Citation Nr: 21001021 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-61 179 DATE: January 6, 2021 ORDER Entitlement to an effective date of March 28, 2009 for the grant of entitlement to service connection for intervertebral disc disease and arthritis of the cervical spine (herein cervical spine disability) is granted. Entitlement to an effective date of March 28, 2009 for the grant of entitlement to service connection for radiculopathy, right upper extremity, is granted. Entitlement to an effective date of March 28, 2009 for the grant of entitlement to service connection for radiculopathy, left upper extremity, is granted. Entitlement to an effective date prior to March 28, 2009 for the grant of entitlement to service connection for a cervical spine disability is denied. Entitlement to an effective date prior to March 28, 2009 for the grant of entitlement to service connection for radiculopathy, right upper extremity, is denied. Entitlement to an effective date prior to March 28, 2009 for the grant of entitlement to service connection for radiculopathy, left upper extremity, is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, the date of claim for entitlement to service connection for a cervical spine disability and radiculopathy of the right and left upper extremities was March 28, 2009 and such disabilities manifested at least as of the March 28, 2009 claim. 2. No communication was received by VA prior to March 28, 2009 that indicated intent to apply for entitlement to service connection for a cervical spine disability or radiculopathy of the right or left upper extremities. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 28, 2009 for entitlement to service connection for a cervical spine disability and radiculopathy of the right and left upper extremities have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400. 2. The criteria for an effective date prior to March 28, 2009 for entitlement to service connection for a cervical spine disability or radiculopathy of the right or left upper extremities have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1982 to February 1983 and on active duty for training (ACDUTRA) from March 1985 to May 1985 and from May 3, 1987 to May 15, 1987. In an April 2019 decision, the Board denied the Veteran’s claims. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an April 2020 Memorandum Decision, the Court vacated the portion of the April 2019 Board decision that denied an effective date prior to December 11, 2012 for the grant of entitlement to service connection for a cervical spine disability and radiculopathy of the right and left upper extremities and remanded these matters to the Board. 1. Earlier Effective Date for a Cervical Spine Disability of March 28, 2009 2. Earlier Effective Date for Radiculopathy of the Right Upper Extremity of March 28, 2009 3. Earlier Effective Date for Radiculopathy of the Left Upper Extremity of March 28, 2009 Procedural History and Evidence A May 6, 1987 service treatment record (STR) noted that the Veteran was “in auto accident…[with] head hitting steering wheel [and left] shoulder hit windshield[,] unconscious [for] 5 min[utes].” An August 1990 rating decision stated that “[t]he [V]eteran submitted orders for [ACDUTRA] showing dates 5/3/87, to 5/15/87.” The rating decision also stated that “head trauma with loss of consciousness during ACDUTRA in 1987[] is shown.” The rating decision granted entitlement to service connection for “Tinnitus, constant [secondary] to head injury.” On a VA Form 21-4138 (Statement in Support of Claim) dated by the Veteran March 28, 2009, it was stated “I am requesting an examination for my service-connected [traumatic brain injury (TBI)] to reevaluate the rating.” The date stamp of when this document was received by VA is not clearly legible. In a February 2016 Board decision, the Board included a finding of fact that “[o]n March 31, 2009, the Veteran filed a claim for entitlement to service connection for residuals of a TBI.” In an April 2019 Board decision, the Board referenced “the March 28, 2009, TBI claim” and granted an effective date of March 28, 2009 for entitlement to service connection for headaches. The Board notes that a grant of entitlement to service connection on either date in March 2009 would not result in any greater compensation to the Veteran, as the first day of payment of VA monetary benefits is generally the first day of the calendar month following the month in which an award becomes effective. See 38 U.S.C. § 5111(a); 38 C.F.R. § 3.31. Resolving reasonable doubt in the Veteran’s favor, and consistent with the “law of the case” doctrine and the more recent April 2019 Board decision, the Board will accept March 28, 2009 as the date of receipt of the relevant VA Form 21-4138. See 38 C.F.R. § 3.102 (“When…a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant”); Chisem v. Gober, 10 Vet. App. 526, 527-28 (1997) (“Under the ‘law of the case’ doctrine appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case”). The Veteran was subsequently afforded a VA examination in June 2009 with Dr. H.S. The examination report included the headings “history as related by the claimant” and “specific history for: [TBI].” Under these headings, extensive information was noted regarding various symptoms that the Veteran did or did not report. As relevant, it was stated