2013 and a private medical record received in August 2014 do make reference to the Veteran’s arches, the description of the bunionectomy claim related to a distinctly different area of the foot than did the arches. Therefore, the Board does not consider it to be persuasive enough to broaden the scope of the bunionectomy claim to include pes planus. For these reasons, an effective date earlier than February 5, 2015, for the grant of service connection for pes planus is denied. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Rocktashel, Counsel