Citation Nr: 21000513 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 18-34 286A DATE: January 5, 2021 ORDER Entitlement to an effective date earlier than February 18, 2015 for the award of service connection for spondylolisthesis L4 / L5 status post lumbar laminectomy and fusion with degenerative disc disease (DDD) is denied. FINDING OF FACT 1. The Veteran’s original claim for service connection for a low back disability, to include herniated disc, was received on April 27, 2010. This claim was subsequently denied in a December 2010 rating decision, after which the Veteran properly initiated an appeal by submitting an August 2011 notice of disagreement (NOD) and he later perfected his appeal by submitting a June 2012 VA Form 9, Appeal to the Board, following the issuance of a June 2012 statement of the case (SOC). Thus, the April 27, 2010 claim did not become final. 2. On February 18, 2015, the Veteran submitted an additional claim for service connection for a low back disability, which was subsequently granted within an April 2015 rating decision, effective February 18, 2015, based upon the date of the Veteran’s most recent claim. 3. The first probative evidence of a nexus between the Veteran’s lumbar spine disability and his active service is the April 2015 VA examination; in other words, according to facts found, entitlement to compensation benefits for service connection did not arise until the required nexus element was provided by the April 2015 VA examiner’s opinion, after which VA granted the Veteran’s claim effective the date of the February 18, 2015 claim. CONCLUSION OF LAW The criteria for an effective date earlier than February 18, 2015 for the grant of service connection for spondylolisthesis L4 / L5 status post lumbar laminectomy and fusion with DDD have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1980 to August 1986. The Veteran previously requested a Central Office hearing before the Board of Veterans’ Appeals (Board) within his July 2018 VA Form 9 substantive appeal. In October 2020, VA contacted the Veteran to ascertain his desire for a potential virtual hearing due to the COVID-19 pandemic, which the Veteran elected. However, he subsequently failed to appear for the scheduled hearing in November 2020 without good cause; therefore, his prior hearing request is deemed withdrawn. Entitlement to an effective date earlier than February 18, 2015 for the grant of service connection for spondylolisthesis L4 / L5 status post lumbar laminectomy and fusion with DDD. The Veteran claims entitlement to an effective date earlier than February 18, 2015 for the grant of service connection for spondylolisthesis L4 / L5 status post lumbar laminectomy and fusion with DDD. Specifically, the Veteran asserts that an effective date is warranted from April 2010, when he filed his original claim of service connection for a lower back condition with herniated disc. However, as discussed below, the Board finds that the preponderance of the evidence of record weighs against the Veteran’s claim. The reasons for this decision follow. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 (2012). The general rule regarding effective dates is that the effective date of an award based upon on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. Id. The implementing regulation adds that except as otherwise provided, the effective date of an award of compensation based on an initial claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2018). The Veteran’s original claim for service connection for a low back disability, to include herniated disc, was received on April 27, 2010. This claim was subsequently denied in a December 2010 rating decision which found that although there is a record of treatment in service for a low back strain, no permanent residual or chronic disability subject to service connection is shown by the service medical records or demonstrated by evidence following service. The Board acknowledges that thereafter, the Veteran properly initiated an appeal regarding the denial of his claim by submitting an August 2011 notice of disagreement (NOD) and he later perfected his appeal by submitting a June 2012 VA Form 9 substantive appeal following the issuance of a June 2012 statement of the case (SOC). A subsequent December 2013 submission by the Veteran’s representative reiterated that the Veteran’s appeal had been pending since his June 2012 formal appeal. Thereafter, on February 18, 2015, the Veteran submitted a claim for service connection for a low back disability. A subsequent April 2015 rating decision granted service connection for service connection for spondylolisthesis L4 / L5 status post lumbar laminectomy and fusion with DDD, effective February 18, 2015, based upon the date of the Veteran’s most recent February 18, 2015 claim. Given the above, the Board finds that the Veteran’s original April 27, 2010 claim remained pending given that his appeal was properly perfected. Therefore, the Board has considered whether an