Citation Nr: 21024761 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 20-11 521 DATE: April 26, 2021 ORDER The appeal seeking an earlier effective date for the currently assigned 20 percent rating for service-connected lumbar spine disability is dismissed. The appeal seeking an earlier effective date for the currently assigned 20 percent rating for service-connected right lumbar radiculopathy is dismissed. The appeal seeking an earlier effective date for the currently assigned 20 percent rating for service-connected left lumbar radiculopathy is dismissed. REMANDED Entitlement to a rating higher than 20 percent for a lumbar spine disability is remanded. Entitlement to a rating higher than 20 percent for a right lumbar radiculopathy is remanded. Entitlement to a rating higher than 20 percent for a left lumbar radiculopathy is remanded. Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s November 2017 notice of disagreement (NOD), requesting an earlier effective date for the assignment of the 20 percent rating for his service-connected lumbar spine disability and associated lumbar radiculopathy, is a free-standing claim for an earlier effective date and is not a valid claim. CONCLUSION OF LAW The Veteran’s November 2017 NOD requesting an earlier effective date for the assignment of the 20 percent rating for his service-connected lumbar spine disability and associated lumbar radiculopathy is not a legally recognizable claim and raises no question to be decided. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. § 20.1103 (2019); Rudd v. Nicholson, 20 Vet. App. 296 (2006). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1955 to August 1959. This appeal stems from a February 2017 and March 2018 rating decisions. Procedural History In January 2011, VA received the Veteran’s original service connection claim for a lumbar spine disability. In an October 2011 rating decision, the RO granted service connection for a lumbar spine disability and assigned a 20 percent rating, effective January 20, 2011, the date of the Veteran’s claim. In October 2012, more than a year following the October 2011 rating decision, the Veteran submitted a supplemental claim for increased rating for a lumbar spine disability and a claim for right lumbar radiculopathy. In a January 2013 rating decision, the RO denied a rating higher than 20 percent for a lumbar spine disability and granted separate 20 percent rating for each lower extremity lumbar radiculopathy, effective October 29, 2012, the date of the VA examination. The Veteran did not appeal this decision. In October 2016, the Veteran filed an increased rating claim for lumbar spine and associated lumbar radiculopathy. In a February 2017 rating decision, the RO denied the claims, the Veteran submitted a timely November 2017 NOD, a statement of the case was issued in March 2020, the Veteran perfected his appeal later that month, and this appeal ensued. Notably, the Veteran’s attorney checked all boxes in the 2017 NOD, for effective date, evaluation of disability, and other. Discussion The Veteran seeks an earlier effective date for the 20 percent rating assigned for his service-connected lumbar spine and associated lumbar radiculopathy. Initially, the Board notes that the February 2017 rating decision did not assign an effective date for the current 20 percent rating for the lumbar spine disability and/or the 20 percent rating for each lower extremity lumbar radiculopathy. Instead, this rating decision continued the assigned rating, which was actually granted in an October 2011 rating decision for the lumbar spine disability and a January 2013 rating decision for the associated right and left lumbar radiculopathy, effective January 2011 and October 2012, respectively. For the Veteran to be awarded an effective date based on an earlier claim that became final and binding, her only available method is to collaterally attack the prior decision and show there was clear and unmistakable error (CUE) in the prior denial of the claim. Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). The Veteran in this case has not asserted CUE in the prior final rating decision. Thus, any subsequent communication regarding the Veteran’s desire for an earlier effective date, to include his November 2017 NOD, are attempts to establish a freestanding claim, which is prohibited because as stated, the October 2011 and January 2013 rating decisions are final. See Rudd, 20 Vet. App. at 300. The Board is bound by the laws and regulations that apply to veterans’ claims. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a). For the reasons stated above, those laws and regulations preclude the Board from addressing the Veteran’s earlier effective date claim on the merits. The Veteran’s claim must therefore be dismissed as a matter of law. See Mason v. Principi, 16 Vet. App. 129 (2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (U.S. 1994). REASONS FOR REMAND A remand is necessary to ensure that all outstanding private and VA treatment records are associated with the claims file. Notably, VA treatment records were not associated with the claims file since 2018, prior to the 2020 VA examination report. Moreover, in December 2019 correspondence, the Veteran reported receiving treatment by a private chiropractor in 2016 and 2017. Additionally, the Veteran does not currently meet the schedular criteria for entitlement to a TDIU; however, medical and lay evidence throughout the pendency of the appeal suggests the he was unable to maintain gainful occupation as a result of his service-connected lumbar spine disability and associated lumbar radiculopathy. Accordingly, referral for extraschedular consideration is warranted. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records since 2018 are associated with the claims file. 2. Contact the Veteran and ask him to identify any outstanding relevant private treatment records, particularly those from his chiropractor Dr. Carroll as well as Dr. Kirkwood and Dr. Rosner. For any identified treatment providers, obtain from the Veteran a completed VA Form 21-4142, Authorization and Consent to Release Information to the Department of Veterans Affairs. For each Release obtained, request the identified records and associate any records obtained with the claims file. 3. Conduct any other development deemed necessary and readjudicate the increased rating claims on appeal. 4. Thereafter, if the Veteran meets the schedular criteria for a TDIU, adjudicate the claim. If not, refer the Veteran’s TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted. Romina A. Casadei Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED