Citation Nr: 20046889 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 19-27 236 DATE: July 14, 2020 ORDER An effective date prior to October 25, 2017 for service connection for radiculopathy of the right lower extremity is denied. An effective date prior to October 25, 2017 for service connection for radiculopathy of the left lower extremity is denied. An effective date prior to October 25, 2017 for service connection for degenerative arthritis of the lumbar spine is denied. REMANDED The appeal for entitlement to service connection for hypertension is remanded. The appeal for entitlement to service connection for an unspecified cerebral ischemia is remanded. FINDINGS OF FACT 1. The Veteran’s initial claim for service connection for radiculopathy of both lower extremities was received on October 25, 2017, which was more than one year after his final discharge from active service. 2. The Veteran’s initial claim for service connection for a back disability was denied in a January 2014 rating decision; the Veteran did not submit a notice of disagreement with this decision within a year of notice thereof, new and material was not received, and therefore the January 2014 decision is final. 3. The initial claim to reopen the claim for service connection for a back disability was received on October 25, 2017. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to October 25, 2017 for service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2019). 2. The criteria for entitlement to an effective date prior to October 25, 2017 for service connection for radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2019). 3. The criteria for entitlement to an effective date prior to October 25, 2017 for service connection for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1967 to June 1970 and from December 1980 to June 1986. He served in Vietnam, where he earned the Combat Infantryman Badge, a Purple Heart, and an Army Commendation Medal. Since the issuance of the Veteran’s August 2019 Statement of the Case, several additional VA examinations were conducted in October 2019. However, these examinations are not relevant to any of the Veteran’s current claims for service connection or earlier effective dates. Furthermore, additional VA treatment records were received in March 2020. However, these records were submitted by the Veteran, and therefore entitlement to initial consideration by the Regional Office is deemed to have been waived. Also, a review of these records shows that they are not relevant to any of the current claims on appeal. Therefore, the Board may proceed with consideration of the Veteran’s appeals. Effective Date The Veteran contends that he is entitled to effective dates prior to October 25, 2017 for service connection for his radiculopathy of the lower extremities and his back disability. He has not provided any specific contentions other than to note that the injury that lead to his disabilities occurred during service. 1. Entitlement to an effective date prior to October 25, 2017 for service connection for radiculopathy of the right lower extremity 2. Entitlement to an effective date prior to October 25, 2017 for service connection for radiculopathy of the left lower extremity Entitlement to service connection for radiculopathy of the right lower extremity and service connection for radiculopathy of the left lower extremity was granted in an October 2018 rating decision. An effective date of October 25, 2017 was assigned for both disabilities, which was the date of receipt of the Veteran’s claim for service connection. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose, if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). As this case potentially involves dates prior to March 24, 2015, the regulations in place prior to that date may be applicable and are referred to in this section. A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2014). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2014). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant’s behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a) (2014). The record shows that the Veteran’s first period of active service ended in June 1970 and his final period of active service ended in June 1986. He did not submit a claim for radiculopathy of either lower extremity within a year of either discharge. A review of his claims file fails to reveal any unadjudicated claim for service connection for radiculopathy of either lower extremity received prior to October 25, 2017. There is also no statement from the Veteran received prior to March 24, 2015 that can be construed as an informal claim for service connection for radiculopathy of either lower extremity. Therefore, as the initial claim for service connection for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity was received on October 25, 2017, and as this was more than one year after the Veteran’s final discharge in June 1986, then October 25, 2017 is the earliest effective date for service connection for radiculopathy for either extremity than can be assigned. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. 