Citation Nr: 18145783 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 17-25 719 DATE: October 30, 2018 ORDER Entitlement to an effective date prior to March 11, 2015, for the grant of service connection for thoracic and lumbosacral strain with scoliosis is denied. REMANDED Entitlement to an initial rating in excess of 20 percent for thoracic and lumbosacral strain with scoliosis is remanded. FINDINGS OF FACT 1. The Veteran filed a claim for entitlement to service connection for a back condition which was received by the RO on March 11, 2015. A July 2015 rating decision granted the Veteran’s service connection claim and assigned an effective date of March 11, 2015. 2. No formal or informal claim for service connection for a back condition was received prior to March 11, 2015. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to March 11, 2015, for the grant of service connection for thoracic and lumbosacral strain with scoliosis have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from February 1997 to July 1999. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which granted the Veteran’s claim for entitlement to service connection for thoracic and lumbosacral strain with scoliosis and assigned an initial rating of 20 percent. Effective Date 1. Entitlement to an effective date prior to March 11, 2015, for the grant of service connection for thoracic and lumbosacral strain with scoliosis The Veteran and his representative have asserted that the Veteran is entitled to an effective date earlier than March 11, 2015, for the grant of service connection for thoracic and lumbosacral strain with scoliosis. The statutory guidelines for the determination of an effective date of an award are set forth in 38 U.S.C. § 5110. Except as otherwise provided, the effective date of an evaluation and award of compensation 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 the latter. 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.400 (b)(2)(i), the effective date for a grant of direct service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Under 38 C.F.R. § 3.400 (b)(2)(ii), the effective date for presumptive service connection will be the date entitlement arose, if a claim is received within one year after separation from active service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim may arise. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). 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 identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). Case law is clear that this means the claimant must describe the nature of the disability for which he is seeking benefits, such as by describing a body part or symptom of the disability. Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Although the Board is sympathetic to the Veteran’s claim that his back condition began prior to March 11, 2015, there is no evidence of a formal or informal claim for entitlement to service connection for a back condition received by the RO prior to March 11, 2015. The Board is bound by law on this matter, and is without authority to grant the benefit sought on an equitable basis. As no statutory or regulatory exceptions to the rule governing the effective date here is for application, there is no legal basis to grant the appeal. Based on this record, no effective date earlier than March 15, 2015, is warranted for service connection for the Veteran’s thoracic and lumbosacral strain with scoliosis. As this appeal must be denied as a matter of law, the benefit of the doubt rule is not for application. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND While the Board sincerely regrets the delay, additional development is required before the Veteran’s remaining claim may be adjudicated on the merits. 1. Entitlement to an initial rating in excess of 20 percent for thoracic and lumbosacral strain with scoliosis is remanded. Specifically, the Board notes that while the Veteran’s claim was pending, two precedential decisions were issued which also require the Veteran’s claim to be remanded. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that in order for an examination to be adequate, it must include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and, if possible, with range of motion measurements of the opposite undamaged joint. A review of the Veteran’s last VA examination indicates that a new examination is warranted in light of Correia. The Court’s recent holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) also requires that the claim be remanded. In Sharp, the Court noted that for a joint examination to be adequate, the examiner “must express an opinion on whether pain could significantly limit” a veteran’s functional ability, and that determination “should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups.” Furthermore, the Court stated that the examiner must “obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves.” Sharp, 29 Vet. App. at 34. The examiner must also “offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans,” and the examiner’s determination “should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups.” Id. at 10. As the Veteran reported flare-ups with respect to his back at his July 2015 VA examination, this constitutes additional basis for remand. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. 2. Following the receipt of any outstanding records, schedule the Veteran for a VA examination with the appropriate medical personnel in order to determine the current level of severity of his thoracic and lumbosacral strain with scoliosis. The Veteran’s entire claims file, to include a copy of this remand, should be provided to the examiner. Following a complete review of the record, the examiner is asked to provide the following opinion: Determine the current severity of the Veteran’s thoracic and lumbosacral strain with scoliosis. Report the Veteran’s range of motion for the thoracolumbar spine in degrees. In accordance with Correia, the range of motion should be tested actively and passively, in weight-bearing, nonweight-bearing, and after repetitive use. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why this is so. In providing this opinion, the examiner should consider the Veteran’s lay statements regarding his decreased range of motion. The extent of any weakened movement, excess fatigability and incoordination should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner should also express an opinion concerning whether there would be additional functional impairment on repeated use or during flare-ups. The examiner should further assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. The examiner should consider all procurable and assembled data by obtaining all tests and records that might reasonably illuminate the medical analysis. This includes the Veteran’s statements regarding the extent of functional loss and additional range of motion loss during flare-ups. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel