Citation Nr: 20002945 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 14-40 972A DATE: January 14, 2020 ORDER Entitlement to an effective date earlier than June 22, 2012 for the grant of service connection for low back strain is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a neck/cervical spine disorder is remanded. Entitlement to a compensable rating for right knee patellofemoral syndrome with painful plica (instability rating), including restoration of a 20 percent rating from June 1, 2015, is remanded. Entitlement to a compensable rating for left knee patellofemoral syndrome with painful plica (instability rating), including restoration of a 20 percent rating from June 1, 2015, is remanded. FINDINGS OF FACT 1. The last final and binding denial of the Veteran’s claim for a low back disorder was in the RO’s March 2010 rating decision. 2. The earliest communication from the Veteran that can be construed as a petition to reopen a previously denied claim for service connection for low back strain was not received until June 22, 2012. CONCLUSION OF LAW The criteria for entitlement to an effective date earlier than June 22, 2012 for the grant of service connection for low back strain have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.1, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Army from November 1988 to June 5, 1992. The Veteran testified at a Board videoconference hearing in July 2019, before the undersigned Veterans Law Judge (VLJ). A transcript is of record. 1. Entitlement to an effective date earlier than June 22, 2012 for the grant of service connection for low back strain. The Veteran contends that he has been entitled to service connection for low back strain since immediately following separation from service, or June 6, 1992. Generally, the effective date of an award of a claim is the date of receipt of the claim application or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. However, if a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). The proper effective date for new and material evidence, other than service treatment records, received after a final disallowance is the date of receipt of the claim to reopen or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (i); 38 C.F.R. §§ 3.400 (q)(2), 3.400(r). As brief procedural history, a September 1992 RO rating decision initially denied the Veteran’s claim (June 11, 1992) for back strain, characterizing it as “chronic low back pain, probable lumbar strain.” The RO cited that a July 1992 VA examination had not diagnosed a current low back disability. In this regard, the July 1992 VA examiner found, “subjective complaints of chronic low back pain – probable lumbar strain – examination unremarkable.” Upon notification, the Veteran neither appealed this decision, nor submitted new and material evidence within a year of its issuance, and that rating decision is thus final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. Next, the RO’s April 1998 rating decision denied the Veteran’s petition to reopen the low back claim. On appeal, the Board considered the issue of whether new and material evidence has been presented to reopen a claim for service connection for chronic low back pain, probable lumbar strain. The Board noted that in essence, service connection for a low back disability was previously denied because there was an absence of current disability due to disease or injury. The Board found that there was no new and material evidence to reopen the claim because he had not established a diagnosed low back disability. He did not timely appeal the Board’s decision to the Veteran’s Court, so that Board decision became final and binding on him based on the evidence then of record. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.1100, 20.1104. The RO’s October 2004 and March 2010 rating decisions again denied, for similar reasons, the Veteran’s subsequent petitions to reopen the low back claim. Both decisions went unappealed, become final and binding on the Veteran. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. § 3.105 (a). Consequently, an earlier effective date before the last final March 2010 rating decision is not warranted by law. The issue of CUE in a specific prior RO rating decision has not been raised by the Veteran and, therefore, is not before the Board at this time. 38 C.F.R. § 3.105 (a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). It was not until June 22, 2012 that the Veteran again filed a petition to reopen his low back claim. The Board finds, on review of his formal and informal communications to VA, that a petition to reopen his claim for service connection for a low back claim was not received between March 2010 (the last final and binding denial of this claim) and June 22, 2012 (when the RO received his petition to reopen this claim). The Board must next consider the date of entitlement to service connection. It is acknowledged that on VA examination in August 2013, the VA examiner provided both a diagnosis of a current low back disability and provided competent positive nexus opinion evidence, neither of which were established prior to that date. At that time, the August 2013 VA examiner also indicated that he was the same examiner for the July 1992 VA examination, and had he been given access to the Veteran’s service treatment records, he could have provided a diagnosis of chronic back strain and a positive nexus opinion at the time of the earlier examination. Even accepting the VA examiner’s suggestion of service connection entitlement being shown as early as the July 1992 VA examination, or even following service in June 1992, applicable law and regulation preclude the possibility of the assignment of an earlier effective date. The RO’s determinations became final in 1992 and on numerous occasions thereafter. As discussed, whenever the date of the claim is after the date of entitlement, then the effective date is determined by the later-dated claim. 38 U.S.C. § 5110 (i); 38 C.F.R. §§ 3.400 (q)(2), 3.400(r). In this case, the Veteran testified that the evidence used to ultimately grant his claim was the same as when he first claimed his back condition. See July 2019 Board hearing transcript. The Veteran’s representative had asserted that the proper date would be the date following his release from active duty, contending that the June 1992 claim remained in active status until granted, because VA failed in its duty to assist by not giving full access to records to the July 1992 VA examiner. See December 2016 informal hearing presentation. Addressing the Veteran’s contentions, the Board emphasizes it is not permitted under law to reach back to a prior date, absent CUE. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he or she has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). In addition, the failure to fulfill the duty to assist cannot constitute CUE. See Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). So, without the ability to show CUE in a prior denial, there is also no means for the Board to reach back to the date of the original claim, on June 11, 1992, to establish an earlier effective date. Moreover, the issue of CUE in a specific prior RO rating decision has not been raised by the Veteran and, therefore, is not before the Board at this time. 38 C.F.R. § 3.105 (a); Flash v. Brown, 8 Vet. App. 332, 340 (1995). Thus, the Board finds that an effective date earlier than June 22, 2012, for the grant of service connection for low back strain, is not warranted. The appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea. The Veteran is currently diagnosed with obstructive sleep apnea, on review of his VA treatment records. He testified to symptoms of snoring in his sleep, waking up gagging and coughing, and stopping breathing, throughout the duration of his military career. He also testified to sleep apnea problems since service, including several surgeries and using a CPAP machine. His buddy, D.Y., also provided statements that corroborate the Veteran’s assertions, stating that the Veteran had loud snoring and would stop breathing in his sleep during his military service. The Board finds these lay statements from the Veteran and his buddy on history of loud snoring and not breathing while sleeping provide competent and credible indications of sleep problems during service. Therefore, the Board finds a remand is necessary for a VA examination and opinion on whether the Veteran's current sleep apnea is etiologically linked to service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). As the Veteran testified at his Board hearing that a provider related his sleep apnea to service. On remand, the AOJ should ask the Veteran to identify such records, and if he does, attempt to obtain them. 2. Entitlement to service connection for a neck/cervical spine disorder. The Veteran testified at his Board hearing that he has had neck soreness since he was injured when he totaled his car in 1991, and had neck fusion surgery a few years ago. He has been diagnosed with cervical spine arthritis and stenosis. His service treatment records document that he received treatment for cervical strain from a July 1991 motor vehicle accident (MVA) when he hit a pole. The Board observes that a January 2015 VA examiner’s negative nexus opinion on this claim is inadequate, as it appears to improperly limit consideration to only medical evidence and did not appear to consider any lay statements, such as the Veteran’s history of neck pain dating back to service. When VA undertakes to examine a Veteran, VA is obligated to ensure that that examination is adequate. See Barr v. Nicholson, 21. Vet. App. 303 (2007). Inadequate medical examinations include examinations that contain only data and conclusions, do not provide an etiological opinion, are not based upon a review of medical records, or provide unsupported conclusions. Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Moreover, the Veteran has submitted a June 2019 medical letter from his private treating nurse practitioner, B.K., that notes his in-service injury in 1991 to his shoulder and neck, as well as his current treatment for cervical spine arthritis and stenosis. A new VA examination and medical nexus opinion is needed to clarify the nature and etiology of the Veteran’s claimed neck/cervical spine disorder. 3. Entitlement to a compensable rating for right knee patellofemoral syndrome with painful plica (instability rating), including restoration of a 20 percent rating from June 1, 2015. 4. Entitlement to a compensable rating for left knee patellofemoral syndrome with painful plica (instability rating), including restoration of a 20 percent rating from June 1, 2015. The AOJ has associated an August 2019 VA knees examination report and numerous VA treatment records with the claims file. The Board acknowledges that the Veteran waived initial AOJ consideration of private medical evidence that he has submitted, but he has not waived consideration of the VA-generated evidence. Given that the most recent Supplemental Statement of the Case (SSOC) was issued in February 2016, that an extensive amount of pertinent medical evidence has been associated with the file since that time, a remand is required to ensure due process compliance, to include initial AOJ review the additional VA-generated evidence and the issuance of a SSOC if the claims are not granted in full. See 38 C.F.R. §§ 19.31, 19.37(a). The matters are REMANDED for the following action: 1. Ask the Veteran to provide the names and addresses of any medical provider, VA or private, who has treated the Veteran for his sleep apnea, cervical spine or knee problems. After securing any necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. Obtain VA treatment records, if any. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 2. After associating any additional records with the claims file, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his claimed sleep apnea disability. The examiner should indicate that the record was reviewed. On review of the record, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s current sleep apnea disability is caused by or otherwise etiologically related to his active service. Rationale must be provided for the opinion proffered. The examiner should elicit and consider the Veteran’s lay statements on the history of his sleep problems. 3. After associating any additional records with the claims file, schedule the Veteran for a VA examination by an appropriate examiner and obtain an opinion addressing the nature and etiology of the Veteran’s claimed neck/cervical spine disability. Specifically, the examiner should confirm if the Veteran has cervical spine arthritis. After examination and review of the claims file, the examiner should express an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any diagnosed cervical spine disability is caused by or otherwise etiologically related to his active service. (Continued on the next page)   Rationale must be provided for the opinion proffered. Also reconcile any competent lay statements by the Veteran on the history of his claimed disability during service and symptoms following service. 4. Readjudicate the issues on appeal. If these issues are not granted to the Veteran’s satisfaction, send the Veteran and his representative an SSOC and allow an appropriate time for response. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Biswajit Chatterjee, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.