Citation Nr: 18160706
Decision Date: 12/27/18	Archive Date: 12/27/18

DOCKET NO. 17-07 068
DATE:	December 27, 2018
ORDER
Entitlement to an effective date earlier than August 28, 2015, for the assignment of a 20 percent disability evaluation for compression fracture L5-S1 with acquired deformity, thoracolumbar spine, is denied.
FINDING OF FACT
Prior to August 28, 2015, it is not factually ascertainable that the Veteran’s compression fracture L5-S1 with acquired deformity, thoracolumbar spine, had worsened to warrant a 20 percent rating.
CONCLUSION OF LAW
The criteria for an effective date earlier than August 28, 2015, for the assignment of a 20 percent rating for the Veteran’s compression fracture L5-S1 with acquired deformity, thoracolumbar spine, have not been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400.
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Army from October 1983 to July 1985.  A hearing was not requested.
1. Entitlement to an effective date earlier than August 28, 2015, for the assignment of a 20 percent disability evaluation for compression fracture L5-S1 with acquired deformity, thoracolumbar spine
The Veteran is appealing assignment of the August 28, 2015, effective date of the 20 percent rating for compression fracture L5-S1 with acquired deformity, thoracolumbar spine.  
Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after a final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 C.F.R. § 3.400.  Effective March 24, 2015, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual administered by VA.  38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. 
Prior to March 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. The elements of any claim, 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). 
For an increased rating claim, the effective date shall be the earliest date that it is factually ascertainable that an increase in disability occurred, if a claim is received within one year from that date.  38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). Where the increase in disability occurs more than one year prior to the date of claim, the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later.  Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010).
The Veteran is service-connected for compression fracture L5-S1 with acquired deformity, thoracolumbar spine, at an initial noncompensable rating from July 24, 1985, the day after he left active service.  In February 2012, the RO increased his rating to 10 percent from May 20, 2011.  That decision was not appealed and is final.  
On September 15, 2015, the Veteran filed a claim for an increased rating.  In January 2016, the RO increased the Veteran’s rating to 20 percent from August 28, 2015.  As explained by the RO, that was the date of a VA examination indicating worsening of the Veteran’s back disorder based on a limitation of flexion measurement of 80 degrees.  
In his February 2016 notice of disagreement (NOD), the Veteran states that the effective date should be June 24, 2015.  The basis for this date appears to be that on June 24, 2015, the Veteran filed a claim for an increased rating for his right hip disorder.  See February 2016 statement.   
In a May 2015 report of contact, the Veteran further argues “that he believes the increase was shown in 2011” and “wants someone to review his claim for this earlier effective date for the assigned increased evaluation of the low back condition only.”  In his January 2016 VA Form 9, the Veteran indicates that he wants a date of May 20, 2011.  
An effective date of May 20, 2011, is not warranted.  Although the Veteran did submit a claim for an increase that was received by VA on this date, that claim for an increase was finally decided in the February 2012 rating decision.  The Veteran and his representative were notified of this determination.  The February 2012 rating decision is final because no notice of disagreement or new and material evidence was submitted within the one-year appeal period.  38 U.S.C. § 7105 (c); 38 C.F.R. §§ 3.104 (a), 3.156, 20.200, 20.302(a) and (b), 20.1103.
Moreover, an effective date prior to August 28, 2015, is not warranted.  There is no correspondence earlier than September 15, 2015, that can be interpreted as a claim for an increased rating for the Veteran’s back disorder.  On March 18, 2013, the Veteran submitted a request for an increased rating for his statue post fracture of the femur right and pelvis and right leg disabilities.  He did not request an increased rating for his low back disability.  On June 24, 2015, the Veteran filed an increased rating claim for his hip disorder.  On July 31, 2015, the Veteran filed a claim for service connection for a bilateral heel disorder.  Neither filing references a back disorder or symptoms relating to a back disorder, and thus do not constitute a claim for increased rating for the Veteran’s back disability.  The Board acknowledges that the Veteran submitted a screenshot his eBenefits historical claim details, which states that a claim was submitted on June 24, 2015, and that the disabilities claimed included an increased rating for his back disability.  However, a review of the actual claim forms received by VA on these dates show that no claim for an increased rating for the low back was listed on those forms. 
Further, prior to August 28, 2015, there is no lay or medical evidence that the Veteran’s back disorder worsened in severity so as to support a rating of 20 percent.  Although VA treatment records show continued complaints and treatment for a low back disability prior to August 28, 2015, there is no indication that the records that the Veteran’s low back disability worsened or that a 20 percent rating was warranted, and the Veteran points to no such record that he contends supports an earlier effective date. Thus, these records do not show that an increase occurred within one year prior to September 15, 2015, and likewise cannot form the basis of an informal claim for an increase under the provisions of 38 C.F.R. § 3.157 prior to March 2015.
 
Accordingly, the Board finds that the preponderance of the evidence is against the claim for an earlier effective date for the assignment of a 20 percent rating for compression fracture L5-S1 with acquired deformity, thoracolumbar spine.  
 
TRACIE N. WESNER
Acting Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	B. Cannon, Associate Counsel

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