Citation Nr: 21068356 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 19-26 044A DATE: November 10, 2021 ORDER Entitlement to an effective date prior to June 26, 2012 for the grant of service connection for a lumbar spine disability is denied. REMANDED Entitlement to a rating in excess of 10 percent for a lumbar spine disability is remanded. Entitlement to compensation for a cervical spine disability is remanded. FINDINGS OF FACT 1. The Veteran's original claim for service connection for a lumbar spine disability was denied in a final November 1997 rating decision. 2. On February 9, 2006, VA received the Veteran's petition to reopen the claim for service connection for his lumbar spine disability. In September 2006, a Department of Veterans Affairs (VA) Regional Office (RO) denied the Veteran's claim for service connection for his lumbar spine disability, as secondary to his service-connected right hip disability. After the Veteran submitted a Notice of Disagreement in February 2009, the RO again denied service connection for the Veteran's lumbar spine disability. 3. Subsequently, on June 26, 2012, the RO received the Veteran's petition to reopen his previously denied claim for service connection for his lumbar spine disability. In April 2018, the Board granted service connection for the Veteran's lumbar spine disability as secondary to his right hip disability. 4. In an April 2018 rating decision, the RO implemented the Board's grant of service connection for the lumbar spine disability, effective June 26, 2012, the date VA received his application to reopen the previously denied claim. CONCLUSION OF LAW 1. The November 1997, September 2006, and July 2009 rating decisions denying service connection for a lumbar spine disability are final. 38 C.F.R. § 3.160(d)(1). 2. The criteria for entitlement to an effective date earlier than June 26, 2012 for the grant of service connection for a lumbar spine disability are not met. 38 U.S.C. §§ 5110, 7104; 38 C.F.R. §§ 3.105(a), 3.302, 3.400, 20.101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to May 1985. This matter comes before the Board of Veteran's Appeal (Board) on appeal from an April 2018rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran selected a hearing with a Veterans Law Judge on his September 2019 VA Form 9. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. 1. Entitlement to an effective date prior to June 26, 2012 for the Veteran's lumbar spine disability is denied. The effective date of an award based on an original claim for compensation benefits or a claim reopened after a prior final denial is typically 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 effective date for an award of disability compensation based on an original claim for direct service connection, if the claim is received within one year after separation from service, shall be the day following separation from active service or the date entitlement arose; otherwise, it shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i). An application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. 38 C.F.R. § 3.400(q); see Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). "The statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." Sears v. Principi, 16 Vet. App. 244, 248 (2002). For the Veteran to be awarded an effective date based on an earlier claim that became final and binding, he has to collaterally attack the prior decision and show there was CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). CUE is a very specific and rare kind of "error." It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of "error." Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. Clear and unmistakable error is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts. It is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). It is a very specific and rare kind of error of fact or law that compels the conclusion, as to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43. There is a three-part test to determine whether a prior decision is the product of CUE: (1) "[e]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). A determination that there was CUE must be based upon the record and the law that existed at the time of the prior adjudication in question. See Pierce v. Principi, 240 F.3d 1348 (Fed. Cir. 2001). The pertinent laws and regulations at the time of this decision were essentially the same as they are now. Service connection may be granted for disability arising from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). Service connection may also be warranted for disability proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). This permits service connection not only for a disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the case of aggravation by a service-connected disability, a Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Id.; see also 38 C.F.R. § 3.310(b). In an April 2018 Board decision, and subsequent April 2018 rating decision, VA reopened and granted a claim for service connection for the Veteran's lumbar spine disability based on new and material evidence suggesting a nexus between the Veteran's lumbar spine disability and his service-connected bilateral hip disabilities. In this case, the Veteran alleges that the prior November 1997 rating decision was clearly and unmistakably erroneous, as VA failed to consider the October 1997 VA examiner's statement that "it is possible that the Veteran's back pain could be referred from the severe hip pathology." See April 2017 and April 2021 Attorney Brief and October 1997 VA Medical Opinion. In the November 1997 rating decision, the RO denied the Veteran's claim for service connection for his lumbar spine disability because it did not find a causal relationship between the Veteran's low back pain and his right hip disability. The RO acknowledged that the October 1997 examiner opined that it was possible that the complaint of back pain could be referred from the hip pathology. However, the RO ultimately denied for service connection for a lumbar spine disability as it determined that the Veteran did not have a disability distinct from referred pain associated with the right hip disability. Subsequently, the Veteran did not submit evidence that related to the unestablished facts needed to substantiate his claim, prior to or within one year of the November 1997 rating decision. The Veteran now contends that the effective date of service connection for his lumbar spine disability should be the date of the October 1997 VA examination. Specifically, the Veteran contended that the RO clearly and erroneously found that the October 1997 examiner's opinion amounted to no causal relationship between the Veteran's low back pain and his hip disability. See April 2017 Attorney Brief. Additionally, the Veteran contended that the RO violated the Veterans Claims Assistance Act of 2000 by finding that the Veteran did not have a well-grounded claim. Id. However, the Board finds that the October 1997 medical examiner's opinion was a speculative opinion because the examiner stated that it was possible that the Veteran's low back pain could be referred from the hip pathology. See October 1997 VA Medical Opinion. As the October 1997 VA examiner did not address the correct level of confidence that is 50 percent or greater, the Board finds that this opinion is inadequate for adjudicative purposes. See Hood v. Shinseki, 23 Vet. App. 295, 298 (2009). Notably, to "simply claim CUE on the basis that previous adjudications had improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo, 6 Vet. App. at 44; Luallen v. Brown, 8 Vet. App. 92, 96 (1995). The RO applied the known facts to the law in effect at the time of the November 1997 rating decision. In sum, an outcome determinative error has not been demonstrated; hence the Board cannot find CUE in the November 1997 rating decision that failed to grant service connection for the Veteran's lumbar spine disability. Moreover, as discussed above, the applicable law and regulations concerning effective dates state that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity 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 the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Thus, the evidence of record reflects that the date of receipt to reopen this claim, June 26, 2012, is later than the date the entitlement arose. The Board is not questioning the Veteran's belief that an earlier effective date is warranted, and it regrets that a more favorable outcome cannot be reached. However, the Board is bound by the law. See Smith v. Derwinski, 2 Vet. App. 429, 432-33 (1992). Here, given the finality of the November 1997 and subsequent rating decisions, there is no legal basis upon which to assign an effective date earlier than June 26, 2012, the effective date already assigned by the RO, as that was the date on which VA received the Veteran's application to reopen the claim for service connection for his lumbar spine disability. See 38 C.F.R. § 3.400(r). Accordingly, the Veteran's claim of entitlement to an earlier effective date for the grant of service connection for the lumbar spine disability must be denied. REASONS FOR REMAND 1. Increased Rating for Lumbar Spine Disability. The case has come to the Board for appellate review and, although it regrets the further delay, the Board finds that remand is required for a new VA examination. First, at the May 2021 Board hearing, the Veteran alleged that his lumbar spine disability has worsened since the June 2019 VA examination. Specifically, the Veteran noted that he experienced pain radiating down to his left lower extremity and numbness in his left ankle. See May 2021 Board Hearing Trans. p. 13. Additionally, the August 2006 examiner noted that the deep tendon reflex testing revealed that the Veteran's left lower extremity was hypoactive. See August 2006 VA Medical Examination. Further, Veteran reported at the August 2006 VA examination that he experienced daily pain with radiation around his abdomen and his buttocks. Id. However, the June 2019 examiner noted that the Veteran had did not have radiculopathy in his lower extremities. See June 2019 VA Medical Opinion. Therefore, the Board finds that a new VA examination and opinion based on the Veteran's statements regarding the worsening of his lumbar spine disability and neurological symptoms. See, Snuffer v. Gober, 10 Vet. App. 400 (1997). Additionally, the Board finds that a new examination is required because the June 2019 examiner failed to provide any estimations regarding the probable additional losses in functionality during a flare-up, which does not comply with the requirements of Sharp v. Shulkin. See Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017) (quoting DeLuca v. Brown, 8 Vet. App. 202, 206 (1995)). Although the examiner noted that the Veteran had flare ups daily, the examiner stated that he or she could not describe functional loss during flare ups it "not due to pain and discomfort and decreased range of motion." See June 2019 VA Medical Opinion. However, the Board finds that this explanation for the failure to describe the probable additional losses in functionality during flare ups in adequate. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Lastly, the Veteran's representative requested a new examination to determine the correct diagnosis for the Veteran's spine disability. By way of background, when the Veteran was granted service connection, he was compensated under Diagnostic Code 5237 because he was initially diagnosed with a lumbar sprain. However, subsequently, the Veteran's private treating physician diagnosed him with mild lateral recess stenosis and foraminal stenosis at L-5-S1. See June 2012 Private Treatment Record. Therefore, the Veteran's representative requested a new VA examination to determine the correct diagnosis of the lumbar spine to ensure that the Veteran is being compensated under the correct diagnostic code. See May 2021 Board Hearing Trans. pp. 14-16. Since the Board is requesting a new VA examination, the Board will ask the examiner to determine the Veteran's lumbar spine disability diagnosis. Accordingly, the Board finds that a remand is warranted for new VA examination for the Veteran's lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The examiner should address the Veteran's contentions regarding the Veteran's pain and numbness to his left lower extremity. The examiner should also address the Veteran's flare ups and provide an estimation for his functional loss during flare ups in terms of range of motion. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his lumbar spine disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). 2. Service connection for a cervical spine disability. Here, the Board finds that the issue of service connection for a cervical spine disability has been raised as secondary to the Veteran's service-connected lumbar spine disability. The VA will adjudicate as part of a claim entitlement to any ancillary benefits that arise as a result of the adjudication decision, including entitlement to any additional benefits for complications of the claimed condition. 38 C.F.R. § 3.155(d)(2); Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) (holding that VA is required to develop and adjudicate related claims for secondary service connection for disabilities that are reasonably raised during the adjudication of an increased rating claim). Significantly, the claimant need not assert entitlement to such ancillary benefits at the time the claim is filed. Id.; see also Grimes v. McDonough, 34 Vet. App. 84 (2021) (holding that a claim for service connection may encompass a related condition that is initially referenced by the claimant but not diagnosed until later in the appeal stream). VA is obligated to provide an examination when there is competent medical evidence of a disability that may be associated with an in-service event, injury, or disease, but there is insufficient information to decide on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). Here, over the course of the development of his increased rating claim, the Veteran asserted that he experienced pain in his entire back, including his cervical spine. See, May 2021 Board Hearing Trans. pp. 11-12. Further, the Veteran stated that his orthopedist stated that the arthritis in his back is radiating to his neck, shoulder, and wrist. Id. The Veteran also stated that his entire back is stiff when he wakes up in the morning and prior to him taking his pain medication in the morning. Id. As it is unclear to the Board whether the Veteran has a cervical spine disability that is related to his lumbar spine disability, remand is necessary to obtain an opinion addressing the nature and etiology of the Veteran's cervical spine disability. In ordering a remand in the instant case, the Board is not making a preliminary formal finding as to the credibility of the Veteran's lay reports. Rather, the Board is merely requesting that the examiner on remand consider the Veteran's own descriptions of the history of his cervical spine disability. See Smith v. Wilkie, 32 Vet. App. 332, 338-39 (2020). The matters are REMANDED for the following action: 1. Ask the Veteran to complete VA Form 21-4142s for his private orthopedic treatment, so that the records associated with his treatment at those facilities may be obtained. If the forms are received, make two requests for the records, unless it is clear after the first request that a second request would be futile. Any negative responses should be in writing and should be associated with the claims file. 2. Obtain any outstanding VA treatment records and associate them with the claims file. 3. After the development requested in items 1 and 2 have been completed to the extent possible, schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected lumbar spine disability. (a.) Identify all lumbar spine diagnosis. (b.) Perform all appropriate testing for the Veteran's lumbar spine disability. (c.) Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (d.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state how he characterizes the additional functional loss during a flare-up. (e.) For the Veteran's knee disabilities, based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or the combined range of motion of the thoracolumbar spine not greater than 120 degrees (the next highest rating). Please explain why or why not. (f.) For the Veteran's lumbar spine disability, based upon the information elicited regarding his flare ups, as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time results in additionally limited is additionally limited to forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees (the next highest rating). Please explain why or why not. (g.) Please conduct neurological testing on the Veteran's bilateral lower extremities to determine whether his lumbar disability is causing the numbness, pain, and hypoactive reflexes in his lower extremities. In providing the requested opinion, please review the following: a. May 2021 Board Hearing Trans. pp. 10-14; b. December 2017 Private Treatment Record; and c. August 2006 VA Medical Opinion. 4. Schedule the Veteran for a VA examination with an appropriate clinician to determine whether the nature and etiology of his cervical spine disability. The entire claims file should be made available to and be reviewed by the clinician in conjunction with this request. After examining the Veteran, conducting any needed diagnostic testing, and considering his medical history, the clinician should provide an opinion regarding the following: (a.) Identify all cervical spine disabilities. (b.) Please state whether it is at least as likely as not (50 percent probability or greater) that the cervical spine disability was caused by the Veteran's service-connected lumbar spine disability. Please explain why or why not. (c.) If you determine that the Veteran's lumbar spine disability did not cause his cervical spine disability, please state whether it is at least as likely as not that the Veteran's cervical spine disability was aggravated by his service-connected lumbar spine disability. Here, aggravated means worsened beyond the natural progression of the condition. The examiner's opinion should reflect consideration of the Court's holding in Ward v. Wilkie that aggravation need not be permanent in nature. Ward v. Wilkie, 31 Vet. App. 233, 241-42 (2019); 38 C.F.R. § 3.310(b). (d.) If the examiner finds that the Veteran's cervical spine disability was aggravated by the service-connected lumbar spine disability, please describe the degree of aggravation attributable to the lumbar spine disability. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Foster, 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.