that the Veteran “states she has…tingling in the arms and hands.” Following various other symptoms that were reported or denied by the Veteran, it was stated “[t]he [Veteran] reports no other symptoms associated with the TBI injury.” A July 2009 rating decision continued the previously assigned 10 percent rating for “recurrent tinnitus associated with acoustic trauma.” VA treatment records included a March 2011 treatment note that stated “history of neck pain, will check cervical xray.” Of record are the results of a March 2011 cervical spine x-ray, with an impression noted in part of “there is mild degenerative disc disease of lower C-spine at C5/C6.” In a December 11, 2012 statement, the Veteran stated “New: Upper back to include neck secondary to service connected low back condition” and it was also stated that “I have been having constant pain between my shoulder blades along with pain in my neck area. Also this cause discomfort in both my arms to include numbness and tingling from my shoulders to my fingertips on both sides.” On a January 2013 VA Form 21-526 (Application for Disability Compensation and Related Compensation Benefits), the Veteran listed as a disability she was claiming “new: upper back to include neck secondary to [service-connected] low back.” The Veteran was afforded a VA examination in August 2013 and a Neck (Cervical Spine) Conditions Disability Benefits Questionnaire (DBQ) was completed. The DBQ noted diagnosis of “Intervertebral disc disease with radiculopathy” and noted a date of diagnosis of 2012. Radiculopathy was noted as affecting both the right and left upper extremities. Also noted as a symptom of the radiculopathy was moderate paresthesias and/or dysesthesias for both the right and left upper extremities. It was noted that the Veteran “notes that over the last year the poor gait and low back has caused her worsening neck pain symptoms.” A January 2014 rating decision denied entitlement to service connection for a cervical spine disability and radiculopathy of the right and left upper extremities. In a subsequent January 2014 statement, the Veteran stated that “[s]ervice connection should be granted on a direct basis for the cervical spine condition” and referenced was the May 6, 1987 motor vehicle accident (MVA) discussed above. It was also stated that “the issue of bilateral upper extremity radiculopathy should also be granted as a result of the [degenerative disc disease/interverbal disc syndrome] of the cervical spine.” The Veteran was afforded a VA examination in May 2014 and an Initial Evaluation of Residuals of TBI DBQ was completed by Dr. J.C. (who listed after his name “Physical Medicine and Rehabilitation/Physiatry”). Dr. J.C. provided an opinion stating in part that “[t]he Veteran’s cervicogenic headaches [are] more likely associated with neck injury secondary to the MVA that occurred on 5/6/1987.” Dr. J.C. also completed a Headaches DBQ and stated that “[t]he Veteran’s headaches are associated with the injury incurred and was caused by the MVA on 5/6/1987. It is important to note though that these headaches are NOT originating from a central nervous system etiology, but rather referred pain to the head from an injury from the Veteran’s [n]eck” and that “[t]he Veteran’s headache is more associated with the underlying neck injury incurred in the MVA as well.” An August 2014 rating decision granted entitlement to service connection for a cervical spine disability. It was stated that “[s]ervice connection for [a cervical spine disability] has been established as directly related to military service,” which was presumably based on the May 2014 opinions outlined above from Dr. J.C. An effective date was assigned of December 11, 2012, which was noted as “the date we received your claim.” The rating decision also granted entitlement to service connection for radiculopathy of the right and left upper extremities “as related to the service-connected” cervical spine disability. The effective date for both disabilities assigned was December 11, 2012, which was noted as “the date we received your claim.” The rating decision additionally granted entitlement to service connection for TBI and assigned an effective date of January 13, 2014. The Veteran appealed the assigned effective date for entitlement to service connection for TBI. In a February 2016 Board decision, the Board found that entitlement to an effective date of October 23, 2008 was warranted for entitlement to service connection for TBI. The Board stated that “the March 31, 2009 claim indicates the Veteran’s intention to seek service connection for her TBI residuals,” that “it was the Veteran’s intention to request service connection for all residuals of her TBI” and that “the date of claim for entitlement to service connection for residuals of a TBI is March 31, 2009.” The Board granted an effective date earlier than the date of claim of October 23, 2008 because 38 C.F.R. § 3.114(a) allows for, as applicable, an effective date of the date of a liberalizing law and, as relevant, the regulations pertaining to TBI were revised effective October 23, 2008. See 73 Fed. Reg. 54,693 (Sept. 23, 2008). In an April 2019 Board decision, the Board denied entitlement to an effective date prior to December 11, 2012 for entitlement to service connection for a cervical spine disability and radiculopathy of the right and left upper extremities. The Court, in an April 2020 Memorandum Decision, vacated that portion of the Board decision. As relevant, with respect to the radiculopathy earlier effective date claims, the Court stated that “the Board overlooked this favorable evidence and therefore provided inadequate reasons or bases.” The referenced evidence was the June 2009 VA examination report, discussed above, and specifically the notation in that report of “tingling in the arms and hands.” Legal Criteria 38 U.S.C. § 5110(a), as applicable when this claim was filed (the law was subsequently amended), stated that “[u]nless 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.” 