Citation Nr: 21011597 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 18-52 335 DATE: March 2, 2021 ORDER Entitlement to an effective date earlier than April 2, 2014 for the grant of service connection for degenerative joint disease of the lumbar spine is denied. FINDINGS OF FACT 1. The Veteran’s original claim for service connection for a lower back condition was received April 2, 1965. 2. A September 1965 rating decision denied service connection for a back injury and back conditions as he injured his back prior to entry into active service and it was determined that his limbus vertebra is a constitutional or developmental abnormality. The Veteran did not appeal this decision. 3. In December 1965, the Veteran’s complete service treatment recodes (STRs) were received and a subsequent December 1965 rating decision confirmed and continued the prior denial of entitlement to service connection for a back injury and back conditions as the STRs showed that the Veteran injured his back prior to entry into active service and his injuries were not aggravated by active service. The Veteran did not appeal this decision. 4. The Veteran’s claim to reopen service connection for degenerative joint disease of the lumbar spine was received on April 2, 2014. 5. The correct facts, as known at the time, were before the VA adjudicators in December 1965, and the statutory and regulatory provisions extant at the time were correctly applied; the Veteran's allegations amount to a disagreement with the weighing of the evidence which does not meet the high standard for clear and unmistakable error (CUE). 6. In an April 2015 rating decision, the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) granted service connection for degenerative joint disease of the lumbar spine claimed as residuals of low back injury effective April 2, 2014. CONCLUSION OF LAW The criteria for an effective date earlier than April 2, 2014, for the grant of service connection for degenerative joint disease of the lumbar spine, based on CUE in a prior December 1965 rating decision, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.157, 3.159, 3.340, 3.341, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from March 1962 to March 1965 and from November 1973 to November 1990. In December 2020, the Board remanded the issue on appeal to the AOJ. As the actions specified in the remand have been completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an effective date earlier than April 2, 2014 for a grant of service connection for degenerative joint disease of the lumbar spine The Veteran contends that an effective date earlier that April 2, 2014, for the grant of service connection for degenerative joint disease of the lumbar spine in an April 2015 rating decision is warranted based on CUE in a prior December 1965 rating decision. Generally, the effective date for an award of compensation or claim for increase is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Additionally, 38 U.S.C. § 5101 (a) provides that “[a] specific claim in the form prescribed by the Secretary... must be filed in order for benefits to be paid or furnished to any individual.” In McTighe v. Brown, 7 Vet. App. 29 (1994), the United States Court of Appeals for Veterans Claims (Court) remarked that 38 U.S.C. § 5110 and 38 U.S.C. § 5101 clearly establish that an application must be filed. For VA compensation purposes, a “claim” is defined as “a written communication requesting a determination of entitlement or evidencing a belief in entitlement, to a specific benefit under the laws administered by VA submitted on an application form prescribed by the Secretary.” 38 C.F.R. § 3.1 (p). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” 38 C.F.R. § 3.155 (a). It must “identify the benefit sought.” Id. Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an applications or claim, both formal and informal, for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Parenthetically, the Board also notes that for claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as they existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. In addition, 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). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Notably, for the Veteran to be awarded an effective date based on an earlier claim that became final and binding, he must 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). Similarly, in Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006), the Court held that once a rating decision that establishes an effective date for an award becomes final, the only way that such a decision can be revised is if it contains CUE. The Court noted that any other result would vitiate the rule of finality. In other words, the Court found that there is no valid freestanding claim for an earlier effective date. The Court held that if a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed. As to pleading CUE, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be CUE on its face, persuasive reasons must be given as to why one would be compelled to reach the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). If the error alleged is not the type of error that, if true, would be clearly and unmistakable erroneous on its face; if the veteran is only asserting disagreement with how the VA evaluated the facts before it; if the veteran has only alleged a failure on the part of VA to fulfill its duty to assist; or if the veteran has not expressed with specificity how the application of cited laws and regulations would dictate a “manifestly different” result, the claim should be denied or the appeal to the Board terminated because of the absence of legal merit or lack of entitlement under the law. Luallen v. Brown, 8 Vet. App. 92 (1995); Caffrey v. Brown, 6 Vet. App. 377, 384 (1994). By way of history, the Veteran originally filed a service connection claim for a back condition in April 1965. The evidence at that time included the March 1962 entrance examination, March 1962 Report of Medical History, and February 1965 separation examination. The March 1962 Report of Medical History noted that he had a back injury in February 1961 prior to his active service. The VA Regional Office (RO) denied the Veteran’s claim in a September 1965 rating decision noting that the record showed that the Veteran reported that he had injured his back both prior to service, and in service in November 1962 and in January 1964. The RO noted that during his May 1965 VA examination, the Veteran stated that he “had several bad falls and ran into a clothesline