Citation Nr: 18152269 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 13-05 531 DATE: November 21, 2018 ORDER Entitlement to an effective date earlier than October 21, 2008, for service connection for a cervical spine disability and radiculopathy of the bilateral upper extremities, to include on the basis of clear and unmistakable error (CUE), is denied. REMANDED Entitlement to a rating higher than 40 percent for a lumbar spine disability is remanded. Entitlement to a rating higher than 20 percent for radiculopathy of the left upper extremity is remanded. Entitlement to a rating higher than 20 percent for radiculopathy of the right upper extremity is remanded. Entitlement to a rating higher than 10 percent for a cervical spine disability is remanded. (Additional issues are addressed in a separate decision with the same docket number due to different representation. The Veteran’s attorney has limited his representation to the issues discussed in this decision.) FINDINGS OF FACT 1. On October 21, 2008, the RO received a statement from the Veteran that constitutes a claim for service connection for a “neck” disability. 2. Prior to October 21, 2008, there was no pending claim pursuant to which service connection for a cervical spine disability with radiculopathy of the bilateral upper extremities could have been granted. CONCLUSION OF LAW The criteria for an effective date earlier than October 21, 2008, for service connection for a cervical spine disability and radiculopathy of the bilateral upper extremities, to include on the basis of clear and unmistakable error (CUE), are not met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.105 (a), 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION 1. Entitlement to an effective date earlier than October 21, 2008, for the grant of service connection for a cervical spine disability and radiculopathy of the bilateral upper extremities If a claim is received within one year after separation from service the effective date assigned for service connection will be the day following separation from active service or date entitlement arose. Otherwise the effective date shall be the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by VA 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); 38 C.F.R. § 3.151. Any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. Upon receipt of an informal claim, if the 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 date of the receipt of the informal claim. 38 C.F.R. § 3.155. Previous determinations which are final and binding will be accepted as correct in the absence of clear and unmistakable error. Where evidence establishes such error, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicative decision which constitutes a reversal of a prior decision on the grounds of clear and unmistakable error has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105 (a). The Board notes that the Veteran seeks an earlier effective date for the grant of service connection for a cervical spine disability and radiculopathy of the bilateral upper extremities, to include on the basis of error in the RO’s October 1, 1979 rating decision. The Veteran’s primary allegation is that he filed a claim in May 1979 for service connection for both a lumbar spine disability and cervical spine disability and that the RO improperly failed to adjudicate that claim for service connection for a cervical spine disability, to include radiculopathy of the bilateral upper extremities. In reviewing the record on appeal, the Board notes that service medical records are associated with the claims file as is the Veteran’s application for benefits, VA Form 21-526e, and the report of an August 1979 VA examination and a report of March 1980 VA examination. A review of the Veteran’s service medical records shows a March 1975 incident where the Veteran experienced a lumbar spasm after performing heavy lifting. An August 10, 1976, service medical record shows that the Veteran was in a traffic accident and hit his back. He reported gross pain along the entire spinal column. The diagnosis was muscle strain versus sprain. An August 25, 1976, service medical record indicates that the Veteran was hit by a car that night and was struck in the back and anterior thigh. The note specifies that the Veteran complained of pain in the low back and anterior thigh. An X-ray was taken of the lumbar spine and knees. The impression was a soft tissue injury. No reference to the cervical spine was noted. A subsequent March 1977 statement regarding the Veteran’s medical condition notes that the Veteran sustained injuries when his car was struck by another car in August 1976, and later that month when the Veteran was struck by a vehicle while walking along a road. The specific medical diagnosis was acute low back sprain, with reinjury and chronic symptoms; early degenerative arthritis of lumbosacral spine. No reference to the cervical spine was noted. The attending physician stated that the Veteran would need periodic treatment for the low back as symptoms reappeared. In a July 1978 Report of Medical History, the Veteran reported that he had a current profile for his “back.” The examiner noted the Veteran’s reported history of degenerative changes of the “back.” In a July 26, 1978, Report of Medical Examination, noted for the purpose of Chapter 13, the examiner found that the Veteran had a normal neck. In a report of April 1979 medical examination for purposes of the Veteran’s separation from service, the examiner noted that the Veteran had a normal neck. The examiner also indicated that the Veteran had a chronic low back strain. The Board also notes that post service medical evidence shows a report of August 1979 VA examination in which the examiner noted the Veteran’s reported history of pain in the knees and back. The Veteran was not noted to have complained of neck pain. Examination of the Veteran’s neck was normal. An X-ray of the lumbosacral spine at that time was negative for any arthritic process. In a subsequent report of March 1980 VA examination, following the October 1979 rating decision, the Veteran reported straining his lower back in 1975 while lifting a generator. He reported an exacerbation of pain in the lower back in 1976 when his car was struck from behind. It was further noted that three weeks later, a car again hit the Veteran, injuring his lower back. The Veteran said he experienced stiffness and pain in his lower back all of the time. No reference to the cervical spine was noted. A review of the Veteran’s May 1979 application for VA benefits (VA Form 21-526e) shows that under question #6, Nature of Sickness, Diseases or Injuries for Which Claim is Made and Date Each Began, statements by the Veteran are noted as follows, Knee begin in 1973. Was operate on left knee Oct 73. Hurt back 1974 and shoulder. Reinjury back, knee and shoulder 1976. Bursitis left shoulder. Loose body knee and soften of both knee also chronic back strain. The Board notes that a sympathetic reading of a claimant’s pleadings cannot be based on a standard that requires legal sophistication beyond that which can be expected of a lay claimant and must consider whether the claimant’s submissions, considered in total, have articulated a claim. Ingram v. Nicholson, 21 Vet. App. 232 (2007). In reviewing the Veteran’s May 1979 application for benefits and his noted pleadings, the Board does not find any expressed reference to a neck injury. A claim for a cervical spine disability also cannot be reasonably inferred from a sympathetic reading of the Veteran’s pleadings in the May 1979 application. In analyzing the Veteran’s pleadings in his application, the Board notes that service medical records do not show a cervical spine injury. Although the Veteran injured his lower back and suffered multiple in-service accidents, the service medical records do not make reference to treatment for any neck disability or injury. The Board also finds persuasive that the Veteran’s physical profiles in service do not show any cervical spine disability. The examiner in July 1978 found the Veteran’s neck to be normal. A subsequent examination in April 1979 for purposes of the Veteran’s separation from service does not show any findings of any neck disability. Additionally, during the August 1979 and March 1980 VA examinations the Veteran did not give any history or complain of neck pain or make any reference to any cervical spine symptoms or disability. Therefore, even with a sympathetic reading of the Veteran’s pleadings in the May 1979 application for benefits, the Board concludes that the evidence simply does not support that a claim for service connection for a neck disability with radiculopathy of the bilateral upper extremities was pending at the time of the October 1979 rating decision. 38 C.F.R. §§ 3.151, 3.155. The Veteran has alleged that the RO’s failure to consider his claim for service connection for a cervical spine disability in the October 1979 rating decision was CUE. When a claimant files more than one claim with the RO at the same time, if the RO acts on one of the claims but does not specifically address the other, the second claim is deemed denied and the appeal period begins to run. Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006). An RO decision may constitute an adjudication of a claim where the RO decision addresses the claim “in a manner sufficient for a claimant to deduce that the claim was adjudicated.” Ingram v. Nicholson, 21 Vet. App. 232 (2007). That presupposes a finding that a claimant had in fact filed a claim. In this case, the Board finds that the Veteran did not have a claim pending for service connection for a cervical spine disability with radiculopathy of the bilateral upper extremities at the time of the October 1979 rating decision. Because the Veteran did not have a claim for service connection for a cervical spine disability with radiculopathy of the bilateral upper extremities pending at the time of the October 1979 rating decision, the Board finds that his argument alleging CUE in the October 1979 rating decision lacks legal merit. The October 1979 rating decision is not final and binding with respect to any claim for a cervical spine disability with radiculopathy of the bilateral upper extremities. For that reason, as a matter of law, the October 1979 rating decision cannot be the subject of a claim of CUE regarding a service-connected cervical spine disability with radiculopathy of the bilateral upper extremities disability. Therefore, 38 C.F.R. § 3.105(a) provides no basis for assignment of an earlier effective date in this case. Otherwise, a review of the record shows that the Veteran separated from a second period of active service on May 16, 1979. The RO appears to have received the Veteran’s claim in a Statement in Support of Claim, VA Form 21-4138, for service connection for a “neck” disability on October 21, 2008. An evaluation of the information and evidence prior to October 21, 2008, does not show any earlier claim having been filed for service connection for a neck disability or any cervical radiculopathy disabilities, nor has the Veteran contended, other than his allegation of a claim having been filed in May 1979, that he filed a claim earlier than October 21, 2008. Therefore, as the Veteran’s claim for service connection for a cervical spine disability with radiculopathy of the bilateral upper extremities was not received by the RO within one year of his separation from service, the date of receipt of claim or date entitlement arose, whichever is later, is controlling for the purposes of the Veteran’s claim. 38 C.F.R. § 3.400 (b)(2). Here, the RO has assigned an effective date from the date of the claim for service connection. Thus, an effective date earlier than October 21, 2008, is not warranted. The governing legal authority is clear and specific, and VA is bound by it. Therefore, the Board finds no legal basis for assignment of an earlier effective date. Accordingly, the Board must conclude that there is no basis to warrant an effective date earlier than October 21, 2008, for service connection for a cervical spine disability and radiculopathy of the bilateral upper extremities, and the claim must be denied. REASONS FOR REMAND 1. Entitlement to a rating higher than 10 percent for a cervical spine disability is remanded. 2. Entitlement to a rating higher than 40 percent for a lumbar spine disability is remanded. 3. Entitlement to a rating higher than 20 percent for radiculopathy of the left upper extremity is remanded. 4. Entitlement to a rating higher than 20 percent for radiculopathy of the right upper extremity is remanded. At the April 2017 Board hearing, the Veteran stated that he received treatment for the cervical spine from a private doctor, Dr. Patterson. He stated that he had undergone extensive rehabilitation, and his most recent treatment from Dr. Patterson was about six weeks before the hearing. He also stated that he received treatment from Dr. Repedo and Dr. Jenning. While a few records from Dr. Patterson have been associated with the claims file, the private records as referenced by the Veteran appear to be incomplete. When VA is put on notice of the existence of private medical records, VA must attempt to obtain those records before proceeding with the appeal. Lind v. Principi, 3 Vet. App. 493 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992). Additionally, the Board emphasizes that records generated by VA facilities that may have an impact on the adjudication of a claim are considered constructively in the possession of VA adjudicators during the consideration of a claim, regardless of whether those records are physically on file. Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). Efforts should be made to obtain all outstanding referenced treatment records, as authorized by the Veteran. Additionally, the Veteran last underwent VA examination of the lumbar spine in March and May 2010 and of the cervical spine in December 2016. At the April 2017 Board hearing, the Veteran essentially asserted that his symptoms had increased in severity since the most recent examinations. Where the evidence of record does not indicate the current state of the Veteran’s disability, a more contemporaneous VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Because of the Veteran’s assertions of increased symptoms, remand is required to obtain updated treatment records and provide the Veteran a contemporary VA examination that evaluates the current symptomatology of the lumbar spine, cervical spine, and radiculopathy of the bilateral upper extremities disabilities. The matters are REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private treatment records not already associated with the claims file, to specifically include private records from Dr. Patterson, Dr. Repedo, and Dr. Jenning as referenced by the Veteran at the April 2017 hearing. All attempts to locate records must be documented in the claims file. 2. Schedule the Veteran for VA orthopedic and neurological examinations, by an appropriate physician. The examiner must review the claims file and should note that review in the report. All indicated tests and studies should be accomplished, and all clinical findings must be reported in detail. The examiner should state all examination findings, with the rationale for the comments and opinions expressed. a) The physician must identify the existence, and frequency or extent, as appropriate, of all neurological symptoms associated with the lumbar and cervical spine disabilities, to include radiculopathy. b) Concerning any neurological findings, the examiner should state what nerve is affected and whether there is complete or incomplete paralysis of the nerve. If incomplete paralysis is present, the examiner should provide an opinion as to whether it is mild, moderate, moderately severe, or severe, and should state whether there are sensory, motor, or strength loss manifestations. c) The physician must conduct range of motion testing for active and passive motion and weight-bearing and nonweight-bearing of the thoracolumbar and cervical spine, expressed in degrees. d) The examiner should provide ranges of thoracolumbar and cervical spine motion with specific findings as to whether there is objective evidence of pain on motion, weakened motion, excess motion, fatigability, or incoordination. If pain on motion is observed, the physician should indicate the point at which pain begins. In addition, the physician should indicate whether, and to what extent, the Veteran experiences functional loss of the thoracolumbar and cervical spine due to pain or any of the other symptoms noted above during flare-ups or with repeated use. To the extent possible, the examiner should express any additional functional loss in terms of additional degrees of limited motion. e) If muscle spasm or guarding of the thoracolumbar or cervical spine is present, the examiner should state whether it is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. f) The physician should comment as to the existence and frequency of any incapacitating episodes of intervertebral disc syndrome, periods of acute signs and symptoms due to intervertebral disc syndrome that require bed rest prescribed by a physician and treatment by a physician. If the Veteran has incapacitating episodes associated with the lumbar or cervical spine disabilities, the examiner should specify their frequency and duration. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Layton, Counsel