Citation Nr: 21065421 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 18-19 760 DATE: October 26, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for grade 1 spondylolisthesis at L5-S1 with residuals of L4-S1 laminectomy and posterior fusion with cauda equina syndrome (also referred to as "lumbar spine disorder") is dismissed. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is dismissed. Entitlement to an effective date earlier than November 18, 2008 for the grant of service connection for grade 1 spondylolisthesis at L5-S1 with residuals of L4-S1 laminectomy is denied. Entitlement to an effective date earlier than November 18, 2008 for the grant of service connection for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. At his February 2021 Board hearing, the Veteran indicated he was withdrawing the issues of entitlement to an initial rating in excess of 20 percent for grade 1 spondylolisthesis at L5-S1 and entitlement to an initial rating in 20 percent for left lower extremity radiculopathy. 2. The Veteran's original claim for entitlement to service connection for a lumbar spine disorder was denied in a January 1982 rating decision. 3. The Veteran did not perfect an appeal the January 1982 rating decision; his assertion of clear and unmistakable error (CUE) was denied in a November 2017 Board decision, and affirmed by the Court of Appeals for Veterans Claims (Court) in June 2019. That decision is final. 4. In a December 2015 rating decision, the Regional Office (RO) implemented a December 2015 Board decision granting entitlement to service connection for a lumbar spine disorder and left lower extremity radiculopathy. The RO assigned a 20 percent rating for each service-connected disability, effective November 18, 2008, the date the claim to reopen the claim for entitlement to service connection for a lumbar spine disorder was received by VA. 5. Prior to November 18, 2008, there was no formal claim, informal claim, or written intent to file a claim to reopen the previously denied claim of entitlement to service connection for a lumbar spine disorder following the last final denial. CONCLUSIONS OF LAW 1. The criteria for withdrawal for entitlement to an initial rating in excess of 20 percent for a grade 1 spondylolisthesis at L5-S1 have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for withdrawal for entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for an effective date earlier than November 18, 2008, for the grant of service connection for a grade 1 spondylolisthesis at L5-S1 have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. 4. The criteria for an effective date earlier than November 18, 2008, for the grant of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to October 1981. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision issued by the Department of Veterans Affairs (VA) RO Montgomery, Alabama. Jurisdiction of this appeal is currently with the RO in Oakland, California. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in February 2021. A transcript of the hearing has been associated with the claims file. WITHDRAWAL The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the Veteran or by his/her authorized representative. 38 C.F.R. § 19.55. At his February 2021 Board hearing, the Veteran indicated that he was withdrawing his claims for entitlement to increased initial ratings for a grade 1 spondylolisthesis at L5-S1 and left lower extremity radiculopathy. This request for withdrawal of the issue on appeal meets the content, form, and timing requirements of 38 C.F.R. § 19.55(b) and is, therefore, deemed a withdrawal of the claim. See 38 C.F.R. § 19.55(c); see also Hembree v. Wilkie, 33 Vet. App. 1 (2020). As a result, no allegation of error of fact or law remains before the Board for consideration with regard to these issues. Accordingly, the Board does not have jurisdiction over these issues, and the issues are dismissed. EFFECTIVE DATE CLAIMS The Veteran seeks an effective date earlier than November 18, 2008 for the award of service connection for a lumbar spine disorder and left lower extremity radiculopathy. Specifically, the Veteran testified that the amended physical evaluation board (PEB) report showing that his lumbar spine disorder was aggravated by his service were not of record at the time of the January 1982 rating decision that denied entitlement to service connection. See Board hearing transcript, February 12, 2021. Essentially, the Veteran and his representative assert that the January 1982 rating decision and subsequent March 1982 statement of the case are not final pursuant to 38 C.F.R. § 3.156(c) as additional service treatment records were associated with the claims file at a later date. Id. Notably, the Veteran asserted that the amended PEB report was not previously associated with the claims file, and that the original report did not show that his lumbar spine disorder was aggravated by his service. Id. Moreover, the Veteran testified that he only received a copy of the PEB report in conjunction with a later and unrelated worker's compensation claim when he requested his VA claims file. Id. According to applicable law and regulation, except as otherwise provided, the effective date of an award of compensation based upon an original claim will 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 entitlement to an award of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). The effective date of an evaluation and an award of compensation based on a reopened claim is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2), (r). Thus, once a previous decision has become final, the earliest effective date of service connection generally is the date of the petition to reopen rather than the date of the initial claim. Exceptions to this rule include a later grant of service connection based in whole or in part on newly obtained service department records under certain circumstances, as provided in 38 C.F.R. § 3.156(c), and when the decision is revised or reversed on the basis of clear and unmistakable error (CUE), as provided in 38 U.S.C. § 5109A(a) and 38 C.F.R. § 3.105(a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). An informal claim must identify the benefits sought; and upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of the receipt of the informal claim. Id. Although a claimant need not identify the benefit sought "with specificity," see Servello v. Derwinski, 3 Vet. App. 196, 199-200 (1992), some intent on the part of the Veteran to seek benefits must be demonstrated. See Brannon v. West, 12 Vet. App. 32, 34-35 (1998). See also Talbert v. Brown, 7 Vet. App. 352, 356-7 (1995) (noting that while VA must interpret a claimant's submissions broadly, VA is not required to conjure up issues not raised by claimant). The United States Court of Appeals for the Federal Circuit has emphasized VA has a duty to fully and sympathetically develop a Veteran's claim to its optimum. Hodge v. West, 155 F.3d 1356, 1362 (Fed. Cir. 1998). This duty requires VA to "determine all potential claims raised by the evidence, applying all relevant laws and regulations," Roberson v. West, 251 F.3d 1378, 1384 (Fed. Cir. 2001), and extends to giving a sympathetic reading to all pro se pleadings of record. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Brannon v. West, 12 Vet. App. 32, 35 (1998). The effective date of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but rather, on the date the application was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). By way of history, the Veteran filed his original claim for entitlement to service connection for a lumbar spine disorder in October 1981. That claim was denied in a January 1982 rating decision based on findings that the claimed lumbar spine disorder was not shown at his service induction examination, that there was no aggravation of his lumbar spine disorder shown during military service and findings at the Veteran's VA examination were "essentially normal." The Veteran was notified of the January 1982 rating decision in January 1982 correspondence, and he submitted a January 1982 notice of disagreement as to the January 1982 rating decision. The agency of original jurisdiction (AOJ) issued a Statement of the Case, dated March 11, 1982, denying the claim based on a finding that his complaints during service were subjective and objective abnormality was not clearly demonstrated. In May 1982 correspondence, the Veteran indicated that he disagreed with the statement of the case and enclosed military personnel records of his discharge paperwork showing a "disability rating: 10 percent," dated October 5, 1981. In June 1982 correspondence, the Veteran was notified of the decision and his appellate rights, to include the requirement of submitting a VA Form 9. In the same June 1982 correspondence, the AOJ stated that the copies of his orders were in the claims folder and considered when reaching his decision that the back condition preexisted his active service and was not aggravated during his military service. The Veteran did not submit a substantive appeal (VA Form 9) as to the March 1982 statement of the case, and the January 1982 rating decision became final. The Veteran submitted a December 1983 claim to reopen the previously denied claim for entitlement to service connection for a low back condition. See Correspondence, dated December 3, 1983; see VA Form 21-526 Veterans Application for Compensation or Pension, December 14, 1983. In May 1984 correspondence, the AOJ acknowledged receipt of the Veteran's December 1983 correspondence and notified him that his October 1981 claim was closed for lack of response. Additionally, the AOJ indicated that the Veteran needed to submit new and material evidence showing that his disability was incurred in or aggravated by his active service and that the evidence of a current status of a disability for which service connection had been denied was not new and material evidence. Then, in July 1986, the Veteran submitted a VA Form 21-4138 Statement in Support of Claim seeking to reopen his previously denied claim for entitlement to service connection for a lower back condition. That claim was denied in an October 1986 rating decision based on a finding that there was not new and material evidence. The Veteran was notified in an October 1986 correspondence. The Veteran did not appeal the October 1986 decision, and it is final. Next, in July 1999 correspondence, the Veteran indicated that he would like additional evidence to be added to his claims file, and sought to continue his pursuit of his claim of entitlement to service connection for a low back condition. In a July 1999 response from the AOJ, the Veteran was notified that his claim was denied and he was notified of such decisions in June 1982, May 1984, and October 1986; the Veteran was notified of his appellate rights and that the previous denials became final. The Veteran then filed the instant claim to reopen his previously denied claim for entitlement to service connection for a low back condition that was received by VA in November 2008. That claim was granted in a December 2015 Board decision, and effectuated in a December 2015 rating decision. In the December 2018 rating decision, the AOJ assigned an effective date of November 18, 2008, the date the petition to reopen was received by VA. In a separate appeal, the Veteran asserted CUE as to the January 1982 rating decision that denied entitlement to service connection for a lumbar spine disorder. That claim was denied in a November 2017 Board decision and affirmed by the Court in a May 2019 Memorandum Decision. The Veteran submitted an August 2016 notice of disagreement as to the December 2015 rating decision and sought increased ratings and earlier effective dates for the grant of service connection for his low back condition and left lower extremity radiculopathy. The Veteran timely appealed the December 2015 rating decision to the Board. See VA Form 9, April 3, 2018. These basic facts are not in dispute. The Board notes that of evidence of record at the time of the January 1982 rating decision included service treatment records, military personnel records, and a VA examination report as to the Veteran's lumbar spine disorder. Notably, the Veteran's PEB report was associated with the claims file twice in January 1982. See government medical treatment records dated January 7, 1982 and January 27, 1982. In this regard, the first PEB report is dated August 26, 1981 and date stamped September 1, 1981 by the AOJ. The report states "L5-S1 spondylolisthesis with spondylolysis with characteristic pain on motion." See government medical treatment record, recv'd January 7, 1982. It also states that such condition "EPTS, service aggravated (MB and patient's statement of 12 July 1981." Id. The second page associated with this PEB report indicates that this file was the Veteran's copy. Id. The fourth page associated with this PEB report states, in addition, that the diagnosis was "line of duty (LOD) yes existing prior to service (EPTS), with service aggravation." Id. Similarly, the second PEB report associated with the file states "L5-S1 spondylolisthesis with spondylolysis with characteristic pain on motion. Line of duty (LOD) yes existing prior to service (EPTS), with service aggravation." See government medical treatment record, recv'd January 27, 1982. The March 1982 statement of the case issued by the AOJ indicates clearly that evidence considered included "primarily a report of physical examination on July 7, 1981 and medical board proceedings report..." and a December 1981 VA examination report. See Statement of the Case, March 10, 1982. Based on the foregoing, the Board finds that an effective date earlier than November 18, 2008 for the grant of service connection for a lumbar spine disorder and left lower extremity radiculopathy is not warranted. Here, the Veteran did not perfect an appeal as to the January 1982 or July 1986 rating decisions. Therefore, those decisions became final. The Veteran did not submit new and material evidence as indicated in July 1999 correspondence sent by VA in response to his July 1999 correspondence seeking continuation of his most recently denied claim. The Veteran's next correspondence with VA with regard to his lumbar spine disorder was in November 2008 when he submitted the instant petition to reopen the previously denied claim of entitlement to service connection for a lumbar spine disorder. Specifically, there is nothing in the record that could be interpreted as a formal or informal claims for entitlement to service connection for a lumbar spine disorder prior to November 18, 2008 pursuant to which benefits could be granted because there is nothing of record prior to the date of his claim. A claim is required to establish service connection. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The Veteran has not alleged submitting such a claim. Significantly, the Veteran has not submitted any argument that such claim was submitted. Rather, the Veteran has focused his argument solely on the premise that the PEB report from 1981 was not previously associated with the claims file at the time of the January 1982 rating decision. The Board notes that there is an indication from the record that the Veteran suffered from a lumbar spine disorder before he filed his claim to entitlement to service connection for such. However, the effective date of an award of compensation is the date of the claim or the date entitlement arose, whichever is later. Therefore, the date of receipt of claims is the appropriate effective date as it is later than the date entitlement arose. See Lalonde v. West, 12 Vet. App. 377, 382-383. Importantly, the pertinent regulations specifically state that the effective date should be the date of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400. In the instant case, based on these regulations, the effective dates have been appropriately assigned as the date of the receipt of the Veteran's claim to reopen the previously denied claim for entitlement to service connection for a lumbar spine disorder. The Board is precluded by law from assigning an earlier effective date than already assigned for the award of service connection for grade 1 spondylolisthesis. The Board is mindful of the Veteran's argument and his sincere belief that the PEB report indicating that he had a lumbar spine disorder that was aggravated by service was not previously associated with the claims file at the time of the original denial in January 1982, and thus the effective date of entitlement to service connection for a lumbar spine disorder and associated left lower extremity radiculopathy should be the same date as his original claim. However, this argument is misplaced. In this regard, the Board notes that the claims file clearly indicates that the PEB report and the amended report were associated with the claims file twice in January 1982. Additionally, the March 1982 statement of the case clearly indicated that the medical evaluation board proceedings were considered when denying his claim for entitlement to service connection for a lumbar spine disorder. The Veteran was notified of his appellate rights and invited to submit a timely substantive appeal at that time, but did not. Moreover, the Board notes the Veteran's contentions that he experienced difficulty obtaining his claims file from VA and that he received a copy of the amended PEB report during a later and unrelated worker's compensation suit, and therefore asserts that the PEB report was not associated with the claims file. However, the Board also finds this argument misplaced. In this regard, the Board again notes that two copies of the PEB report and the amendment were associated with the claims file in January 1982. Moreover, the first copy of the PEB report associated with the file on January 7, 1982, the second page indicates that the copy associated was the Veteran's copy. Additionally, page 5 of both reports associated with the file show the Veteran's signature that he "agreed with the revised findings," dated September 16, 1981, clearly demonstrating that the Veteran received, reviewed, and agreed with the PEB report when initially issued. Finally, the Veteran's own assertions that he only received the PEB report through the Freedom of Information act (FOIA) process in conjunction with a later and unrelated worker's compensation claim also sways the Board against his claim. In this regard, the Board notes that the PEB report could only be provided to the Veteran through a FOIA response if, and only if, that report was already previously associated with the Veteran's VA claims file as VA cannot provide the Veteran with copies of records it did not have in its possession. These arguments are therefore without merit. In this circumstance there is no authority under governing law for an effective date earlier than the November 18, 2008 date assigned. The Board is bound by the governing laws and VA regulations concerning assignment of effective dates. Accordingly, the Board finds that effective dates prior to November 18, 2008 for the awards of service connection for grade 1 spondylolisthesis and left lower extremity radiculopathy are not warranted. As the preponderance of the evidence is against the assignment of an earlier effective date, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.