Citation Nr: 21004013 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 17-40 984 DATE: January 25, 2021 ORDER Entitlement to an effective date prior to November 18, 2014 for the award of service connection for chronic thoracolumbar strain with osteoarthritis and spolyoantheriolisthesis lumbar is denied. Entitlement to an effective date prior to November 18, 2014 for the award of service connection for radiculopathy, right lower extremity associated with chronic thoracolumbar strain with osteoarthritis and spolyoantheriolisthesis lumbar is denied. Entitlement to an effective date prior to November 18, 2014 for the award of service connection for radiculopathy, left lower extremity associated with chronic thoracolumbar strain with osteoarthritis and spolyoantheriolisthesis lumbar is denied. REFERRED The issues of entitlement to increased ratings for right and left lower extremity radiculopathy were raised in the Veteran’s July 2017 VA Form 9 Substantive Appeal as well as in a November 2020 statement and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. The Veteran did not file a formal or informal claim to reopen her previously denied claim for service connection for low back disability, diagnosed as chronic thoracolumbar strain with osteoarthritis and spolyoantheriolisthesis lumbar, after the final June 1989 rating decision and prior to November 18, 2014 claim. 2. The Veteran did not file a formal or informal claim for associated radiculopathy of the right lower extremity prior to November 18, 2014 claim for service connection for low back disability. 3. The Veteran did not file a formal or informal claim for associated radiculopathy of the left lower extremity prior to November 18, 2014 claim for service connection for low back disability. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to November 18, 2014, for the grant of service connection for chronic thoracolumbar strain with osteoarthritis and spolyoantheriolisthesis lumbar have not been met. 38 U.S.C. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (in effect prior to March 24, 2015). 2. The criteria for an effective date prior to November 18, 2014, for the grant of service connection for radiculopathy, right lower extremity, have not been met. 38 U.S.C. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (in effect prior to March 24, 2015). 3. The criteria for an effective date prior to November 18, 2012, for the grant of service connection for radiculopathy, left lower extremity, have not been met. 38 U.S.C. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (in effect prior to March 24, 2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1980 to February 1989. A Board hearing was held in November 2020 before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. At the Board hearing, the Veteran appeared to indicate that there was clear and unmistakable error in the prior June 1989 rating decision. However, any such claim has not been previously raised with any sort of specificity. Importantly, the AOJ never adjudicated any such claim. As such this matter is not properly before the Board. The Veteran may properly raise the claim at the AOJ. Entitlement to an effective date prior to for November 18, 2014 for the award of service connection for chronic thoracolumbar strain with osteoarthritis and spolyoantheriolisthesis lumbar with associated radiculopathy of the right and left lower extremities The Veteran contends that she is entitled to an effective date prior to November 18, 2014, for the grant of service connection for low back disability with associated radiculopathy. Essentially, she reports that the effective date should be the day after her discharge from active service as she filed a claim upon her discharge from service. The statutory and regulatory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. As a general proposition, the law regarding the effective date of an award of service connection benefits is well-understood. The effective date of an award of benefits based on an original claim cannot be earlier than the date that the VA received the claim. See 38 U.S.C. § 5110 (a); Adams v. Shinseki, 568 F.3d 956, 960 (Fed. Cir. 2009). The effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date the claim was received or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within 1 year after separation from service. Effective March 24, 2015, VA amended its regulations to require all claims be filed on a standard form. The amendments implement the concept of an intent to file a claim for benefits, which operates similarly to the informal claim process, but requires that the submission establishing a claimant’s effective date of benefits must be received in one of three specified formats. The amendments also eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen under 38 C.F.R. § 3.157. See 79 Fed. Reg. 57,660 (Sept. 25, 2014) (now codified at 38 C.F.R. §§ 3.1 (p), 3.151, 3.155). The amendments apply only to claims filed on or after March 24, 2015. Because the Veteran’s claim was received by VA prior to that date, the former regulations apply, as provided below. The basic facts in this case are not in dispute. Initially, the AOJ denied service connection for low back strain in a June 1989 rating decision as there was no evidence of a chronic low back condition. In August 1989, the Veteran submitted a notice of disagreement appealing the denial. The AOJ issued a statement of the case that same month. However, the Veteran did not submit a VA Form 9, Substantive Appeal. Under these circumstances, the Board must find that the June 1989 rating decision became final. 38 U.S.C. § 7105 (c); 38. C.F.R. 3.104, 20.302, 20.1103. The Board recognizes that the Veteran has asserted that she never received a copy of the statement of the case despite numerous calls to the AOJ. However, a presumption of regularity is applied to all manner of VA processes and procedures. The United States Court of Appeals for Veterans Claims (Court) has ruled that there is a “presumption of regularity” under which it is presumed that government officials have properly discharged their official duties. Clear evidence to the contrary is required to rebut the presumption of regularity. Ashley v. Derwinski, 2 Vet. App. 307 (1992), (citing United States v. Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926)). The Court has also specifically held that a statement by a claimant, standing alone, is not sufficient to rebut the presumption of regularity in VA operations. Id. While Ashley dealt with regularity of procedures at the Board, in Mindenhall v. Brown, 7 Vet. App. 271 (1994), the Court applied this presumption of regularity to procedures at the Regional Office. Here, the record shows that the statement of the case was mailed to the Veteran in August 1989 to her current address of record. Importantly, in her notice of disagreement, the Veteran reported that she had moved to a new state and provided a new address. The AOJ sent the statement of the case to the new address provided by the Veteran. Significantly, there is no indication in the record that the statement of the case was returned as undeliverable. Moreover, at the Board hearing, the Veteran testified that she had lived at the same address since 1974. However, obviously, based on her own notice of disagreement, this testimony is false. As such, the Veteran does not appear to be credible with what actually occurred in 1989. The Veteran has not submitted any clear evidence that VA failed to properly discharge its duty. There are no records of any phone calls from the Veteran to the VA. In fact, there is no written communication in the record from the Veteran until a May 2014 request for medical records, almost 15 years after the prior rating decision. Importantly, she did not inquire as to her prior claim at that time. The Board also finds it significant that at the time of the current claim for service connection, the Veteran made no mention of any outstanding prior claim. Given her assertions that she made numerous phone calls to the VA about her case, it would be reasonable to assume that she would have followed up on a prior claim before 15 years had elapsed. In sum, with the exception of the Veteran’s own statements, which are not credible as they are inconsistent with the other evidence of record, there is no evidence to rebut the presumption of regularity. VA received the Veteran’s current claim for service connection for low back disability on November 18, 2014. Prior to this claim, as discussed above, the next submission in the record from the Veteran after the final June 1989 rating decision is a request for medical records. There is no indication in this request that the Veteran was seeking to reopen her claim. In sum, there is no document of record that can be construed as an informal or formal claim for service connection for these disorders that was received after the final denial, but prior to the receipt of the November 18, 2014 claim. As such, the appropriate effective date to be assigned was the date of such claim. Under the prior provisions of 38 C.F.R. § 3.157 (b)(1), the date of outpatient or hospital examination or the date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. The Court, however, has held that this regulation only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Brannon v. West, 12 Vet. App. 32, 35 (1998); see also Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). In sum, merely seeking treatment does not establish a claim, to include an informal claim, for service connection. After reviewing the evidence, the Board finds that the AOJ did not receive an application to reopen her claim prior to the receipt of the Veteran’s claim in November 2014. Although the Veteran has asserted that she suffered from low back symptoms prior to this date, the effective date of an award of service connection is assigned not based on the date the disability appeared or the date of the earliest medical evidence demonstrating the existence of such disability and a causal connection to service or a service-connected disability; rather, the effective date is assigned based on consideration of the date that the application upon which service connection was eventually awarded was received by VA. See LaLonde v. West, 12 Vet. App. 377, 382-383 (1999). Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim to reopen after a final disallowance or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations and given the final disallowance of the claim in June 1989, the effective date has been appropriately assigned as the date of claim to reopen. While sympathetic to the Veteran’s belief that an earlier effective date is warranted, for the reasons outlined above, the Board is precluded by statute from assigning an effective date prior to November 18, 2014, for the grant of service connection for the low back disability with associated right and left lower extremity radiculopathy on appeal. Accordingly, the preponderance of the evidence is against the claim for an effective date prior to November 8, 2014 for the award of service connection for chronic thoracolumbar strain with osteoarthritis and spolyoantheriolisthesis lumbar with associated radiculopathy of the right and left lower extremities. As such, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b). L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.N. Moats 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.