Citation Nr: 21001511 Decision Date: 01/08/21 Archive Date: 01/08/21 DOCKET NO. 20-29 801 DATE: January 8, 2021 ORDER Entitlement to an effective date prior to August 30, 2011 for service connection for degenerative disc disease of the lumbar spine is denied. FINDING OF FACT The preponderance of the evidence of record does not establish that the Veteran is entitled to an effective date prior to August 30, 2011 for service connection for degenerative disc disease of the lumbar spine. CONCLUSION OF LAW The criteria for entitlement to an effective date prior to August 30, 2011 for service connection for degenerative disc disease of the lumbar spine have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.155, 3.159, 3.160, 3.400, 20.1104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1963 to January 1993. This matter come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was remanded in an August 2019 Board decision for the issuance of a statement of the case. This issue was perfected by a September 2020 VA Form 9. A remand by the Board imposes a concomitant duty to ensure compliance with the terms of the remand. Where the remand orders are not complied with, the Board itself errs in failing to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Upon review, the Board finds that the remand directives have been complied with. The Board notes that the AOJ requested the Veteran submit any relevant private treatment records or submit information with which VA can assist the Veteran in obtaining private treatment records. VA requested records for which the Veteran submitted a proper release. The duty to assist is not a one way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA’s duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Legal Criteria The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof. 38 U.S.C. § 5110(a). The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Here, the Veteran’s claim was filed prior to March 24, 2015, and therefore was not required to be filed on a standard form. Analysis Entitlement to an effective date prior to August 30, 2011 for service connection for degenerative disc disease of the lumbar spine. The Veteran contends that he is entitled to an effective date prior to August 30, 2011 for his degenerative disc disease of the lumbar spine. In his September 2020 Form 9, the Veteran asserts that his claim for service connection of degenerative disc disease should have been awarded in 1993, based on the evidence of record at that time. The Veteran initially filed a claim for service connection for back condition in February 1993. The claim was denied in an August 1994 rating decision. The Veteran did not appeal that decision and no new and material evidence was received within one year of the rating decision. As such the August 1994 rating decision is final. Following the August 1994 rating decision, the Veteran requested reevaluation of his claim for back problems in a December 2003 informal claim. An August 2004 rating decision denied service connection for herniated nucleus pulposus, lumbar spine, based on no new and material evidence. Again, the Veteran did not appeal this decision and no new and material evidence was received within one year of the rating decision; therefore, the August 2004 rating decision is final. In January 2008, the Veteran again submitted an informal claim for service connection for his recurrent back problems. An October 2008 rating decision denied the claim, based on no new and material evidence. The Veteran did not appeal the October 2008 rating decision. In an informal claim received August 30, 2011, the Veteran requested reevaluation of entitlement to service connection for back condition. A May 2013 rating decision granted degenerative disc disease of the lumbar spine, effective August 30, 2011, the date of the Veteran’s informal claim. In July 2013, the Veteran filed a notice of disagreement seeking an earlier effective date, and subsequently perfected his appeal with his timely filed August 2017 Form 9. The Board acknowledges that evidence received in June 2011 includes VA treatment records from November 2008 which note the Veteran’s subjective complaints of back pain. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that VA treatment records created within one year of a rating decision (in this case, the October 2008 rating decision) are in constructive possession of VA, regardless of whether a VA adjudicator has actual knowledge of these records. Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020). The Federal Circuit has also held that a claim such as this remains open until VA determines whether post-decision evidence received within the one-year appeal period is “new and material.” Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Here, the October 2008 rating decision did not make a determination as to whether all records within the one-year period were new and material, as it is clear records dated November 2008, which were in construction possession based on Lang, were not considered. However, the case at hand is distinguished from Beraud. In Beraud, the Court vitiated the finality of a prior rating decision because a subsequent rating decision (which had become final) did not decide whether evidence received within the one-year appeal period was new and material. Id. at 1405-07. Here, while this claim has remained pending, the AOJ reopened the claim in the May 2013 rating decision based on receipt of new and material evidence. Thus, the May 2013 rating decision cured the procedural defect by considering all evidence of record since the October 2008 rating decision, which includes VA treatment records dated November 2008, and by making a finding as to whether the evidence was new and material. Thus, because VA made this determination while the October 2008 rating decision remained pending, VA treatment records dated November 2008 were considered in making this determination, any procedural defect under Beraud has been cured and the October 2008 rating decision became final. In making this finding, the Board notes that the holding in Beraud made no finding that the question of new and material evidence be resolved at the time of the subsequent rating decision or that it be specifically resolved by the AOJ. Rather, the Court found that “[b]ecause the VA never determined” whether additional evidence was new and material that a prior claim remained pending. Id. at 1407 (emphasis added). Had the Federal Circuit in Beraud wished to limit this determination to the AOJ or, even more specifically, to the subsequent rating decision on appeal, the Board finds the Court would have explicitly stated so. Moreover, in Lang, the Federal Circuit specifically found that the Court of Appeals for Veterans Claims erred when it declined to remand the appellant’s claim to the Board for review of and determination as to whether post-decision VA medical records were new and material, further evidencing that this procedural defect may be cured after the subsequent rating decision in question. Id. at 1355 (emphasis added). Considering the foregoing, the Board finds that a determination regarding new and material evidence to cure a Beraud defect is not limited to the subsequent rating decision in question (or even to the AOJ, as Beraud suggests and as Lang makes clear), and that it may be cured during the appeal period, thus rendering a prior decision final. Here, the May 2013 rating decision cured the Beraud defect by making a determination regarding new and material evidence, and therefore, the October 2008 rating decision is final. The Board has considered the Veteran’s argument that he believes the effective date should go back to 1993. While the Board is sympathetic to the fact that he has experienced symptoms prior to the effective date of August 30, 2011, VA law and regulations are clear that an award based on a claim to reopen after a final disallowance shall be the date of the claim or the date entitlement arose, whichever is later. Here, given that the October 2008 rating decision is final, August 30, 2011, the date of the receipt of the claim to reopen, is the earliest effective date allowed under VA law and regulation; therefore, an effective date prior to then is not warranted. Owings v. Brown, 8 Vet. App. 17, 23 (1995) (providing that the Board must apply the law as it exists and is not permitted to award benefits based on sympathy for a particular appellant). (Continued on the next page)   Entitlement to an effective date prior to August 30, 2011 is denied. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish, Associate 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.