Citation Nr: A21018294 Decision Date: 11/16/21 Archive Date: 11/16/21 DOCKET NO. 210324-145788 DATE: November 16, 2021 ORDER Entitlement to an effective date, earlier than August 6, 2020, for service connection of degenerative arthritis of the cervical spine with intervertebral disc syndrome and spondylolisthesis (cervical spine disability) is denied. FINDING OF FACT The Veteran did not file a formal or informal claim earlier than August 6, 2020 for service connection for a cervical spine disability. CONCLUSION OF LAW The criteria for an effective date, earlier than August 6, 2020, for the grant of service connection for a cervical spine disability have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400; 38 C.F.R. § 3.155 (a) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from June 1965 to June 1968. The rating decision on appeal was issued in October 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. See 38 C.F.R. § 3.2400(a)(1). In March 2021, a Higher Level Review decision was issued which continued to deny the Veteran's claim for an earlier effective date. The Veteran appealed this decision by filing a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) (NOD). The Veteran elected the Direct Review option; therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. 1. Entitlement to an effective date earlier than August 6, 2020 for service connection of a cervical spine disability. In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall 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 (b)(2)(i). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Prior to the amendment, the VA administrative claims process recognized formal and informal claims. A formal claim is one that has been filed in the form prescribed by the Secretary. 38 C.F.R. § 3.151. Any communication or action, indicating an intent to apply for one or more benefits, under the laws administered by VA, from a claimant may be considered an informal claim. The Veteran contends an earlier effective date is warranted for the award of service connection for a cervical spine disability. After reviewing the evidence of record, the Board finds that an earlier effective date is not warranted. Here, the Veteran was awarded service connection for a cervical spine disability, effective August 6, 2020, as the evidence shows the Veteran filed a Fully Developed Claim for service connection for a cervical spine disability as of this date. Prior to August 6, 2020, there is no evidence of a formal or informal claim of service connection for a cervical spine disability. The Board recognizes that in the Veteran's April 2021 appellate brief, the Veteran's representative contended that an earlier effective date is warranted based on the Court's decision in McGrath v. Gober, 14 Vet. App. 28, 35 (2000). However, this contention is flawed and misplaced and the facts in McGrath are not synonymous to the Veteran's case. In McGrath, the appellant filed for service connection for PTSD in June 1992 and submitted medical documentation dated in 1994 in which a doctor found that the appellant had been suffering from PTSD since at least 1972. McGrath, 14 Vet. App. at 35 (2000). Although the Board found that the appellant had a pending unadjudicated claim for a nervous condition which would include a claim for PTSD since January 1972, the Board concluded that the "first competent evidence of PTSD was June 11, 1992." Id at 32, 35 (2000). The appellant appealed the Board's decision and the Court found that the date the evidence is submitted or received is irrelevant when considering the effective date of an award. The Court further found that while the "appellant had an unadjudicated claim for compensation pending since January 1972, this does not prevent the appellant from using this evidence, whatever date it may be submitted, to support his claim for an earlier effective date in his original claim for compensation." Id at 35 (2000). The facts in McGrath are not analogous to the case currently before the Board as the Veteran did not have an unadjudicated claim that was pending prior to August 6, 2020. As noted above, there is no evidence of a formal or informal claim for service connection for a cervical disability prior to August 6, 2020, the date of his Fully Developed Claim. The Board also notes that in a second April 2021 appellate brief, the Veteran contended that his cervical spine disability was a progression of his service-connected lumbar spine disability. He specifically asserted that since VA treatment records show a diagnosis and treatment for degenerative arthritis of the cervical spine prior to the official claim being filed, the effective date should go back the full year prior to the claim being filed. The Board recognizes that for an increased rating claim, the effective date may be as early as one year prior to the date of claim if the increase occurred within that year. See 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2). However, there is no evidence to suggest the Veteran's claim for a cervical spine disability was part of an increased rating claim for his lumbar spine disability. At the outset, the Board refers to the Veteran's own statement in a September 2020 correspondence where he reported injuring both his back and neck in service. Notably, the Veteran sought service connection for his cervical spine disability as a result of an injury in service separate and distinct from his back disability. This finding is best evidenced in the Veteran's April 2018 hearing that concerned a claim to reopen his service connection claim for a back disability, in which the Veteran's representative specifically noted that the Veteran's claim of service connection for a back disability included the lumbar and thoracic spine only. Moreover, private treatment records in November 2011 show that the Veteran was diagnosed with separate disabilities of the back and neck, specifically lumbar segmental dysfunction, lumbar radiculitis, cervical segmental dysfunction, and cervical radiculitis. Additionally, in August 2014, the same private examiner diagnosed the Veteran with separate neck and back disabilities, including degenerative lumbar disc disease, lumbar radiculitis, cervical segmental dysfunction, and cervical radiculitis. In neither correspondence did the examiner indicate or suggest that the Veteran's cervical disability was a progression of his lumbar spine disability. In fact, in the August 2014 treatment record, the examiner specifically referred to the back and neck disabilities as separate and distinct as he noted that the "goals of care were for pain suppression and to slow the degenerative processes in both his lumbar and cervical spine." Furthermore, medical literature shows that the lumbar and cervical spines are anatomically different as the lumbar portion of the spine refers to the lower part of the back, while the cervical spine relates to the neck. See https://www.umms.org/ummc/health-services/orthopedics/services/spine/patient-guides/anatomy-function. Therefore, as there is no evidence to indicate the Veteran's cervical spine disability was a progression of his service-connected lumbar spine disability, an earlier effective date is not warranted. Lastly, the Board also observes the Veteran's September 2020 correspondence where he indicated the Board's January 2019 decision mentioned his cervical spine, but that this information was not taken into account. The Board notes, however, that while the decision referred to the Veteran's cervical spine disability, the Board was merely restating his lumbar and cervical spine diagnoses as found in the August 2014 private treatment records mentioned above. To that end, it must be noted that medical evidence merely reflecting treatment for and diagnosis of a condition does not constitute, by itself, an informal original claim for service connection under 38 C.F.R. § 3.155 (a) "because the mere presence of the medical evidence does not establish an intent on the part of the veteran to seek" service connection for that condition. See MacPhee v. Nicholson, 459 F.3d 1323, 1326 (Fed. Cir. 2006); see also Brannon v. West, 12 Vet. App. 32, 35 (1998) (the "mere presence of medical evidence does not establish the intent on the part of a veteran to seek service connection for a condition."). Therefore, although the evidence of record shows the Veteran was diagnosed with a cervical spine disorder and attributed it to his military service, it does not change the fact that he did not actually file an initial claim for service connection for a cervical spine disability until August 6, 2020. See Lalonde v. West, 12 Vet. App. 377 (1999) ("[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA."). As noted above, the effective date shall 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 (b)(2)(i). Here, the evidence of record does not contain any communication from the Veteran prior to August 6, 2020, which may be construed as an intent to seek or apply for service connection for a cervical spine disability. therefore, the Board finds that August 6, 2020, is the date of claim. As to the date of entitlement, the Board notes that even if entitlement arose prior to August 6, 2020, this would be the later of the two dates. Thus, an effective date prior to August 6, 2020, for service connection for a cervical spine disability is not warranted. Therefore, for the reasons outlined above, the Board finds the preponderance of evidence is against the claim and the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, an effective date, earlier than August 6, 2020, is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Laffitte, 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.