Citation Nr: 20034413 Decision Date: 05/18/20 Archive Date: 05/18/20 DOCKET NO. 14-37 864 DATE: May 18, 2020 ORDER Entitlement to an effective date prior to August 30, 2007, for the award of service connection for a low back disability is denied. REMANDED Entitlement to an increased evaluation in excess of 20 percent for the period prior to July 9, 2019 and in excess of 40 percent beginning July 9, 2019 for the Veteran’s service-connected low back disability is remanded. Entitlement to a total temporary evaluation of 100 percent, for the Veteran’s service-connected low back disability is remanded. Entitlement to an increased evaluation on an extraschedular basis for the Veteran’s service-connected low back disability is remanded. FINDING OF FACT The Veteran filed a claim for service connection for a low back disability on August 30, 2007, and the record contains no evidence of a formal or an informal claim for such disability prior to August 30, 2007. CONCLUSIONS OF LAW The criteria for the assignment of an effective date earlier than August 30, 2007, for the award of service connection for a low back disability have not been met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. §§ 3.155, 3.400(b)(2). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Army from January 1984 to July 1986. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in January 2009 and January 2010 by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned at a hearing held in November 2017; a transcript of that hearing is of record. In April 2018, the Board remanded this appeal for further development, including scheduling the Veteran for a VA examination to evaluate his low back disability. To the extent that the directed VA examination report was procured in July 2019, the Board finds that substantial compliance with its remand directives pertaining to the Veteran’s low back claim has been accomplished. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Board notes that an August 2019 rating decision increased the Veteran’s disability rating from 20 percent to 40 percent, effective July 9, 2019. However, because this award amounts to less than the maximum benefit available for the Veteran’s service-connected low back disability, and because the Veteran has not indicated that he is satisfied with the current evaluation and effective date, the Veteran’s increased rating claim for his service-connected low back disability remains on appeal. See AB v. Brown, 6 Vet. App. 35, 39-40 (1993). Entitlement to an effective date prior to August 30, 2007, for the award of service connection for a low back disability is denied. The Veteran contends that his service-connected low back disability warrants an effective date prior to August 30, 2007, namely, the date VA received his claim for entitlement to a total disability based upon individual unemployability (TDIU) August 2, 1995 (August 1995 TDIU claim) and his low back disability first arose. A January 2009 rating decision granted service connection for the Veteran’s low back disability and awarded a 10 percent evaluation, effective August 30, 2007, the date VA received the Veteran’s low back service connection claim. Subsequently, a January 2010 rating decision granted an increased evaluation of 20 percent, effective January 6, 2010, and an August 2019 rating decision granted an increased evaluation of 40 percent, effective July 9, 2019. The effective date for the grant of service connection shall generally be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date the entitlement arose, whichever is later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). When determining when the entitlement arose, an effective date for benefits can be no earlier than the date the disability at issue first manifested. See DeLisio v. Shinseki, 25 Vet. App. 45, 52 (2011). VA has recognized both formal and informal claims, which, under certain requirements, may consist of a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. §§ 3.1(p), 3.157(b)(1) (in force prior to March 24, 2015). However, the mere presence of medical evidence of a disability does not establish intent on the part of the claimant to seek service connection for a disability, see Lalonde v. West, 12 Vet. App. 377, 382 (1999), and a medical examination report may only constitute an informal claim for an increased evaluation if service connection has already been established for the disability at issue. See MacPhee, 459 F.3d at 1327. In this case, as stated above, because the Veteran’s service connection claim for a low back disability was received by VA on August 30, 2007, the Veteran has been awarded an effective date of August 30, 2007, which is the earliest effective date possible pursuant to law. See 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400(b)(2)(i). Although the Veteran contends that his low back disability first required surgery in 1995, the mere presence of medical evidence of a disability does not establish a valid service connection claim. See Lalonde, 12 Vet. App. at 382. Moreover, the Board finds that the Veteran’s August 1995 TDIU claim does not constitute a valid claim for service connection for a low back disability, as the claim on its face seeks a TDIU based upon the Veteran’s bilateral knee disabilities; further, the August 1995 TDIU claim does not contend that the Veteran’s low back disability is connected to his active military service. See id. In addition, a thorough review of the claims file does not reveal that the Veteran has submitted a formal or informal claim for service connection for his low back disability at any point prior to August 30, 2007. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Accordingly, given that the Veteran has been granted the earliest date allowable by law for the award of service connection for his low back disability, the Board finds that a preponderance of the evidence of record weighs against a finding that an effective date earlier than August 30, 2007, is warranted in this case; therefore, the benefit of the doubt doctrine does not apply, and the Veteran’s claim for an earlier effective date for his service-connected low back disability must be denied. See Alemany v. Brown, 9 Vet. App. 518, 519-20 (1996). REASONS FOR REMAND 1. Entitlement to an increased evaluation in excess of 20 percent for the Veteran’s service-connected low back disability is remanded. 2. Entitlement to a total temporary evaluation of 100 percent, for the Veteran’s service-connected low back disability is remanded. 3. Entitlement to an increased evaluation on an extraschedular basis for the Veteran’s service-connected low back disability is remanded. Unfortunately, the Veteran’s service connection claim for a low back disability must be remanded for further development. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran’s claims so that he is afforded every possible consideration. The Veteran contends that his low back disability warrants an increased evaluation in excess of230 percent, a total temporary evaluation of 100 percent in connection with his May 2017 low back surgery, and an increased evaluation on an extraschedular basis. The evidence of record confirms that the Veteran was hospitalized for several days in May 2017 for surgical treatment for his service-connected low back disability; however, any records generated in connection with such treatment have not yet been associated with the Veteran’s claims file. In addition, VA treatment records from May 2017 to December 2017, and from June 2019 have also not yet been associated with the Veteran’s claims file. Therefore, upon remand, all such missing treatment records must be obtained, so that the Veteran’s low back claims can be properly adjudicated. See Bell v. Derwinski, 2 Vet. App. 611, 612-13 (1992); 38 C.F.R. § 3.159. Accordingly, these matters are REMANDED for the following action: 1. Obtain any outstanding private or VA treatment records and associate all such records with the electronic claims file, including the following: (1) all treatment records associated with the Veteran’s May 2017 low back surgery; and (2) all VA treatment records from May 2017 to present. The AOJ should undertake the appropriate efforts to obtain and associate with the claims file any outstanding service treatment records, as well as any relevant and outstanding VA or private treatment records. If any records sought are not obtained, a written statement to that effect should be incorporated into the record. 2. After the above development and any additionally indicated development has been completed, provide the Veteran and his representative with a full opportunity to supplement the record and adjudicate the Veteran’s pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a supplemental statement of the case (SSOC) and be afforded an opportunity to respond before the record is returned to the Board for further review. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Marsdale 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.