38 C.F.R. § 3.400, as applicable when the claim was filed (the regulation was also subsequently amended), stated that “[e]xcept as otherwise provided, the effective date of an evaluation and award 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.” In addition, as relevant to the issues on appeal, the Court addressed in depth the issue of effective dates for entitlement to service connection in the context of secondary service connection in DeLisio v. Shinseki, 25 Vet. App. 45 (2011). The Court stated, in reference to secondary service connection, that: the relationship between a claimant’s condition and service may be established through a causal chain of diseases or disabilities. Thus, if the condition for which VA benefits are sought is not directly associated with service, but information obtained during the processing of the claim reasonably indicates that the cause of the condition is a disease or other disability that may be associated with service, [VA] generally must investigate whether the causal disease or disability is related to service, in order to determine whether the claimed condition is related secondarily to service…If [VA] determines that the causal disease or disability is, in fact, connected to service, then the claim for benefits for the condition ‘reasonably encompasses’ a claim for that causal disease or disability. The Court further stated: Otherwise stated, if (1) a claimant files a claim for benefits for a condition…, (2) the claim remains open and not finally adjudicated, and (3) the cause of that condition ultimately is determined to be a disease or disability incurred in or aggravated by service…, then the effective date for both the secondarily service-connected condition and the service-connected causal disease or disability can be as early as the date of the open claim, depending on when each disability manifested and when law or regulation otherwise authorized benefits. Analysis Upon review, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for an effective date of March 28, 2009 for entitlement to service connection for a cervical spine disability and radiculopathy of the right and left upper extremities have been met. As noted, the Veteran submitted a March 28, 2009 VA Form 21-4138 and the Board in February 2016 found that this submission was “the date of claim for entitlement to service connection for residuals of a TBI” and that “it was the Veteran’s intention to request service connection for all residuals of her TBI.” It is clear that this claim, on its face, did not reference radiculopathy or the upper extremities. The scope of the Veteran’s claim, however, is not limited exclusively to the claim itself. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009) (“Although the appellant’s claim identifies PTSD without more, it cannot be a claim limited only to that diagnosis, but must rather be considered a claim for any mental disability that may reasonably be encompassed by several factors including: the claimant’s description of the claim; the symptoms the claimant describes; and the information the claimant submits or that [VA] obtains in support of the claim”). In this regard, as referenced, the Veteran was afforded a June 2009 examination and the examination report included the headings “history as related by the claimant” and “specific history for: [TBI]” and under these headings, it was stated that the Veteran “states she has…tingling in the arms and hands.” Following various other symptoms that were reported or denied by the Veteran, the examination report stated “[t]he [Veteran] reports no other symptoms associated with the TBI injury.” Sympathetically read and resolving any ambiguity in the Veteran’s favor, the language of the examination report indicated the Veteran’s lay belief that her upper extremity symptoms of tingling in the arms and hands were residuals of a TBI and therefore the Board finds that such upper extremity symptoms were within the scope of the March 28, 2009 claim for residuals of a TBI. See Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004) (“Roberson [v. Principi, 251 F.3d 1378 (Fed. Circ. 2001)] requires, with respect to all pro se pleadings, that the VA give a sympathetic reading to the veteran’s filings by ‘determining all potential claims raised by the evidence, applying all relevant laws and regulations’”); Harris v. Shinseki, 704 F.3d 946, 948 (Fed. Cir. 2013) (“in Moody [v. Principi, 360 F.3d 1306 (Fed. Cir. 2004)], we held that any ambiguity in a pro se filing that could be construed as an informal claim must be resolved in the veteran’s favor”). The fact that the Veteran’s lay belief was not supported by competent evidence does not necessarily limit the scope of the Veteran’s claim. See Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) (“For purposes of the claim and its adjudication, it matters little that the appellant believes his symptoms should be diagnosed as PTSD if the medical evidence establishes that his symptoms are actually something different. And, the fact that the appellant may be wrong about the nature of his condition does not relieve [VA of the] duty to properly adjudicate the claim”). As outlined above, an August 2014 rating decision granted entitlement to service connection for TBI and assigned an effective date of January 13, 2014 and the Board in February 2016 granted an earlier effective date for the grant of entitlement to service connection for TBI back to October 23, 2008 based on consideration of the March 2009 claim. This indicated that the March 2009 claim was pending until at least the August 2014 rating decision. The August 2014 rating decision, as noted, also granted entitlement to service connection for a cervical spine disability on a direct basis and granted entitlement to service connection for radiculopathy of the right and left upper extremities as secondary to the cervical spine disability. Applying DeLisio, the Board finds that an earlier effective date is warranted for entitlement to service connection for a cervical spine disability. As outlined, the Veteran filed a March 28, 2009 claim for residuals of a TBI, which the Board has found to include within the scope of this claim upper extremity symptoms of tingling in the arms and hands. Information obtained during the processing of this claim, to include May 2014 opinions from Dr. J.C., reasonably indicated that the cause of the upper extremity symptoms was a cervical spine disability. VA subsequently determined that a cervical spine disability was directly connected to the Veteran’s active service. As such, pursuant to DeLisio, the March 28, 2009 claim for entitlement to service connection for TBI residuals, which itself included upper extremity symptoms of tingling in the arms and hands, reasonably encompassed a claim for entitlement to service connection for a cervical spine disability. Otherwise stated, the Veteran filed a March 28, 2009 claim for entitlement to service connection, which included within the scope of the claim upper extremity symptoms of tingling in the arms and hands, that remained open and not finally adjudicated and the cause of such upper extremity symptoms, a cervical spine disability, was ultimately determined to be a disability directly related to service. As such, as stated in DeLisio, “the effective date for both the secondarily service-connected condition and the service-connected causal disease or disability can be as early as the date of the open claim.” As noted, 38 C.F.R. § 3.400 provides that, as relevant here, “the effective date…will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” As outlined, the date of receipt of claim for a cervical spine disability and radiculopathy of the right and left upper extremities is March 28, 2009. The remaining issue is when the date entitlement arose. The Court stated in DeLisio that “[r]egardless of the date of a claim, an effective date generally can be no earlier than the facts found, i.e., the date that a claimant’s disability first manifested and the date benefits were authorized.” The Court also stated that “entitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition” and that “an effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [a Veteran’s disability] first manifested.” In this case, it does not appear that the Veteran was diagnosed with a cervical spine disability and radiculopathy of the right and left upper extremities until after the March 28, 2009 claim. In this regard, it appears that the earliest diagnosis of a cervical spine disability was found in a March 2011 VA x-ray report that noted “mild degenerative disc disease of lower C-spine at C5/C6” and that the earliest diagnosis of radiculopathy was in an August 2013 Neck Conditions DBQ. As noted, however, for effective date purposes the medical diagnosis of the condition is not the key inquiry, but rather the determinative issue is when the disability first manifested. It is not clear from the current evidence of record when the disabilities at issue first manifested. As noted, degenerative disc disease of the cervical spine was first documented in a March 2011 x-ray. It seems likely that such a degenerative condition did not manifest on the date x-rays were taken, but that such manifested at some earlier date. The Board also notes that that the March 2011 VA treatment note that referenced obtaining cervical spine x-rays stated “history of neck pain.” In addition, the June 2009 VA examination report referenced “tingling in the arms and hands” and subsequent evidence and VA (by granting secondary service connection) attributed the Veteran’s upper extremity radiculopathy to a cervical spine disability. It seems logical, then, that the cervical spine disability manifested prior to upper extremity symptoms that were noted in the June 2009 examination report. Also, the language of the examination report, specifically that the Veteran “states she has…tingling in the arms and hands,” suggested ongoing upper extremity symptoms that existed prior to the June 2009 examination report. While the evidence is not