Citation Nr: 18156295 Decision Date: 12/11/18 Archive Date: 12/07/18 DOCKET NO. 16-20 857 DATE: December 11, 2018 ORDER An effective date of December 22, 2009 (and no earlier) for the grant of service connection for degenerative arthritis of the lumbar spine with intervertebral disc syndrome (IVDS) is granted. An effective date of December 22, 2009 (and no earlier) for the grant of service connection for radiculopathy of the left lower extremity (LLE) is granted. FINDINGS OF FACT 1. In an unappealed September 2008 rating decision, the Agency of Original Jurisdiction (AOJ) denied the appellant’s claims for service connection for back pain and left leg pain along with his application to reopen a claim for service connection for lumbosacral strain; new and material evidence was not received prior to expiration of the appeal period. 2. The September 2009 rating decision became final. 3. VA received on December 22, 2009 an application to reopen the previously denied claim for service connection for a back disability; the AOJ granted this claim. 4. Back and left leg pathology existed prior to VA’s receipt of the application to reopen after a final disallowance in December 22, 2009; the effective date of an award based on a claim allowed after final disallowance is the date of receipt of the new claim or the date entitlement arose, whichever is later. 5. The appellant’s left lower extremity radiculopathy is a complication of degenerative arthritis of the lumbar spine with IVDS. CONCLUSIONS OF LAW 1. The criteria have been met for an effective date of December 22, 2009 for the award of service connection for degenerative arthritis of the lumbar spine with IVDS. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.400. 2. The criteria have been met for an effective date of December 22, 2009 for the award of service connection for radiculopathy of the left lower extremity. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty from August 1977 to August 1980. He also had subsequent service in the United States Army Reserve including a period of active duty from February to June 1987. His unit was called to active duty from September 1990 to June 1991, when he served in Southwest Asia in support of Operation Desert Shield/Desert Storm. Effective Date The appellant seeks effective dates earlier than November 12, 2014 for service connection for degenerative arthritis of the lumbar spine with IVDS and for radiculopathy of the left lower extremity. Generally, the effective date of an award of service connection shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). Similarly, when new and material evidence is received after a final disallowance, and a claim of service connection is reopened and granted, the date of an award of service connection will be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). A review of the record shows that VA has been unable to locate the appellant’s service medical records, other than medical histories taken in conjunction with his 1976 service entrance examination and his 1984 commissioning examination. They show that the appellant denied cramps in his legs, recurrent back pain, lameness, neuritis, or paralysis. In light of the missing records, VA has a heightened duty to explain its findings and conclusions and to consider carefully the benefit of the doubt rule. O'Hare v. Derwinski, 1 Vet. App. 365 (1991). The Board's analysis of the following claims is undertaken with that duty in mind. 1. The Lumbar Spine 2. Radiculopathy of the Left Lower Extremity The Board concludes that the evidence warrants the assignment of an effective date of December 22, 2009, and no earlier, for the grant of service connection for spine disability and LLE radiculopathy. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.155, 3.156(c), 3.400. In February 2000, the AOJ denied the appellant’s claim of service connection for a low back disability, characterized as lumbosacral strain. The AOJ noted no evidence of lumbosacral strain in service or for many years thereafter. The AOJ found that lumbosacral strain had first been demonstrated during VA treatment in January 1999. Although the appellant filed a timely Notice of Disagreement (NOD) with that decision and was issued a Statement of the Case (SOC) in May 2000, he did not file a timely substantive appeal. Also, VA did not receive new and material evidence prior to expiration of the appeal period. Accordingly, the February 2000 decision became final under the law and regulations then in effect. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The AOJ confirmed and continued the denial of service connection for a back disability in rating decisions in May 2003 and September 2008. The AOJ found that the evidence failed to show that the appellant’s low back disability, primarily characterized as lumbosacral strain, was related to service. The AOJ noted no evidence of chronic back disability prior to a post-service motor vehicle accident in December 1991. VA did not receive an appeal of these decisions or new and material evidence prior to expiration of the appeal period. Therefore, those decisions also became final. Id. In December 2010, the AOJ again confirmed and continued the denial of service connection for a low back disability. The AOJ noted that an MRI in November 2007 had revealed degenerative disc disease but that there was still no material evidence showing that the condition had begun during military service. Parenthetically, the