Citation Nr: 1701167 Decision Date: 01/17/17 Archive Date: 01/27/17 DOCKET NO. 12-31 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Whether the Veteran's substantive appeal of a January 2010 rating decision that reduced his VA compensation benefits from 40 to 10 percent due to incarceration following conviction of a felony was timely received. 2. Entitlement to an effective date earlier than December 31, 2012, for the award of service connection for radiculopathy of the right lower extremity associated with service-connected residuals of lumbar spine fusion with posttraumatic arthritis. 3. Entitlement to an effective date earlier than December 31, 2012, for the award of service connection for radiculopathy of the left lower extremity associated with service-connected residuals of lumbar spine fusion with posttraumatic arthritis. 4. Entitlement to an effective date earlier than December 31, 2012, for the award of a 50 percent rating for service-connected residuals of lumbar spine fusion with posttraumatic arthritis. 5. Entitlement to an initial compensable rating for service-connected scar associated with residuals of lumbar fusion. (The issues of entitlement to waiver of recovery of an overpayment of VA compensation benefits and apportionment of the Veteran's compensation benefits are addressed in separate Board decisions). REPRESENTATION Appellant represented by: Marine Corps League WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. B. Mays, Counsel INTRODUCTION The Veteran served on active duty from April 1988 to February 1992. This case is before the Board of Veterans' Appeals (Board) on appeal from January 2010 and January 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. Although the Veteran initiated an appeal of a January 2010 rating decision that reduced his benefits from 40 to 10 percent due to incarceration following conviction of a felony, the RO determined his appeal to be untimely received. The January 2014 rating decision granted service connection for radiculopathy of the right lower extremity, and assigned a 40 percent rating, effective December 31, 2012; granted service connection for radiculopathy of the left lower extremity, and assigned a 20 percent rating, effective December 31, 2012; increased the rating for lumbar spine fusion residuals to 50 percent, effective December 31, 2012; and granted service connection for a scar associated with lumbar fusion, effective February 12, 1992. As indicated on the title page, the Veteran has other appeals before the Board. Because those appeals originate from a different agency of original jurisdiction and involves issues dependent on different law and facts, they are the subject of a separate decision. See BVA Directive 8430, paragraph 14. In July 2016, the Veteran testified before the undersigned Veterans Law Judge (VLJ). The RO in a January 2017 rating decision deferred the issue of a total rating based on individual unemployability (TDIU). The record reflects that the RO is still developing such claim and it will therefore be addressed in a subsequent rating decision. FINDINGS OF FACT 1. VA received the Veteran's substantive appeal in May 2012, which was greater than 60 days from the mailing of the statement of the case in February 2012 and not within the remainder of the one-year period from the mailing of the January 2010 rating decision that reduced his compensation benefits from 40 to 10 percent due to incarceration following conviction of a felony. 2. VA received the Veteran's original service connection claim for a lumbar spine disability within his first year following service separation and such claim reasonably encompassed manifestations of radiculopathy in the right lower extremity. 3. There are no pending, unadjudicated claims for increase for the lumbar spine disability prior to December 31, 2012, and it is not factually ascertainable that the Veteran's lumbar spine disability was 50 percent disabling prior to December 31, 2012. 4. The one surgical scar on the Veteran's lumbar spine is painful, but causes no limitation of motion or function. CONCLUSIONS OF LAW 1. The appeal of a January 2010 rating decision that reduced the Veteran's disability benefits due to incarceration following a conviction for a felony was not timely received. 38 U.S.C.A. §§ 5104, 7105 (West 2014); 38 U.S.C.A. §§ 3.103, 3.156, 19.32, 20.200, 20.300, 20.302, 20.303 (2015). 2. The effective date of February 12, 1992, for the award of service connection for radiculopathy of the right lower extremity as secondary to service-connected lumbar spine disability is granted. 38 U.S.C.A. §§ 5110, 5107 (West 2014); 38 C.F.R. §§ 3.400 (2015). 