clear, the Board will resolve reasonable doubt in the Veteran’s favor and find that the cervical spine disability and radiculopathy of the right and left upper extremities manifested at least as of the March 28, 2009 claim. In review, the Board finds that, resolving reasonable doubt in the Veteran’s favor, the date of claim for entitlement to service connection for a cervical spine disability and radiculopathy of the right and left upper extremities was March 28, 2009 and that such disabilities manifested at least as of the March 28, 2009 claim. As such, for a cervical spine disability and radiculopathy of the right and left upper extremities, March 28, 2009 is the appropriate date for entitlement to service connection, as this is the later date between the date of claim and the date entitlement arose. Accordingly, the Board concludes that the criteria for an effective date of March 28, 2009 for entitlement to service connection for a cervical spine disability and radiculopathy of the right and left upper extremities have been met and, to this extent, the Veteran’s claims are therefore granted. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.102, 3.400. 4. Earlier Effective Date for a Cervical Spine Disability prior to March 28, 2009 5. Earlier Effective Date for Radiculopathy of the Right Upper Extremity prior to March 28, 2009 6. Earlier Effective Date for Radiculopathy of the Left Upper Extremity prior to March 28, 2009 Upon review, the Board also finds that an even earlier effective date is not warranted for a cervical spine disability or radiculopathy of the right or left upper extremities. In this regard, the Board finds that no communication was received by VA prior to March 28, 2009 that indicated intent to apply for entitlement to service connection for a cervical spine disability or radiculopathy of the right or left upper extremities. As noted, 38 C.F.R. § 3.400, as relevant, provides that “[e]xcept as otherwise provided, the effective date…will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” Assuming (without deciding) for purposes of this decision that entitlement arose for the relevant disabilities prior to March 28, 2009, the date of claim, as the later date, is the appropriate effective date for entitlement to service connection. As such, the currently assigned effective date of March 28, 2009 (as granted herein) is the earliest possible effective date for entitlement to service connection for a cervical spine disability and radiculopathy of the right and left upper extremities. The Board has considered the Veteran’s contentions and acknowledges the various statements submitted during the course of this appeal. In this regard, the Veteran has primarily advocated for an effective date of March 28, 2009, which as outlined in detail above, the Board has granted herein. See, e.g., Appellant’s Informal Brief to the Court (with the Veteran, in response to a question of “What action do you want this Court to take?,” stating “[g]rant entitlement to the earlier effective date of March 28, 2009”). The Veteran, however, has also at times advocated for an even earlier effective date of October 23, 2008, which as discussed is the effective date of entitlement to service connection for TBI. See August 2016 Veteran Statement; October 16, 2016 Veteran Statement; October 19, 2016 Veteran Statement. As noted above, the Board granted an effective date for TBI earlier than the March 2009 date of claim of October 23, 2008 because 38 C.F.R. § 3.114(a) allows for, as applicable, an effective date of the date of a liberalizing law and, as relevant, the regulations pertaining to TBI were revised effective October 23, 2008. The Board finds that this is not applicable to the cervical spine disability and radiculopathy of the right and left upper extremities because such were granted service connection on bases unrelated to the service-connected TBI. In this regard, as addressed above, the August 2014 rating decision granted entitlement to service connection for a cervical spine disability on a direct basis and granted entitlement to service connection for radiculopathy of the right and left upper extremities as secondary to the cervical spine disability. This rating decision, therefore, did not award compensation pursuant to the liberalizing change in regulations for TBI. See 38 C.F.R. § 3.114(a)(providing special rules for effective dates “[w]here…compensation…is awarded or increased pursuant to a liberalizing law”). Accordingly, the October 23, 2008 effective date for TBI is not also warranted for the cervical spine disability and radiculopathy of the right and left upper extremities. In sum, the Board finds that no communication was received by VA prior to March 28, 2009 that indicated intent to apply for entitlement to service connection for a cervical spine disability or radiculopathy of the right or left upper extremities. As such, the Board concludes that the criteria for an effective date prior to March 28, 2009 for entitlement to service connection for a cervical spine disability or radiculopathy of the right or left upper extremities have not been met and, to this extent, the Veteran’s claims must therefore be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. C. TRUEBA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Hoopengardner, 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.