AOJ noted that the application to reopen the claim for service connection for a low back disability had been received on December 22, 2009. Later in December 2010, the appellant requested that VA reevaluate its decision. Read in a light most favorable to the appellant, that request constituted a timely NOD with respect to the 2010 rating decision. Nevertheless, in July 2011, the AOJ confirmed and continued the denial of service connection for a back disability. Again, the AOJ found no evidence that degenerative disc disease had occurred in or had been caused by service. The AOJ noted no evidence of chronic back disability prior to the December 1991 motor vehicle accident. In August 2011, the appellant submitted an NOD with the July 2011 rating action; and in September 2012, the AOJ sent the appellant an SOC. Although the appellant submitted a timely substantive appeal (VA Form 9) the following month, that case was never sent to the Board of Veterans’ Appeals (Board). The evidence does not show that the appellant ever withdrew the appeal; and therefore, the appeal remains open. On November 12, 2014, the appellant submitted a statement regarding his back injury in service, and in April 2015, he was examined by VA to determine, in part, the nature and etiology of his back disability. Following the examination, the diagnoses were degenerative joint disease of the lumbar spine and degenerative disc disease with radiculopathy. The examiner opined that it was at least as likely as not that such disability was related to the appellant’s service in Southwest Asia. The examiner noted multiple statements from former fellow service members attesting to the appellant’s back injury in service and that the degenerative joint disease was worse on the left than the right. The examiner found that such evidence tended to support the appellant’s claim that he had injured his left lower back in service. In June 2015, the AOJ found the additional evidence new and material not only for the purpose of reopening the claim but for granting service connection for degenerative arthritis of the lumbar spine with IVDS. The AOJ cited the VA examiner’s opinion, the multiple lay statements from the appellant’s former fellow service members, and other medical evidence on file consistent with the inservice injury. The AOJ assigned a 10 percent evaluation effective November 12, 2014. The AOJ also granted service connection for left lower extremity radiculopathy as a known complication of degenerative disc disease with IVDS. The AOJ assigned an effective date of November 11, 2014 for service connection for the left lower extremity radiculopathy. The appellant contends that the effective dates of service connection should be retroactive to 1999, when he filed his initial claim. As noted above, however, that claim was denied in final decisions, dated in February 2000, May 2003, and September 2008. Thus, the effective date may not precede September 2008. The appellant filed an application to reopen his claim for a low back disability in December 22, 2009. Although the AOJ continued to confirm that denial until June 2015, the foregoing evidence shows that the claim has effectively been open since December 22, 2009. The report of a November 1999 VA examination and reports from three former fellow service members in January and July 2000 confirm the fact that the appellant had been in a motor vehicle accident in service during the Persian Gulf War. Moreover, as early as a November 1999 VA neurologic examination, the evidence shows that the reported radiating low back pain. In February 2001, a VA MRI confirmed the presence of a herniated nucleus pulposus at L5-S1, and in May 2001, R. H., M.D, confirmed the presence of disc pathology at L4-L5 and L5-S1. In sum, the evidence of service connection for a low back disability and pain radiating down his left lower extremity preceded the claim for service connection on December 22, 2009. Because the date of the receipt of the claim was later than the date entitlement arose, the date of receipt of the claim controls. Accordingly, the effective dates for service connection for lumbar degenerative disc disease with IVDS and for radiculopathy of the left lower extremity should revert to December 22, 2009. To those extents, the appeal is allowed. The Board has reviewed and considered all the evidence of record. However, neither the STRs nor the medical records provide a basis to award an effective date earlier than December 22, 2009 based on an award of service connection where a claim is reopened and allowed after a final denial. In such circumstances, the date of the receipt of the “new claim or the date entitlement arose, whichever is later” is the effective date of the award. See 38 U.S.C. §5110(a); 38 C.F.R. § 3.400(q)(2). Accordingly, an effective date of December 22, 2009 (and no earlier) for the grant of service connection for spine disability is granted; an effective date of December 22, 2009 (and no earlier) for the grant of service connection for LLE radiculopathy is granted. (Continued on the next page)   There is no doubt to resolve. 38 U.S.C. § 5107(b). Furthermore, the Board is bound in this matter by the applicable laws and regulations and is without authority to grant benefits because the appellant might perceive such a grant to be equitable. See 38 U.S.C. §§ 503, 7104; see also Harvey v. Brown, 6 Vet. App. 416, 425 (1994). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel