Citation Nr: 0002630 Decision Date: 02/02/00 Archive Date: 02/10/00 DOCKET NO. 99-08 476 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUE Entitlement to an effective date earlier than October 28, 1997, for the grant of service connection for lumbosacral strain with degenerative joint disease evaluated as 40 percent disabling. ATTORNEY FOR THE BOARD T. Robinson, Associate Counsel INTRODUCTION The veteran had active service in the United States Coast Guard from October 1971 to June 1974. This matter comes before the Board of Veterans' Appeals (Board) from a January 1999 rating determination of a Department of Veterans Affairs (VA) Regional Office (RO). That decision granted service connection for lumbosacral strain with degenerative joint disease and assigned a 40 percent disability evaluation, effective October 28, 1997. The effective date of the compensable rating was duly appealed. FINDINGS OF FACT 1. No claim for service connection for a lumbar spine disability was received prior to October 28, 1997. 3. Entitlement to service connection for a lumbar spine disability was initially demonstrated in September 1998, when a VA examiner opined that L5-S1 degenerative joint disease could be related to the service connected T11 fracture. CONCLUSION OF LAW The criteria for an effective date earlier than October 28, 1997, for the grant of service connection for lumbosacral strain with degenerative joint disease have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.157, 3.400 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Factual Background The veteran initially claimed entitlement to service connection for compression fracture of D-10, D-11 in July 1974. His service medical records showed that he injured his back in a lifting incident in 1972 and reinjured his back in July 1973. On the veteran's separation examination he was awarded 10 percent for fracture of a dorsal vertebra. In an October 1972 rating decision the RO granted service connection for compression fracture D-11, and assigned a 10 percent evaluation, effective June 7, 1974. The veteran did not submit a timely notice of disagreement. In September 1993, the veteran requested an increase in evaluation for his service-connected back disability. In September 1993, the veteran underwent radiology studies of the lumbar spine at West Hawaii Imaging Service. The lumbar vertebral bodies, disc spaces and posterior elements reportedly appeared to be intact and well maintained. On VA examination in September 1994, there were no reported findings referable to the lumbar spine. In a September 1994 rating decision, the RO continued and confirmed the 10 percent disability rating for compression fracture, T-11 based on private medical records, VA outpatient treatment records, VA examination report dated in August 1984. The veteran did not submit a timely notice of disagreement. In October 1997, the veteran again requested an increase in the evaluation of his service-connected thoracic spine disability. All of the following evidence was received after October 28, 1997. Medical records dated in October 1995 show that the veteran was seen for lumbar radiculitis and thoracic radiculitis. X- rays of the lumbar spine showed multi-level degenerative disc disease with early hypertrophic changes. Medical report from Kona Hospital Emergency Department dated in November 1996 shows that the veteran was seen with complaints of right flank and abdominal pain. There was mild tenderness over posterior spine in the lower thoracic and high lumbar area with moderate pain to the right flank area primarily on movement with only minimal discomfort to percussion and palpation. A medical report from Kona Hospital Emergency Department dated in December 1996 shows that the veteran was seen with complaints of right flank and low back pain. The diagnosis was right flank and back pain- probable musculoskeletal etiology. A computed tomography of the lumbar spine from North Hawaii Community Hospital dated in January 1997 showed L3-4 left posterior lateral focal disc bulge with probable encroachment upon the existing L3 nerve root on the left. Mild annular disc bulge L5-S1 levels with encroachment upon the left S1 traversing nerve root. In a January 1997 statement, T.S., M.D., evaluated the veteran as a result of ongoing low back pain. The diagnosis was severe intermittent low back pain on top of chronic fluctuating continuous low back pain. Private medical records dated from April to August 1997 show that the veteran was seen for sciatica and lumbar radiculitis. Medical records dated from September to October 1997 show that the veteran was seen with complaints of low back pain and decreased range of motion. The diagnoses were chronic mechanical back pain and degenerative disc disease, lumbosacral spine. The veteran was accorded a VA examination in August 1998. At that time, the veteran complained that he experienced tenderness, spasm with back stiffness, fatigability, and lack of endurance of the thoracolumbar paraspinal muscles. On examination, the thoracolumbar area was tender with spasm. X-rays revealed disc space narrowing L5-S1 and degenerative joint disease lumbar spine. The diagnosis was lumbosacral strain with degenerative joint disease L5-S1. In an addendum dated in September 1998, the August 1998 examiner reported that he could not assess whether a relationship existed between the lumbosacral spine degenerative joint disease and the service-connected T-11 compression fracture. The veteran was accorded a VA examination in December 1998 in order to determine whether there was a relationship between the service-connected T-11 compression and his lower back degenerative changes. The examiner opined that he believed that the veteran's current low back condition and degenerative changes L5-S1 were related to the service- connected compression fracture T-11. Pertinent Law and Regulations Unless otherwise specified, the effective date of an award will be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefore. 38 U.S.C.A. § 5110(a) (West 1991). An exception exists, in that the award of disability compensation will be the day following discharge or release, if application therefor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1) (West 1991). VA regulations clarify that: Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after 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(a) (1999). Analysis In the instant case there is no evidence, nor does the veteran contend, that he filed a claim for service connection for a lumbosacral spine disability prior to October 28, 1997. Thus under applicable laws and regulations, the veteran's claim would not fall under the exception which provides that a grant of service connection will be effective the day following separation from service if the claim is received within one year of such discharge. Accordingly, the proper effective date is the date of claim or the date entitlement arose, whichever is later. Entitlement arose in 1998 when medical professionals opined that there could be a relationship between the lumbar spine disability and the service connected thoracic spine disability. Under the general rule, since there was no claim prior to October 28, 1997, there is no basis for granting service connection prior to that date. The veteran asserts that the laws and regulations contained in Chapters 38 of the United States Code and Code of Federal Regulations should not be controlling in his case. The veteran asserts that he had a lumbosacral spine disability in service and that fact should be recognized in the effective date of his award. However, VA, including the Board, must apply the law and regulations as they have been duly enacted. The veteran is essentially arguing for equitable relief. "Equitable relief is extended sparingly, such as in a case in which a claimant has actively pursued judicial remedies but has filed defective pleadings, or were a claimant has been induced or tricked by his adversary's misconduct." Pfau v. West, 12 Vet. App. 515, 517 (1999) quoting Irwin v. Department of Veterans Affairs, 498 U.S. 89 (1990). The Board is otherwise without jurisdiction to grant equitable relief. A claim for such relief must be raised directly to the Secretary of VA. Suttman v. Brown, 5 Vet. App. 127, 138 (1993) (the Court noted that the authority to award equitable relief under section 38 U.S.C.A. § 503(a) is committed "'to the sole discretion of the Secretary' and that the Board is without jurisdiction to review the Secretary's exercise of that discretion); see Darrow v. Derwinski, 2 Vet. App. 303, 306 (1992). The crux of the veteran's case is that he has not pursued judicial relief prior to October 28, 1997, and therefore, the Board is unable to grant an effective date for the grant of service connection prior to that date. To avoid confusion, in a case such as this one, where the law and not the evidence is dispositive, the claim should be denied or the appeal to the BVA terminated because of the absence of legal merit or the lack of entitlement under the law. Cf. Fed. R. Civ. P. 12(b)(6) ("failure to state a claim upon which relief can be granted"). Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); see also Giancaterino v. Brown, 7 Vet. App. 555, 561 (1995) (construing Sabonis, supra). ORDER Entitlement to an effective date earlier than October 28, 1997 for the grant of service connection for lumbosacral strain with degenerative joint disease, evaluated as 40 percent disabling is denied. Mark D. Hindin Member, Board of Veterans' Appeals