Citation Nr: 18157005 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-32 055 DATE: December 11, 2018 ORDER An effective date prior to June 24, 2014, for the award of service connection for foraminal stenosis and degenerative disc and joint disease of the lumbar spine is denied. An effective date prior to June 24, 2014, for the award of service connection for radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. In January 1995, the RO notified the Veteran his claims were denied as a result of his failure to report to the scheduled VA examinations. 2. The Veteran did not appeal the January 1995 determination or state a willingness to report to the VA examination within one year of the request. 3. The Veteran’s June 24, 2014 communication is the first of record, following his earlier January 1995 abandoned claim, that constitutes a claim for service connection for foraminal stenosis and degenerative disc and joint disease of the lumbar spine. 4. The Veteran’s June 24, 2014 communication is the first of record, following his earlier January 1995 abandoned claim, that constitutes a claim for service connection for radiculopathy of the left lower extremity. CONCLUSIONS OF LAW 1.The criteria for an effective date prior to June 24, 2014, for an award of service connection for foraminal stenosis and degenerative disc and joint disease of the lumbar spine have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.158, 3.400 (2018). 2.The criteria for an effective date prior to June 24, 2014, for an award of service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.158, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to January 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision for the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. Effective Date 1. Entitlement to an earlier effective date prior to June 24, 2014, of the grant of service connection of foraminal stenosis and degenerative disc and joint disease of the lumbar spine 2. Entitlement to an earlier effective date prior to June 24, 2014, of the grant of service connection of radiculopathy of the left lower extremity The Veteran is seeking effective dates earlier than June 24, 2014, for the grant of service connection for foraminal stenosis and degenerative disc and joint disease of the lumbar spine and for the grant of service connection for radiculopathy of the left lower extremity. In a January 1995 administrative decision, VA informed the Veteran that his recently submitted claims for low back disability and left leg nerve damage (filed in July 1994) could not be granted because he failed to report to a scheduled VA examination; the Veteran was notified that no further action would be taken on his claim until he indicated a willingness to report for a VA examination. He was provided with notice of his appellate rights. Following the above notification, the Veteran neither indicated he would be willing to report for an exam, nor file a notice of disagreement within one year of the January 1995 notice. To the contrary, the Veteran next communicated with VA more than a decade later. On June 24, 2014, the Veteran’s attorney submitted an informal claim for service connection for low back disability and left lower extremity radiculopathy. In December 2014, the RO granted the Veteran’s claims and assigned an effective date of June 24, 2014, based on October 2014 VA examination reports where the VA examiner provided a positive nexus opinion following a review of the evidence in the Veteran’s service treatment records. The Veteran argues that the effective date of the award for service connection, should be earlier than June 24, 2014. Specifically, the Veteran argues the effective dates should be July 8, 1994, the date of his initial claim for service connection as his service records revealed these disabilities existed during his military service. Furthermore, he stated the proper effective date should be the previously denied decision as the VA did not have his service treatment records at the time his claim was denied in January 1995 and therefore, the initial denial must be reconsidered under 38 C.F.R. § 3.156 (c)(3). Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after 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 (a) (2012); 38 C.F.R. § 3.400 (2018). But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant’s application. 38 U.S.C. § 5110 (a) (2012). The essential requirements of any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). When there is a prior final decision in the claims file and a later reopened claim results in a grant of the benefit, the general rule for effective dates for reopened claims applies. In such cases the effective date cannot be earlier than the subsequent claim to reopen. 38 C.F.R. § 3.400 (r), 3.400(q)(2); see Leonard v. Principi, 17 Vet. App. 447, 452 (2004); Sears v. Principi, 16 Vet. App. 244, 246-50 (2002), aff’d, 349 F.3d 1326 (Fed. Cir. 2003); Flash v. Brown, 8 Vet. App. 332, 340 (1995). Furthermore, a claim is considered abandoned when a claimant does not supply information requested by VA within one year of the request. 38 C.F.R. § 3.158. Where there is an abandoned claim, the Veteran must file a new claim and the effective date will not be earlier than the date of receipt of the new claim. 38 C.F.R. § 3.158 (a). The record reflects that the Veteran’s initial claims seeking service connection for low back and left leg nerve damage were filed in July 1994. His claims were denied in January 1995, however, because he failed to cooperate with the claims by attending a VA examination. He was notified of this denial, and informed that he must inform VA that he was willing to report for an examination before VA would resume processing his claims. He was provided notice of his right to appeal, and therefore was aware that he had one year in which to do so. He did not appeal, and did not indicate he would be willing to report for an examination within a year of notice of the January 1995 action. The Board consequently concludes that he abandoned his claim pursuant to 38 C.F.R. § 3.158. As his July 1994 claims were abandoned, the earliest date possible for the award of service connection would be the next date of claim for the disorders at issue. In that case, the Veteran next filed a claim for the low back and left leg disorders in June 24, 2014. This is the date currently recognized as the date of service connection for both disorders. The Veteran, through his attorney, argues that the provisions of 38 C.F.R. § 3.156(c) are applicable. He contends that the January 1995 action was based on the absence of service treatment records which were added to the record later, and which were the basis of the grant of service connection. That provision provides that at any time after VA issues a decision on a claim, if 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. The Board points out that the regulation is based on the idea that a Veteran should not be penalized for the failure to obtain records which, had they been present in connection with the original claim, would have resulted in the grant which came only after those records were obtained. In this case, contrary to the understanding of the representative, the January 1995 decision did not deny the claims on the basis of the evidence, including missing service treatment records. The decision did make reference to service treatment records, but only in the context of noting that they were unavailable, and encouraging the Veteran to locate them. The decision explicitly denied the claim on the administrative basis that the Veteran failed to cooperate in attending VA examinations. In other words, even had the service treatment records been on file, the claim would still have been denied, and considered abandoned, because the sole basis of the January 1995 action was the Veteran’s failure to cooperate. The Board finds that the provisions of 38 C.F.R. § 3.156(c) were not designed to overrise the provisions of 38 C.F.R. § 3.158. The denial of the claim on the grounds of failure to cooperate does not involve the merits of a claim, and that means that the presence or absence of service treatment records was irrelevant in this case. In light of the above, the Veteran filed a new claim in June 24, 2014, and the effective date cannot be earlier than the date of receipt of this new claim. 38 C.F.R. § 3.158 (a). Consequently, the claims must be considered as having been abandoned and cannot form the basis for assignment of an earlier effective date. See 38 C.F.R. § 3.158 (indicating that should the right to the benefit sought ultimately be established, benefits shall commence not earlier than the date of filing of the new claim (i.e. claim subsequent to the one that has been abandoned); See also Jernigan v. Shinseki, 25 Vet. App. 220 (2012) (indicating that even if an appellant is ignorant of the abandonment provisions of 38 C.F.R. § 3.158 (a), VA regulations are “binding on all who seek to come within their sphere,” regardless of whether an appellant has actual knowledge of what is in the regulations). The claims folder contains no other communication from the Veteran or his attorney indicating intent to seek, or a belief in entitlement to, service connection for lumbar spine disability and radiculopathy of the left lower extremity between the time of his initial denial in January 1995 and June 24, 2014. See 38 C.F.R. §§ 3.1 (p), 3.155(a); Lalonde v. West, 12 Vet. App. 377, 382 (1999). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32, 35 (1998); Talbert v. Brown, 7 Vet. App. 352, 356-57 (1995). The Board’s actions are bound by the applicable law and regulations as written and has no power to grant benefits not authorized by law. 38 U.S.C. § 7104 (c) (2012). Thus, the proper effective date of claims is the date the Veteran submitted the claims to reopen service connection lumbar spine disability and radiculopathy of the left lower extremity – June 24, 2014. Consequently, there is no basis in the record for finding that the Veteran filed with VA an informal or formal claim for service connection for lumbar spine disability and radiculopathy of the left lower extremity within this time frame. Accordingly, there is no basis for assigning an effective date for these service-connected disabilities prior to June 24, 2014. 38 C.F.R. § 3.400. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD H. Yoo, Counsel