Citation Nr: 22010769 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-66 210 DATE: February 24, 2022 ORDER An effective date earlier than April 6, 2015, for the grant of service connection for lumbar spine strain, loss of lordosis and degenerative disc disease affecting L-2 through L-5, (back disability) is denied. FINDINGS OF FACT 1. A November 2013 rating decision that denied service connection for a back disability was final. 2. Prior to April 6, 2015, the Department of Veterans Affairs (VA) did not receive a formal or informal claim for service connection for a back disability. CONCLUSION OF LAW The criteria for an effective date earlier than April 6, 2015, for the grant of service connection for a back disability are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1980 to September 1983. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from an October 2015 rating decision by a VA Regional Office, which is the Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a Board hearing in September 2021, and a transcript of the hearing is associated with the record. At that time, and in his October 2016 Notice of Disagreement and December 2017 substantive appeal, the Veteran argued that the November 2013 rating decision should be revised on the basis of clear and unmistakable error (CUE). However, the Veteran's CUE claim is not part and parcel to his claim for an earlier effective date. Phillips v. Brown, 10 Vet. App. 25, 32 (1997). CUE is a specific challenge to a prior final decision, and must be pled with specificity to the AOJ and adjudicated. Jarrell v. Nicholson, 20 Vet. App. 326, 333 (2006) (en banc). Entitlement to an effective date earlier than April 6, 2015, for the grant of service connection for a back disability. The Veteran contends that an effective date earlier than April 6, 2015, is warranted for service connection for a back disability. In this regard, in his Board testimony and statements of record, he essentially argues that a prior October 2013 VA opinion was erroneous, as shown by later contradicting opinions, and thus he should have been awarded service connection from his original claim in December 2011. However, upon review of the record, the earliest date of record that the Veteran warrants service connection is the current April 6, 2015, date of his application to reopen a claim for service connection, and therefore an earlier effective date is denied. Generally, except as otherwise provided, the effective date of an evaluation and 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. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(b)(2)(i). The record reflects, and the Veteran confirms, that he first applied for service connection for a back disability in December 2011, which was received by VA on December 20, 2011. See December 2011 Statement in Support of Claim. Then, in a November 2013 rating decision, the AOJ denied the Veteran's claim for service connection. The Veteran and his then representative were provided notice of the decision in a November 21, 2013, letter. This notice included a summary of the Veteran's procedural and appellate rights. The Veteran did not directly respond within one year of the November 21, 2013, letter, filing an application to reopen the claims in April 2015, received April 6, 2015. Importantly, under 38 C.F.R. § 3.156(c), if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records, that existed but were not associated with the claims file when VA first decided the claim, VA will reconsider the claim. This regulation does not apply to records that VA could not have obtained when it decided the claim because they did not exist or because the claimant failed to provide sufficient information for VA to identify and obtain the records. An award made based all or in part on such records is effective on the date entitlement arose or the date which VA received the previously decided claim, whichever is later, or such other date as may be authorized by the provisions of this part applicable to the previously denied claim. Here, the Veteran's file includes a set of service medical records listing April 23, 2015, as the date of receipt by the VA Regional Office, and multiple copies of his DD 214, Certificate of Release or Discharge from Active Duty received after his new claim. However, these records were listed in the November 2013 and earlier rating decisions as evidence considered when the original claims for service connection were decided. The DD 214 is an exact copy of one noted to have been received earlier in the record. The records also include an automated response from the records repository showing completion of a VA records request in in November 2013, in connection with his first claim for benefits for a neck condition, with a VA receipt stamp of November 15, 1983, on page 42 of the service records. The erroneous receipt date in the electronic Veterans Benefits Management System (VBMS) file appears to be due to the conversion of the Veteran's file from paper to electronic format. The Board finds that these records were of record at the time of the November 2013 rating decision, and thus the exception under 38 C.F.R. § 3.156(c) is not for application. Nonetheless, a claim remains pending where VA fails to fulfill a statutory duty under 38 C.F.R. § 3.156(b) to determine the character of evidence received within