Citation Nr: 21002106 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 16-53 591A DATE: January 12, 2021 ORDER An effective date prior to August 20, 2013 for the award of a 30 percent rating for degenerative joint disease (DJD) of the cervical spine, status-post C-6 corpectomy with C5-7 fusion, is denied. FINDING OF FACT Following the issuance of a final decision in January 1999 that awarded service connection for DJD of the cervical spine, status-post C-6 corpectomy with C5-7 fusion, with an initial 10 percent rating, effective December 3, 1997, the Veteran did not file a formal or informal claim for an increased rating for such disability prior to the receipt of his claim on August 20, 2013, and it is not factually ascertainable that such disability increased in severity so as to warrant a 30 percent rating within a year prior to the receipt of such claim. CONCLUSION OF LAW The criteria for an effective date prior to August 20, 2013, for the award of a 30 percent rating for DJD of the cervical spine, status-post C-6 corpectomy with C5-7 fusion, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to December 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in May 2014 by a Department of Veterans Affairs (VA) Regional Office (RO). In December 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. While the Veteran’s representative did not attend the hearing, the Veteran waived his right to have his representative present. He also waived Agency of Original Jurisdiction (AOJ) consideration of the evidence associated with the record since the issuance of the November 2018 supplemental statement of the case. 38 C.F.R. § 20.1305(c). Therefore, the Board may consider the entirety of the evidence of record. Entitlement to an effective date prior to August 20, 2013 for the award of a 30 percent rating for DJD of the cervical spine, status-post C-6 corpectomy with C5-7 fusion. Generally, except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The law pertaining to the effective date of a VA claim for increase in disability mandates that, unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The pertinent statute specifically provides that the effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. Harper v. Brown, 10 Vet. App. 125 (1997). In addressing the scope of section 3.400(o)(2), VA’s General Counsel found that this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. VAOPGCPREC 12-98 (1998). It was noted that this section was not intended to cover situations where a disability worsened gradually and imperceptibly over an extended period of time. Id. Additionally, prior to March 24, 2015, 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). According to 38 C.F.R. § 3.157(b), once a claim for compensation has been allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital can be accepted as an informal claim for increased benefits. See Servello at 199. The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b)(2). A “report of examination or hospitalization” under § 3.157(b) should “indicate that [a] veteran’s service-connected disability [has] worsened since the time it was last evaluated.” Massie v. Shinseki, 25 Vet. App. 123, 134 (2011). Moreover, the term “report of examination” under § 3.157(b) “implies that the medical record in question must describe the results of a specific, particular examination.” A letter may qualify if it, for instance, was “generated in connection with any particular VA medical examination” rather than, for example, a “claim for Social Security disability benefits that was pending at the time it was written.” Massie, 25 Vet. App. at 133. Other considerations include whether the letter relates “the findings of or treatment provided during a specific VA medical examination, the date of which could possibly serve as the date of an informal claim for increased disability compensation,” rather than “present[ing] a very short summation of [the veteran’s general condition, as [the physician] had observed it over” time. Id. By way of background, a January 1999 rating decision awarded service connection for DJD of the cervical spine, status-post C-6 corpectomy with C5-7 fusion, with an initial 10 percent rating, effective December 3, 1997. While he was notified of the decision and his appellate rights in a letter issued the same month, the Veteran did not file a timely notice of disagreement with the decision. Additionally, no new and material evidence was physically or constructively received within one year of the issuance of the rating decision and no relevant service department records have since been received. Therefore, the January 1999 rating decision is final. 38 U.S.C. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (1998). Thereafter, VA received the Veteran’s claim, filed on a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, for an increased rating for his service-connected cervical spine disability on August 20, 2013. In this regard, the Board finds that none of the Veteran’s communications prior to August 20, 2013, may be considered an informal claim for an increased rating for his cervical spine disability. Specifically, such only include information regarding his dependency status and education benefits for his dependents. Moreover, no VA or private treatment records were received between the issuance of the January 1999 rating decision and the submission of his claim on August 20, 2013. Thus, no informal claim as defined by 38 C.F.R. § 3.157(b) was received prior to August 20, 2013. Given this factual background, in order to warrant an earlier effective date, it must be factually ascertainable that the Veteran’s service-connected cervical spine disability increased in severity so as to warrant a 30 percent rating within the one-year period prior to receipt of his claim on August 20, 2013. In this regard, the Veteran’s cervical spine disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula), which