Citation Nr: 18158630 Decision Date: 12/17/18 Archive Date: 12/17/18 DOCKET NO. 16-12 910 DATE: December 17, 2018 ORDER Entitlement to an effective date earlier than February 13, 2001 for the grant of service connection for left lower extremity radiculopathy is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to a rating higher than 40 percent for lumbosacral strain is remanded. Entitlement to a rating higher than 10 percent for a left knee disability is remanded. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy is remanded. FINDING OF FACT 1. By rating decision in February 2016, the RO granted an effective date of February 13, 2001 for the grant of a separate rating for left lower extremity radiculopathy. 2. No claim, either formal or informal, alleging entitlement to left lower extremity radiculopathy was presented to VA before February 13, 2001. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than February 13, 2001 for the grant of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.156 (c), 3.400 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from October 1972 to September 1983. 1. Entitlement to an effective date earlier than February 13, 2001 for the grant of service connection for left lower extremity radiculopathy The Veteran appeals the denial of an effective date earlier than February 13, 2001 for the grant of service connection for left lower extremity radiculopathy. Section 5110(a) of title 38, U.S. Code, governs the assignment of an effective date for an award of benefits: The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, 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). The implementing regulation similarly states that except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. In August 2013, the Veteran expressed that he wished to file a claim for compensation/pension benefits under the FDIC program. In July 2014, the Veteran specifically submitted a claim for an increase rating for his service connected lumbar spine disability. In a December 2014 rating decision, the Veteran was denied an increased rating for his lumbar spine disability. He was, however, granted service connection for left lower extremity radiculopathy as secondary to the lumbar spine. The Veteran’s left lower extremity radiculopathy was assigned a 10 percent rating, effective November 25, 2014. The Veteran disagreed with the effective date assigned in December 2014. He argued that an effective date of April 6, 2012 was warranted as it was the date he “started the process.” In a February 2016 rating decision, the Veteran was granted an effective date of February 13, 2001, as it was the date the RO found that there was a showing of neurological findings in the left lower extremity that were part of the service-connected lumbar spine disability. As noted, the Veteran filed the current claim for an increased rating for the lumbar spine in July 2014. Prior to the July 2014 claim, in May 2006 the Veteran was denied an increased rating for the lumbar spine. He did not appeal that decision nor did he submit new and material evidence within a year of the rating decision. The decision is final. Prior to that time, in a May 1999 rating decision the Veteran was granted a rating of 40 percent for the lumbar spine. He did not appeal that decision nor did he submit new and material evidence within a year of the rating decision. The decision is final. The record shows that prior to February 13, 2001 there is no evidence indicating a specific intent to file a claim for neurological findings in the left lower extremity. No claim, either formal or informal, alleging entitlement to service connection for left lower extremity was presented to VA before February 13, 2001 and the Veteran does not allege so. Notably, the Board acknowledges that the Veteran manifested neurological symptoms in the left lower extremity prior to the effective date of award. However, as addressed above, the RO issued a final decision in May 1999. Any references in subsequent medical records to further treatment for neurological findings in the left lower extremity associated with the lumbar spine disability 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), (citing Brannon, 12 Vet. App. at 35). Furthermore, the Court has held that, in the absence of a sufficient manifestation of an intent to apply for benefits for a particular disease or injury, a document providing medical information which refers to a disability in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). In addition, the Court has held that a Veteran’s attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet App. 327, 330 (1993). Additionally, any references to the left lower extremity in VA records prior to the effective date of award assigned in this case could not support an application for service connection under 38 C.F.R. § 3.157 (b)(1) as VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). See also Pacheco v. Gibson, 27 Vet. App. 21 (2014) (construing ambiguity contained in section 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Additionally, the Board notes that the Veteran has not raised a claim of clear and unmistakable error in the prior rating decision, and the Board emphasizes that, clear and unmistakable error is a very specific and rare kind of “error.” It is the kind of error in fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would manifestly have been different but for the error. As such allegations are not of record, this matter will not be further pursued herein. For the reasons set out above, the Board finds against the claim. As the applicable law and regulatory provisions are clear on the issue at hand, the Board concludes that the appeal for an effective date earlier than February 13, 2001 for the grant of service connection for left lower extremity radiculopathy must be denied. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C. § 5107 (b), Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND The Veteran appeals the denial of service connection for hypertension. He claims that his disability is secondary to his service-connected low back disability to include the medications taken for treatment for back. In relation to his claim, the Veteran was afforded a VA examination in January 2012. Although the VA examiner found that it was not at least as likely as not that the Veteran’s hypertension was caused and/or aggravated by his service connected lumbar spine disability, the Board notes that the rationale provided is inadequate. While the VA examiner cited the many risk factors for developing hypertension, he does not address why the lumbar spine disability did not cause the hypertension nor does he address whether the Veteran’s hypertension is aggravated by the lumbar spine disability to include medication taken for his lumbar spine. For the reasons stated, the Board finds that another VA opinion is needed for proper adjudication of this claim. The Veteran also appeals the denial of a rating higher than 40 percent for lumbosacral strain, a rating higher than 10 percent for a left knee disability and a rating higher than 10 percent for left lower extremity radiculopathy. In relation to his claims, the Veteran was last examined by VA in November 2014. Since the last VA examination, the Veteran has indicated that he has daily knee pain. Also, although there was no objective evidence of instability on the last VA examination, the Veteran continues to report that he wears a knee brace and that he has left knee instability. Since the last VA examination, the Board also notes that the Court in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court’s holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were “undoubtedly weight-bearing.” Id. To ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim and to ensure full compliance with due process requirements, a remand is necessary to afford him a VA examination. The matters are REMANDED for the following action: 1. Update for the record all relevant private and VA treatment records. 2. Schedule the Veteran for an examination to address the nature and etiology of his hypertension. The examiner is to be provided access to the electronic record. All appropriate tests and studies should be accomplished, and all clinical findings should be reported in detail. The examiner must opine whether it is at least as likely as not (50 percent probability or more) that hypertension is attributable to service, and/or the service-connected lumbar spine disability including his prescribed medications. In doing so, the examiner must address whether the medication prescribed and taken for the Veteran’s service connected lumbar spine disability caused and/or aggravates his hypertension, particularly considering the side effects of the medication. Similarly, the examiner should consider the overall impact of pain caused by service-connected disabilities in causing or aggravating hypertension. A complete rationale for any opinion should be provided. The examiner must not rely solely on the absence of a mental health diagnosis or symptom in service as the basis for a negative opinion. It is also noted that the mere passage of time without treatment is not a sufficient basis for finding that no relationship between a current disability and service exists. Any opinion should be reconciled with the service treatment and personnel records, any post-service diagnoses, lay statements and testimony of the Veteran. If the lay evidence is rejected, an explanation must be provided. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected left knee disability, lumbar spine disability and left lower extremity radiculopathy. The electronic file must be made available to the examiner for review. In accordance with the latest worksheets for rating the knee, lower extremities and spine, the examiner is to provide a detailed review of the Veteran’s pertinent medical history, current complaints, and the nature and extent of his disability. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), the examiner should describe whether pain, weakness, fatigue, and/or incoordination significantly limits functional ability during flare-ups or with repetitive use, and if so, the examiner should express that functional loss in terms of loss in range of motion. If the examination does not take place during a flare-up, the examiner should have the Veteran describe and/or demonstrate the extent of loss in range of motion during flare-ups or with repetitive use and should estimate the extent of such loss in range of motion in terms of degrees. If there is no pain and/or no limitation of function, such must be noted in the report. Also, in order to comply with the decision in Correia, the VA examination report must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. Range of motion findings reported in degrees must be provided in the examination report. The degree at which pain begins must be documented. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should further provide a full description of the manner and extent to which the Veteran’s knee, lower extremity and/or spine disability impacts functions relating to physical and sedentary employment. A complete rationale should be supplied for any opinions provided. 4. Thereafter, consider all of the evidence of record and readjudicate the issues on appeal considering the propriety of separate ratings under all potentially applicable diagnostic codes for the knee and spine. If any benefit sought remains denied, issue a supplemental statement of the case to the Veteran and his representative. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.S. Willie