Citation Nr: 21076753 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 06-05 231 DATE: December 27, 2021 ORDER Entitlement to an earlier effective date of November 26, 2002, for an award of service connection for degenerative disc disease and stenosis of the lumbosacral spine is granted. Entitlement to an earlier effective date than July 27, 2009, for total disability rating based on individual unemployability (TDIU) is denied. REMANDED Entitlement to an initial rating greater than 70 percent for adjustment disorder is remanded. Entitlement to an initial rating greater than 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to an initial rating greater than 40 percent prior to November 20, 2014, and greater than 20 percent thereafter, for degenerative disc disease and stenosis of the lumbosacral spine is remanded. FINDINGS OF FACT 1. The record evidence shows that the Veteran's successfully reopened informal claim of service connection for degenerative disc disease and stenosis of the lumbosacral spine was received by VA on November 26, 2002. 2. The record evidence shows that the Veteran has pursued a claim of service connection for degenerative disc disease and stenosis of the lumbosacral spine continuously since November 26, 2002. 3. The record evidence shows that an informal claim for VA benefits, to include a TDIU, was received by the RO on July 27, 2009. 4. The record evidence shows that the Veteran's formal TDIU claim was received by the RO on March 20, 2015. 5. The record evidence shows that service connection is in effect for adjustment disorder, evaluated as 70 percent disabling effective July 27, 2009, degenerative disc disease and stenosis of the lumbosacral spine, evaluated as 40 percent disabling effective June 23, 2004, and 20 percent disabling effective November 20, 2014, and for radiculopathy of the right lower extremity, evaluated as 10 percent disabling effective June 25, 2015; the combined disability evaluation for compensation is 40 percent effective June 23, 2004, and 80 percent effective July 27, 2009. 6. The record evidence shows that the Veteran did not meet the schedular criteria for a TDIU prior to July 27, 2009; thus, that is the earliest effective date for an award of a TDIU allowed by law. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of November 26, 2002, for an award of service connection for degenerative disc disease and stenosis of the lumbosacral spine have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). 2. The criteria for an earlier effective date than July 27, 2009, for a TDIU have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1968 to December 1969. This appeal has a long and complicated procedural history. It comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which granted, in pertinent part, the Veteran's claims of service connection for degenerative disc disease and stenosis of the lumbosacral spine, assigning a 40 percent rating effective June 23, 2004, and a 20 percent rating effective November 20, 2014, and for adjustment disorder, assigning a 50 percent rating effective July 27, 2009. This matter also is on appeal from a July 2015 rating decision which denied the Veteran's TDIU claim. In a February 2018 rating decision, the RO assigned a higher initial 70 percent rating effective July 27, 2009, for the service-connected adjustment disorder. The RO also granted service connection for radiculopathy of the right lower extremity, assigning a 10 percent rating effective June 25, 2015. The RO further granted TDIU effective July 27, 2009. In May 2019, the Board granted a motion filed by the Veteran's attorney requesting an earlier docket number for the current appeal. The earlier docket number assigned by the Board in May 2019 is listed above. See Vargas-Gonzalez v. Principi, 15 Vet. App. 222 (2001). In May 2021 correspondence, the Veteran's attorney withdrew a Board hearing request. See 38 C.F.R. § 20.704 (2020). Having reviewed the record evidence, the Board finds that the issues on appeal should be characterized as stated above. The Board next notes that the Veteran's attorney argued in multiple submissions received by VA during the pendency of this appeal that, in fact, the Veteran is entitled to an earlier effective date for a lumbosacral spine disability in 1970 when he filed his original service connection claim for this disability. The record evidence shows that the RO denied this claim in an April 1970 rating decision which was not appealed and became final. To the extent that the Veteran, through his attorney, is attempting to collaterally attack the finality of the April 1970 rating decision by filing his currently appealed earlier effective date claim, this appeal is dismissed as a matter of law. See Rudd v. Nicholson, 20 Vet. App. 296 (2006). The Board finally notes that the Veteran and his attorney continue submitting duplicate evidence in support of this appeal. They are advised to stop doing this because it only delays VA consideration of this appeal. 1. Entitlement to an earlier effective date of November 26, 2002, for an award of service connection for degenerative disc disease and stenosis of the lumbosacral spine is granted. The Board finds that the evidence supports assigning an earlier effective date of November 26, 2002, for the award of service connection for degenerative disc disease and stenosis of the lumbosacral spine. The Veteran essentially contends that he is entitled to an earlier effective date than June 23, 2004, for the award of service connection for this disability. The Board agrees, finding that November 26, 2002, is the appropriate effective date for the award of service connection for this disability. The record evidence shows that the Veteran's original service connection claim for this disability was denied in an April 1970 rating decision which was not appealed and became final. This rating decision may not be disturbed by filing a freestanding earlier effective date claim. Id. The Veteran's informal request to reopen his previously denied service connection claim for a lumbosacral spine disability was included on a VA Form 21-4138 which was dated on November 25, 2002, and date-stamped as received by VA on November 26, 2002. The RO denied the Veteran's request to reopen his previously denied service connection claim for degenerative disc disease and stenosis of the lumbosacral spine (which was characterized as idiopathic scoliosis) in a rating decision dated on February 12, 2003 and issued to the Veteran and his then-service representative on February 26, 2003. After he perfected a timely appeal, the Board denied the Veteran's request to reopen this claim in August 2007. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court) which vacated and remanded the Board's August 2007 decision in January 2009. In June 2010, the Board again denied the Veteran's request to reopen this claim. The Court vacated and remanded the Board's June 2010 decision in May 2012. The Board subsequently reopened and remanded this claim to the RO in January 2014. The RO implemented the Board's January 2014 decision in a January 2015 rating decision which reopened and granted service connection for degenerative disc disease and stenosis of the lumbosacral spine, assigning a 40 percent rating effective June 23, 2004, and a 20 percent rating effective November 20, 2014. The RO concluded that June 23, 2004, was the appropriate effective date for an award of service connection for this disability because that was the date that VA received the Veteran's successfully reopened claim. The Veteran's attorney argued in a January 2018 appellate brief that a letter from M. W., M.D., dated in May 1970 (prior to the expiration of the appeal period for the April 1970 rating decision) constituted new and material evidence and rendered the April 1970 rating decision non-final. This attorney also argued that it was error for the RO not to consider this letter or list it as among the evidence reviewed in adjudicating the Veteran's claim. The Board notes in this regard that the RO denied the Veteran's claim in the April 1970 rating decision, at least in part, because it concluded that idiopathic scoliosis was a congenital or developmental defect for which service connection is prohibited. A review of the May 1970 letter from Dr. M. W. shows that he treated the Veteran in March 1970 and physical examination revealed scoliosis. Dr. M. W. also stated, "It was our impression that [t]his young man had sustained some injury to the back while in service." This suggests that Dr. M. W. relied upon what the Veteran reported to him concerning his in-service medical history rather than reaching any independent medical conclusions of his own based on physically examining him. Having reviewed this letter along with the January 2018 argument from the Veteran's attorney, the Board finds that it does not change the RO's conclusion in the April 1970 rating decision that the Veteran's idiopathic scoliosis was a congenital or developmental defect for which service connection is prohibited. The Board observes in this regard that it is not required to discuss every piece of evidence considered in adjudicating a claim. See Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The attorney's argument concerning the May 1970 letter from Dr. M. W. also appears to reflect a mere disagreement with how the RO weighed the evidence in the April 1970 rating decision. The Board observes here that mere disagreement with how VA weighed the evidence is never sufficient to challenge the finality of a prior rating action. Thus, the Board finds that the attorney's January 2018 argument concerning an earlier effective date for an award of service connection for degenerative disc disease and stenosis of the lumbosacral spine is without merit. Having reviewed the record evidence, the Board concludes that the appropriate effective date in this case is the date that VA received the Veteran's successfully reopened claim. See generally 38 U.S.C. § 5110; 38 C.F.R. § 3.400. In this case, the Veteran successfully reopened his previously denied service connection claim for degenerative disc disease and stenosis of the lumbosacral spine in statements included on a VA Form 21-4138 which was dated on November 25, 2002, and date-stamped as received by VA on November 26, 2002. The record evidence shows that he prosecuted this claim continuously since November 26, 2002. It is not clear to the Board why the RO chose June 23, 2004, as the appropriate effective date for an award of service connection for degenerative disc disease and stenosis of the lumbosacral spine in the currently appealed rating decision issued in January 2015. The Board notes in this regard that the Veteran's electronic claims file appears to be somewhat disorganized. Despite a detailed review of the claims file, the Board cannot locate any document which supports assigning June 23, 2004, as the appropriate effective date for an award of service connection for degenerative disc disease and stenosis of the lumbosacral spine. Instead, the record evidence supports assigning an earlier effective date of November 26, 2002, for an award of service connection for this disability. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an earlier effective date of November 26, 2002, for an award of service connection for degenerative disc disease and stenosis of the lumbosacral spine have been met. 2. Entitlement to an earlier effective date than July 27, 2009, for a TDIU The Board finally finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to an earlier effective date than July 27, 2009, for a TDIU. The Veteran essentially contends that he is entitled to an earlier effective date in 1998 for an award of a TDIU because that was the last year in which he was able to work. His attorney alternatively contends that, although he did not meet the schedular criteria for a TDIU prior to July 27, 2009, he essentially is entitled to an extraschedular TDIU (and, by extension, an earlier effective date for a TDIU) prior to this date. The record evidence does not support these assertions. It shows instead that the Veteran did not meet the schedular criteria for a TDIU prior to July 27, 2009, and no formal or informal TDIU claim was received by VA prior to this date; absent a legal entitlement to this benefit, any argument concerning his entitlement to an effective date earlier than the date he became legally entitled to a TDIU is without merit. The record evidence shows that the Veteran filed an informal claim for VA benefits in statements on a VA Form 21-22a which his former attorney submitted to the RO on July 27, 2009. The RO reasonably interpreted his statements on this VA Form 21-22a as including an informal TDIU claim. The record evidence shows that the Veteran's formal TDIU claim (VA Form 21 8940) was received electronically by the RO on March 2, 2015. He stated that his service-connected adjustment disorder (which he characterized as depression) and his service-connected degenerative disc disease and stenosis of the lumbosacral spine (which he characterized as a back disability) prevented him from securing or maintaining any substantially gainful occupation. His disability affected his full-time employment in 1998 when he last worked full-time and became too disabled to work. He reported working "40 hours plus overtime" as a lineman for a local utility company from 1972 to 1998. He had left this job due to his disability. He expected to receive or received disability retirement benefits as a result of this job. He had not tried to obtain employment since he became too disabled to work. In a private vocational assessment dated in January 2016, J. C., who identified herself as a "Vocational Expert," stated that the Veteran "is unable to maintain substantial gainful employment on a regular and consistent basis even at the sedentary level of work and has been unable to do so since at least 1998 when his physical limitations and pain associated with his back condition began to become more significant resulting in his inability to work from that date." J. C. stated that she had reviewed the Veteran's claims file, his employment information, and his lay statements. In response to a request from VA to complete a VA Form 21-4192, the Veteran's former employer notified the RO in October 2017 that he had been employed as a lead lineman from January 1972 to January 1998 when he retired. The former employer stated that it could not provide information concerning the Veteran's earnings, time lost due to disability, number of hours worked, or any lump sum payments made to him "because there is no longer any information in our system about this employee due to the lapse of time." The former employer also stated that the Veteran is entitled to receive retirement benefits as a result of his employment and began receiving $2585.14 in monthly retirement benefits in January 1998 when he retired. In a January 2018 appellate brief, the Veteran's attorney argued that, although the Veteran had been employed between 1972 and 1998 when he stopped working, "he continued to have pain and problems bending and moving but was able to manage that until 1998 when he could no longer work with the pain." In the currently appealed rating decision issued in February 2018, the RO granted a TDIU effective July 27, 2009. The RO concluded that the Veteran was unable to work as a result of his service-connected lumbosacral spine disability and service-connected adjustment disorder. The RO also concluded that July 27, 2009, was the appropriate effective date for an award of a TDIU because that was the date when he met the schedular criteria for a TDIU. The Board notes that an effective date claim for a TDIU is evaluated the same as an effective date claim for an increased rating. In other words, the appropriate effective date for a TDIU is the date of receipt of a claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(o). In this case, the record evidence suggests that the Veteran retired from his job as a lead lineman with a local utility company in January 1998 after maintaining full-time employment there for 26 years. Unfortunately, his former employer was unable to provide any relevant information concerning whether he had lost any time due to disability in the 12 months preceding his retirement. The former employer also stated that he was receiving retirement benefits as a result of his employment. The record evidence shows that the Veteran's informal TDIU claim was received on July 27, 2009, and he met the schedular criteria for a TDIU on that date. See also 38 C.F.R. § 4.16(a). Although the evidence suggests that his service-connected disabilities may have interfered with his ability to secure and maintain substantially gainful employment prior to July 27, 2009, he did not meet the criteria for a TDIU prior to this date. Id. In other words, although the Veteran may have been entitled to a TDIU prior to July 27, 2009, his informal TDIU claim was not received until that date. The Veteran's attorney appears to be attempting to bootstrap an extraschedular TDIU claim on to the currently appealed earlier effective date claim for a TDIU when she argued that, although the Veteran did not meet the schedular criteria for a TDIU prior to July 27, 2009, he nevertheless is entitled to a TDIU on an extraschedular basis (and an earlier effective date for a TDIU) prior to this date. There is no support for this argument found in the relevant laws and regulations governing either earlier effective date claims or TDIU claims. More importantly, there is no indication in the record evidence that the Veteran filed a TDIU claim prior to July 27, 2009, when VA received his informal claim for benefits. Critically, there is no legal entitlement to a TDIU prior to July 27, 2009, as the Veteran's service-connected disabilities, alone or in combination, did not meet the schedular criteria for a TDIU prior to this date. Id.; see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). He otherwise has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than July 27, 2009, for an award of a TDIU. In summary, the Board finds that the criteria for an earlier effective date than July 27, 2009, for an award of a TDIU have not been met. REASONS FOR REMAND Entitlement to an initial rating greater than 70 percent for adjustment disorder, an initial rating greater than 10 percent for radiculopathy of the right lower extremity, and to an initial rating greater than 40 percent prior to November 20, 2014, and greater than 20 percent thereafter, for degenerative disc disease and stenosis of the lumbosacral spine is remanded. The Veteran finally contends that his service-connected adjustment disorder, radiculopathy of the right lower extremity, and degenerative disc disease and stenosis of the lumbosacral spine are more disabling than currently (and initially) evaluated. The record evidence shows that these disabilities were examined most recently in June 2015, more than 6 years ago. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examinations in June 2015, the Board finds that, on remand, he should be scheduled for updated VA examinations which address these matters. The Board notes in this regard that the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the lumbosacral spine, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. It does not appear that the medical evidence of record complies with Correia. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected adjustment disorder. 3. Schedule the Veteran for updated examination to determine the current nature and severity of his service-connected radiculopathy of the right lower extremity and his service-connected degenerative disc disease and stenosis of the lumbosacral spine. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael T. Osborne, 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.