provides for a 30 percent rating when forward flexion of the cervical spine is limited to 15 degrees or less; or favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5237, 5242. A February 2012 private treatment record reflects the Veteran’s report that his neck had done well until recently when it flared-up. In this regard, he indicated that, when he moved his neck suddenly, he had electric shocks and pain shooting down his arms and numbness in his hands, which comes and goes. In March 3, 2012, the Veteran’s private treatment provider found adequate fusion at C5-6 and C6-7 with mild residual right neural foraminal stenosis. He also found moderate to severe central canal stenosis and mild left neural foraminal stenosis at C7-T1 secondary to asymmetrical left-sided facet arthropathy, central disc osteophytic protrusion, and disc bulge, as well as severe central canal stenosis at the C3-4 level secondary to disc osteophytic bulger and superimposed disc extrusion. In a March 30, 2012, pre-operational history and physical, the Veteran’s private treatment provider found symptomatic disk degeneration and stenosis at C3-4, C4-5 above a C5-6 and C6-7 fusion as well as stenosis at C7-T1. Based on such findings, the Veteran was scheduled to have surgery on April 30, 2012. On April 30, 2012, the Veteran underwent an anterior diskectomy decompression and fusion cages C3-4, C4-5, followed by posterior instrumented fusion C3 to 7 and a laminectomy and decompression C7-T1, T1-T2. A May 3, 2012, discharge summary reflects that the Veteran did extremely well post-operatively and, at such time, he was transferring and ambulating independently. The Veteran noted significant relief in his pre-operative radicular pain at the time of discharge. In June 2012, the Veteran reported some neck pain as well as post-surgery swallowing difficulty with dysphonia, but his post-operative symptoms of arm numbness and disuse had significantly improved since surgery. In this regard, the Veteran stated that, overall, he was happy with the results of surgery. The private treatment provider found that the Veteran was status post-anterior-posterior cervical fusion with post-operative drainage, now resolved, with good clinical results, some dysphagia, and dysphonia. In an August 2012 follow-up visit, the examiner reported that the Veteran continued to have excellent results in regard to relief of his post-operative symptoms. The Veteran still had some swallowing problems periodically but seemed to be getting gradually better. In February 2013, the Veteran’s private treatment provider found that the Veteran continued to do quite well since his neck surgery. He had no significant radicular pain or complaints, and good range of motion (ROM) of the cervical spine. In May 2013, the Veteran returned for a one-year post-operative follow-up, at which time he reported that his neck pain was much better, and he was not having any of his pre-operative radicular pain. Overall, the Veteran was happy with the results of the surgery. His private treatment provider observed that the Veteran’s neck examination showed good ROM, and he transferred and ambulated without difficulty. Such provider indicated that he thought everything was healed. In a December 2013 private treatment record, the private treatment provider reported that the Veteran’s neck continued to do well status-post surgery. He demonstrated good ROM of the neck, and he transferred and ambulated without difficulty. In April 2014, it was noted that the Veteran’s neck seemed to be doing well overall. He still took some medication for pain on an as-needed basis, but had significant improvement in his pre-operative neurological complaints in his upper extremities. At the December 2020 Board hearing, the Veteran testified that the April 2012 surgery was poorly done as they transitioned his neck too far forward, and he was constantly choking, had lost his balance, and had constant muscle spasms. He stated that, six months after the April 2012 surgery, he started having increased symptoms in regard to numbness and tingling in his hands. However, the Veteran’s statements concerning the onset and severity of the numbness and tingling in his hands subsequent to the April 2012 surgery are inconsistent with the objective contemporaneous evidence of record. Specifically, the aforementioned treatment records reflect that the Veteran and his treatment providers consistently reported improvement in his pre-operative radicular pain and numbness, and the Veteran expressed satisfaction with the outcome of such surgery within the relevant time period. Thus, as the Veteran’s December 2020 Board hearing testimony reporting an increase in symptomatology after his April 2012 surgery was provided eight years after the time period in question and is contradicted by the objective contemporaneous evidence of record, the Board affords such no probative weight. Caluza v. Brown, 7 Vet. App. 498 (1995); Cucuras v. Sec’y of Health and Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993); Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009). Rather, the award of an increased rating of 30 percent for the Veteran’s cervical spine disability was based on the findings from an April 2014 VA examination, which revealed forward flexion of the cervical spine limited to 15 degrees or less. In this regard, the aforementioned private treatment records prior to such date consistently showed that the Veteran had good ROM of the cervical spine. Therefore, as the probative evidence of record does not show a factually ascertainable increase in severity of the Veteran’s cervical spine disability so as to warrant a 30 percent rating within a year prior to the receipt of his August 20, 2013, an earlier effective date for such award is not warranted. In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs 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.