Citation Nr: 21001487 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 18-47 036 DATE: January 8, 2021 ORDER An effective date earlier than October 22, 2015, for the assignment of a 20 percent rating for service-connected lumbosacral strain with intervertebral disc syndrome is denied. REMANDED Service connection for right wrist tendonitis. Service connection for a genitourinary condition as secondary to the service-connected disability of lumbosacral strain with intervertebral disc syndrome.   FINDING OF FACT 1. The Veteran’s claim for an increased rating for his low back disability was received on October 22, 2015; it is not factually ascertainable that an increase in disability occurred within one year of receipt of the claim. 2. Private medical records received in July 2014 did not show a reasonable probability of entitlement to an increased rating higher than 10 percent for the lumbar spine disability. CONCLUSION OF LAW The criteria for an effective date earlier than October 22, 2015, for the assignment of a 20 percent rating for service-connected lumbosacral strain with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.400; 38 C.F.R. § 3.157 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from July 1996 to January 2005. The case is on appeal from February 2016 and October 2016 rating decisions. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An effective date earlier than October 22, 2015, for the assignment of a 20 percent rating for service-connected lumbosacral strain with intervertebral disc syndrome. The Veteran contends that the effective date for the award of a 20 percent rating for his low back disability should be earlier than October 22, 2015. The Board previously denied this appeal in its September 2019 decision. The Board determined that an April 2012 rating decision, which awarded service connection for lumbosacral strain, was not appealed, so became final. The Board found that VA did not then receive an increased disability evaluation claim until October 22, 2015. The Board found no records of treatment after the final April 2012 rating decision and prior to the RO’s receipt of the Veteran’s claim for increase to represent an informal claim for increase under 38C.F.R. §3.157(b). The Board found no prior correspondence expressing an intent to claim an increased rating for this disability. Finally, the Board concluded that there was no factually ascertainable basis to find that the increase in disability occurred during the year prior to October 22, 2015. The Board found the earliest record of low back symptoms severe enough to warrant a 20 percent rating to be a February 2016 VA examination, which was later than the assigned effective date of October 22, 2015. The Veteran appealed the Board’s September 2019 decision to the United States Court of Appeals for Veterans Claims (Court). In the parties’ July 2020 joint motion for partial remand (JMPR) at the Court, they agreed that remand was warranted for the Board to discuss private medical records submitted by the Veteran in July 2014. The parties highlighted (1) a March 2013 appointment during which the Veteran was seen for “complaint of [p]ain” located in his lumbar spine area; (2) a January 2014 appointment for back pain. A. Applicable Law 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 U.S.C. § 5110(a); 38 C.F.R. § 3.400; Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred, if application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). “[A]n increase in a veteran’s service-connected disability must have occurred during the one year period prior to the date of the veteran’s claim in order to receive the benefit of an earlier effective date.” Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2)). If the increase in disability is shown to have occurred after the date of claim, the effective date is the date of increase. See 38 U.S.C. § 5110(b) (2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o)(1); VAOPGCPREC 12-98 (1998). A report of examination or hospitalization which meets the requirements of this section will be accepted as an informal claim for benefits if the report relates to a disability which may establish entitlement. 38 C.F.R. § 3.157(a) (as in effect prior to March 24, 2015). The date of receipt of evidence from a private physician or layperson will be accepted when the evidence furnished by or in behalf of the claimant is within the competence of the physician or lay person and shows the reasonable probability of entitlement to benefits. 38 C.F.R. § 3.157(b)(2). B. Discussion As the Board previously found, the Veteran was awarded service connection for lumbosacral strain in an April 2012 rating decision. The Veteran did not appeal that decision, so it became final. Thereafter, the Veteran filed a VA Form 21-0966 Intent to File a Claim, on October 22, 2015, the current effective date. The Veteran then filed a VA 21-526b, Veteran Supplemental Claim, in December 2015, alleging a worsening of his lumbosacral condition and decreased range of motion. There was no correspondence raising a formal or informal claim raised prior to that time. As the parties to the July 2020 JMPR pointed out, the Veteran had submitted private medical records in July 2014. The Board finds that these medical records do not qualify as an informal claim under § 3.157(b)(2), which was still in effect at that time. Amongst these was a medical record from November 2012 stating that the Veteran had thrown his back out three days prior. The diagnosis was back pain-lumbar. Next was a March 2013 medical record. At that appointment, the Veteran complained of an onset of pain that had been gradual, occurring in an intermittent pattern for six years. The Veteran described a recurrent, dull ache in the lumbar area that did not radiate. The provider found decreased range of motion with painful flexion and extension (extension worse than flexion). The assessment was again back pain–lumbar. Finally, there was a January 2014 medical record. At that consultation, the Veteran complained of back pain with gradual onset two weeks prior. He reported symptoms that occurred constantly, having begun with a new activity involving moving boxes and related activities. He