Citation Nr: 19106937 Decision Date: 01/29/19 Archive Date: 01/29/19 DOCKET NO. 17-19 132 DATE: January 29, 2019 ORDER Entitlement to an effective date of September 17, 2010 for service connection for the Veteran’s lumbosacral strain is granted. REMANDED Entitlement to an increased rating above 20 percent for a lumbosacral strain is remanded. FINDINGS OF FACT 1. A December 2009 rating decision denied service connection for a lumbosacral strain; the Veteran did not file a notice of disagreement but submitted an application to reopen the claim for the same disability in September 2010, within one year of the denial. This claim only contained evidence that was cumulative and not new, and the December 2009 decision is final. 2. The date of claim for entitlement to service connection for the Veteran’s lumbosacral strain was September 17, 2010, the date of her filing the application to reopen the claim for benefits. CONCLUSION OF LAW The criteria for an effective date of September 17, 2010 for entitlement to service connection for the Veteran’s lumbosacral strain have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 2000 until December 15, 2008. These matters come before the Board of Veterans’ Appeals on appeal from a March 2017 rating increase by a Decision Review Officer (DRO) at the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran first filed a claim for service connection for her lumbosacral strain in July 2009. In August 2009, VA records note that the Veteran informed them that she would not make it to a VA examination on account of moving to Ohio where she would subsequently continue to pursue her claim. A December 2009 rating decision denied service connection for a lumbosacral strain on the basis of the record. The RO acknowledged the Veteran’s reports of episodes of back pain in service, considered the service treatment records, and found that the episodes of pain had resolved and that the Veteran had not shown evidence of a current disability. In communication with the Veteran in December 2009, the RO informed the Veteran to contact the VA if she would like to reschedule her VA examination. The Veteran submitted an application to reopen the claim for the same disability in September 2010, within one year of the rating decision denial, after she moved, providing a new statement regarding her disability. The RO treated this claim as an initial claim for disability benefits instead of as a claim to re-open the previous denial. After additional development including a November 2011 VA examination, in March 2012, the RO reopened the claim but denied service connection on the merits, again finding no current disability. The Veteran expressed timely disagreement using a VA Form 9 dated in December 2012 and marked as received by VA in March 2013, within one year of notification of the rating decision. Therefore, this decision is not final and is on appeal. Under 38 C.F.R. § 20.302 (2018), after a rating decision has been issued, a Veteran can keep a claim open by either filing a notice of disagreement or submitting new evidence in support of the claim within one year of the denial. If new evidence is submitted, the VA must issue a supplemental statement of the case (SSOC) to the Veteran explaining why, even with the new evidence, the denial still stands. 38 C.F.R. § 20.302(b)(2) (2018). In her application for benefits in September 2010, within the one-year period of appeal for her original denial, the Veteran again reported episodes of back pain in service relevant to service connection of her lumbosacral strain but this lay evidence was cumulative and redundant evidence that was already presented in the first claim. The September 2010 filing is, therefore, an application to reopen the claim. Earlier Effective Date Unless specifically provided otherwise, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. See 38 U.S.C. § 5110(a) (2012). The United States Court of Appeals for Veterans Claims stated that "[t]hese 'facts found' include the date the disability first manifested." See DeLisio v. Shinseki, 25 Vet. App. 45(2011). In addition, 38 C.F.R. § 3.400 (2018) states that "the effective date of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later." Entitlement to an effective date prior to July 8, 2016 for the grant of entitlement to service connection for the Veteran’s lumbosacral strain is granted. The Veteran contends that she should receive an earlier effective date for her lumbosacral strain because she suffered from the disability prior to July 8, 2016. While still in service the Veteran had diagnoses of lumbar spine strains in 2002 and 2005. In July 2008, her service treatment records noted that the Veteran suffers from unspecified muscle spasms. She filed a claim for compensation for a lower back disability in July 2009, almost immediately after service. Because she is currently service connected for her lumbosacral strain, the only question for service connection is the appropriate date of claim and when the disability became a current disability. In November 2010, the Veteran received treatment from a military treatment facility (as a military dependent) that noted that she had back muscle spasms that last about 15 minutes and then went away. The treatment record noted that these muscle spasms did not result in abnormal gait or abnormal spinal contour. Also in November 2010, the Veteran began to see a private physician for treatment of her back limitations. In these private physical therapy treatment records, the Veteran’s forward flexion is noted as slightly limited but not resulting in a gait deviation or a deficit in sitting or standing. The therapist noted that the Veteran’s pain was a 7 or 8 out of 10. In November 2011, a decision on entitlement to service connection for her back was deferred, awaiting results of a VA examination. In November 2011 the Veteran received a VA examination for her lower back disability and the examiner determined that she did not suffer from a current lower back disability. The VA examiner determined that the Veteran’s forward flexion was limited to 90 degrees and her extension and rotation within normal limits. The examiner also stated that the Veteran had no evidence of pain, muscle spasms or guarding and her alignment and curvature were found to be normal. The doctor concluded that no pathology existed and did not address any possible connection between the Veteran’s injuries in service and a current disability because they failed to find a current disability. On March 2, 2012, the Veteran’s claim for service connection was denied for lack of current disability. The Veteran appealed in March 2013. Because of this March 2013 appeal, the Veteran was given another VA examination in July 2016. In a July 2016 VA examination, the examiner noted that the Veteran had localized tenderness that did not result in abnormal gait or spinal contour. Also in July 2016, however, the Veteran received an x-ray for her back confirming that she did, in fact, have spinal contour in the form of scoliosis. The RO granted the Veteran service connection for a lumbosacral disability with an effective date of July 8, 2016, the date the Veteran was diagnosed with scoliosis via x-ray. From reviewing the Veteran’s file, the Board finds that the November 2011 VA examination did not accurately represent the Veteran’s condition when it dismissed her current disability prior to her November 2016 scoliosis diagnosis. This earlier VA examination did not consider the Veteran’s muscle spasms or localized tenderness, as noted elsewhere in her medical records. The November 2011 VA examination based the decision upon the Veteran’s X-ray showing no curvature and the Veteran’s failure to complain about muscle spasms or pain. However other evidence supports the contention that the Veteran had complained and sought treatment for muscle spasms prior to that VA examination and unrelated to any sought benefits. In service the Veteran complained of unspecified muscle spasms and after service she complained, in a visit for a different ailment, to her military doctor about her lower back muscle spasms. Her 2011 VA examination did not consider her history of spasms and merely marked that the Veteran did not have any symptoms of lower back disability and therefore lacked a current disability. While in 2011 the Veteran did not have alignment or curvature abnormalities, such abnormalities are not required under Diagnostic Code 5237 for a rating for service connection. 38 § C.F.R. 4.71(a) (2018). Muscle spasms that do not result in an abnormal gait or spinal contour are sufficient for rating under Diagnostic Code 5237. The Veteran provided lay statements to a military doctor in November 2010, after she left the Air Force, that she suffered from muscle spasm in her lower back sometimes and in a not predictable way. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). A muscle spasm is an observable symptom of a larger disability and accordingly the Veteran’s testimony is sufficient to determine that she did suffer from back muscle spasms in an unpredictable way during November 2010, prior to the November 2011 VA examination that stated she had no pathology of a lower back disability. The Veteran’s competent lay testimony provides that she did, in fact, suffer from the symptoms of a lower back strain prior to the November 2011 VA examination and she should not have been denied simply because she had not yet had scoliosis. In review, while November 2011 VA examinations did not note a diagnosis of a spinal pathology, they did not reference the Veteran’s complaints of symptomatology of her spinal damage or her subsequent medical treatment for it going back to service. The November 2016 VA examination also stated that the Veteran did not have curvature in her spine which was an inaccurate portrayal of the Veteran’s disability as shown in her x-ray. Again, the Veteran does not need to show curvature in her spine to be service connected under Diagnostic Code 5237. Giving the Veteran the benefit of the doubt, her military doctor and private physical therapy records are evidence to conclude that the Veteran’s disability existed prior to her diagnosis of scoliosis and that she should be assigned an effective date according to when she filed or the earliest evidence of the disability arising, not when the x-ray showed scoliosis. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The lower back disability that the Veteran is service connected for is a chronic disability. If the illness for which the Veteran seeks service connection is considered a “chronic” disease under 38 C.F.R. § 3.309, it may be service connected presumptively if manifested to a compensable degree within a specified period after the Veteran was discharge or through continuation of symptomology. Continuation of symptomatology shows the nexus between a current disability and an in-service event or occurrence for the chronic illnesses listed in 38 C.F.R. § 3.309. Such continuation of symptomatology may be established if the Veteran can establish (1) that a condition was noted during service, (2) there is evidence of postservice continuation of that symptomatology and (3) medical or lay evidence of a nexus between the present disability and the postservice disability exists. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The Veteran noted the symptoms of her disability in service, she had complaints of pain and muscle spasms continuously since service and the nexus has already been conceded by the grant of service connection. After giving the Veteran the benefit of the doubt, the Board finds that her lower back disability was present at the time of her September 17, 2010 application to reopen the claim for benefits. Accordingly, the Veteran’s entitlement to service connection began on September 17, 2010 and her claim for an earlier effective date is granted. 38 U.S.C. § 5107 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to an increased rating for a lumbosacral strain As noted above, the Board has granted entitlement to an earlier effective date for the grant of entitlement to service connection the Veteran’s lumbosacral strain. Disability ratings need to be assigned for the newly service-connected time period by the Agency of Original Jurisdiction (AOJ) and the appeal period for these claims has now changed. Further, the Veteran’s claim to a ratings increase must account for the earlier effective date and evidence not previously considered by the RO in determination of the severity of the Veteran’s disability. As such, the Veteran’s lumbosacral strain increased disability rating claim is inextricably intertwined with the earlier effective date claims granted in this decision that require further action by the AOJ. Therefore, these claims must be remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Further, in July 2016, the RO granted service connection for lumbosacral strain and assigned a 10 percent rating. In a notice of disagreement dated “July 7, 2007” but clearly received by VA in August 2016, the Veteran disagreed with the assigned initial rating. Even though the RO granted an initial rating of 20 percent in March 2017, the Veteran is presumed to be seeking the highest available rating so that the issue remains on appeal. A statement of the case on this issue is necessary. The matter is REMANDED for the following action: Issue a SOC regarding the issue of her disability rating for her lumbosacral strain, including consideration of her entitlement to an earlier effective date and potential for increased rating therein. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S.Sellers, Associate Counsel