Citation Nr: 21032675 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 20-30 168 DATE: May 27, 2021 ORDER 1. Entitlement to an effective date earlier than May 29, 2018 for the award of service connection for lumbar strain with fusion, stenosis, and degenerative disc disease is denied. REMANDED 2. Entitlement to an initial disability rating for degenerative arthritis of the spine (previously rated as lumbar strain with fusion, stenosis, and degenerative disc disease) in excess of 20 percent prior to September 11, 2020 and in excess of 40 percent thereafter is remanded. 3. Entitlement to a total disability rating for compensation based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran's original claim for service connection for a lumbar spine disability was received on May 29, 2018, and the preponderance of the evidence weighs against a finding that the Veteran submitted an earlier informal claim, formal claim, or written intent to file a claim for service connection for a lumbar spine disability. CONCLUSION OF LAW The criteria for an effective date earlier than May 29, 2018 for the award of service connection for lumbar strain with fusion, stenosis, and degenerative disc disease have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1966 to March 1966. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a December 2020 virtual hearing and a copy of the transcript has been associated with the claims file. Following the hearing, the Veteran's attorney requested a copy of the hearing transcript, which was provided in February 2021. In November 2020, the Veteran's representative submitted a letter requesting a copy of the personnel file and/or the curriculum vitae of the examiner who performed the September 2020 examination involving the Veteran's lumbar spine. In a March 2021 letter, the Board denied the request, as it did not have any documents responsive to the request. However, for the reasons discussed below, the Board finds that further development is required in this matter concerning the Veteran's increased rating claim for the lumbar spine, which is discussed in the remand section below. As such development does not affect the earlier effective date claim, the Board will proceed with adjudication of that matter. Additionally, the Board is mindful that at the December 2020 Board hearing, the Veteran and his attorney agreed that consideration of TDIU was not currently warranted, as the Veteran testified at the hearing that he remained employed above the poverty threshold. However, in light of the Veteran's submission of additional private treatment records, including a January 2021 private opinion that found that the Veteran's impairments render him unable to seek and maintain gainful employment, the Board finds that a TDIU claim has been properly raised by the record, and further development of that issue is warranted and addressed in the remand section below. 1. Entitlement to an effective date earlier than May 29, 2018 for the award of service connection for lumbar strain with fusion, stenosis, and degenerative disc disease. The Veteran claims generally that an effective date earlier than May 29, 2018 is warranted for the award of service connection for lumbar strain with fusion, stenosis, and degenerative disc disease. At the December 2020 Board hearing, the Veteran testified that he originally filed his claim "about ten years ago." However, following a review of the evidence of record, the Board finds that the preponderance of the evidence of record weighs against the Veteran's claim. The reasons for this decision follow. The statutory guidelines for the determination of an effective date of an award of disability compensation are set forth in 38 U.S.C. § 5110 (2012). The general rule regarding effective dates is that the effective date of an award based upon on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. Id. The implementing regulation adds that except as otherwise provided, the effective date of an award of compensation based on an initial claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2020) Prior to March 24, 2015, VA recognized formal and informal claims. An informal claim was "[a]ny communication or action, indicating an intention to apply for one or more benefits.... Such informal claim must identify the benefit sought." 38 C.F.R. § 3.155(a) (prior to March 24, 2015). 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). Effective March 24, 2015, VA no longer recognized informal claims. See 79 Fed. Reg. 57,660-01 (2015). In their place, VA recognizes "an intent to file a claim," which may be submitted electronically, on a prescribed intent to file form, or through an oral communication to certain VA employees that is later recorded in writing. 38 C.F.R. § 3.155(b)(1)(i)-(iii). If VA receives a complete application form as defined in 38 C.F.R. § 3.160(a) within one year of receipt of an intent to file, VA will consider the complete claim filed as of the date the intent to file was received. 