once.” Also, he stated that he hurt his back prior to entering active service. The Veteran noted that he “pulled his back” in November 1962 and that an X-ray showed a soft spot on one of his lumbar vertebra. Upon examination, he had full range of motion, there was no muscle spasm, tenderness, or pain. X-ray showed deformity of the fourth lumbar vertebra, with ununited ring epiphysis overgrowth defect. This was also called a limbus vertebra. The RO found that the limbus vertebra is a constitutional or developmental abnormality and that the claimed back injury was not shown by the evidence of record. In December 1965, the Veteran’s complete STRs were received and a subsequent December 1965 rating decision concluded that no change was warranted in the prior decision and continued to deny service connection for a back injury and back conditions as the evidence showed that the Veteran’s back condition existed prior to service and was not aggravated by active service. The Veteran did not appeal either the September 1965 decision or the December 1965 rating decision which are now final. Thus, the only avenue for assigning an earlier effective date for the Veteran’s lumbar spine disability is by demonstrating CUE in the December 1965 rating decision. See Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006) (once a rating decision that establishes an effective date for an award becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error). In a February 2021 statement, the Veteran’s representative noted that the May 1965 VA examination of the Veteran’s back failed to consider the “Saunders criteria.” The Board notes that in Saunders v. Wilkie, 886 F. 3d 1356, 1361 (Fed. Cir. 2018), the United States Court of Appeals for the Federal Circuit (Federal Circuit) found that the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability.” Thus, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. However, under 38 C.F.R. § 3.105, CUE is determined, in part, by showing that CUE must be based on the record and law that existed at the time of the prior adjudication in question. As Saunders was decided in 2018 and the rating decision on appeal is from December 1965, the representative’s assertion that the RO did not consider Saunders is barred by statute. Id. Also, in his February 2021 statement, the Veteran’s representative noted that the Veteran was to be afforded the presumption of soundness upon entry into active service. A Veteran is presumed in sound condition except for defects, infirmities or disorders noted when examined and accepted for service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304 (b); see also Quirin v. Shinseki, 22 Vet. App. 390 (2009). The disorder need not be currently symptomatic, but only noted on entrance. Verdon v. Brown, 8 Vet. App. 529, 535 (1996). A preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C. § 1153. The Board notes that the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) clarified in Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) that the presumption of soundness provided by 38 U.S.C. § 1111 is only rebutted if there is both (1) clear and unmistakable evidence that the claimed condition existed prior to service and (2) clear and unmistakable evidence that any preexisting conditions were not aggravated by service. However, in George v. Wilkie, 30 Vet. App. 364 (2019), the U.S. Court of Appeals for Veterans Claims held Wagner’s interpretation of 38 U.S.C. § 1111 does not apply retroactively to final decisions. Accordingly, prior to when Wagner was issued in 2004, rebuttal of the presumption of soundness required a finding that the disability clearly and unmistakably preexisted service, but a finding only by a preponderance of evidence that the disability was not aggravated during service. Here, the Board finds that the presumption of soundness is for consideration in this case. Although his March 1962 Report of Medical History noted that he had a back injury in February 1961 prior to his active service, the March 1962 entrance examination did not note sequelae, nor did it disqualify his service. Further, his entrance examination noted no physical defects. However, the Board finds that there is clear and unmistakable evidence that the Veteran’s disability existed prior to service as the Veteran’s STRs show that he reported recurrent back problems due to “several bad falls” in the year preceding active service. The Veteran reiterated that he had a back injury prior to active service during his May 1965 VA examination. In regard to aggravation, the Board notes that during the May 1965 VA examination, the Veteran reported working full-time drilling water wells. He noted that it was hard work bending down and lifting heavy objects. He reported no loss of time working. As noted above, upon examination, he had full range of motion, there was no muscle spasm, tenderness, or pain. X-ray showed deformity of the fourth lumbar vertebra, with ununited ring epiphysis overgrowth defect. This was also called a limbus vertebra. He was diagnosed with a lumbosacral strain, recurrent, by history (as there was no current back injury found) and limbus vertebra, which was found to be a growth defect. Further, during a December 2018 VA examination for back conditions, the Veteran stated that he first sought medical treatment for his back in 2010, many years after separation from active service. Of note, the presumption of soundness upon service entry does apply to congenital or developmental “diseases” that are not noted in the service entrance examination. Quirin, at 396. “A congenital or developmental condition that is progressive in nature-that can worsen over time-is a disease rather than a defect. A progressive congenital or developmental condition does not become a defect simply because it ceases to progress.” O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014). Service connection is allowed for a congenital or developmental disease if it first manifested during service, or if it preexisted service and was aggravated by service. However, as noted above, the May 1965 VA examiner found that the Veteran had a developmental defect, as opposed to a disease, which would also rebut the presumption of soundness. In the light of the above medical and lay evidence of record, the Board finds, by the preponderance of evidence, that the Veteran’s preexisting back strain was not aggravated by his military service, for purposes of rebutting the presumption of soundness at entry. 