Citation Nr: 21009132 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-16 252 DATE: February 19, 2021 ISSUE 1. Entitlement to an effective date earlier than January 30, 2013 for the grant of service connection for sacral strain with kyphotic posture (hereinafter low back disability). 2. Entitlement to an increased disability rating for a low back disability, currently rated as 10 percent disabling. 3. Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU). ORDER Entitlement to an effective date earlier than January 30, 2013 for the grant of service connection for a low back disability is denied. REMANDED Entitlement to an increased disability rating for a low back disability, currently rated as 10 percent disabling is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU), is remanded. FINDING OF FACT The Veteran’s claim to reopen the previously denied claim for service connection for a low back disability was received no earlier than January 30, 2013. CONCLUSION OF LAW 1. The criteria for an effective date prior to January 30, 2013 for the grant of service connection for a low back disability have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.104, 3.158, 3.400, 20.1104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Army from July 2000 to July 2003. This matter comes before the Board of Veterans' Appeals (Board) from a November 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. The Veteran was afforded a Videoconference Hearing before the undersigned Veterans Law Judge in July 2020. A transcript of that hearing is of record. The undersigned Veterans Law Judge agreed to hold the record open for 60 days for the submission of additional evidence. That 60-day period has expired. 38 C.F.R. § 20.709 (2018.) The issues of entitlement to an increased rating in excess of 10 percent for a low back disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). Entitlement to an effective date earlier than January 30, 2013 for the grant of service connection for a low back disability. At his July 2020 Board Hearing, the Veteran asserted that he is entitled to an earlier effective date prior to January 30, 2013 for the award of service connection for a low back disability. The Veteran testified that he filed his original claim for a low back condition in 2003, for the same injury for which he is currently service connected. Additionally, the Veteran testified that this same condition has gotten progressively worse. Accordingly, he asserts that the award of service connection should date back to his original claim. See July 2020 Board Hearing transcript, pg. 11. Effective Date If a Regional Office rating decision is not timely appealed, it becomes final. If a veteran files an application for service connection with VA and the claim is disallowed, he has the right to appeal that disallowance to the Board. 38 U.S.C. §§ 7104, 7105. If he does not initiate an appeal within one year of notice of that denial, the decision becomes final. Likewise, if he initiates a timely appeal and the appeal is denied by the Board, the Board disallowance becomes final. 38 U.S.C. § 7104; 38 C.F.R. §§ 20.302, 20.1100, 20.1103. With exceptions not here applicable, any award based on a subsequently filed application for benefits can be made effective no earlier than the date of the new application. See 38 C.F.R. § 3.400 (q), (r). While a denied, but unappealed, claim is generally final, there is an exception that will allow the evidence to be reconsidered as if the denial had not been issued. Specifically, if at any time after VA issues a decision on a claim, VA receives or associates with the record relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim, notwithstanding 38 C.F.R. § 3.156 (a). Such records include, but are not limited to, service records that are related to a claimed in-service event, injury, or disease. 38 C.F.R. § 3.156 (c)(1). Records that are not included are records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center (JSRRC), or from any other official source. 38 C.F.R. § 3.156(c)(2). An award made based all or in part on the records identified by 38 C.F.R. § 3.156 (c)(1) is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously decided claim. 38 C.F.R. § 3.156 (c)(3). Likewise, if new and material evidence is received during an applicable appellate period following an AOJ decision (1 year for a rating decision and 60 days for an SOC) or prior to an appellate (Board) decision (if an appeal was timely filed), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156 (b). Thus, under 38 C.F.R. § 3.156 (b), "VA must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim." Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). "[N]ew and material evidence" under 38 C.F.R. § 3.156 (b) has the same meaning as "new and material evidence" as defined in 38 C.F.R. § 3.156 (a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). VA is required to determine whether subsequently submitted materials constitute new and material evidence relating to an earlier claim, regardless of how VA characterizes that later submission of evidence. Beraud v. McDonald, 766 F.3d 1402, 1405 (Fed.Cir. 2014). If VA does not make the necessary determination, the underlying claim remains pending. Id. The effective date for the grant of service connection based upon a claim reopened after final disallowance, is either the date of receipt of the claim to reopen, or the date entitlement arose, whichever is later. A claim is a formal or informal communication, in writing, requesting a determination or a belief in entitlement, to a benefit. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. §§ 3.1 (p), 3.400. For claims filed prior to March 24, 2015, any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155; Norris v. West, 12 Vet. App. 413 (1999). Turning to the evidence of record in the evaluation of this Veteran’s claim: The Veteran filed his initial claim for service connection for a low back disability in July 2003. See July 9, 2003, VA Form 21-526. In an April 2004 rating decision, his claim was denied. The Veteran was notified of the decision and his appellate rights in May 2004. See April 29, 2004 rating decision; See also May 4, 2004 Notification Letter. The Veteran did not submit new and material evidence and did not appeal the rating decision within the one-year appeal period. Accordingly, the April 2004 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. Next, on January 30, 2013, the Veteran submitted his intent to file a claim for service connection for his low back disability (claimed as pain and S1 joint dysfunction). See January 30, 2013 VA Form 21-0829 (Report of General Information). In a November 2013 rating decision, the RO awarded service connection for the Veteran’s low back disability, effective January 30, 2013, the date on which the Veteran's most recent claim was received. See November 8, 2013 Rating Decision. When a prior claim has been denied and a substantive appeal was not filed, the Veteran must file a new claim, and the effective date of service connection based on that new claim to reopen will not be earlier than the date of receipt of the new claim, or the date entitlement arose, whichever is later. 