Citation Nr: 18149677 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-20 854 DATE: November 13, 2018 ORDER Entitlement to service connection for a back disability is denied. Entitlement to an effective date earlier than December 7, 2011, for cervical spondylosis is denied. Entitlement to an effective date earlier than December 7, 2011, for right upper extremity radiculopathy is denied. Entitlement to an effective date earlier than December 7, 2011, for left upper extremity radiculopathy is denied. Entitlement to an effective date earlier than December 7, 2011, for right shoulder arthritis is denied. FINDINGS OF FACT 1. The Veteran’s back disability did not begin in service and is not related to his active service. 2. A January 1979 rating decision denied the Veteran’s claim of entitlement to service connection for a cervical spine disability; the Veteran did not file a notice of disagreement with respect to this rating decision. 3. On December 7, 2011, the Veteran filed a request for reopening of his claim for entitlement to service connection for a cervical spine disability. 4. New service personnel records were associated with the Veteran’s claims file in October 2013; however, these records do not establish an in-service event, injury, or disease relevant to the Veteran’s claim for entitlement to service connection for a cervical spine disability. 5. The Veteran filed his first and only claim for service connection for bilateral upper extremity radiculopathy in December 2011. 6. The Veteran filed his first and only claim for service connection for right shoulder arthritis in December 2011. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a back disability have not all been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2017). 2. The January 1979 rating decision denying service connection for entitlement to a cervical spine disability is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 20.302, 20.1103 (2017). 3. The service department records associated with the file in October 2013 are not relevant to the claim of entitlement to service connection for a cervical spine disability. 38 C.F.R. § 3.156(c) (2017). 4. The criteria for an effective date earlier than December 7, 2011, for right upper extremity radiculopathy have not all been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). 5. The criteria for an effective date earlier than December 7, 2011, for left upper extremity radiculopathy have not all been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). 6. The criteria for an effective date earlier than December 7, 2011, for right shoulder arthritis have not all been met. 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1968 to November 1978. The Veteran died in July 2016. The appellant is the Veteran’s surviving spouse. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service—the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases, including degenerative joint disease of the lumbar spine, may be presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service, even though there is no evidence of such disease during service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Entitlement to service connection for a back disability The appellant contends that his current back disability is related to service. Specifically, the Veteran contends that it is due to a February 1977 incident where he injured his back while lifting nose landing gear on a plane during service. The Veteran’s VA medical center records indicate several reports of back pain since 2012. Although the July 2013 VA examiner did not identify a specific thoracolumbar diagnosis on examination, the medical opinion portion of the report generally referred to degenerative joint disease of the lumbar spine. As such, the Board finds that the Veteran has a current lumbar spine disability. Therefore, the first element of a service connection claim is satisfied. The Veteran’s service treatment records (STRs) confirm that in February 1977, the Veteran injured his back while lifting nose landing gear during service. Cervical spine strain was diagnosed. Following the incident, the Veteran reported neck and shoulder pain. He was treated with cryotherapy and exercise. Accordingly, the Board finds that the second element required to establish service connection is met. Therefore, this case turns on whether the Veteran’s lumbar spine disability is related to his in-service injury. The Board finds that the preponderance of the evidence is against finding that the Veteran’s back disability is related to his in-service injury. The Veteran’s STRs do not indicate any complaints or treatment of lumbar spine or low back pain. After the Veteran’s in-service injury, he reported neck and shoulder pain, and a cervical spine strain was diagnosed. He did not report low back pain and was not treated for a lumbar spine impairment. The Veteran’s post-service VA medical center treatment records indicate he did not seek treatment for a back disability until 2012, approximately 34 years after service. The Veteran attended a VA examination in July 2013. The examiner stated that the Veteran’s lumbar spine disability was less likely than not incurred in or caused by the Veteran’s claimed in-service injury. The examiner stated that the Veteran’s STRs did not contain any specific injury to the lumbar spine. Additionally, he stated that the believed the Veteran’s degenerative disc disease in his lumbar spine was due to his age, weight, and post military vocation. The Board finds the July 2013 VA examiner’s opinion the most probative evidence as to whether the Veteran’s back condition was caused by his in-service injury. The examiner considered the Veteran’s in-service injury, his STRs, and post-service treatment records, and his rationale and logic are consistent with the evidence of record. In addition, he provided an alternative etiology for the Veteran’s current back disability. The Board has considered the Veteran’s assertions that his back disability is related to his in-service injury. The cause of a back disability manifesting many years after the period of service is complex question, and under the facts of this case, not a question that can be answered by observation with one’s senses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, the Veteran’s assertions are not competent evidence and are of limited probative value. Addressing presumptive service connection, there is no probative evidence indicating that the Veteran’s conditions manifested to a compensable degree within a year of discharge from service. As such, the Veteran is not entitled to service connection on a presumptive basis. The preponderance of the evidence weighs against a grant of service connection for the Veteran’s back disability. As such, the claim of entitlement to service connection for a back disability must be denied. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Earlier Effective Date Under VA laws and regulations, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). In general, the effective date of an award based on an original claim, or a claim reopened after final adjudication of compensation, shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. During the pendency of this appeal, VA amended it regulations 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 arises, and eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims. See 79 Fed. Reg. 57,696 (Sep. 25, 2014) (effective Mar. 24, 2015). Prior to this change, a “claim” was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action indicating an intent to apply for one or more benefits under laws administered by VA from a claimant may be considered an informal claim. To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). However, if at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156(a). Such records include, but are not limited to (i) service records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the veteran by name, as long as the other requirements of 38 C.F.R. § 3.156(c) are met; (ii) additional service records forwarded by the Department of Defense or the service department to VA any time after VA’s original request for service records; and (iii) declassified records that could not have been obtained because the records were classified when VA decided the claim. 38 C.F.R. § 3.156(c)(1). If the claim is granted based on such service department records, the award is to be effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156(c)(3). Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114 (2017). To be eligible for a retroactive payment under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and must have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). The Honoring America’s Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America’s Veterans Act), Public Law 112-154, Section 506, 126 Stat. 1165, was signed into law on August 6, 2012. Section 506 of the Act amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013 through August 5, 2015. Under the Act, an effective date of up to one year prior to submission of the claim may be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim. In addition, VA has promulgated special rules for the effective date for the award of service connection based on exposure to herbicide agents, pursuant to orders of the United States District Court in the class action of Nehmer v. United States Department of Veterans Affairs. See 38 C.F.R. § 3.816 (2017); see also Nehmer v. United States Veterans Administration, 712 F. Supp. 1404 (N.D. Cal. 1989) (Nehmer I); Nehmer v. United States Veterans Administration, 32 F. Supp. 2d. 1175 (N.D. Cal. 1999) (Nehmer II); Nehmer v. Veterans Administration of the Government of the United States, 284 F.3d 1158 (9th Cir. 2002) (Nehmer III). Specifically, certain effective dates apply if a Nehmer class member was denied compensation for a covered herbicide disease between September 25, 1985, and May 3, 1989; if there was a claim for benefits pending before VA on May 3, 1989; or if a claim was received by VA between May 3, 1989, and the effective date of the applicable liberalizing law. 38 C.F.R. § 3.816 (c)(1)-(2). If the requirements of 38 C.F.R. § 3.816 (c)(1)-(2) are not met, the effective date shall be assigned according to 38 C.F.R. §§ 3.114 and 3.400. 38 C.F.R. § 3.816(c)(4). A Nehmer class member is defined as a Vietnam veteran who has a covered herbicide agent disease. Entitlement to an effective date earlier than December 7, 2011, for cervical spondylosis The Veteran filed an original claim for a cervical spine injury on November 14, 1978. This claim was denied in a January 1979 rating decision. The Veteran did not file a notice of disagreement with this rating decision, nor did he submit any additional evidence related to this claim within a year of the rating decision. As such, the January 1979 rating decision denying entitlement to service connection for a cervical spine disability is final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. On December 7, 2011, the VA received a statement from the Veteran and his representative requesting reopening of his cervical spine disability. A July 2013 rating decision found new and material evidence had been submitted and reopened the claim and granted entitlement to service connection for cervical spondylosis, effective December 7, 2011. The Veteran filed a notice of disagreement in August 2013. He alleged that he should be entitled to an effective date of November 1978, the date he filed his original claim. Considering the evidence of record under the laws and regulations as set forth above, the Board finds that December 7, 2011, is the correct date for the grant of service connection for a cervical spine disability. The Board has considered the Veteran’s contention that his effective date should be in 1978, as this is when he first filed his claim for service connection for a cervical spine disability. However, the Veteran did not file a notice of disagreement with the January 1979 rating decision, or submit any relevant evidence within a year of the rating decision. As such, the January 1979 rating decision became final. As noted above, the effective date of a claim reopened after final adjudication of compensation shall not be earlier than the date of receipt of the application. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Therefore, the Veteran is not entitled to an effective date prior to December 7, 2011, based on his prior application. The Board acknowledges that new service department records were added to the Veteran’s claims file after the January 1979 rating decision. However, these service department records are not relevant to the claim of service connection for a cervical spine disability and the grant of service connection was not based all or in part on these records. The new service department records confirm the Veteran had service in Vietnam. The January 1979 rating decision denied entitlement to service connection for a cervical spine disability based on finding that the Veteran did not have a current disability. The claim was reopened and granted in the July 2013 rating decision based on a current diagnosis and a positive nexus opinion provided by the July 2013 VA examination. Therefore, service department record exception to finality does not apply in this case, and the effective date of the award for entitlement to service connection cannot be earlier than the receipt of the application for reopening. A retroactive effective date is not warranted under Public Law 112-154, Section 506, as the granted claim for service connection for a cervical spine disability is not an original claim. Rather, it is a reopened claim. The Veteran’s original claim for service connection for a cervical spine disability was filed in November 1978. In addition, the Veteran’s claim was not filed during the specified time period of August 6, 2013 through August 5, 2015. As such, the provisions of Public Law 112-154, Section 506, are not applicable. The Board has also considered if special rules for the effective date for the award of service connection based on exposure to herbicide agents applies in this case. A Nehmer class member is defined as Vietnam veteran who has a covered herbicide agent disease. Although the Veteran did serve in Vietnam, cervical spine spondylosis is not a covered herbicide agent disease. 38 C.F.R. § 3.309(e) (2017). Accordingly, the Board concludes the preponderance of the evidence is against finding that the Veteran is entitled to an effective date earlier than December 7, 2011, for the grant of service connection for a cervical spine disability. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to an effective date earlier than December 7, 2011, for bilateral upper extremity radiculopathy The Veteran filed an original claim for entitlement to service connection for left and right upper extremity radiculopathy, to include as secondary to his cervical spine disability, on December 7, 2011. A July 2013 rating decision granted entitlement to service connection for bilateral upper extremity radiculopathy secondary to the service-connected disability of cervical spondylosis, effective December 7, 2011. The Veteran filed a notice of disagreement in August 2013. He alleged that he should be entitled to an effective date of November 1978, which he stated was the date he filed an initial claim for bilateral upper extremity radiculopathy. The Veteran did not file a claim for bilateral upper extremity radiculopathy in November 1987. As noted above, the Veteran filed a claim for a cervical spine disability on this date. The record does not contain any statements or correspondence that indicate any intent on the part of the Veteran to apply to benefits for bilateral upper extremity radiculopathy. Of note, the Veteran’s bilateral upper extremity radiculopathy was granted secondary to his service-connected cervical spine impairment. The effective date for service connection for the cervical spine disability is December 7, 2011. Secondary service connection is granted for a “disability which is proximately due to or the result of a service-connected disease or injury.” 38 C.F.R. § 3.310(a) (2017). The effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. See Ellington v. Peake, 541 F.3d 1364 (Fed. Cir. 2008); Ross v. Peake, 21 Vet. App. 528, 532-33 (2008). The special rules for the effective date for the award of service connection based on exposure to herbicide agents is not applicable for this claim as bilateral upper extremity radiculopathy is not a covered presumptive herbicide agent disease. 38 C.F.R. § 3.309. Early-onset peripheral neuropathy is a covered disease, however, there is no probative evidence of record indicating that the Veteran has this disability. There is no evidence of record indicating the Veteran’s symptoms began within a year of discharge, and as noted above, the radiculopathy claim was filed secondary to the Veteran’s cervical spine disability. In addition, Public Law 112-154, Section 506, does not apply as the claim was not received from August 6, 2013 through August 5, 2015. Accordingly, the Board concludes the preponderance of the evidence is against finding that the Veteran is entitled to an effective date earlier than December 7, 2011, for the grant of service connection for a bilateral upper extremity radiculopathy. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to an effective date prior to December 7, 2011, for compensation for right shoulder arthritis is denied. The Veteran filed an original claim for entitlement to service connection for right shoulder arthritis on December 7, 2011. A July 2013 rating decision granted entitlement to service connection for right shoulder arthritis, effective December 7, 2011. The Veteran filed a notice of disagreement in August 2013. He alleged that he should be entitled to an effective date of November 1978, which he stated was the date he filed an initial claim for right shoulder arthritis. The Veteran did not file either a formal or informal claim for right shoulder arthritis in November 1978. The record does not contain any statements or correspondence that indicate any intent on the part of the Veteran to apply for benefits for right shoulder arthritis prior to December 2011. VA cannot pay benefits unless a claim is filed. In this case, VA cannot award benefits back to 1978, because no claim was filed. The special rules for the effective date for the award of service connection based on exposure to herbicide agents is not applicable for this claim as right shoulder arthritis is not a covered presumptive herbicide agent disease. 38 C.F.R. § 3.309. In addition, Public Law 112-154, Section 506, does not apply as the claim was not received from August 6, 2013 through August 5, 2015. Based on the laws and regulations, the Veteran is not entitled to an effective date earlier than December 7, 2011, for grant of service connection for right shoulder arthritis. There is no reasonable doubt to be resolved as to this issue. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Norah Patrick, Associate Counsel