Citation Nr: 18146462 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-29 177 DATE: November 1, 2018 ORDER Entitlement to an effective date earlier than March 18, 2011, for the grant of a separate 10 percent rating for right S1 radiculitis is denied. Entitlement to an effective date earlier than March 18, 2011, the grant of a 10 percent rating for bilateral spondylosis with sclerosis of the apophyseal joint is denied. FINDINGS OF FACT The Veteran’s increased rating claim has been pending since September 1983; however, the evidence of record fails to demonstrate that a factually ascertainable increase in the spondylosis and radiculitis disabilities occurred within the one-year period preceding the date of the September 1983 claim, or that entitlement to 10 percent ratings arose at any time prior to the currently assigned March 18, 2011, effective dates. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to March 18, 2011, for the grant of a separate 10 percent rating for right S1 radiculitis are not met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.400, 4.124a, Diagnostic Code 8520 (2018). 2. The criteria for an effective date prior to March 18, 2011, for the grant of a 10 percent rating for bilateral spondylosis with sclerosis of the apophyseal joint are not met. 38 U.S.C. § 5110 (2002 & 2012); 38 C.F.R. §§ 3.155, 3.157, 3.400, 4.71a, Diagnostic Codes 5293 (2000-2003), 5243 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to September 1979. These matters are before the Board on appeal from December 2013 and July 2014 rating decisions. The Veteran submitted Notices of Disagreement in July 2014 and February 2015; Statements of the Case were issued in April 2016; and VA Forms 9 were received in June 2016. Earlier Effective Dates – Applicable Law and Regulations Unless otherwise specified, 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 is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110 (a), (b) (2012); 38 C.F.R. § 3.400 (2018). The effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400 (b)(2). When 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, the law provides that the effective date of the award “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” 38 U.S.C. § 5110 (b)(2) (2012); see also 38 C.F.R. § 3.400 (o)(2) (2015); Harper v. Brown, 10 Vet. App. 125 (1997). 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) (2012); 38 C.F.R. § 3.151 (a) (2018). Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms. See 38 C.F.R. § 3.1 (p) (2018). However, for appeals filed prior to March 24, 2015, as in this case, the term “claim” or “application” means 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) (2018). Any communication or action, indicating an 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 generis may be considered an informal claim. Such an informal claim must identify the benefits 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) (2018). Earlier Effective Dates for Grants of 10 Percent Ratings - Factual Background and Analysis With respect to the service-connected back disability, the Veteran appears to assert that the effective date for the grant of a 10 percent rating should be August 1979. See NOD and VA Form 9. The Veteran likewise asserts that the award of a separate compensable (10 percent) rating for right S1 radiculitis should be August 1979. See NOD and VA Form 9. The Board notes that the Veteran was on active duty in August 1979 and to this extent such argument is without merit. Nevertheless, the Board will discuss whether effective dates prior to March 18, 2011, are warranted. By way of procedural history, the Veteran filed an original service connection claim for bilateral spondylosis with sclerosis of the apophyseal joint and radiculitis of the S1 nerve in September 1979. In unappealed April 1980 rating decision, the RO granted service connection for bilateral spondylosis, L5, with sclerosis of the apophyseal joint between L5 and S1 on right, radiculitis S1 nerve root on right, and assigned a 10 percent rating under Diagnostic Code 5299-5293, effective from September 22, 1979 – the day following the Veteran’s separation from service. The Veteran submitted an NOD in September 1980; a November 1980 rating decision confirmed and continued the 10 percent rating under Diagnostic Code 5293. The disability was also recharacterized as radiculitis, S1 and S3 nerve roots, right side (previously diagnosed as bilateral spondylosis L5 with sclerosis of the apophyseal joint). A November 1981 SOC likewise continued the 10 percent rating. As the Veteran did not perfect an appeal, the April 1980 rating decision became final. 38 C.F.R. § 20.1103 (2018). Thereafter, in July 1982, the Veteran was notified that his compensation payments had been discontinued as his whereabouts were unknown; he was asked to inform VA of his willingness to report for a VA examination. He was notified of his appellate rights regarding this determination but did not appeal the decision. The Veteran ultimately appeared for a VA examination in May 1983, at which time he reported “some” low back pain with radiation to the right hip/leg. The objective diagnosis was “no evidence of active neurological disorder at this time.” In a June 1983 rating decision, the RO noted that the Veteran had failed to report for a prior VA examination and that his compensation was thus reduced to 0 percent from August 1, 1981 and to March 29, 1983. As the May 1983 VA examination revealed no evidence of active neurological disease, the RO continued the 0 percent rating effective from March 30, 1983. The Veteran did not appeal that determination and it is final. However, on September 9, 1983, the Veteran submitted a statement in which he reported that he was in constant back pain; he stated that his doctors told him that his spondylosis would worsen with age. The RO construed this as a claim for an increased rating, and, in an October 1983 letter, the Veteran was informed that he needed to submit medical evidence showing an increase in severity of the service-connected back disability, to include private physician’s clinical findings, x-ray evidence, diagnosis, and the date of examination. He was also informed that no further action would be taken on his claim pending receipt of such evidence. The Veteran did not respond. Nevertheless, a February 1984 “Deferred or Confirmed Rating Decision” reflects that the October 1983 notification letter, which requested additional information from the Veteran, was sent to the wrong address. Although there is no indication in the claims file that the October 1983 letter was returned to VA as undeliverable, there is also no evidence in the claims file that the RO attempted to resend the development letter to the correct address. There is only a copy of the October 1983 letter with a hand-written notation “wrong address.” It appears that no further RO action was taken with respect to his claim. As a result, the Board finds that the Veteran’s claim for an increased rating remained pending. See 38 C.F.R. § 3.160 (c) (a pending claim is defined as “an application, formal or informal, which has not been finally adjudicated”); Adams v. Shinseki, 568 F.3d. 956, 960 (Fed. Cir. 2009). Subsequent to the Veteran’s informal increased rating claim in September 1983, he submitted a formal claim for an increased rating for his back disability on March 18, 2011. In the December 2013 rating decision on appeal, the RO increased the disability rating for bilateral spondylosis with sclerosis of the apophyseal joint to 10 percent disabling, effective from March 18, 2011 under Diagnostic Code 5243. A separate 10 percent evaluation, also effective March 18, 2011, was granted for right S1 nerve radiculitis under Diagnostic Code 8520. See February 2016 and July 2014 Rating Decisions. The Veteran appealed the effective dates assigned and the current appeal ensued. Given the procedural history of this case and the fact that the Veteran’s increased rating claim has been pending since September 1983, the issue on appeal is whether the preponderance of the evidence shows that the Veteran met the schedular criteria for assignment of a 10 percent rating prior to March 18, 2011 (to include consideration of the one-year period prior to September 1983). The criteria for rating back disabilities were amended twice during the claim period, effective September 23, 2002, and September 26, 2003. Effective September 23, 2002, VA amended the criteria for rating intervertebral disc syndrome only, but continued to evaluate that disease under Diagnostic Code 5293. See 67 Fed. Reg. 54,345 (August 22, 2002) (codified at 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003)). Effective September 26, 2003, VA updated the entire section of the rating schedule that addresses disabilities of the spine, which are now listed under the General Rating Formula for Diseases and Injuries of the Spine. This update included a renumbering of the diagnostic codes pertinent to back ratings. On that date, Diagnostic Code 5293 was renumbered as Diagnostic Code 5243 and the criteria were placed under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula), but the rating criteria remained the same. 38 C.F.R. § 4.71a; see also 68 Fed. Reg. 51454 -51456 (Aug. 27, 2003). Before these revisions, symptoms of sciatic neuropathy of the lower extremity were contemplated in the applicable rating criteria for a service-connected spine disability under Diagnostic Code 5293 (2002) pertaining to intervertebral disc syndrome. In pertinent part, under the pre-September 23, 2002 version of Diagnostic Code 5293, intervertebral disc disease, a noncompensable evaluation is assigned for postoperative, cured intervertebral disc disease and a 10 percent evaluation is assigned for mild intervertebral disc disease. 38 C.F.R. § 4.71a, Diagnostic Code 5293. Under the revised provisions of Diagnostic Code 5293, intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). A 10 percent evaluation is assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). For purposes of evaluations under Diagnostic Code 5293, “Chronic orthopedic and neurologic manifestations” means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003), Note 1. When evaluating on the basis of chronic manifestations, orthopedic disabilities are evaluated using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Neurologic disabilities are evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003), Note 2. The most recent amendment to 38 C.F.R. § 4.71a changed the Diagnostic Codes for spine disorders to 5235 to 5243, and spine disorders are rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the applicable criteria, the General Rating Formula for Diseases and Injuries of the Spine provides that a rating of 10 percent is assignable for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees. The evaluation criteria are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine. Therefore, an evaluation based on pain alone would not be appropriate, unless there is specific nerve root pain, for example, that could be evaluated under the neurologic sections of the rating schedule. See 68 Fed. Reg. 51, 455 (Aug. 27, 2003). Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve, as well as neuritis and neuralgia of that nerve, warrants a 10 percent rating. 38 C.F.R. § 4.124a. The Board finds that based on a review of the competent lay and medical evidence of record, there is no evidence to establish that the Veteran’s service-connected back disability nearly approximated the criteria for a 10 percent rating (under any of the applicable rating criteria) prior to March 18, 2011. Likewise, there is no evidence to establish that the right S1 nerve radiculitis more nearly approximated a separate, compensable rating prior to March 18, 2011. Unfortunately, there is little evidence addressing the severity of the Veteran’s back and neurological disabilities prior to March 2011. The only objective evidence of record is a May 1983 VA examination report in which the examiner found that there was no evidence of an active neurological disorder. Although the Veteran had reported “some” back pain at that time, there were no accompanying radiological/x-ray findings, range of motion findings, or other objective findings to confirm the severity of the service-connected spondylosis. The only other relevant evidence appears in the September 1983 statement from the Veteran indicating that he was in constant back pain. Otherwise, there is no evidence bearing on the severity of the Veteran’s symptoms throughout the intervening years. In fact, the first medical evidence showing severe lumbar disc disease and symptomatic radiculitis is not shown until 2012 and 2013. See Treatment Records from the Bureau of Prisons. In sum, the Veteran’s increased rating claim has been pending since September 1983; however, the evidence of record fails to demonstrate that a factually ascertainable increase in the disabilities occurred within the one-year period preceding the date of the September 1983 claim, or that entitlement arose at any time prior to the currently assigned March 18, 2011, effective date. There is simply no competent lay or medical evidence of record indicating that the Veteran’s bilateral spondylosis with sclerosis of the apophyseal joint more nearly approximated a 10 percent rating (under either the old or new rating criteria) prior March 18, 2011, or that his right S1 nerve radiculitis approximated the criteria for a separate, compensable rating prior to March 18, 2011. As such, entitlement to effective dates earlier than March 18, 2011, for the grants of 10 percent ratings for these disabilities is denied. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claims, that doctrine is not applicable in the instant appeal. 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Hoeft, Counsel