Case 26005018

Summary

The veteran, who served in the United States Air Force from September 1975 to May 1979, appeals a March 2018 Rating Decision concerning his neck disability. The veteran sought an earlier effective date for service connection, arguing that his original claim from January 1980 should be reconsidered under 38 C.F.R. § 3.156(c) due to newly associated service records. The Board denied this, finding the February 1980 decision final because the veteran failed to attend a scheduled VA examination and did not submit a timely appeal or new evidence. The Board determined that the records referenced by the veteran were already available in 1980 and did not speak to the basis of the original denial, thus not warranting reconsideration under § 3.156(c). The earliest effective date for service connection was confirmed as September 7, 2017. The claim for an increased rating for the neck disability was remanded because the last VA examination was conducted nearly five years prior, and the veteran reported worsening symptoms, including increased pain and radiculopathy, since that examination. The Board found a new examination necessary to accurately assess the current severity and functional loss, and to evaluate any neurological symptoms.

Rationale

Original claim denied in February 1980 for failure to attend VA examination.; No timely appeal or new evidence submitted until September 7, 2017.; February 1980 decision is final; reconsideration under 38 C.F.R. § 3.156(c) not warranted as new records did not speak to basis of prior denial.

Full Decision Text

Citation Nr: 26005018
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 20-09 945
DATE: April 28, 2026

ORDER

Entitlement to an effective date prior to September 7, 2017, for the award of service connection for a neck disability, is denied.

REMANDED

Entitlement to an increased rating in excess of 30 percent for a neck disability is remanded.

FINDINGS OF FACT

1. The Veteran was initially denied service connection for a neck disability in a February 1980 decision letter, which became final.

2. The Veteran filed to reopen his previously denied claim for entitlement to service connection for a neck disability on September 7, 2017.  There was no other formal or informal claim filed from the time of the February 1980 decision letter until the September 2017 claim.

CONCLUSION OF LAW

The criteria for an effective date prior to September 7, 2017, for the grant of service connection for a neck disability, have not been met.  38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty in the United States Air Force from September 1975 to May 1979.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 Rating Decision issued by a Department of Veterans Affairs (VA) Regional Office (RO).  In May 2022, the Veteran testified before the undersigned Acting Veterans Law Judge; a transcript of the hearing has been added to the claims file.

The Board most recently denied the claims for an earlier effective date and increased rating for the neck in February 2025 decision. The Veteran appealed the Board's denial to the Court, resulting in the November 2025 Joint Motion for Remand (JMR), where the Court vacated the February 2025 Board decision, and remanded the issues for readjudication consistent with the JMR.

The Board notes that the basis for the Court's JMR was strictly based on the Board's compliance with regulations pertaining to hearing cases under for Legacy claims under 38 C.F.R. § 20.604.  Here, the Veteran presented testimony at a Board hearing before Acting Veterans Law Judge Mary Rude, however, the February 2025 Board decision was signed by a different judge.  As such, the Court remanded the claim to comply with the regulations in which the judge who conducted the hearing, must adjudicate the claim before the Board. See 38 C.F.R. § 20.604.  The Board notes that such compliance with 38 C.F.R. § 20.604 has now been resolved, as this decision will be determined and signed by the Acting Veterans Law Judge who conducted the January 2022 Board hearing for the claims. 

Earlier Effective Date for Service Connection for a Neck Disability

Generally, the effective date of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.  The effective date based upon a grant of direct service connection will be the day following service from active service or date entitlement arose if claim is received within one year after separation from service; or the date entitlement arose, whichever is later.  38 C.F.R. § 3.400(b)(2).

Prior to March 24, 2015, when VA amended its rules as to what constitutes a claim, a claim was a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit.  38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p).  The date of receipt shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought.  38 C.F.R. § 3.155.

The Veteran claims that an earlier effective date should be assigned for his grant of service connection for a neck disability.
 shall be the date on which a claim, information or evidence was received by VA.  38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r).  Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim.  Such informal claims must identify the benefit sought.  38 C.F.R. § 3.155.

The Veteran claims that an earlier effective date should be assigned for his grant of service connection for a neck disability.  Having carefully reviewed the evidence of record, the Board finds no basis upon which to assign an effective date earlier than September 7, 2017, for the grant of service connection for a neck disability.

By way of procedural history, the Veteran initially filed a claim for service connection for a neck disability in January 1980; that claim was ultimately denied in a February 1980 decision notification letter, as the Veteran did not appear for a scheduled VA examination to assess the nature and etiology of his claimed neck disability and the evidence of record was insufficient for rating purposes.  Subsequent to the denial, the Veteran did not file a timely Notice of Disagreement (NOD), formal or informal, or any additional evidence to support his claim.  Indeed, a close review of the claims file and record shows no correspondence from the Veteran, or his representative, until September 7, 2017, when he submitted an Intent to File (VA Form 21-0996) for his claim for service connection for a neck disability.  Therefore, the February 1980 denial is final.

Thereafter, the Veteran filed a claim to reopen his previously denied claim for service connection for a neck disability in December 2017.  That claim was ultimately granted by the RO, and upon implementation from the RO, the disability was assigned a 30 percent rating, effective September 7, 2017, the date VA received the Veteran's Intent to File.

Therefore, the period in question for an earlier effective date for the Veteran's claim of service connection is from February 1980 to September 7, 2017.

Review of the record reveals no communication between the February 1980 decision letter until the September 7, 2017, Intent to File regarding the issue of service connection for a neck disability that could be reasonably construed as a claim of entitlement to benefits, or, even, an informal NOD for the previous denial. To this end, VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed and the mere presence of medical evidence that a Veteran suffers from a disability does not establish intent on the part of the Veteran to seek connection for that disability.  See Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).  The Board accepts that the Veteran may have suffered from a neck disability prior to the date of receipt of his application for VA compensation in September 2017.  The law, however, dictates that the effective date of entitlement is the date of the receipt of the claim, or the date entitlement arose, whichever is later.  38 U.S.C. § 5110(a); 38 C.F.R. § 3.400; [emphasis added].  Therefore, the effective date for the grant of service connection for anxiety is appropriately September 7, 2017, and no earlier.

The Board acknowledges that the Veteran argued in August 2018 that he had not been notified of the VA examination in 1980, and therefore it was not fair to base the denial on his failure to report, and that the original claim should still be considered pending.  The record shows, however, that the Veteran was scheduled for an examination in January 1980, and then he called VA to tell them that he was unable to report to any examinations until after 4:30 PM, but he was told that examinations could only be scheduled between 8 AM and 2 PM.  There is no indication of any follow up from the Veteran requesting to reschedule the examination.  The Veteran was then sent a notification letter in February 1980 informing him that his claim would be denied because he had not reported to the examination.  The address it was sent to was the same Wisconsin address that the Veteran had put on his January 1980 claim.  This evidence shows that the Veteran was notified of the VA examination and informed VA that he would not be attending it.  The Veteran also was sent notice
 and then he called VA to tell them that he was unable to report to any examinations until after 4:30 PM, but he was told that examinations could only be scheduled between 8 AM and 2 PM.  There is no indication of any follow up from the Veteran requesting to reschedule the examination.  The Veteran was then sent a notification letter in February 1980 informing him that his claim would be denied because he had not reported to the examination.  The address it was sent to was the same Wisconsin address that the Veteran had put on his January 1980 claim.  This evidence shows that the Veteran was notified of the VA examination and informed VA that he would not be attending it.  The Veteran also was sent notice that this was the reason for the denial of his claim, and he did not respond with any disagreement about this decision or request to have the examination rescheduled.  There is no clear evidence indicating that this notification letter was not properly sent to the Veteran, and no procedural basis is found that would render the February 1980 decision non-final and therefore still pending.  See Romero v. Tran, 33 Vet. App. 252, 254, 259 (2021) (There is a presumption of regularity that government officials, including VA employees and examiners, have properly discharged their duties absent clear evidence to the contrary.).  