the one-year appeal period following issuance of a rating decision. Beraud v. McDonald, 766 F.3d 1402, 1406 (Fed. Cir. 2014). VA then has an obligation to decide whether the evidence received is new and material to allow finality to attach. Id. In this context, all relevant and reasonably connected VA-generated documents, in particular records created in the course of medical care provided by VA, are "received" into the record and are constructively known by VA adjudicators. Lang v. Wilkie, 971 F.3d 1348, 1352-53 (Fed. Cir. 2020). The Veteran underwent substantial VA medical care in the year following the November 2013 rating decision. VA medical records generated in the one-year period following a rating decision may be constructively received by the adjudicator. See Lang, 971 F.3d at 1355. Not all records generated by VA are constructively of record; instead, only relevant and reasonably connected VA-generated documents are part of the record. Euzebio v. McDonough, 989 F.3d 1305 (Fed. Cir. 2021). For the reasons that follow, the Board finds that the records of care through VA medical providers in the year after November 21, 2013, were not relevant to his claim for service connection. Pertinent to this appeal, the Veteran reported for a scheduled primary care evaluation care on February 26, 2014, which included complaints of chronic back pain. He was again seen for a scheduled primary care nurse visit on June 13, 2014, still having complaints of back pain, but requesting an MRI at that point. October 21, 2014, radiology records show the Veteran underwent an MRI for his thoracic and lumbar spine, which showed disc protrusions, degenerative spurring, foraminal narrowing, and some spinal canal stenosis. The Veteran had additional care, including for neck issues with radiculopathy, mental health, and eye care. See, e.g., March 2014, May 2014, and October 2014 Treatment Records. The Board finds that the Veteran's VA treatment records generated in the year following November 21, 2013, are not relevant to his service connection claims for a back disability. The relevancy limitation of constructive possession does not require that every medical record is now part of the administrative record. Euzebio, supra (citing AZ v. Shinseki, 731 F.3d 1303, 1311 (Fed. Cir. 2013) for the proposition that, to be "relevant," evidence "must tend to prove or disprove a material fact"). In this regard, the November 2013 decision denied the Veteran's claims because there was no nexus to the in-service events. That decision was based on negative opinions from May 2013 and October 2013. The May 2013 opinion was accompanied by a VA examination, which acknowledged he had a currently diagnosed back disability, including osteoarthritis, lordosis, degenerative disc disease, degenerative bone changes, and a strain. The second opinion reviewed the Veteran's service treatment records and opined that the current disorders were not related to the in-service complaints and treatment. The Veteran's back disorders were noted and even treated in February and June 2014, and he underwent further diagnostic testing of an MRI in October 2014, but the records of this care say nothing about the Veteran's service or any incident therein or allude to a relationship between service and the current disabilities. Rather, it is merely duplicative of evidence already in the record. Thus, the Board finds that they have no tendency to prove or disprove a material fact and are not, therefore, relevant to the back claim. See Euzebio, supra. Accordingly, the Board concludes that the Veteran's VA medical records dated between November 22, 2013, and November 21, 2014, were not constructively before the AOJ. The AOJ was not obligated address this evidence until the Veteran filed his application to reopen the claims because the exception to finality under 38 C.F.R. § 3.156(b) was not triggered. See Lang, at 1355; cf. Beraud, 766 F.3d at 1406. Therefore, the Board concludes that the November 2013 decision is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. As such, the remaining question is whether the Veteran filed an informal or formal claim following the November 2013 rating decision but prior to the receipt of his claim on April 6, 2014. Prior to March 24, 2015, any communication or action indicating intent to apply for one or more benefits under the laws administered by VA, was 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. 38 C.F.R. § 3.155(a). After the November 2013 decision and prior to April 6, 2015, the record shows the Veteran did not file either an informal or a formal claim for benefits for a back disability. The only document received by VA in this time was a February 2014 request for the claims file, which did not identify any benefit sought or any argument, and is not considered an informal claim. See Sellers v. Wilkie, 965 F.3d 1328 (Fed. Cir. 2020). Consequently, an effective date earlier than April 6, 2015, for the award of service connection for a back disability is denied. In this regard, there is no communication that may serve as an informal or formal claim for benefits that was received prior to that date, and after the final November 2013 rating decision. There being no doubt to resolve in the Veteran's favor, an effective date prior to April 6, 2015, must be denied. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.