Citation Nr: 18144422 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-14 137 DATE: October 24, 2018 ORDER An effective date of August 23, 2012, but no earlier, for the award of a 60 percent rating for degenerative disc disease of the thoracic and lumbar spine with intervertebral disc syndrome also claimed as “neuro foraminal stenosis,” is granted, subject to the rules and regulations governing payment of monetary awards. FINDING OF FACT VA treatment notes dated August 8, 2012, constitute an informal claim for an increased rating of the Veteran’s back disability and neuroforaminal stenosis was confirmed by imaging on August 23, 2012. CONCLUSION OF LAW The criteria for an effective date of August 23, 2012 (to December 1, 2017), but no earlier, for the award of a 60 percent rating for degenerative disc disease of the thoracic and lumbar spine with intervertebral disc syndrome also claimed as neuro foraminal stenosis are met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.159, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from July 1977 to October 1980, from January 1984 to May 1989, and from May 1989 to March 1997. The Regional Office (RO) assigned a 60 percent rating, effective from November 18, 2013, for the Veteran’s degenerative disc disease of the thoracic and lumbar spine with intervertebral disc syndrome, also claimed as neuro foraminal stenosis, in an October 2014 rating decision. The Veteran appealed the effective date assigned for the 60 percent rating and, while that appeal was pending, the RO issued a March 2017 rating decision proposing to reduce the rating from 60 percent to 40 percent. The RO then reduced the rating, as proposed, in a September 2017 rating decision, effective December 1, 2017. A notice of disagreement to the September 2017 rating decision was not filed. The Board notes the Veteran may file a claim for an increased rating at any time, but for purposes of the appeal at hand, the issue is entitlement to an earlier effective date for the award of the 60 percent rating that was previously in effect for his degenerative disc disease of the thoracic and lumbar spine with intervertebral disc syndrome also claimed as neuro foraminal stenosis. This decision does not disturb the 40 percent rating that since has been assigned from December 1, 2017. Generally, the effective date of an award based on an original claim, a claim reopened after a 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. An exception to this rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. See 38 C.F.R. § 3.400(o)(2). In that regard, the law provides that the effective date of an award shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred (not necessarily the date of receipt of the evidence) if application is received within one year from such date. Id. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on a standard form. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Prior to the March 24, 2015, amendment, VA accepted both formal and informal claims. An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identifies the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Additionally, for claims filed before March 24, 2015, 38 C.F.R. § 3.157(b) indicated that once a claim for compensation had been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital would be accepted as an informal claim for increased benefits. See MacPhee v. Nicholson, 459 F.3d 1323 (Fed. Cir. 2006); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). For decisions on or after July 21, 1992, VA treatment records are considered to be in constructive possession of VA adjudicators on the date they were created, regardless of whether they were physically in the claims file. Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992). The Veteran initially filed a claim in November 2000 for service connection for degenerative disc disease of the spine, that was addressed in an April 2002 rating decision that established service connection for back disabilities (degenerative disc disease of the lumbar spine with limitation of motion and pain with an evaluation of 20 percent, degenerative disc disease of the thoracic spine with an evaluation of 10 percent, and degenerative disc disease of the cervical spine with limitation of motion and pain with an evaluation of 10 percent). The Veteran did not file a notice of disagreement with the April 2002 rating decision nor did he submit new and material evidence within one year of that decision; therefore, it is final. In March 2013, the Veteran filed a claim for an increased rating for his “back strain” and “limited motion of dorsal spine.” Eventually, in an October 2014 rating decision, the Veteran was awarded a 60 percent rating for degenerative disc disease of the thoracic and lumbar spine with intervertebral disc syndrome also claimed as “neuro foraminal stenosis,” effective June 19, 2014. The Veteran filed a January 2015 notice of disagreement with that decision contending that the effective date should have been March 22, 2013, the date of his increased rating claim. In March 2016, the RO issued another rating decision that awarded an earlier effective date of November 18, 2013, for the 60 percent rating, finding that this was the date entitlement arose. The Veteran continues to disagree with the effective date assigned and in his March 2016 VA Form 9 Appeal to Board of Veterans’ Appeals (VA Form 9) contended that he was entitled to an effective date of August 2011. After reviewing the entire claims file, the Board finds that while the Veteran filed a claim for an increased rating in March 2013, his VA medical records prior to that date constitute an informal claim for an increased rating. Specifically, VA treatment notes from August 8, 2012 reflect the Veteran reported six months of worsening lower back pain with radiations down his right leg at that time and that he was frustrated by the pain. A lumbar MRI was ordered for further evaluation, which, later that month, on August 23, 2012, revealed “moderate bilateral neural foramina stenosis.” The evidence does not otherwise demonstrate that a factually ascertainable increase in disability occurred within one-year preceding the date of receipt of this claim. Hence, the rule (that the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later) rather than the exception, applies here. The date entitlement arose and the date of the claim were both in August 2012. The record does not support an earlier effective date of August 2011 as proposed by the Veteran, and he does not provide any argument as to why he believes August 2011 to be a more appropriate effective date. Therefore, the Board finds that an effective date of August 23, 2012, but no earlier, is warranted for a 60 percent disability rating for degenerative disc disease of the thoracic and lumbar spine with intervertebral disc syndrome also claimed as neuro foraminal stenosis. As mentioned above already, the Board recognizes that the Veteran has since been assigned a 40 percent disability for his degenerative disc disease of the thoracic and lumbar spine with intervertebral disc syndrome also claimed as neuro foraminal stenosis. This decision does not affect the effective date assigned for that award, and only grants an earlier effective date for the previously assigned 60 percent disability rating. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.Vemulapalli, Associate Counsel