Citation Nr: 1322982 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 13-09 932 ) DATE ) ) Received from the Department of Veterans Affairs (VA) Medical and Regional Office Center (ROC) in Wichita, Kansas THE ISSUES 1. Entitlement to an earlier effective date than November 22, 2011, for the award of service connection for radiculopathy of the right lower extremity. 2. Entitlement to an earlier effective date than November 22, 2011, for the award of service connection for radiculopathy of the left lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The Veteran served on active duty from June 1958 to June 1960. Following an October 2011 remand of the matters on appeal by the Board of Veterans' Appeals (Board), in an October 2012 rating decision, the Appeals Management Center (AMC) in Washington, DC granted service connection for radiculopathy of the right and left lower extremities as secondary to service-connected degenerative disc disease of the lumbar spine. The current appeal to the Board arose from the Veteran's disagreement with the effective dates assigned for these awards of service connection. In November 2012, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued by the ROC in March 2013 and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in April 2013. This appeal has been advanced on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate each claim on appeal have been accomplished. 2. A claim for service connection for bilateral radiculopathy of the lower extremities as secondary to service-connected lumbar spine disability was received from the Veteran on September 21, 2009. 3. Although a medical opinion confirming that the Veteran has radiculopathy of each lower extremity etiologically related to his service-connected lumbar spine disability was not obtained until November 22, 2011, competent, credible lay and medical evidence suggests that the Veteran experienced radiculopathy of the lower extremities associated with his service connected back disability since the time of the filing of his claim in September 21, 2009. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in the Veteran's favor, the criteria for an effective date of September 21, 2009, for a award of service connection for radiculopathy of the right lower extremity are met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2012). 2. Resolving all reasonable doubt in the Veteran's favor, the criteria for an effective date of September 21, 2009, for the award of service connection for radiculopathy of the left lower extremity are met. 38 U.S.C.A. §§ 5103, 5103A, 5107(b), 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.400 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Given the favorable disposition of the claims on appeal, the Board finds that all notification and development actions needed to fairly adjudicate these claims have been accomplished. II. Analysis When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990), the United States Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Board notes, at the outset, that it has reviewed all of the evidence of record. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Generally, the effective date for an award of service connection is the date of receipt of the claim or date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Considering the facts of this case in light of the above, and resolving all reasonable doubt in the Veteran's favor, the Board finds that September 21, 2009, is the correct effective date for the awards of service connection for radiculopathy of the right and left lower extremities. The basic facts in this case are not in dispute, As the record reflects, a claim for service connection for bilateral radiculopathy of the lower extremities as secondary to service-connected lumbar spine disability was received from the Veteran on September 21, 2009. In this claim, the Veteran described symptoms of a "nerve" condition, to include numbness and weakness, in his lower extremities to his service connected degenerative disc disease of the lumbar spin. Pertinent evidence then of record included records associated with a July 2009 electromyogram (EMG) ordered in conjunction with a VA examination completed in that month which revealed findings "weakly suggestive of a long standing (at least six months duration) and inactive left L5 radiculopathy" but "no electrodiagnostic evidence of active radiculopathy affecting the lower extremities." Following July 2009 examination of the Veteran and review of the EMG results, the pertinent assessment of the VA examiner was "right greater than left leg numbness, without findings on neurologic examination and with only minimal findings on electrodiagnostic testing of a long standing and inactive left L5 radiculopathy." In conjunction with the Veteran's claim for claim for service connection for bilateral radiculopathy of the lower extremities as secondary to service-connected lumbar spine disability, in the October 2011 remand, the Board directed that the Veteran be afforded a VA examination to obtain an opinion confirming whether the Veteran had any lower extremity nerve disorder that was related to service or the service-connected lumbar degenerative disc disease. The requested VA examination was completed on November 22, 2011, at which time a VA examiner observed that mild incomplete paralysis was demonstrated, bilaterally, in the peroneal and tibial nerves. A peripheral nerve disorder, L5 radiculopathy, was diagnosed by the examiner, and the examiner found it at least as likely as not that this radiculopathy was "related to [a] history of back trouble which began while [the] [V]eteran was on active duty." Based on the examination clinical findings and opinion of the November 2011 VA examiner, in the October 2012 rating decision, the AMC granted service connection for radiculopathy of the right and left lower extremities as secondary to service-connected degenerative disc disease of the lumbar spine. As indicated, the effective date assigned for these awards was November 22, 2011, the date of the VA examination described immediately above. The Board points out that a layperson is competent to report on matters observed or within his or her personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93(1993). The Veteran is also competent to testify about observable symptoms or injury residuals. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, the Board finds that the Veteran's assertions of continuity of neurological symptoms associated with his service-connected lumbar disc disease since the filing of his September 2009 claim for service connection for bilateral radiculopathy of the lower extremities to be credible and consistent with medical evidence of record at the time this claim was filed. In this regard, while the VA neurological examination of the lower extremities in July 2009 was characterized as "negative" and it was noted that there was no electrodiagnostic evidence of active radiculopathy affecting the lower extremities at that time, bilateral leg numbness was noted on examination, and the electrodiagnostic testing in July 2009 was interpreted as demonstrating some, albeit minimal, findings of L5 radiculopathy. In short, although a medical opinion confirming that the Veteran has radiculopathy of each lower extremity etiologically related to his service-connected lumbar spine disability was not obtained until November 22, 2011, competent, credible lay and medical evidence suggests that the Veteran experienced radiculopathy of the lower extremities associated with his service connected back disability since the time of the filing of his claim in September 21, 2009. Although the evidence prior to November 22m 2011 was not then definitive, the Board finds there to be, at least, an approximate balance of the positive and negative evidence as to whether radiculopathy of the lower extremities associated with, or secondary to, the service-connected lumbar disc disease was present from the time the Veteran filed the claim that gave rise to this appeal on September 21, 2009, such that entitlement to service connection for this disability "arose" at that time. The Board points out that, when, after careful consideration of all procurable and assembled data, a reasonable doubt arises as to whether a claim should be granted, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet App. at 53-56. Accordingly, given the facts noted above, and resolving all reasonable doubt in the Veteran's favor on the question of when entitlement to the benefits awarded arose, the Board finds that the criteria for an effective date of September 21, 2009, for the awards of service connection for radiculopathy of the right and left lower extremities are met. ORDER An effective date of September 21, 2009, for the award of service connection for radiculopathy of the right lower extremity is granted, subject to the legal authority governing the payment of monetary benefits. An effective date of September 21, 2009, for the award of service connection for radiculopathy of the left lower extremity is granted, subject to the legal authority governing the payment of monetary benefits. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs