Citation Nr: 21010200 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 17-42 072 DATE: February 24, 2021 ORDER Entitlement to an effective date prior to April 30, 2015 for the grant of service connection for spondylosis is denied. Entitlement to an initial rating in excess of 20 percent for spondylolysis is denied. FINDINGS OF FACT 1. The Veteran did not file a timely substantive appeal following the issuance of an January 25, 1977 notification that denied service connection for a back disability. 2. The Veteran filed a claim to reopen a previously denied claim of service connection for a back disability (spondylosis) on April 30, 2015. 3. During the period on appeal, the Veteran’s disability was characterized by forward flexion of the thoracolumbar spine was to 50 degrees, but not to 30 degrees or less; and there was no ankylosis of the spine or IVDS. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to April 30, 2015 for the grant of service connection for spondylosis have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400 (2019). 2. The criteria for an initial rating in excess of 20 percent, for spondylosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5239. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a commissioned officer in the U.S. Army from June 1971 to June 1976 with duties as a supply and club manager. These matters come to the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding has been associated with the claims file. Effective Date The Veteran contends that he is entitled to an effective date prior to April 30, 2015 for the grant of service connection for spondylosis. Specifically, the Veteran contends that he was entitled to an effective date of January 25, 1977, the date of his first claim for service connection for this disability. Generally, the effective date for an award of compensation based on 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; 38 C.F.R. § 3.400. If service connection is granted based on a claim received within one year of separation from active duty, the effective date will be the day following separation. 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, 34-5 (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 effective date of an award on a claim for increased rating is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the effective date of the award is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400(o)(2). In other words, the effective date may date back as much as one year before the date of the application for increase if it is factually "ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400(o)(2). Under the legacy appeal system applicable to the present claim, an appeal consists of a timely filed notice of disagreement (NOD) and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200. A substantive appeal must be filed within the one-year period from the date of the rating decision or from the mailing of the notification of the determination being appealed. 38 C.F.R. § 20.302(b). A "presumption of regularity 'supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.' Ashley v. Derwinski, 2 Vet. App. 62, 64 (1992) (quoting United States v. Chem. Found., Inc., 272 U.S. 1, 1415, 47 S.Ct. 1, 71 L.Ed. 131 (1926))." Fithian v. Shinseki, 24 Vet. App. 146, 150 (2010); see also Mindenhall v. Brown, 7 Vet. App. 271 (1994) (applying this presumption of regularity to procedures at the RO). Once the presumption attaches to a particular VA action, the claimant attacking the presumption bears the burden of showing by "clear evidence" that regular, proper procedures were not followed. See Parks v. Shinseki, 716 F.3d 581, 584 (Fed. Cir. 2013); Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). If a claimant alleges nonreceipt of a VA notice letter, clear evidence rebutting the presumption of regularity "mandates not only a declaration by the appellant of nonreceipt, but additional evidence to corroborate the appellant's declaration, such as an addressing error by VA that was consequential to delivery." An addressing error is consequential where it "results in an address that does not contain all the necessary address elements" sufficient to enable delivery. Clarke v. Nicholson, 21 Vet. App. 130 (2007). Sending notice to an incorrect mailing address constitutes the "clear evidence" needed to rebut the presumption of regularity that VA properly mailed notice of a decision. See Crain v. Principi, 17 Vet. App. 182, 187 (2003). The Veteran originally filed a claim for entitlement to service connection for a low back disability on September 26, 1977. A rating decision that denied service connection was issued on December 27, 1977 and the Veteran was notified of the denial on January 25, 1978. In a May 1978 letter, the Veteran acknowledged receipt of the January 1978 decision and requested a hearing before the RO. He provided a history of his disorder prior to and during his service at the U.S. Military Academy. He testified at a hearing in July 1978 and was provided a VA examination in September 1978. Additional evidence was obtained from the Military Academy. On August 6, 1979, the RO acknowledged the receipt of new evidence but continued to deny service connection on the merits. The Veteran was advised of his appeal rights, but no additional notice of disagreement or new and material evidence was received within one year. Therefore, the August 1979 decision is final. Then on April 30, 2015 the Veteran submitted an informal application to reopen the claim. He submitted a formal application to reopen the claim in November 2015 and provided new evidence and duplicate copies of service records that were previously considered. As noted above, generally for the grant of entitlement to service connection, the effective date shall be the date of claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2019). Assuming (without deciding) for purposes of this decision that entitlement arose for service connection for this condition prior to April 30, 2015 the date of claim, as the later date, would be the appropriate effective date for entitlement to service connection. As April 30, 2015 is date of the Veteran's reopened claim, it therefore is the earliest possible effective date for the grant of entitlement to service connection for spondylosis. The Board acknowledges the Veteran's contention that he did not receive the December 27, 1977 rating decision and January 25, 1978 notification; however, the record shows the January 25, 1978 notification of the December 27, 1977 denial was sent to the Veteran's then exact address of record. There was no evidence indicating the Veteran had moved. There is no evidence of returned mail for this decision or any other mail sent during that time period. Moreover, as summarized above, the Veteran acknowledged receipt of the decision, requested a hearing, and additional evidence was obtained. The RO issued a subsequent decision in August 1979 that was addressed to the Veteran’s current residence and was not returned by the postal service. In his April 2015 supplemental claim, he acknowledged that the claim was last denied in August 1979 thus indicating that he had received the decision. As such, the Board concludes that the criteria for an effective date earlier than April 25, 2015 for the grant of entitlement to service connection for spondylosis have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2019). The Veteran's claims therefore must be denied. During the Board hearing and in a written statement in September 2020, the Veteran raised the issue of reversal of the December 27, 1977 rating decision (and presumably the August 1979 decision) that initially denied service connection for spondylosis of the lumbar spine on the basis of clear and unmistakable error. As this is a separate claim not adjudicated by the agency of original jurisdiction, the Board does not have jurisdiction, and the Veteran is advised to submit a supplemental claim to initiate adjudication of this claim. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as staged ratings, and here staged ratings have been considered but are not warranted. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. See 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Back- Spondylosis The Veteran contends he is entitled to an increased rating for his service-connected lumbar spondylosis. The Veteran's low back disability is rated at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5239, spondylolisthesis. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula) (for DCs 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). The General Formula contemplates pain, whether or not it radiates. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent for unfavorable ankylosis of the entire spine. Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Diagnostic Code 5243 provides for rating intervertebral disc syndrome (IVDS) under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). The Formula for Rating IVDS based on Incapacitating Episodes provides ratings for incapacitating episodes as follows: having a total duration of at least 6 weeks during the past 12 months (60 percent); having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent); having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); and having a total duration of at least one week but less than 2 weeks during the past 12 months (10 percent). 38 C.F.R. § 4.71a. Note 1 states that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Evidence In a September 2020 letter, a private chiropractor wrote that he had examined the Veteran in July 2014. The chiropractor noted that the Veteran had an initial evaluation of the lumbar spine in a slightly flexed position at approximately 10 degrees. Range of motion exam revealed that the Veteran was unable to flex more than 5 additional degrees and with right and left lateral flexion he was able to flex approximately 10 degrees each side. See September 2020 Medical Treatment Record-Non-Government Facility, p.3. The letter was accompanied by clinical records of treatment dated through November 2019. None of these records supported a continuation of the severe limitations described in the letter. In April 2015, the Veteran submitted an informal claim for back problems and indicated that a formal claim would follow. See April 2015 VA 21-4138 Statement In Support of Claim. In November 2015, the Veteran submitted a formal application for disability and compensation benefits for his chronic low back condition. See November 2015 VA 21-526EZ, Fully Developed Claim (compensation), p.1. In an August 2015 private treatment record, a clinician indicated that the Veteran had intermittent pain in his back, that was diffuse and limited his activity. The clinician stated that the MRI in the lumbar spine demonstrated severe facet arthrosis at multiple levels with diffuse spondylosis involving L1-S1. The clinician recommended at home exercise and recommended the Veteran continue to lose weight. See August 2015 Medical Treatment Record-Government Facility, p.1. In January 2016, the Veteran was afforded a VA back examination. The Veteran stated that he had flare-ups of the back and functional loss and impairment since it was hard to bend and lift. The initial range of motion was 0 to 50 degrees for forward flexion; extension was 0 to 20 degrees; right and left lateral flexion and rotation were 0 to 20 degrees. Pain contributed to and caused functional loss. With respect to range of motion on repetition and during flare ups, the examiner considered the Veteran’s reports of unspecified limitations in bending and lifting and fatigue and weakness, but noted “no change on examination” indicating no further limitation of the range of motion. There was no pain on weight bearing. There was no additional loss of function on repetitive use or flareups. Pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over a period of time and flareups. The Veteran had localized tenderness, guarding or muscle spasm of the thoracolumbar spine but no muscle spasm. The localized tenderness did not result in abnormal gait or abnormal spinal contour but there was no guarding. Muscle strength testing was normal and there was no muscle atrophy. The Veteran did not have radicular pain or any signs or symptoms due to radiculopathy. There was no ankylosis of the spine or IVDS. The Veteran did not use assistive devices. The Veteran indicated the condition impacted his ability to work, because he was limited to bending and lifting. In an October 2016 letter from a private clinician, the clinician stated that an examination revealed objective evidence of decreased range of motion to the lumbar spine and functional restrictions involving the hips. The clinician noted that the Veteran was given a lengthy course of treatment and he demonstrated a reduced intensity and frequency of low back pain and an improved range of motion and overall function. The clinician acknowledged that the Veteran’s range of motion and functional mobility were not normal but that he showed improvement with manual therapy and home exercises. See February 2017 Medical Treatment Record-Non-Government Facility. In an August 2017 Form 9, the Veteran noted that his spondylosis was well documented in his records at the time of the initial filing in 1977; therefore, he should have been granted an earlier effective date for service connection. In addition, the Veteran indicated that he submitted abundant evidence that would have supported a higher evaluation for spondylosis which contradicted the bad examination performed by the VA examiner. See August 2017 Form 9, p.1. In a March 2020 private examination conducted by phone; the examiner stated that it was his opinion that the Veteran’s low back pain symptoms were severe in-service and became much more severe after service. The examiner indicated that he rated the Veteran at a maximum of 60 percent because of how much work he would have missed due to aggravation and acceleration of the L5-S1 spondylolysis (arthritis). See September 2020 Medical Treatment Record-Non-Government Facility, p.29. There was no mention of the examiner reviewing the Veteran’s medical records or what his reasoning based on the medical rules/ criteria for granting 60 percent. During a September 2020 Board hearing, the Veteran testified his original claim was denied and when he went to the VA center, he saw the denial dated June 20, 1978 for the first time. The Veteran stated the issue was that the rating decision appeared final. See September 2020 Hearing Transcript, p.10. Furthermore, the Veteran testified that his VA back examination was not a fair assessment. The Veteran indicated that it was his belief that the examination was not complete. The Veteran testified that he was told he could not bring his MRI. The Veteran stated during the examination the examiner stated that if the Veteran had brought the MRI with him, that would have made the examination a lot easier. See September 2020 Hearing Transcript, p.12. The Veteran also indicated he spoke with his doctor by phone in March 2020 (not in person due to COVID pandemic) and felt the doctor’s assessment he felt was much more complete. See September 2020 Hearing Transcript, p.13. Based on the evidence of record, the Board finds that the preponderance of the evidence is against finding that an increased rating in excess of 20 percent for the Veteran's back disability is not warranted The Veteran's back disability has been assigned an initial 20 percent rating from April 30, 2015 under 38 C.F.R. § 4.71a , DC 5239. Based on the evidence of record, a rating in excess of 20 percent is not warranted. A rating in excess of 20 percent is warranted for a lumbar spine disability when the evidence shows: forward flexion of the thoracolumbar spine to 30 degrees or less (40 percent); favorable ankylosis of the entire thoracolumbar spine (40 percent); or, intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40 percent). 38 C.F.R. § 4.71a. As mentioned above, the Veteran's VA examination and his VA treatment records also do not indicate that an increased rating is warranted. The January 2016 examination revealed the Veteran’s forward flexion of the thoracolumbar spine was to 50 degrees, so not to 30 degrees or less. In addition, an increased rating is not warranted because the examination revealed there was no ankylosis at all and no IVDS. The Board considered the narrative description of limitation of motion noted by the chiropractor in the April 2020 letter, retrospective to his examination in 2014. However, the Board finds this extreme limitation is not supported by the attached clinical records of care and not representative of the continuing level of disability including as later shown in the January 2016 VA examination. Therefore, a rating in excess of 20 percent is not for application during the appeal. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Long-Ellis, 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.