effective date of April 27, 2010 is warranted based upon the date of receipt of the Veteran’s initial claim. However, following a review of the evidence of record, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to an effective date earlier than February 18, 2015 for the award of service connection for spondylolisthesis L4 / L5 status post lumbar laminectomy and fusion with DDD. In determining the effective dates for the award of service connection for his lumbar spine disability, the Board must consider not only the date of the original claim for benefits, but also consider the facts found as to his lumbar spine disability, including the date this disability first manifested and the date entitlement to benefits was authorized by law or regulation. The evidence of record includes VA treatment records from January 2008 to March 2008, which do not document complaints of low back pain. In March 2008, the Veteran’s reported past medical history included various conditions, such as substance abuse, erectile dysfunction, hypertension, and multiple sclerosis (MS), without a report of low back pain or a lumbar spine disability. At that time, he also reported that he was applying for Social Security Administration (SSA) disability benefits. A May 2008 SSA Disability Determination and Transmittal documents that the Veteran was found to be disabled according to the SSA from January 31, 2008 due to primary multiple sclerosis. Significantly, there was no documentation or report of low back pain within SSA documents or supporting treatment records. Subsequent VA treatment records from January 2010 document a problem list including low back pain. In February 2010, he presented with increased low back pain for the past month after a motor vehicle accident, and it was noted that lumbar disc disease, with chronic low back pain was shown in 2008. Upon VA examination in October 2010, a VA examiner opined that it was less likely as not that the Veteran’s current spinal stenosis was related to the service-connected lumbar spine strain and tenderness, because although he was evaluated for lumbar strain on July 25, 1984, there was no documentation or further evaluation or treatment for back impairment due to persistent pain, tenderness, or limitation of motion of the spine while on active duty or immediately after he left active duty for several years. A January 2011 statement from a VA neurosurgery resident documents that the Veteran’s diagnosis of L4/L5 spondylolisthesis is a separate diagnosis from his MS and not a causal disease for his MS, but rather another comorbidity. Private treatment records from December 2011 document the Veteran’s report that he first noticed his back pain ten years before, or approximately 2001, which the Board notes is 15 years after his discharge from active service. Upon subsequent VA examination in April 2015, a VA examiner diagnosed degenerative arthritis of the lumbosacral (LS) spine as shown by x-ray in December 2014 and opined that it was at least as likely as not that the Veteran’s current DDD (spondylolisthesis L4/5) is related to the back problem in service because it was documented in the claims file and similar in nature. It does not appear that the examiner had reviewed the record other than the service treatment record. Given the above evidence, the Board finds that the April 2015 VA examiner’s positive nexus opinion is the earliest probative evidence of a nexus between the Veteran’s post-service lumbar spine disability and his active service. Prior to that time, the preponderance of the evidence weighs against a finding of a nexus between the Veteran’s lumbar spine disability and his active service. The October 2010 VA examiner had reviewed the file and recognized the lack of evidence of low back pain in the years following service discharge. The Board has documented above the lack of evidence of continuity of symptomatology in the years following service discharge, including within the Veteran’s claim for SSA disability benefits. Thus, the Board concludes that, according to facts found, entitlement to compensation benefits for service connection did not arise until the required nexus element was provided by the April 2015 VA examiner’s opinion, after which VA granted the Veteran’s claim effective the date of his February 18, 2015 claim. As discussed above, the proper effective date for an original service connection claim is based upon facts found but will not be earlier than the date of receipt of claim. Thus, although the Veteran’s original April 2010 claim remained pending, entitlement to the benefit sought did not arise until after his February 18, 2015 claim, which is explained above. As such, the preponderance of the evidence is against an effective date earlier than February 18, 2015 for the award of service connection for spondylolisthesis L4 / L5 status post lumbar laminectomy and fusion with DDD. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Chad Johnson, 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.