Citation Nr: 18156460 Decision Date: 12/10/18 Archive Date: 12/10/18 DOCKET NO. 16-44 535 DATE: December 10, 2018 ORDER Entitlement to an effective date earlier than July 1, 2014, for assignment of a compensable rating for the residuals of a cervical spinal fracture is denied. FINDINGS OF FACT 1. Prior to July 1, 2014 the residuals of the Veteran’s cervical spine fracture were not manifest by forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 2. The facts and law were appropriately applied in the June 1995 rating decision that granted service connection for a cervical spinal disorder, and assigned a noncompensable rating. Slight limitation of cervical spinal motion was not shown by the clinical evidence at that time. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than July 1, 2014, for assignment of a compensable rating for the residuals of a cervical spinal fracture, to include on the basis of clear and unmistakable error (CUE), have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321,3.400, 4.1, 4.3, 4.71a, Diagnostic Codes 5290 (1994), 5235 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had a period of active duty service from August 1990 to June 1994. The RO granted service connection and assigned a noncompensable rating effective from June 14, 1994 for a post cervical strain and anterior body fracture C-7. This was done by a June 1995 rating action. It was noted that the injury was sustained in a dirt bike accident and that there was some limitation of motion in service. He was discharged with complaints of frequent pain. On VA examination of December 1994, he was reportedly engaged in activities such as surfing, rollerblading and working out. He was attending college and evidence on file did not show slight limitation of motion of the cervical spine. It was noted that he had failed to report for specific examinations for the neck. The Veteran was notified of this determination, the mail is not shown to have been undeliverable, and there is no evidence of attempt to reschedule the examination. The Veteran filed a request to reopen his claim in July 2014. He asserted that his disability evaluation warrants an increase evaluation. The Veteran also asserted that an earlier effective date of January 26, 1994 is warranted. In an April 2015 rating decision, the Regional Office (RO) granted the Veteran an increased evaluation of 10 percent for his above disability effective from July 1, 2014. In a July 2015 notice of disagreement, the Veteran asserted an earlier effective date of June 1994 along with the submission of VA Memorandum Rating for Vocational Rehabilitation purposes dated January 26, 1994 noting a qualification for a 20 percent evaluation is warranted from January 26, 1994. This document was of record, it was drafted in January 1994 for the purposes of determining eligibility for Vocational Rehabilitation Education (VRE) benefits and was based on service treatment records which then showed some limitation of motion. Earlier Effective Dates and Increased Rating A rating decision becomes final if the Veteran does not timely perfect an appeal of the decision. 38 U.S.C. § 7105 (West 2014); 38 C.F.R. §§ 20.200, 20.302 (2015). A claim that is the subject of a final decision can be reopened upon the submission of new and material evidence. 38 U.S.C. § 5108 (West 2014). VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110 (a) (2012); 38 C.F.R. § 3.400 (2017). Regulations also provide that the effective date of an evaluation and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (o)(1) (2017). The Board notes that the effective date of an award of increased compensation may, however, be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased evaluation is received within one year from that date. 38 U.S.C. § 5110 (b)(2) (2012); 38 C.F.R. § 3.400 (o)(2) (2017). Three possible dates may be assigned depending on the facts of a case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1) (2017)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2) (2017)); or (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2) (2017)). See Harper v. Brown, 10 Vet. App. 125, 126 (1997). Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2) (2017). The Board also notes that under Rudd v. Nicholson, there is no such thing as a free-standing claim for an earlier effective date. Rudd v. Nicholson, 20 Vet. App. 296 (2006). This means that once a claim becomes final (one year after notice of a rating decision is sent or the day a Board decision issues), the veteran may no longer file a claim for an earlier effective date. Rather, the veteran must allege that clear and unmistakable error (CUE) was made in either the rating decision or Board decision. To warrant revision of decision on the grounds of CUE, there must have been an error which, had it not been made, would have manifestly changed the outcome when it was made. If it is not absolutely clear that a different result would have ensued, the error complained of cannot be CUE. That is “but for” the alleged error, the outcome would have been “manifestly different,” a conclusion to which “reasonable minds could not differ.” A determination that a prior decision involved CUE involves all the following: (1) either the correct facts, as they were known at the time, were not before the adjudicator (i.e., there must be 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, see Fugo v. Brown, 6 Vet. App. 40 (1993); (2) 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 (3) a determination that there was clear and unmistakable error must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4 (2018). Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155 (2012). The evaluation of a service-connected disorder requires a review of a Veteran’s entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7 (2018). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Evidence to be considered in an appeal from an initial disability rating is not limited to current severity, but will include the entire period of the disorder. Additionally, it is possible for a Veteran to be awarded separate percentage evaluations for separate periods (staged ratings), based on the facts. See Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2018). For conditions that are not specifically listed in the Schedule, VA regulations provide that those conditions may be rated by analogy under the DC for “a closely related disease or injury.” 38 C.F.R. § 4.20 (2018); see 38 C.F.R. § 4.27 (“When an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy,”) Where, however, a condition is listed in the schedule, rating by analogy is not appropriate. In other words, “[a]n analogous rating... may be assigned only where the service-connected condition is unlisted.’’ Suttman v. Brown, 5 Vet. App. 127, 134 (1993). Diagnostic Code 5235 of 38 C.F.R. § 4.71a (2018) specifically addressed the Veteran’s disability under General Rating Formula for Diseases and Injuries of the Spine. A 10 percent evaluation is warranted where there is forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. At the time of the assignment of the noncompensable rating, effective June 1994, the criteria for limitation of motion of the cervical spine called for a 10 percent rating where slight, and 20 percent disabling where moderate. 38 C.F.R. § 4.71a Code 5290 (1994). Entitlement to an effective date earlier than July 1, 2014, for assignment of a compensable rating for the residuals of a cervical spinal fracture The Board examined the evidence of record to make a determination on the Veteran’s claim for an effective date earlier than July 1, 2014 for assignment of a compensable rating for the residuals of a cervical spine fracture based on a CUE. The Board acknowledges that the Veteran submitted a Memorandum Rating for Vocational Rehabilitation showing that he was more than 20 percent disabled from January 26, 1994. The Board notes that the record submitted is not a decision for compensation, but an initial evaluation for Chapter 31 VRE benefits. The Board also notes that the record submitted was based on service treatment records while the Veteran was still in-service. In a December 1994 VA C&P mental disorder examination, the examiner noted the Veteran’s reported no pain or residuals from his cervical spinal fracture. The Veteran did report that he lives in a house on the Beach where he surfs, and exercises daily. In a December 1994 VA C&P general examination, the Veteran did not report any pain or residuals from his cervical spinal fracture. During his examination the Veteran did report that he surfs and rollerblades. No limitation of cervical spine motion or other impairment was complained of or found. Furthermore, the Board notes that Veteran failed to report for his February 1995 scheduled neurological VA C&P examination without a showing of good cause. Medical evidence obtained from the Veteran’s February 1995 VA examination may have been material to the outcome of the Veteran’s claim. The Board also has reviewed and carefully considered the Veteran’s lay statements asserting an earlier effective date of July 1, 2014 for residuals of a cervical spine fracture. This has assisted the Board in better understanding the nature and development of the Veteran’s neck disorder and its effect. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to his senses and there is no reason to doubt his credibility. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to the residuals of a cervical spine fracture as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Based on the evidence of the claims file there are no pertinent findings that would have changed the outcome of the decision when it was made. The facts of the above VA 1994 C&P examinations report no diagnosis of pain or residuals from his cervical spinal fracture. During those examinations the Veteran reported daily activities of working out, surfing on the beach, and rollerblading which warrant a wide range of motion and workload on his spine. Furthermore, there is no evidence of any limitation of motion at that time. While service treatment records showed some limitation, nothing following the initial claim confirmed any limitation, and if fact the Veteran reported no complaints and no limitations were recorded. Thus, there was no basis for a compensable rating based on the VA evidence of file at the time of the June 1995 unappealed rating action. Being that the Veteran cannot present any probative medical evidence that warrants a compensable evaluation of an earlier effective date or that a CUE is present, the Board finds that there is no evidence of a clear or unmistakable error and the Veteran is not entitled to an effective date earlier than July 1, 2014, for assignment of a compensable rating for the residuals of a cervical spinal fracture. Further, limitation of motion to a compensable degree was not shown by any evidence received prior to July 1, 2014. Thus, the criteria for an earlier effective date for a compensable rating are not shown. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Elliot Harris, Associate Counsel