Citation Nr: 1332275 Decision Date: 10/18/13 Archive Date: 10/24/13 DOCKET NO. 10-16 056 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to an effective date earlier than February 13, 2004, for the grant of service connection for right lower extremity neuropathy. 2. Entitlement to an effective date earlier than February 13, 2004, for the grant of service connection for right lower extremity neuropathy. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from November 1975 to November 1978. This appeal to the Board of Veterans' Appeals (Board) is from a May 2009 decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC) in Washington, DC. In this decision, the RO granted service connection for neuropathy of the right and left lower extremities, secondary to service-connected hemilaminectomy, and assigned initial disability ratings of 10 percent, effective July 3, 2008. In a March 2010 decision, the RO granted earlier effective dates of February 13, 2004, for these disabilities. FINDINGS OF FACT 1. The Veteran filed a claim for a disability rating in excess of 10 percent for her service-connected hemilaminectomy on October 1, 2003. 2. On February 13, 2004, the Veteran submitted a statement in support of her claim for an increased rating describing sciatic pain beginning in her lower back and shooting down through her buttocks and either leg. 3. The Veteran's service-connected back disability was manifested by right and left lower extremity impairment since she filed a claim for a higher rating for her low back disability on October 1, 2003, which existed for many years prior to the claim. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 1, 2003 for the grant of service connection for right lower extremity neuropathy are met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). 2. The criteria for an effective date of October 1, 2003 for the grant of service connection for left lower extremity neuropathy are met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. § 3.400 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran seeks an effective date of October 1, 2003 for the grant of service connection for right and left lower extremity neuropathy. She maintains that she is entitled to the 10 percent ratings assigned for the grant of service connection for right and left lower extremity neuropathy as secondary to her service-connected back disability from October 1, 2003, the date she filed her claim for an increased rating for the back disability. For the reasons explained below, the Board finds that an earlier effective date of October 1, 2003 is warranted. As this represents a complete grant of the benefit sought on appeal, no discussion of VA's duty to notify and assist is necessary. Here, the Veteran filed a claim for an increased rating for the service-connected hemilaminectomy on October 1, 2003. At that time, the Veteran did not indicate she suffered from any neuropathy of her lower extremities as a result of her back disability. However, prior to her claim for an increased rating, the Board notes that a March 1995 VA examination report reveals a diagnosis of bilateral sciatica. A statement received on February 13, 2004 specifically noted that the Veteran experiences sciatica pain beginning in her lower back and shooting down through the buttocks to either leg. She also reported numbness. In addition, a November 1984 Physical Evaluation Board report reflects that the service department determined that he Veteran's low back disability was productive of "persistent L-5 radiculopathy. Further, in her December 2004 Notice of Disagreement challenging the RO's September 2004 determination that a higher rating was not warranted for her low back disability, the Veteran cited her bilateral lower extremity impairment in support of her claim of a higher rating for that disability. VA treatment records dated from March through December 2004 also note reports of pain and numbness in the legs. Specifically, the December 2004 VA treatment record indicates that the Veteran had low back pain likely secondary to sciatica. The report of a September 2004 VA compensation examination noted the Veteran reported numbness and tingling with her description of sciatica. Upon psychical examination, the examiner found strength to be 5/5 in the extremities but with straight leg raise positive at 65 degrees. Nevertheless, a diagnosis of neuropathy was not provided. In February 2005, the Veteran underwent a VA examination specifically to assess her claim of leg nerve involvement secondary to her service-connected back disorder. At this examination, an electromyography (EMG) was conducted, as well as a clinical examination. The examiner indicated that he had been asked to assess whether the Veteran had a left leg radiculopathy secondary to her back disorder. He opined that the Veteran does not have evidence of radiculopathy. However, it was unclear whether the examiner's opinion was addressing radiculopathy of either leg or just the left leg. The Veteran was again examined in January 2006. During this examination, the VA examiner again determined there was no evidence of radiculopathy. In July 2008, the Veteran was scheduled for a VA neurological examination to specifically address whether the Veteran's suffers from neuropathy of the lower extremities that may be attributable to her back disability. The July 2008 VA examiner provided a diagnosis of bilateral neuropathy of the lower extremities and stated that these disorders are due to or a result of her service-connected back disability. Based on this VA examination, the RO granted service connection for bilateral lower extremity neuropathy in the May 2009 decision currently on appeal and assigned an effective date of July 7, 2008. Thereafter, the RO granted an earlier effective date of February 13, 2004, the date of the Veteran's statement indicating she suffered from sciatica. The Veteran's service-connected residuals of hemilaminectomy are currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2013). Pursuant to 38 C.F.R. § 4.71a, Note (1) states that when evaluating disabilities, any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code are to be evaluated. Therefore, the Veteran's associated bilateral neuropathy of the lower extremities is considered a manifestation of the service-connected back disability that must be taken into consideration when rating her back disability. As such, she did not have to file a separate claim of entitlement to service connection for bilateral neuropathy of the lower extremities in order to establish her entitlement to separate ratings for these disabilities. Consequently, the provisions governing the assignment of effective dates for increased ratings, as opposed to service connection, are applicable in this case. Generally, the effective date for an increased rating is the date of receipt of the claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(o)(1). If, however, the claim is filed within one year of the date that the evidence shows that an increase in disability has occurred, the effective date is the earliest date as of which an increase is factually ascertainable (not necessarily the date of receipt of the evidence). 38 C.F.R. §§ 3.157 (b)(1); 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). If the increase occurred within one year prior to the claim, the increase is effective as of the date the increase was "factually ascertainable." If the increase occurred more than one year prior to the claim, the increase is effective the date of the claim. 38 C.F.R. § 3.400(o)(1),(2). If the increase occurred after the date of the claim, the effective date is the date of increase. Id. For VA compensation purposes, a "claim" is defined as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). An informal claim is "[a]ny communication or action indicating an intent to apply for one or more benefits." It must "identify the benefit sought." 38 C.F.R. § 3.155(a). Thus, the essential elements for any claim, whether 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). Here, it is not disputed that the Veteran filed her claim for an increased disability rating for her back on October 1, 2003. There are no other communications from the Veteran dated within the one year preceding this claim that may be construed as a claim for an increased rating. The Board notes that the evidence shows the Veteran has suffered from symptoms associated with her bilateral neuropathy of the lower extremities since the March 1995 VA examination that diagnosed bilateral sciatica. However, as stated, the Veteran filed a claim for an increased rating for her back disability on October 1, 2003. Therefore, the March 1995 VA examination is well outside of the one year period that would allow for the assignment of an earlier effective date. In summary, the Board finds that the Veteran sought an increased rating for her back disability on October 1, 2003. Thus, the effective date of her 10 percent ratings for bilateral neuropathy of the lower extremities effective on that date. ORDER An effective date of October 1, 2003 for the grant of service connection for right lower extremity neuropathy is granted. An effective date of October 1, 2003 for the grant of service connection for left lower extremity neuropathy is granted. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs