Citation Nr: 18152874 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-44 029 DATE: November 27, 2018 ORDER Entitlement to an effective date prior to January 30, 2015 for the grant of service connection for cervical strain to include on the basis of clear and unmistakable error (CUE) in the September 1993 rating decision is denied. Entitlement to an effective date prior to January 30, 2015 for the grant of service connection for right shoulder impingement syndrome with degenerative arthritis to include on the basis of CUE in the September 1993 rating decision is denied. Entitlement to an effective date prior to January 30, 2015 for the grant of service connection for hypertension with stage 3 chronic kidney disease and renal insufficiency is denied. Entitlement to an effective date prior to January 30, 2015 for the grant a 10 percent disability rating for service-connected degenerative changes of lumbosacral spine to include on the basis of CUE in the September 1993 rating decision is denied. FINDINGS OF FACT 1. The Veteran failed to establish an error of fact or law in the prior rating decision dated in September 1993 that when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, the result would have been manifestly different but for the error. 2. The claims file does not contain any communication or evidence received after the final July 2007 rating decision that denied entitlement to service connection for cervical spine condition and prior to January 30, 2015, which could be interpreted as an informal or formal claim to reopen entitlement to service connection for a cervical spine disorder to include cervical strain. 3. The claims file does not contain any communication or evidence received after the final September 1993 rating decision that denied entitlement to service connection for a right shoulder condition and prior to January 30, 2015, which could be interpreted as an informal or formal claim to reopen entitlement to service connection for a right shoulder disorder. 4. The claims file does not contain any communication or evidence received prior to January 30, 2015, which could be interpreted as an informal or formal claim to entitlement to service connection for hypertension, chronic kidney disease, or renal insufficiency. 5. The claims file shows that within the one-year period prior to January 30, 2015, it was not factually ascertainable that the Veteran met the requirements for an increase to a 10 percent disability rating for degenerative changes of lumbosacral spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to January 30, 2015 for the grant of service connection for cervical strain to include on the basis of CUE in the September 1993 rating decision are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156(c), 3.400. 2. The criteria for an effective date prior to January 30, 2015 for the grant of service connection for right shoulder impingement syndrome with degenerative arthritis to include on the basis of CUE in the September 1993 rating decision are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.156(c), 3.400. 3. The criteria for an effective date prior to January 30, 2015 for the grant of service connection for hypertension with stage 3 chronic kidney disease and renal insufficiency are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400. 4. The criteria for an effective date prior to January 30, 2015 for the grant a 10 percent disability rating for service-connected degenerative changes of lumbosacral spine to include as due to CUE in the September 1993 rating decision are not met. 38 U.S.C. §§ 5107, 511038 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1973 to January 1993. This case is before the Board of Veterans’ Appeals (Board) on appeal from a November 2015 rating decision. Effective Date Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a). Prior to March 24, 2015, informal claims were recognized. Any communication or action, indicating an intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.155 (2014). An informal claim must identify the benefit sought. A rating decision becomes final and binding if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104 (a), 3.160(d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a). Where evidence establishes CUE, the prior decision will be reversed or amended. For the purpose of authorizing benefits, the rating decision, which constitutes a reversal of a prior decision on the grounds of CUE, has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. §§ 3.104(a); 3.400(k). In order for a claim of CUE to be valid, there must have been an error in the prior adjudication of the claim; either the correct facts, as they were known at the time, were not before the adjudicator or the statutory or regulatory provisions extant at the time were incorrectly applied. Phillips v. Brown, 10 Vet. App. 25, 31 (1997); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc). Further, the error must be “undebatable” and of the sort which, had it not been made, would have manifestly changed the outcome at the time it was made, and a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Id. Simply to claim CUE on the basis that the previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE, nor can broad-brush allegations of “failure to follow the regulations” or “failure to give due process,” or any other general, non-specific claim of “error” meet the restrictive definition of CUE. Fugo v. Brown, 6 Vet. App. 40, 44 (1993). Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). The Court has propounded a three-pronged test to determine whether CUE is present in a prior determination. First, either the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied. Second, the error must be “undebatable” and of the sort “which, had it not been made, would have manifestly changed the outcome at the time it was made.” Third, a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). 1. Entitlement to an effective date prior to January 30, 2015 for the grant of service connection for cervical strain to include on the basis of CUE in the September 1993 rating decision. The Veteran contends that he is entitled to an earlier effective date of February 3, 1993, the date he separated from service, for the grant of service connection for cervical strain. He explained that the initial date of his request for service connection for cervical strain due to an in-service motor vehicle accident was in September 1993 and during the course of active duty, his medical records dating from 1977 until his retirement from military service in February 1993 show that he was under the care of doctors on more than 15 different occasions receiving treatment for injuries sustained as a result of the in-service jeep accident. See August 2016 statement in support of claim. As part of the Veteran’s claim for an effective date prior to January 30, 2015 for the grant of service connection for cervical strain, the Veteran asserted that there was CUE in the February 1993 rating decision that denied service connection for a neck condition. In this regard, he asserts that his service treatment records showed that he sustained injuries to his neck and there was sufficient evidence to grant the claim at that time and therefore, the denial constituted CUE. See November 2016 correspondence. Historically, the Veteran originally filed a service connection claim for a neck disorder in February 1993. The RO denied service connection for a neck condition on the basis that a chronic condition of the cervical spine was not shown by the evidence in a September 1993 rating decision. The RO notified the Veteran of this decision in October 1993 at the Veteran’s then current address of record. The Veteran did not appeal this decision. The record does not reflect that new and material evidence was received during the one-year appeal period following the notice of the September 1993 rating decision and no additional, relevant service records, warranting reconsideration of the claim, was received at any time thereafter. See 38 C.F.R. § 3.156(b), (c). Thus, the September 1993 rating decision is final. The September 1993 rating decision is therefore accepted as correct unless there is a finding of CUE in the rating decision. See 38 C.F.R. § 3.105(a). As noted above, the Veteran asserts that there was CUE in the September 1993 rating decision. The Board finds that the Veteran’s allegation of CUE concerns, at least in part, the RO’s interpretation of the evidence in its September 1993 rating decision. In this regard, the Veteran asserted in August 2016 and in November 2016 that the service treatment records show that the Veteran sustained a neck injury during service. The Veteran’s attorney also contends that the RO did not adequately evaluate the Veteran’s lay statements as to the Veteran’s actual physical condition regarding the Veteran’s service connection claim for a neck disorder and discounted favorable evidence. These general allegations, however, constitute a disagreement with how the RO evaluated the evidence in its final decision to deny service connection. A dispute as to how the RO evaluated and interpreted evidence cannot constitute CUE under VA law. See Baldwin v. West, 13 Vet. App. 1 (1999); Damrel v. Brown, 6 Vet. App. 242 (1996). The Veteran also contends that the VA examination in February 1993 was inadequate, resulting in CUE in the September 1993 rating decision. In substance his argument is that VA did not adequately fulfill its duty to assist the Veteran in developing his claim in that it relied on an inadequate examination. However, allegations that VA failed in its duty to assist are insufficient to form a basis for a claim of CUE. See Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) (holding that failure to fulfill duty to assist cannot constitute [CUE]). Based on the foregoing, the Board has determined that the RO did not commit CUE in the September 1993 rating decision. The Veteran has not shown either that the correct facts were not available to the RO, or that the laws at that time were not correctly applied. Consequently, the criteria for showing CUE in the September 1993 rating decision are not been met. After the September 1993 rating decision that denied service connection for a neck condition, the Veteran filed a request to reopen his service connection claim for a neck disorder in April 2007. In a July 2007 rating decision, the RO denied the Veteran’s request to reopen his service connection claim for residuals of a cervical spine injury, because the evidence submitted was not new and material. The RO sent notification of the July 2007 rating decision to the Veteran’s correct, current address of record at that time. There is no evidence of written communication from the Veteran or his representative expressing dissatisfaction or disagreement with the July 2007 rating decision within one year of said decision. Moreover, in this case, no exception to finality applies. The record does not reflect that new and material evidence was received during the one-year appeal period following the notice of the July 2007 rating decision and no additional, relevant service records, warranting reconsideration of the claim, was received at any time thereafter. See 38 C.F.R. § 3.156(b), (c). Thus, the July 2007 rating decision is final. The Veteran submitted another claim for service connection for chronic neck pain and stiffness that the RO received on January 30, 2015. In November 2015, the RO granted service connection for cervical strain, effective January 30, 2015, the date the RO received the Veteran’s service connection claim for chronic neck pain and stiffness. The record reflects that the RO received a statement from the Veteran on January 30, 2015 informing the RO that he intended to file a fully developed claim within twelve months of this date to preserve the date of claim. The RO received the Veteran’s service connection claim for a neck disorder on July 23, 2015 in a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. There is no other communication or action from the Veteran in the claims file indicating that he had an intent to apply for service connection for a neck disorder after the July 2007 rating decision and prior to January 30, 2015. According to the applicable regulation, the effective date of the Veteran’s allowance is January 30, 2015; the date the RO first received any communication indicating an intent to reopen his service connection claim for neck disorder. See 38 C.F.R. § 3.400(q)(2) and (r). Thus, the assignment of an earlier effective date for the grant of service connection for cervical strain is not warranted 2. Entitlement to an effective date prior to January 30, 2015 for the grant of service connection for right shoulder impingement syndrome with degenerative arthritis to include on the basis of CUE in the September 1993 rating decision. The Veteran contends that he is entitled to an earlier effective date of February 3, 1993, the date he separated from service, for the grant of service connection for his right shoulder disability. He explained that the initial date of his request for service connection for a right shoulder disorder due to an in-service motor vehicle accident was in September 1993 and his service treatment records show that he was under the care of doctors on more than 15 different occasions receiving treatment for injuries sustained as a result of the in-service jeep accident from 1977 until his retirement in February 1993. See August 2016 statement in support of claim. As part of the Veteran’s claim for an effective date prior to January 30, 2015 for the grant of service connection for right shoulder impingement syndrome with degenerative arthritis, the Veteran asserted that there was CUE in the February 1993 rating decision that denied service connection for a right shoulder condition. In this regard, he asserts that his service treatment records showed that he sustained injuries in the right shoulder and there was sufficient evidence to grant the claim at that time and therefore, the denial constituted CUE. See November 2016 correspondence. Historically, the Veteran originally filed a service connection claim for a right shoulder disorder in February 1993. In a September 1993 rating decision, the RO denied service connection for a right shoulder condition on the basis that the shoulder pain in service was acute and transitory with no residual disability. The RO notified the Veteran of this decision in October 1993 at the Veteran’s then current address of record. The Veteran did not appeal this decision. The record does not reflect that new and material evidence was received during the one-year appeal period following the notice of the September 1993 rating decision and no additional, relevant service records, warranting reconsideration of the claim, was received at any time thereafter. See 38 C.F.R. § 3.156(b), (c). Thus, the September 1993 rating decision is final. The September 1993 rating decision is therefore accepted as correct unless there is a finding of CUE in the rating decision. See 38 C.F.R. § 3.105(a). As noted above, the Veteran asserts that there was CUE in the September 1993 rating decision. The Board finds that the Veteran’s allegation of CUE concerns the RO’s interpretation of the evidence in its September 1993 rating decision. In this regard, the Veteran asserted in the August 2016 and in November 2016 that the service treatment records show that the Veteran sustained a right shoulder injury during service. The Veteran’s attorney also asserted that the RO did not adequately evaluate the Veteran’s lay statements as to the Veteran’s actual physical condition regarding the Veteran’s service connection claim for a right shoulder disorder and discounted favorable evidence. These general allegations, however, constitute a disagreement with how the RO evaluated the evidence in its final decision to deny service connection. A dispute as to how the RO evaluated and interpreted evidence cannot constitute CUE under VA law. See Baldwin v. West, 13 Vet. App. 1 (1999); Damrel v. Brown, 6 Vet. App. 242 (1996). The Veteran also contends that the VA examination in February 1993 was inadequate, resulting in CUE in the September 1993 rating decision. In substance his argument is that VA did not adequately fulfill its duty to assist the Veteran in developing his claim in that it relied on an inadequate examination. Nonetheless, allegations that VA failed in its duty to assist are insufficient to form a basis for a claim of CUE. See Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) (holding that failure to fulfill duty to assist cannot constitute [CUE]). Based on the foregoing, the Board has determined that the RO did not commit CUE in the September 1993 rating decision that denied entitlement to service connection for a right shoulder disorder. The Veteran has not shown either that the correct facts were not available to the RO, or that the laws at that time were not correctly applied. Consequently, the criteria for showing CUE in the September 1993 rating decision are not been met. The Veteran submitted another claim for service connection for a right shoulder disorder that the RO received on January 30, 2015. In November 2015, the RO granted service connection for right shoulder impingement syndrome with degenerative arthritis, effective January 30, 2015, the date the RO received the Veteran’s service connection claim for chronic neck pain and stiffness. Specifically, the record reflects that the RO received a statement from the Veteran on January 30, 2015 informing the RO that he intended to file a fully developed claim within twelve months of this dates to preserve the date of claim. The RO received the Veteran’s service connection claim for right shoulder pain on July 23, 2015 in a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. There is no other communication or action from the Veteran in the claims file indicating that he had an intent to apply for service connection for a right shoulder disorder after the September 1993 rating decision and prior to January 30, 2015. According to the applicable regulation, the effective date of the Veteran’s allowance is January 30, 2015; the date the RO first received any communication indicating an intent to reopen his service connection for a right shoulder disorder. See 38 C.F.R. § 3.400(q)(2) and (r). Therefore, the assignment of an earlier effective date for the grant of service connection for right shoulder impingement syndrome with degenerative arthritis is not warranted. 3. Entitlement to an effective date prior to January 30, 2015 for the grant of service connection for hypertension with stage 3 chronic kidney disease and renal insufficiency. The Veteran contends that the effective date for the grant of service connection for service connection for hypertension with stage 3 chronic kidney disease and renal insufficiency should go back to the date he was discharged on February 3, 1993. The Veteran explained that an April 2015 letter from his nephrologist provided the opinion that the labs documented in service show that the Veteran had chronic kidney disease at the time he retired from the Army in February 1993. The record reflects that the RO received a statement from the Veteran on January 30, 2015 informing the RO that he intended to file a fully developed claim within twelve months of this date to preserve the date of claim. The RO received the Veteran’s service connection claim for high blood pressure and stage 3 kidney disease on July 23, 2015 in a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. There is no other communication or action from the Veteran in the claims file indicating that he had an intent to apply for service connection for high blood pressure or a kidney disorder. The Board notes that the Veteran contends that urine laboratory tests in service show that he had chronic kidney disease in service and he provided a medical opinion from his nephrologist that supports his assertion. The Veteran’s service treatment records do not reveal any intent on behalf of the Veteran that he was seeking service connection for hypertension or a kidney disorder. An intent to apply for benefits is an essential element of any claim, whether formal or informal. See MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations required a claimant to have an intent to file a claim for VA benefits). It follows that where there can be found no intent to apply for VA benefits, a claim for entitlement to such benefits has not been reasonably raised. The Court has held that the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Although there are two recognized exceptions to this general rule, those exceptions are applicable only when an underlying claim has been awarded and the medical records demonstrate that the Veteran’s disability has increased, or when an underlying claim has been denied and the medical records evidence new and material evidence to reopen the claim. Neither of those exceptions apply in this case. In conclusion, the controlling laws and regulations state that an award of disability compensation will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The January 30, 2015 correspondence is the earliest document in the record that reveals the Veteran intended to file a claim for service connection and his formal claim for service connection for hypertension and kidney disease was received within one year of the January 30, 2015 correspondence. Thus, January 30, 2015, the date the Veteran filed his original service connection claim for hypertension and kidney disease, is the appropriate effective date. Here, the evidence of record, viewed in conjunction with the pertinent laws and regulations, provide no basis for an award of service connection for hypertension with stage 3 chronic kidney disease and renal insufficiency prior to January 30, 2015. 4. Entitlement to an effective date prior to January 30, 2015 for the grant a 10 percent disability rating for service-connected degenerative changes of the lumbosacral spine to include as due to CUE in the September 1993 rating decision. The Veteran seeks an effective date prior to January 30, 2015 for the award of a 10 percent disability rating for degenerative changes of lumbosacral spine. As part of the Veteran’s claim for an effective date prior to January 30, 2015 for the grant of service connection for cervical strain, the Veteran asserted that there was CUE in the September 1993 rating decision that granted a noncompensable rating for a back disability. In this regard, it appears that the Veteran contends that the February 1993 VA examination was inadequate, the RO did not adequately consider the Veteran’s lay statements, and the RO discounted favorable evidence. See November 2016 correspondence. Historically, the Veteran originally filed a service connection claim for a back disorder in February 1993. The RO granted service connection for a back condition and assigned a noncompensable rating, effective February 1, 1993. The RO notified the Veteran of this decision in October 1993 at the Veteran’s then current address of record. The Veteran did not appeal this decision. Thus, the September 1993 rating decision is final. The September 1993 rating decision is therefore accepted as correct unless there is a finding of CUE in the rating decision. See 38 C.F.R. § 3.105(a). With respect to the Veteran’s claim of CUE in the September 1993 rating decision, the allegation of CUE concerns, at least in part, the RO’s interpretation of the evidence in the September 1993 rating decision. Specifically, the Veteran asserted that the RO did not adequately evaluate the Veteran’s lay statements as to the Veteran’s actual physical condition in assigning the noncompensable rating and discounted favorable evidence. These general allegations, however, constitute a disagreement with how the RO evaluated the evidence in its final decision to grant service connection and assign a noncompensable disability rating. A dispute as to how the RO evaluated and interpreted evidence cannot constitute CUE under VA law. See Baldwin v. West, 13 Vet. App. 1 (1999); Damrel v. Brown, 6 Vet. App. 242 (1996). The Veteran also contends that the VA examination in February 1993 was inadequate, resulting in CUE in the September 993 rating decision. In substance his argument is that VA did not adequately fulfill its duty to assist the Veteran in developing his claim in that it relied on an inadequate examination to assign a noncompensable disability rating. However, allegations that VA failed in its duty to assist are insufficient to form a basis for a claim of CUE. See Caffrey v. Brown, 6 Vet. App. 377, 383-84 (1994) (holding that failure to fulfill duty to assist cannot constitute [CUE]). Based on the foregoing, the Board has determined that the RO did not commit CUE in the October 1993 rating decision that assigned a noncompensable disability rating for the grant of service connection for a back disorder. The Veteran has not shown either that the correct facts were not available to the RO, or that the laws at that time were not correctly applied. Consequently, the criteria for showing CUE in the September 1993 rating decision are not been met. After the September 1993 rating decision, the Veteran filed an increased disability rating for his back disorder in April 2007. He noted that since his retirement in 1993 he has had “numerous” back pain. The RO denied the Veteran’s claim a for a compensable disability rating for his service-connected degenerative changes of the lumbosacral spine. The RO sent notification of the July 2007 rating decision to the Veteran’s correct, current address of record at that time. There is no evidence of written communication from the Veteran or his representative expressing dissatisfaction or disagreement with the July 2007 rating decision within one year of said decision. Moreover, in this case, no exception to finality applies. Thus, the July 2007 rating decision is final. Thereafter, the RO received a statement from the Veteran on January 30, 2015 informing the RO that he intended to file a fully developed claim within twelve months of this date to preserve the date of claim. The RO received the Veteran’s service connection claim for chronic low back pain on July 23, 2015 in a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits. As the Veteran was already service-connected for a low back disorder, the RO interpreted the Veteran’s claim as on for an increased rating. There is no other communication or action from the Veteran in the claims file indicating that he had an intent to apply for an increase in the disability rating for service-connected degenerative changes of lumbosacral spine after the July 2007 rating decision and prior to January 30, 2015. In this case, the earliest possible effective date for the award of an increased rating for degenerative changes of lumbosacral spine is January 30, 2014. See 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(o)(2) (if, the ascertainable increase precedes receipt of the formal or informal claim, then the effective date is the date of ascertainable increase, if the claim is received within one year thereof). Regarding the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation. However, the Court has interpreted it as the date when the claimant met the requirements for the benefits sought. This is determined on a “facts found” basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). It is important to note that an effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. See generally 38 C.F.R. § 3.400. For instance, if a claimant filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). (Continued on the next page)   The RO granted a 10 percent disability rating in the November 2015 rating decision based on the results of the October 2015 VA examination that demonstrated objective medical evidence of functional loss due to painful motion of the thoracolumbar spine. A review of the Veteran’s private treatment records associated with the claims file do not reflect that the onset of the functional loss of the Veteran’s thoracolumbar spine due to painful motion occurred during the one-year period prior to the January 30, 2015 claim. Furthermore, the evidence does not show that during the one-year period prior to the January 30, 2015 claim the Veteran’s service-connected back disability resulted in forward flexion of the thoracolumbar spine 85 degrees or less, combined range of motion of the thoracolumbar spine 235 degrees or less, muscle spasm, guarding, or localized tenderness, or physician prescribed bed rest of at least one week. See 38 C.F.R. § 4.71a, Diagnostic Code 5242. Accordingly, the evidence of record does not show a factually ascertainable increase in disability of the service-connected degenerative changes of lumbosacral spine within the one-year period prior to January 30, 2015. Thus, the assignment of an effective date prior to January 30, 2015 is not warranted. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Berry, Counsel