38 C.F.R. §§ 3.158, 3.400(b). As his April 2004 rating decision became final the proper effective date for the grant of service connection is January 30, 2013, the date of receipt of the reopened claim which was later granted. Since the April 2004 rating decisions became final, they are not subject to revision in the absence of clear and unmistakable error (CUE). 38 U.S.C. § 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE can result in the assignment of an effective date earlier than the date of a final decision). A review of the record does not show that a CUE claim was filed by the Veteran. There is no evidence showing that the Veteran submitted any documents or statements indicating intent to file a claim at any time between the issuance of the April 29, 2004 rating decision and January 30, 2013. Accordingly, there is no legal basis upon which to assign an effective date prior to January 30, 2013 for the grant of service connection for chronic syndrome. As noted above, the assignment of an effective date in this case is based in law, and that law is clear. Namely, that the effective date for a claim reopened after final disallowance may not be earlier than the date of the reopened claim. As explained above, the Veteran's case does not fall under the limited exception at 38 C.F.R. § 3.156(c). Accordingly, there is no legal basis for assigning an effective date prior to January 30, 2013 in the absence of CUE, and the Board is bound by laws set forth within this decision. Accordingly, the claim must be denied. REASONS FOR REMAND Entitlement to an increased disability rating for a low back disability, currently rated as 10 percent disabling is remanded. The Veteran's only VA examination in connection with his increased rating claim for his low back disability was in November 2013. See November 5, 2013 Back Conditions Examination. Subsequent to his November 2013 Back Conditions examination, the Veteran has asserted that his back disability is worse. See July 2020 Board Hearing transcript, pgs. 8-9; See also February 16, 2017 VA Form 9. Significantly, at this July 2020 Board Hearing, the Veteran testified that, in addition to having difficulty in performing activities of daily living (e.g., putting on his clothes, sneakers, getting into the shower), he sometimes feels that he is losing sensation in his legs. The Veteran also complained of tingling and numbness down his leg. Id. at pgs. 5 & 12. The Veteran testified that treatment for his back has included epidural, cortisone shots, chiropractor treatments, acupuncture, multiple rounds of physical therapy and the use of muscle relaxers. The Veteran has also been offered surgery for his low back disability. Id. at pgs. 7, 12, & 15. Accordingly, a new orthopedic and a neurological examination should be afforded to this Veteran to determine the current nature and severity of his low back disability. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Entitlement to a TDIU Where a claimant, or the record, raises the question of unemployability due to the disabilities for which increased ratings are sought, then part of the increased rating claim is an implied claim for a total rating based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Here, the Veteran asserted, during the July 2020 Board hearing, that he is unable to work because of his service-connected low back disability. The Veteran has testified that his low back disability prevented him from standing or sitting for long periods of time. See July 2020 Board Hearing transcript, pg. 6; See also February 16, 2017 VA Form 9 re: back pain impact on ability to work. The issue of unemployability due to his service-connected low back disability is therefore raised by the record. This derivative issue of TDIU has been added to the instant appeal and must be developed and adjudicated by the RO in the first instance. Accordingly, these matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Send the Veteran a VCAA letter informing him of what is needed to substantiate entitlement to TDIU and of the allocation of responsibilities between the Veteran and VA for obtaining relevant evidence on his behalf. 3. Request that the Veteran fill out an application for entitlement to TDIU (VA Form 21-8940) to help ensure that VA has all pertinent information regarding his educational background and employment history. 4. Request, with the requisite authorization/consent forms, the Veteran's medical records related to treatment for his low back disability (e.g., chiropractor, acupuncturist, physical therapy). Any and all records should be uploaded to the electronic file. 5. Then, provide the Veteran with a VA examination to identify the current nature and severity of his low back disability. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: a) Elicit from the Veteran all signs and symptoms of his low back disability. Indicate any and all associated orthopedic AND neurologic manifestations. **In doing so, also obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joints involved should be tested, including for pain, in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion, including impact on the Veteran’s occupational functioning. **The examiner should provide an opinion regarding the extent to which the Veteran's service-connected low back disability has impaired his ability to meet the demands of a job, either sedentary or physical, at any time during the course of the appeal. The examiner's opinion should include an evaluation of the limitations and restrictions imposed by the Veteran's service-connected low back disability such routine work activities as interacting with coworkers; sitting, standing, and walking; and lifting, carrying, pushing, and pulling. A rationale for any opinions expressed should be set forth. If the examiner cannot provide any requested opinion without resorting to speculation, he or she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.) 6. The AOJ should then re-adjudicate the Veteran's increased rating claim for his low back disability and his claim for a TDIU in light of the evidence of record. If any benefit sought on appeal remains denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.