Citation Nr: 18145661 Decision Date: 10/30/18 Archive Date: 10/29/18 DOCKET NO. 16-35 791 DATE: October 30, 2018 ORDER Entitlement to an effective date earlier than April 14, 2014 for the grant of service connection for spinal stenosis with spondylolisthesis (claimed as lower back pain) is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected spinal stenosis with spondylolisthesis is remanded. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran did not file a claim for entitlement to service connection for a lower back condition earlier than April 14, 2015. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than April 14, 2014 for the grant of service connection for spinal stenosis with spondylolisthesis have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1980 to December 1980. The Board notes in a March 2011 statement the Veteran mentioned financial difficulty due to her disability. She also indicated she receives Social Security Administration (SSA) benefits for disability. See statement. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for a TDIU rating is part of an increased rating claim when such claim is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Accordingly, giving the Veteran the benefit of the doubt, the Board finds that the issue of entitlement to TDIU is raised by the record, and is part and parcel of the increased rating claim pending before the Board. Id. Entitlement to an effective date earlier than April 14, 2014 for the grant of service connection for spinal stenosis with spondylolisthesis. The Veteran contends entitlement to an effective date prior to April 14, 2014 for the grant of entitlement to service connection for spinal stenosis with spondylolisthesis is warranted because she was granted SSA benefits in 1999. See notice of disagreement. Unless specifically provided otherwise, 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. The effective date for an award of disability compensation based on an original claim for direct service connection is the day following separation from active service or the date entitlement arose if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400(b)(2)(i). A “claim” is defined in the VA regulations as “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). Public Law 115-154, Section 506, amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date award of disability compensation based on fully developed original claims for compensation that VA received from August 6, 2013, through August 5, 2015. Under the Fully Developed Claim (FDC) framework, a claim is submitted in a “fully developed” status, limiting the need for further development of the claim by VA. When filing a fully developed claim, a veteran is to submit all evidence relevant and pertinent to his claim other than service treatment records and treatment records from VA medical centers. Under certain circumstances, additional development may still be required prior to the adjudication of the claim, such as obtaining Federal records and providing a VA medical examination to the veteran. See VA Form 21-526EZ. In this case, the Veteran filed a claim for service connection for a lower back condition, using the FDC process. As her VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, was received on April 14, 2015, and met the criteria for the FDC program, she was assigned an effective date of April 14, 2014, for her grant of service connection for spinal stenosis with spondylolisthesis. The Veteran argues, however, that a still earlier effective date is warranted. After reviewing the totality of the evidence, the Board finds no evidence that an informal or formal claim for service connection for a lower back condition was filed prior to April 14, 2015, and notes that the Veteran has not asserted that such a claim was made. Instead, the Veteran asserts she is entitled to an earlier effective date based on her award of SSA disability benefits in 1999. However, VA regulations do not support the award of an earlier effective date based on this reasoning. As explained above, a claim must be filed with VA in order to be considered for entitlement to VA benefits. See 38 C.F.R. § 3.1(p). As there is no indication in the record that the Veteran filed a claim with VA until April 14, 2015, there is no legal entitlement to an effective date prior to April 14, 2014, which is one year prior to the date of the Veteran’s formal claim for service connection for spinal stenosis with spondylolisthesis. REASONS FOR REMAND Entitlement to a disability rating in excess of 10 percent for service-connected spinal stenosis with spondylolisthesis and TDIU. In a March 2018 statement, the Veteran asserts she suffers from constant pain in her back. In particular, she contends that standing to cook a meal or doing simple chores like laundry is painful. Her back also prevents her from taking a trip which would require too much walking. The Veteran’s statements suggest that her disability may have increased in severity since she was last examined by VA in June 2015. Accordingly, she should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of her serivce-connected spinal stenosis with spondylolisthesis. Lastly, the Board finds that the inferred claim of entitlement to a TDIU is inextricably intertwined with the issue of entitlement to a disability rating in excess of 10 percent for service-connected spinal stenosis with spondylolisthesis because a decision on the latter claim may have an impact on the former claim. Consequently, the claim of entitlement to TDIU must be remanded for contemporaneous adjudication. Harris v. Derwinski, 1 Vet. App. 180 (1991). The Board also notes the record does not reflect the Veteran’s submission of a VA Form 21-8940 which should be obtained to assist with adjudication of this issue. The matter is REMANDED for the following actions: 1. Provide the Veteran with notice of the laws and regulations governing a TDIU and request that she complete and return a VA Form 21-8940. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of her service-connected spinal stenosis with spondylolisthesis. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to spinal stenosis with spondylolisthesis alone and discuss the effect of the Veteran’s spinal stenosis with spondylolisthesis on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal, including the inextricably intertwined issue of TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and her representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Churchwell, Counsel