reported his symptoms as moderate in severity and worsening. The provider found flexion and extension painful with no decrease in range of motion. These three medical records constitute “evidence from a private physician” under § 3.157(b)(2). They do not, however, show the reasonable probability of entitlement to a higher rating. At that time, the Veteran was assigned a 10 percent rating for his lumbosacral strain. In order to qualify for the next higher, 20 percent rating, it must be factually ascertainable from the evidence that the disability involved forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a, Diagnostic Code 5237. The November 2012 medical record did not indicate a worsening or any limitation of motion. The March 2013 medical record stated that there was painful motion, but did not indicate any precise limitations of motions in degrees from which it could be factually ascertainable that his disability had worsened. Likewise, it referred to pain for six years, which would extend beyond the one-year look back period. The January 2014 medical record noted the Veteran’s report of worsening pain, but found no decreased range of motion. Hence, these medical records did not indicate a reasonable probability of entitlement to a rating higher than 10 percent. To the contrary, they showed a disability level consistent with a 10 percent rating as they referred to painful motion with no limitation of motion. As such, the submission of these medical records in July 2014 did not raise an informal claim under 38 C.F.R. § 3.157(b). Additionally, the increase to the 20 percent disability rating was first factually ascertainable from the February 2016 VA examination. Generally, an effective date for an increased rating should not be assigned mechanically based on the date of an examination. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating—as well as for an initial rating or for staged ratings—is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); accord Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014); see also Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under DC 7528); VAOPGCPREC 12-98. Here, the February 2016 VA examination stated that the Veteran had a progression of the diagnosis from lumbosacral strain to intervertebral disc syndrome (IVDS). It also documented the Veteran’s report that his “condition has gotten worse over the years.” It then found he had forward flexion limited to 55 degrees. Based upon the evidence in this case, the exact onset of the Veteran’s 20 percent level of disability cannot be determined with any certainty prior to the February 2016 VA examination. This examination stated that his condition had been getting worse “over the years,” so it would be pure speculation to determine that the 20 percent disability level had arisen by the time he filed the private medical records in July 2014 or within one year of the October 2015 intent to file. Reasonable doubt cannot be resolved on the basis of such pure speculation. See 38 C.F.R. § 3.102. The earliest that that it can be factually ascertained that he met the criteria for a percent rating is the date he was examined by VA in February 2016. Even if the July 2014 medical records could be interpreted as showing the onset of the 20 percent disability level, which they do not, those records were dated greater than one year prior to the October 2015 claim. Hence, they would not indicate an increase having occurred within one year of the October 2015 claim. See 38 C.F.R. § 3.400(o); Gaston, 605 F.3d at 984. To this end, as the Board pointed out in its prior decision, the date entitlement arose here was later than the date of claim. As that is a more favorable finding, the Board cannot disturb it. See Murphy v. Shinseki, 26 Vet. App. 510, 513 (2014). In short, the Board concludes that an effective date earlier than October 22, 2015, for a 20 percent rating for service-connected lumbosacral strain with intervertebral disc syndrome is not warranted. The law requires that the effective date be the date of claim or the date entitlement arose, whichever is later. Because the earliest possible effective date is already assigned, there is no legal basis to assign an effective date earlier than that date. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Consequently, the benefit-of-the-doubt doctrine is not applicable and an earlier effective date is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Service connection for right wrist tendonitis. The Board previously remanded the matter in September 2019 to obtain an opinion as to whether a right wrist condition is related to service. Upon remand, a VA examination was conducted in December 2019. The VA examiner concluded that the Veteran had tendinitis of the right wrist, resolved. The examiner opined that the condition was less likely than not related to service. The examiner reasoned that there was only one episode of right wrist tendonitis documented with treatment and diagnosis on in March 2008 more than 3 years after leaving service. The examiner also found the examination to be negative for tendonitis of the right wrist. Finally, the examiner found no evidence of chronicity of care. Hence, the examiner determined that “[a] nexus has not been established.” This VA examiner i relied on an absence of documented symptoms and treatment after service without explaining why, as a medical matter, the Veteran would have sought treatment or complained of the condition during service, or why an absence of treatment (as opposed to symptoms) was otherwise medically significant. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). The examiner is correct that the service treatment records (STRs) do not document right wrist complaints. However, it is also true that the STRs appear to be incomplete. The claims file contains a March 2011 memorandum from the RO indicating that the Veteran’s STRs were unavailable for review. There are STRs in the claims file, but they are labeled “copies” and appear to have been submitted by the Veteran in December 2011. Importantly, the submitted copies do not contain a service separation examination or history. Thus, the factual foundation necessary to draw a negative inference from the absence of evidence has not been established. See Delrio v. Wilkie, 32 Vet. App. 232, 241 (2019). In fact, there is not an absence of evidence. The Veteran wrote in a December 2015 supporting statement that he hurt his wrist two or three times during service. He explained that his job required him to contort the wrist in order to properly repair and carry ordnance equipment and munitions. He indicated that his wrist would sometimes experience sharp pains while repairing ordnance equipment and moving munitions, and the pain would shoot up his arm causing a tingling feeling and dulling over a few days. He asserted that he had experienced the same pain several times a year since service separation. The Veteran’s statement is competent evidence of his symptoms during and since service, and, at present, there is no reason to doubt his credibility. Hence, the VA examiner’s failure to consider the Veteran’s testimonial statement, which is relevant evidence that he first noticed symptoms proximate in time to service, when formulating the opinion renders that opinion inadequate. For this reason, a new VA opinion is warranted.   2. Service connection for a genitourinary condition as secondary to the service-connected disability of lumbosacral strain with intervertebral disc syndrome. The Board previously remanded the matter for an examination pursuant to Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). The Board explained that an addendum opinion was needed as to whether the Veteran’s reported urinary frequency and voiding dysfunction resulted in functional impairment that affected his earning capacity and whether any loss of earning capacity was secondary to his service-connected low back disability. Upon remand, a VA opinion was given in December 2019. The examiner concluded that there was no diagnosis because there is no pathology to render a diagnosis. The examiner cited the Veteran’s report of symptom onset in 2004 or 2005 with deterioration involving urinary urgency after 2005. The Veteran explained that the condition had gotten worse, such that he always had to go even after going thirty or more times. The VA examiner reasoned that he was unable to confirm a current chronic diagnosis with the current available records and/or that day’s examination. The examiner reported that there were no findings for a urological diagnosis. The examiner felt that it was less likely this Veteran had an organic diagnosis because there was no good onset history, and medical history questionnaires did not have urinary frequency or voiding dysfunction checked. The examiner found the Veteran’s history to be subjective and without a diagnosis. The examiner also opined that if someone had this voiding history they would seek medical evaluation, but there were no findings of chronicity of care for any urological complaint. Hence, the VA examiner’s impression was that of a subjective complaint of urinary frequency without diagnosis. It must be clear from an examiner’s statements that the examiner has indeed considered “all procurable and assembled data,” by obtaining all tests and records that might reasonably illuminate the medical analysis. When the record leaves this issue in doubt, it is the Board’s duty to remand for further development. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Here, the December 2019 VA examiner found that a current chronic diagnosis could not be confirmed based on the available records or that day’s examination. However, the examination report does not indicate that an in-person evaluation, or any type of testing, was conducted. It is an opinion only. The remaining medical records also do not contain any tests or evaluation for the condition. Hence, the examination report indicates that all tests were not conducted that might reasonably illuminate the issue. As such, remand is needed. Relatedly, the Veteran submitted an article entitled Spinal Disorders May Cause Neurogenic Bladder Disorder or Dysfunction. It discusses problems with urination that may be related to lumbar spine disorders. The December 2019 VA examiner did not discuss this article. Hence, overall, the Board finds this VA opinion insufficient to fully resolve the issue and another opinion is warranted. The matters are REMANDED for the following action: 1. Obtain the Veteran’s complete STRs. 2. Obtain an opinion from an appropriate clinician regarding the Veteran’s right wrist. An in-person examination of the Veteran should be arranged if determined necessary by the appointed examiner. The examiner is asked to address whether a right wrist disorder at least as likely as not (1) began during active service, (2) manifested within 1 year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise related to an in-service injury, event, or disease. In answering these questions, the examiner is asked to consider the statements from the Veteran indicating that symptoms started during service. The examiner is asked to explain why his statements make it more or less likely that a current condition started during service. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran’s recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of a genitourinary condition. The examiner is asked to address each of the following: (a.) Does the Veteran have a current diagnosis? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. The examiner should consider and discuss an article submitted by the Veteran in November 2016 entitled Spinal Disorders May Cause Neurogenic Bladder Disorder or Dysfunction. For each diagnosis, the examiner must address whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) aggravated beyond its natural progression by a different medical condition, such as the service-connected lumbar spine disability. If so, the examiner is asked to identify the primary medical condition. In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his urinary symptoms. The examiner is asked to explain why his statements make it more or less likely that a current condition is secondary to the service-connected lumbar spine disability. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Bosely, 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.