38 U.S.C. § 1111; 38 C.F.R. § 3.304 (b). The record shows that the Veteran was employed full-time with physical work immediately after separating from active service without the need to take days off due to a back condition. Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). Also, the Veteran first sought medical treatment for his back decades after separation from active service. Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran’s health and medical treatment during and after military service, as evidence of whether a preexisting condition was aggravated by military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact-finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). In statements and testimony, the Veteran has asserted that he should have been granted an earlier effective date for his degenerative joint disease of the lumbar spine because the December 1965 rating decision did not provide an explanation to how his back condition existed prior to entry into active service. The RO in 1965 found that the diagnosed back disorder preexisted service and was not aggravated in service. The RO did not explicitly address the presumption of soundness or the legal standard it used to determine the disability preexisted service and was not aggravated therein. The Veteran contends the 1965 rating decision should be overturned on the basis of CUE because it did not satisfy the criteria for rebutting the presumption of soundness even though a back was not noted on his service entrance examination. But for this CUE, he argues, service connection would have been granted for a low back disorder. The Board finds that the Veteran has not shown that either the September 1965 rating decision or the subsequent December 1965 confirmed rating decision either ignored the correct facts of record or incorrectly applied statutes or regulations in effect at the time. While the RO did not specifically clarify that "clear and unmistakable evidence" demonstrated the claimed condition existed prior to service and was not aggravated therein, there is no evidence showing this evidentiary standard was not applied. Notably, the RO did find there was no indication that the Veteran's disability began in service or was aggravated therein. Also, the Veteran has asserted that he should have been granted an earlier effective date for his degenerative joint disease of the lumbar spine because the May 1965 VA examination did not address back pain and flare-ups. During the May 1965 VA examination, the Veteran reported that his back “bothered [him] mostly on heavy lifting and bending over.” Also, his back hurt some mornings where he was not sure that he could get out of bed. The Veteran indicated that on the day of the examination he was not experiencing back pain. The Veteran noted that he hurt his back prior to active service and hurt his back during active service. He was unaware of the reason for his back injuries, but noted that he was told that he had a growth defect of the lumbar spine. Upon examination, he had full range of motion, there was no muscle spasm, tenderness, or pain. The Veteran underwent numerous tests and the examiner noted that the Veteran did not have any pain reaction or discomfort on any of the tests. All tests were normal. The Veteran contends that the 1965 rating decision should be overturned on the basis of CUE because the 1965 examiner did not address back pain and flare-ups. But for this CUE, he argues, service connection would have been granted for a low back disorder. The Board finds that the Veteran has not shown that VA either ignored the correct facts of record or incorrectly applied statutes or regulations in effect at the time. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). During the 1965 VA examination, the Veteran did not report current back pain, did not have any pain reaction or discomfort on any of the tests, and did not reported any missed days of work where he was required to bend and lift heavy objects. Also, the Veteran had not been hospitalized since his discharge from active service in March 1965. The examiner noted that there were no abnormalities noted on the examination other than the notation of the preexisting limbus vertebra. Notably, prior to Sharp v. Shulkin, 29 Vet. App. 26 (2017), VA examiners were not obligated to inquire whether there were periods of flare-ups and, if the answer was yes, to state their severity, frequency, and duration, name the precipitating and alleviating factors, and estimate, per the veteran, to what extent, if any, flare-ups and repetitive use over time affect functional impact. Based on a careful review of the record, the Board finds that there is no evidence to support the assignment of an effective date earlier than April 2, 2014 for the grant of service connection for degenerative joint disease of the lumbar spine. As noted above, the effective date is the date of the reopened claim. In this case the Veteran submitted a claim for a back condition in April 1965, which the RO denied in September 1965 and December 1965 rating decisions. To the extent that the Veteran is asserting that the RO could have weighed the facts differently, clear and unmistakable error cannot exist solely based on a disagreement as to who the facts were weighed or evaluated, as noted above. See Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). There is no evidence that the correct facts were not before the RO in its December 1965 rating decision; or that the statutory or regulatory provisions extant at that time were incorrectly applied. Similarly, to the extent that the Veteran contends that the RO should have developed his claim further to establish service connection for a back condition prior to December 1965, a breach of duty to assist in development of the claim cannot serve as a basis for claiming clear and unmistakable error. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Crippen v. Brown, 9 Vet. App. 412, 424 (1996); Caffrey v. Brown, 6 Vet. App. 377 (1994). Thus, there is no clear and unmistakable error in the December 1965 rating decision, pursuant to 38 C.F.R. § 3.105(a). While the Board acknowledges and has considered the Veteran’s contentions in support of his claim, the Board is bound by the applicable legal criteria as set forth and discussed above. Accordingly, the Board concludes that the claim for entitlement to an effective date prior to April 2, 2014 for the grant of service connection for degenerative joint disease of the lumbar spine based on CUE in a prior rating decision must be denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Costello, 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.