Citation Nr: 21026568 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 19-26 742 DATE: May 3, 2021 ORDER An effective date prior to September 26, 2016, for the grant of service connection for lumbosacral strain is denied. REMANDED The issue of service connection for a cervical spine disorder is remanded. The issue of an initial rating of more than 20 percent since September 26, 2016, for lumbosacral strain, to include the issue of separate compensable ratings, is remanded. The issue of service connection for coronary artery disease (CAD) is remanded. The issue of service connection for prostate cancer is remanded. FINDINGS OF FACT 1. Entitlement to service connection for a lumbar spine disability arose in service. 2. On September 26, 2016, VA received the Veteran's formal claim for service connection for a lumbar spine disability. 3. No informal claim, intent to file a claim, formal claim of service connection, or other communication indicating that the Veteran wished file a claim of service connection for a lumbar spine disability was received by VA prior to the September 26, 2016, claim. CONCLUSION OF LAW The criteria for an effective date prior to September 26, 2016, for the grant of service connection for lumbosacral strain have not been met. 38 U.S.C. §§ 5107, 5110(a); 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served in the United States Army from April 1965 to April 1967 with service in South Korea. He also served in the U.S. Army Reserve and the Army National Guard. On his August 2019 VA Form 9, the Veteran requested a Board hearing. In December 2020, the Veteran withdrew his hearing request. Therefore, the Board will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704(e). Entitlement to an effective date prior to September 26, 2016, for the grant of service connection for lumbosacral strain. The effective date of an award based on an original claim or a claim to reopen after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor. 38 U.S.C. § 5110(a). The effective date shall be the date of receipt of the Veteran's claim or the date on which entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Prior to March 24, 2015, VA regulation provided that any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant may be considered an informal claim. Such 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 from 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 (2014). Effective March 24, 2015, a change in the regulation requires claims be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). The regulation also allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b). There are three ways in which a claimant may submit an intent to file a claim: (i) saved electronic applicationwhen an application otherwise meeting the requirements of paragraph (b) is electronically initiated and saved in a claims-submission tool with a VA web-based electronic claims application system, (ii) written intent, signed and dated on the intent to file a claim form prescribed by the Secretary, and (iii) oral intent communicated to designated VA personnel, recorded in writing, and documented in the claimant's records. Id. The Veteran separated from service in April 1967. However, there is no evidence that he filed a formal or informal claim for service connection for a lumbar spine disability at that time. The only documents in the file before September 26, 2016, are related to his receipt of education benefits. On September 26, 2016, VA received a VA 21-526EZ: Fully Developed Claim, on which the Veteran filed a claim of service connection for a lumbar spine disability. In an October 2017 rating decision, the RO granted service connection for lumbosacral strain and assigned an effective date of September 26, 2016. The lumbosacral strain was determined to have been directly caused by military service. As the lumbosacral strain was determined to have been directly caused by military service, entitlement arose in service. VA received the Veteran's claim for service connection on September 26, 2016. Because the date of receipt of the Veteran's claim of service connection is later in time than the date entitlement arose, the date of claim is the proper effective date of the grant of service connection. VA received the Veteran's claim of service connection on September 26, 2016. There is no evidence that the Veteran submitted any written or oral communication prior to September 26, 2016, that could be interpreted as an informal claim, intent to file a claim, or formal claim for service connection for any disability related to the lumbar spine. There is no evidence that he ever informed anyone at VA that he wished to file a claim of service connection until he submitted his claim on September 26, 2016. Therefore, September 26, 2016, is the proper effective date of the grant of service connection and the appeal is denied. REASONS FOR REMAND 1. The issue of service connection for a cervical spine disorder is remanded. 2. The issue of an initial rating of more than 20 percent since September 26, 2016, for lumbosacral strain, to include the issue of separate compensable ratings, is remanded. 3. The issue of service connection for CAD is remanded. 4. The issue of service connection for prostate cancer is remanded. The matters are REMANDED for the following action: 1. BACKGROUND FOR THE RO ADJUDICATOR: Remand of the issue of service connection for a cervical spine disorder is necessary to obtain a new VA medical opinion. Service connection is in effect for a lumbosacral strain as a result of an in-service fall off a cliff following a dog bite. Additionally, service treatment records (STRs) indicate complaints of back pain and a January 1967 report of medical history states that the Veteran had recurrent back pain with lifting. The Veteran has reported that his cervical spine disorder began as a result of an in service fall. The April 2019 VA examination report states a diagnosis of cervical strain with an onset date of 1966 "during military service," and states that the disorder has progressed since that time. The accompanying medical opinion, however, states that the cervical spine disorder was not caused by service. These statements are in conflict and inconsistent. Remand is necessary to clarify. The April 2019 VA medical opinion is also inadequate because the examiner based the negative opinion solely on a lack of chronicity of care. Service connection may be granted for a disorder diagnosed after service if the evidence indicates that the disorder was caused by service. 38 C.F.R. § 3.303(d). Chronicity of care is not required for a grant of service connection. Therefore, the examiner imposed an additional burden on the Veteran and the opinion is inadequate. Remand is necessary to obtain a new VA medical opinion. Remand of the issue of an increased rating for the lumbar spine disorder is necessary to obtain a new VA examination. VA treatment records indicate lower extremity radiculopathy, which is to be rated as part of the lumbar spine disorder. However, August 2017 and April 2019 VA examination reports state that the Veteran had no radiculopathy. The Veteran has not been afforded a peripheral nerves examination. Remand is necessary to obtain new VA examinations which adequately address the current severity of the Veteran's disorder. Remand of the issues of service connection for CAD and prostate cancer is necessary to attempt to verify the Veteran's reports of in-service exposure to herbicide agents. The Veteran has asserted that he was exposed to herbicide agents while stationed in Korea, as well as in 1965 at Fort Polk, Louisiana, and at Fort Bliss, Texas. Although the Veteran did not serve in Korea during the period when exposure to herbicide agents may be presumed, his file should be referred to the Joint Services Records Research Center (JSRRC) and/or the appropriate service entity to determine whether he was exposed at any time during his active or reserve service. Remand of the issues of service connection for CAD and prostate cancer are also necessary to afford the Veteran VA examinations and to obtain medical opinions as to whether the disorders were caused by or originated in service. 2. Obtain a VA medical opinion from a physician regarding the etiology of the Veteran's cervical spine disorder. If necessary to respond to the inquiries below, schedule the Veteran for a VA examination. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address whether the Veteran's cervical spine disorder was caused by any in-service event, injury, disease, or disorder, or in any way originated during service, including as a result of the fall off a cliff following a dog bite. If the examiner concludes that the disorder did not begin in service, the examiner must explain why that conclusion differs from the April 2019 VA examination report which states an onset date of 1966 "during military service." The examiner is advised that an opinion based solely on the absence of an in-service diagnosis or treatment is inadequate. The examiner is also advised that service connection for the lumbar spine is in effect due to the fall off a cliff and there are several STRs which state that the Veteran had back pain, but do not state whether it was lumbar or cervical spine pain. 3. Schedule the Veteran for VA lumbar spine and peripheral nerves examinations with a physician to obtain an opinion as to the current nature of his lumbar spine and radiculopathy disorders. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address whether the Veteran has right and/or left lower extremity radiculopathy associated with the service-connected lumbosacral strain. If the examiner concludes that the Veteran does not have radiculopathy, they must explain why their opinion conflicts with 2003, 2017, and 2018 VA treatment records indicating treatment for radiculopathy. 4. Contact the JSRRC and/or the appropriate service entity to attempt to verify the Veteran's reports of exposure to herbicide agents during active, reserve, and National Guard service. If the JSSRC determines that there is insufficient information to verify the Veteran's claimed exposure, a formal finding should be made. 5. Schedule the Veteran for VA examinations to obtain an opinion as to the nature and etiology of CAD and prostate cancer. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether CAD was caused by any in-service injury, disease, disorder, or event, or in any way originated during service. (b.) Whether prostate cancer was caused by any in service injury, disease, disorder, or event, or in any way originated during service. Jacqueline E. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Xiong, 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.