38 C.F.R. § 3.155(b). A review of the record documents that on May 29, 2018, the Veteran submitted a completed VA Form 21-526, Application for Disability Compensation and Related Compensation Benefits. A June 2018 letter from VA to the Veteran confirms that his application was received by VA on May 29, 2018. This is the basis of the currently assigned effective date of May 29, 2018 for the award of service connection for the Veteran's lumbar spine disability. The Board has considered the evidence of record; however, there is no probative evidence of a prior claim, informal claim, or intent to file submitted by the Veteran prior to May 29, 2018. Although the Veteran asserted at the December 2020 Board hearing that his initial lumbar spine claim was filed in approximately 2010, the Board notes that while the record documents the Veteran submitted formal claims for service connection for bilateral knee and right foot disabilities in November 2010, there is no probative evidence that he claimed a lumbar spine disability at that time, or at any time prior to May 29, 2018. For example, within the November 2010 application, when asked what disabilities he was claiming, the Veteran wrote "knee injury." When asked to tell VA how his disabilities are related to his military service, the Veteran described an incident, where he slipped and fell and injured his "right knee and foot" and that his knee was swollen the next day. There was no documentation of low back or lumbar spine pain or injury. To the extent that entitlement to the benefit sought may have arisen for a lumbar spine disability prior to May 29, 2018, the Board finds it dispositive that the Veteran first claim for service connection for a lumbar spine disability was not received until May 29, 2018. On that date, the Veteran submitted a VA Form 21-526EZ, Application for Disability Compensation and Related Compensation Benefits, where he listed he was seeking benefits for a lumbar spine injury. In the attached evidence, the Veteran included a statement entitled, "Disclosure of spinal issues [Veteran's name] May 2018." These facts show that this is when the Veteran showed an intent to file the claim for service connection for a lumbar spine disability. To the extent that the Veteran complained of, or was treated for, a lumbar spine disability prior to the currently assigned effective date, the Board notes that the date of a treatment record does not constitute an informal claim prior to March 2015 when service connection has not yet been established. Additionally, although a January 2021 private medical opinion by Dr. Frank A. Graf, M.D., concluded that the Veteran had an 80 percent impairment referencing the lumbosacral spine with advanced anatomical changes and functional impairment, which had been present well before September 2020 and is properly rated at 80 percent since 2010, the Board finds that this opinion is not probative in the context of the Veteran's effective date claim, as it does not constitute evidence of an informal or formal claim prior to May 29, 2018. In cases such as this, where the law is dispositive and the case turns on undisputed facts regarding the date of receipt of a claim, the appeal should be denied because of the absence of legal merit. As the proper effective date can be no earlier than the date of claim, an earlier effective date for the award of service connection for a lumbar spine disability is denied. REASONS FOR REMAND 2. Entitlement to an initial disability rating for degenerative arthritis of the spine (previously rated as lumbar strain with fusion, stenosis, and degenerative disc disease) in excess of 20 percent prior to September 11, 2020 and in excess of 40 percent thereafter is remanded. As noted in the Introduction above, in November 2020, the Veteran's representative submitted a letter requesting a copy of the personnel file and/or the curriculum vitae of the examiner who performed the September 2020 examination involving the Veteran's lumbar spine. As the Veteran's representative has raised a challenge to the competency of the VA examiner, a remand is necessary to obtain information regarding the examiner's qualifications. See Francway v. Wilkie, 930 F.3d 1377 (2019) (holding that once a challenge to an examiner's competency is raised, the presumption of competency is rebutted, and VA must satisfy its burden of persuasion as to the examiner's qualifications and respond to the challenge by providing information about the qualifications of a medical examiner to the veteran). 3. Entitlement to a TDIU rating is remanded. As noted in the Introduction above in light of the Veteran's submission of a January 2021 private opinion that found that the Veteran's impairments render him unable to seek and maintain gainful employment, the Board finds that a TDIU claim has been properly raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Notably, the Veteran has not submitted a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. While such form is not required, it assists VA with making a determination of entitlement to a TDIU rating when the past work history and educational history are all located in the form. Thus, the Veteran will be asked to complete the form to assist VA with developing and adjudicating this claim, if the Veteran is seeking TDIU. The matters are REMANDED for the following action: 1. Provide the Veteran and his representative with information regarding the qualifications of the examiner who performed the September 11, 2020 "Back (Thoracolumbar Spine) Conditions examination, to include a CV and/or other similar material. This information is to be associated with the Veteran's claims file to allow the opportunity for the Veteran and/or his representative to review the qualifications and explain the basis or bases for why the Veteran believes that the examiner(s) is not competent. 2. Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, and request that he complete the form in its entirety to assist VA with adjudicating this claim, if he is seeking this benefit. 3. After the above is complete, allow an appropriate time period for response, and conduct any additional development warranted before readjudicating the claims on appeal. A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Chad Johnson, 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.