Citation Nr: 21004629 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-36 110 DATE: January 27, 2021 ORDER Entitlement to an effective date of service connection for a lumbar spine disability to include lumbar strain, degenerative disc disease, and degenerative joint disease, prior to July 28, 2010, is denied. REMANDED Entitlement to a higher initial rating for a lumbar spine disability, to include lumbar strain, degenerative disc disease, and degenerative joint disease, rated as 40 percent disabling prior to April 30, 2015 and 20 percent disabling thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran first filed a service connection claim for a lumbar spine disability on July 28, 2010. CONCLUSION OF LAW The criteria for an effective date of service connection for a lumbar spine disability to include lumbar strain, degenerative disc disease, and degenerative joint disease, prior to July 28, 2010, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1973 to November 1974. The Veteran died in August 2019. The Appellant is his surviving spouse. She has been substituted for the Veteran for the purpose of processing his pending appeals to completion. See 38 U.S.C. § 5121A; 38 C.F.R. § 3.1010. This matter was most recently before the Board of Veterans’ Appeals (Board) in November 2018. At that time, the scope of the Veteran’s service-connected lumbar spine disability was limited to lumbar strain. The Board remanded the issues on appeal so the Agency of Original Jurisdiction (AOJ) could readjudicate the Veteran’s separate claim for degenerative disc disease of the lumbar spine and then issue an updated supplemental statement of the case (SSOC). In March 2020, the AOJ issued a new SSOC that includes degenerative disc disease and degenerative joint disease in the scope of the Veteran’s service-connected lumbar spine disability. Although a remand is warranted regarding the initial rating assigned for the disability, to include the intertwined issue of entitlement to TDIU, as discussed in more detail below, the Board finds the March 2020 SSOC constitutes substantial compliance with its November 2018 remand directives with respect to the effective date of service connection of the disability because the SSOC adequately discusses this issue without any material changes in, or additions to, the information regarding the effective date of service connection of the disability since the issuance of the March 2020 SSOC. See Stegall v. West, 11 Vet. App. 268, 271 (1998); 38 C.F.R. § 19.31. As a result, the Board is able to proceed on the merits of the appeal of the effective date of service connection for the Veteran’s service-connected lumbar spine disability without any prejudice to the Appellant. Analysis Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The date of receipt is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). Here, the record establishes the Veteran first filed a service connection claim for a lumbar spine disability on July 28, 2010. The AOJ assigned the current effective date of service connection for a lumbar spine disability based on the date of this claim in accordance with VA statutes and regulations. The Veteran’s October 2012 notice of disagreement for the October 2012 rating decision that initially granted service connection for a lumbar spine disability requests an earlier effective date under the provisions of 38 C.F.R. § 3.156(c); however, this regulation does not authorize an effective date prior to the date of an initial claim and is simply a mechanism for vitiating the finality of a previous decision when VA receives relevant service records that were not consider at the time of the prior denial of the claim. As a result, 38 C.F.R. § 3.156(c) is not applicable in the context of this appeal. The only other evidence or argument suggesting an earlier effective date is warranted is the Veteran’s testimony during an October 2014 hearing before the undersigned in which he testified that he first filed a service connection claim for a lumbar spine disability when he stopped working at “RTD”, but the Veteran was equivocal at that time and was unable to conclusively state whether this was in 2009 or 2010, but other evidence of record, to include the Veteran’s records from the Social Security Administration, indicate the Veteran stopped working at “RTD” on April 27, 2010, which is entirely consistent with his VA claims file in that the first disability compensation correspondence received from the Veteran in any regard, a service connection claim for multiple myeloma and diabetes, was received on May 26, 2010 and was subsequently followed by the July 28, 2010 claim for a lumber spine disability. In sum, the preponderance of evidence is against a finding that the Veteran filed a service connection claim for a lumbar spine disability prior to July 28, 2010. Accordingly, the reasonable-doubt-doctrine is not for application, and the appeal of the effective date of service connection for the Veteran’s service-connected lumbar spine disability must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND Although the AOJ issued a new SSOC on March 17, 2020 that included degenerative disc disease and degenerative joint disease in the scope of the Veteran’s service-connected lumbar spine disability, the Board notes the disability was rated as noncompensable in that SSOC. Yet, the AOJ issued a rating decision on March 25, 2020 that substantially increased the initial rating assigned for the Veteran’s service-connected lumbar spine disability, but it did not issue a new SSOC regarding the initial rating assigned or the related issue of entitlement to TDIU prior to transferring the appeal to the Board. As a result, the Board finds these issues must be returned to the AOJ for a new SSOC that addresses material changes in, or additions to, the information included in the previous SSOC. 38 C.F.R. § 19.31. (Continued on the next page)   The matters are REMANDED for the following action: Issue a new SSOC regarding the initial rating assigned for the Veteran’s service-connected lumbar spine disability and the related issue of entitlement to TDIU. Then, return the issues to the Board if otherwise is order. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. S. Kyle, 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.