3. Entitlement to an effective date prior to October 25, 2017 for service connection for degenerative arthritis of the lumbar spine Entitlement to service connection for degenerative arthritis of the lumbar spine was granted in the October 2018 rating decision. An effective date of October 25, 2017 was assigned, which was the date of receipt of the Veteran’s claim for service connection. A review of the claims file shows that service connection for degenerative arthritis of the lumbar spine was previously denied in a January 2014 rating decision. The Veteran was notified of this decision and provided his appellate rights in a January 2014 letter. He did not initiate an appeal by submitting a notice of disagreement. Additional VA treatment records were received in May 2014, but these were not relevant to the etiology of the Veteran’s back disability, and thus not both new and material. Therefore, the January 2014 rating decision is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.105(a), 3.156(b) (2014). As previously noted, for an award based on a claim reopened after a final disallowance the effective date is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A review of his claims file fails to reveal any unadjudicated claim for service connection for a back disability received between the January 2014 rating decision and the claim that was received October 25, 2017. There is also no statement from the Veteran received between January 2014 and March 24, 2015 that can be construed as an informal claim for service connection for a back disability. Any unadjudicated claims for service connection for a back disability dated prior to the final January 2014 rating decision are considered to have been adjudicated by that decision and are also final. See Williams v. Peake, 521 F.3d 1348, 1350-51 (Fed. Cir. 2008) (stating a claim remains alive until there is either a recognition of the substance of the claim in an RO decision from which a claimant could deduce that the claim was adjudicated or an explicit adjudication of a subsequent “claim” for the same disability). Therefore, as the first claim to reopen the previously denied claim for service connection for a back disability was received on October 25, 2017, and as the medical evidence confirms that he had a back disability as of that date, then October 25, 2017 is the earliest effective date for service connection for degenerative arthritis of the lumbar spine than can be assigned. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. 2. Entitlement to service connection for an unspecified cerebral ischemia is remanded. A review of the claims file shows that the Veteran’s service treatment records are incomplete. The only available service treatment record for the period of service from June 1967 to June 1970 is a copy of the Veteran’s July 1966 entrance examination found in his personnel records. Furthermore, while a review of the development undertaken as part of the current claim notes that all available service treatment records have been scanned into the electronic record, there is no evidence that a new request for the missing records was made, and it appears that the most recent search specifically for these records was made in approximately 1995. There is no formal finding in the record that the June 1967 to June 1970 service treatment records are missing, or that a further attempt to obtain them would be futile. The Board observes that the June 1967 to June 1970 records are particularly important to the Veteran’s claim for service connection for hypertension, as it has been denied on the basis that hypertension was noted on his July 1966 entrance examination and was not aggravated during service. The missing records would be highly relevant as to whether his hypertension was actually aggravated during that period of service. If obtained, an addendum opinion should be also obtained from the examiner who conducted the October 2018 VA hypertension examination and provided the opinion that accompanied the report. These matters are REMANDED for the following actions: 1. Obtain the Veteran’s complete service treatment records for the period from June 1967 to June 1970. The search for these records should continue until they are obtained, or it is apparent that a continued search would be futile. If these records are unobtainable, a memorandum to that effect should be placed in the claims file. 2. Obtain the Veteran’s VA treatment records for the period from August 2019 to the Present. 3. If, and only if, any service treatment records for the period from June 1967 to June 1970 are obtained, return the claims file to the examiner who conducted the October 2018 VA hypertension examination in order to obtain an addendum opinion. A new examination is not required unless deemed necessary by the examiner to provide the requested opinion. If the October 2018 examiner is not available, the claims file should be provided to an equally qualified examiner to obtain the requested opinion. After a review of the record, the examiner is to provide an opinion whether the Veteran’s pre-existing hypertension (noted on entrance in 1966) was at least as likely as not (50 percent or greater) aggravated (non-temporary increase in severity) during either period of active service and, if so, whether any increase in severity was clearly and unmistakably (undebatable) due to its natural progress. (Continued on the next page)   The examiner is to provide a comprehensive rationale for all opinions. Any negative opinion regarding the relationship of any current diagnosis to service cannot be based solely on the lack of evidence of a disability in the service treatment records. If the examiner is unable to provide an opinion without resorting to speculation, then state whether the inability is due to the limits of their knowledge, the limits of medical knowledge in general, or there is additional evidence that, if obtained, would permit the opinion to be provided. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John L. Prichard 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.