The Veteran has also argued, through his representative, that an earlier effective date is warranted because he had initially filed a claim for service connection in January 1980.  This claim was then denied because the Veteran failed to report for a VA examination.  The Veteran's representative wrote in March 2026 that when he refiled the claim in December 2017, VA associated previously unobtained service treatment records for the first time.  He wrote that these records included the March 1979 DD Form 214, a March 1976 Third Party Liability Notification Form, a March 1976 Line of Duty Determination Form recording the 1976 motor vehicle accident, and February-March 1976 clinical records documenting treatment following a March 1976 motor vehicle accident.  He argued that the subsequent grant of service connection was based, at least in part, on these newly received records, and that pursuant to 38 C.F.R. § 3.156(c), the original claim should be reconsidered, and the original date of the claim for service connection should be applied.

Any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim.  38 C.F.R. § 3.156(c)(1).  "[T]he context of § 3.156(c) makes clear that, in order to be 'relevant' for purposes of reconsideration, additional records must speak to the basis for the VA's prior decision."  Kisor v. McDonough, 995 F.3d 1316, 1323 (Fed. Cir. 2021).

The Board finds that the Veteran's argument is not persuasive, because a review of the record shows that the records referenced by the Veteran were already obtained in January 1980, including his DD Form 214, service treatment records that included February 1976 clinical records for treatment and X-rays following an automobile accident, a February 1976 In Line of Duty Determination, and the March 1979 Separation Examination.  

While some additional service personnel records were obtained in 2018 and associated with the claims file, these records do not contain any additional, relevant documents which spoke to the basis for VA's prior decision.  The claim was denied in February 1980 because the Veteran had failed to attend the VA examination.  The fact that he was in an automobile accident in February 1976 was already well established by the service treatment records in the file at that time, and once the Veteran did attend a VA examination in February 2018, these are the same records that were referenced by the VA examiner in providing a positive medical opinion, and which then allowed the Regional Office to issue the March 2018 rating decision that granted the claim.  The Board therefore finds that reconsideration of the February 1980 denial is not warranted, and an earlier effective date cannot be assigned under the provisions of 38 C.F.R. § 3.156(c).

In sum, the Board finds that the February 1980 decision is final, and reconsideration of that decision is not warranted based on the receipt of any new service records.  The Veteran did not submit a new claim for service connection for a neck disability until September 7, 2017, and there are no communications from the Veteran prior to this date which could be construed as a formal or informal
 positive medical opinion, and which then allowed the Regional Office to issue the March 2018 rating decision that granted the claim.  The Board therefore finds that reconsideration of the February 1980 denial is not warranted, and an earlier effective date cannot be assigned under the provisions of 38 C.F.R. § 3.156(c).

In sum, the Board finds that the February 1980 decision is final, and reconsideration of that decision is not warranted based on the receipt of any new service records.  The Veteran did not submit a new claim for service connection for a neck disability until September 7, 2017, and there are no communications from the Veteran prior to this date which could be construed as a formal or informal claim for benefits.  September 7, 2017 is the earliest effective date that can be assigned.  Accordingly, the claim for an earlier effective date is denied.  There is no doubt to resolve.  38 U.S.C. § 5107(b).

REASONS FOR REMAND

Entitlement to an increased rating in excess of 30 percent for a neck disability is remanded.

With regard to the claim for an increased rating for a neck disability, the Board finds that the Veteran was last provided an examination in 2021, nearly five years ago.  The Board recognizes that, generally, the mere passage of time is not a sufficient basis for a new examination.  Palczewski v. Nicholson, 21 Vet. App. 174 (2007).  However, the Board notes that claims of a worsening condition regarding the symptoms of his neck disability have been set forth by the Veteran since that examination, specifically during the hearing before the undersigned.  

When available evidence is too old for an adequate evaluation of the current condition, VA's duty to assist includes providing a more current examination. Weggenmann v. Brown, 5 Vet. App. 281 (1993).  The Board finds that not only is the last examination remote, but the examination appears to no longer indicate the Veteran's current level of disability and functional loss.  Consequently, after all outstanding medical records are associated with the claims file, a more contemporaneous examination is needed to rate the Veteran's claims for increased ratings for his neck disability.  Allday v. Brown, 7 Vet. App. 517 (1995); Caffrey v. Brown, 6 Vet. App. 377 (1994); Snuffer v. Gober, 10 Vet. App. 400 (1997). 

Here as noted in his previous remand in April 2024, at his January 2022 Board hearing, the Veteran discussed his neck condition symptoms, including more frequent and severe flare ups. He stated that his neck condition had worsened since he last had a VA examination, and that since that time, he has had increased pain and radiculopathy of his bilateral upper extremities. These worsening reports have been reemphasized by his representative since the Court remand, in a March 2026 brief.  Therefore, as the Veteran has indicated that his neck disorder has worsened since the last VA examination, and the Board accepts that a new VA examination should be conducted to determine the current severity of his cervical spine. See Snuffer v. Gober, 10 Vet. App. 400 (1997) (noting that a claimant is entitled to a new VA examination where there is evidence that the condition has worsened since that last examination). 

Furthermore, in making such determination, the Board notes that this claim was previously remanded by the Board in April 2024 to explicitly afford the Veteran a VA examination for this exact purpose.  However, despite adequate notice and opportunity to attend a VA examination for his neck, the Veteran was a "no show" to his appointment. Prior to the Board's last February 2025 denial, neither the Veteran, nor his representative, provided good cause with regards to why the Veteran missed that examination that may have provided vital evidence to his claim.  However, since that Court's JMR, the Veteran's representative has provided basis, and good cause, by noting that the Veteran requested a rescheduling of the scheduled examination with the third party vendor, due to a medical conflict, and that such examination was never rescheduled.  The Board finds that such basis to be considered good cause, and as such, the Veteran should be afforded another opportunity on remand to attend a VA examination to assess the nature and severity of his service-connected neck disability. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). 

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records.

2. Send to the?Veteran a letter?requesting?that he provide sufficient information and a signed and
 and good cause, by noting that the Veteran requested a rescheduling of the scheduled examination with the third party vendor, due to a medical conflict, and that such examination was never rescheduled.  The Board finds that such basis to be considered good cause, and as such, the Veteran should be afforded another opportunity on remand to attend a VA examination to assess the nature and severity of his service-connected neck disability. See Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). 

The matters are REMANDED for the following action:

1. Obtain any outstanding VA treatment records.

2. Send to the?Veteran a letter?requesting?that he provide sufficient information and a signed and dated authorization, via a VA Form 21-4142 to enable VA to obtain?all outstanding, relevant private treatment records pertaining to his neck disorder. ?He should be informed that he may also?submit?these records himself.? If the?Veteran provides completed release forms authorizing VA to obtain these treatment records, then?attempt?to obtain them with at least one follow-up request if no reply is received. 

3. Schedule the Veteran for an examination to determine the current severity of his cervical spine disability. The examiner must review all relevant records in the claims file. 

a) The examiner should perform all necessary tests to evaluate the current severity of his cervical spine disability, including making determinations of additional range of motion loss with repeated motion or during a flare up, which the Veteran has reported having. 

b) The examiner must also evaluate any neurological symptoms associated with his cervical spine disability, including any current radiculopathy and the Veteran's reports of having tingling in his hands and fingers. If the Veteran's neurological symptoms are found to be due to a cause separate from his cervical spine disability, the examiner must fully explain what that is. 

c) The examiner is asked to address the Veteran's reports that he takes pain-reducing medication which lessens his symptoms, and whether it is possible to determine the range of motion in the Veteran's neck without the ameliorative effects of medication.  If it is not possible, please explain why.

 

 

Mary E. Rude

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Ziheng Zhu, 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.