3. The criteria for entitlement to an effective date earlier than December 31, 2012, for the award of a 50 percent rating for lumbar spine disability have not been met. 38 U.S.C.A. §§ 5101, 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2015). 4. The criteria for entitlement to an initial 10 percent rating for a lumbar spine surgical scar are met. 38 U.S.C.A. §§ 1155, 3.321 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Procedural Duties VA has a duty to provide notice to the Veteran explaining how to establish entitlement to benefits. 38 U.S.C.A. § 5103 (West 2014); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The U.S. Court of Appeals for Veterans Claims (Court) has held that VCAA does not apply where the law, and not the evidence, is dispositive of the claim. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). As will be discussed below in greater detail, the law is dispositive of the issue of whether a timely substantive appeal of the January 2010 rating decision was filed, and the VCAA does not apply. The Veteran's earlier effective date claims arose from his disagreement with the effective date assigned following the grants of service connection for radiculopathy of the right and left lower extremities, and the award of a 50 percent rating for his lumbar spine disability. In addition, the scar claim arose from his disagreement with the initial rating assigned following the grant of service connection for the scar. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA has also complied with its duty to obtain available records. 38 U.S.C.A. § 5103A. The evidence of record includes service treatment records (STRs), VA treatment and private treatment records, testimony from the Veteran, and lay statements. The VLJ, during the July 2016 Board hearing, was in compliance with his duties as a hearing officer as outlined in Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran has not alleged that there were any deficiencies in the Board hearing under section 3.103(c)(2). Nothing in the record identifies additional, potentially relevant records that could be obtained. No further notice or assistance to him with his claims is required. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Timeliness of Substantive Appeal A. Applicable Law A claimant is entitled to notice of any decision by VA affecting the payment of benefits or the granting of relief. 38 U.S.C.A. § 5104 (West 2014). Such notice must inform a claimant of the right to initiate an appeal by filing a notice of disagreement (NOD), plus the periods in which an appeal must be initiated and perfected. 38 C.F.R. § 3.103 (f). A claimant may then initiate an appeal from a VA decision by the timely filing of a NOD in writing. 38 C.F.R. § 20.200; see also Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). A substantive appeal must be filed within 60 days from the date the RO mailed a claimant the SOC or within the remainder of the one-year period from the date of mailing of the rating decision being appealed, whichever period ends. 38 C.F.R. §§ 20.200, 20.300, 20.302. Otherwise, the rating decision becomes final. See 38 C.F.R. § 20.1103. The filing of a timely substantive appeal, as opposed to an NOD, is not a jurisdictional bar to the Board's jurisdiction. Therefore, the Board can implicitly or explicitly waive the issue of timeliness with regard to a substantive appeal. Nonetheless, the Board may decline to exercise jurisdiction over an appeal, if a substantive appeal was not timely filed. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The January 2010 rating decision reduced the Veteran's VA's disability benefits from 40 to 10 percent due to his incarceration for more than 60 days following the conviction of a felony. Notification of his appellate rights was mailed to him in the same month. He filed a timely notice of disagreement in February 2010, after which the RO sent a November 2011 statement of the case to the Veteran on February 9, 2012. Thus, the Veteran had until April 9, 2012, to perfect the appeal. Review of his substantive appeal (VA Form 9) reflects that he signed it on April 17, 2012, and VA received it on May 18, 2012, more than 60 days from the February 2012 mailing of the statement of the case. The Veteran did not file a request for an extension of the time limit for filing the substantive appeal. See 38 C.F.R. § 20.303. Since that time, the RO has not treated the claim as timely appealed and certified the issue of timeliness to the Board. See Percy, 23 Vet. App. at 45. Because the substantive appeal was not received within 60 days from the date the RO mailed to the Veteran the SOC, or within the remainder of the one-year period from the January 2010 date of mailing of the rating decision, the Board finds that the substantive appeal was untimely received. In addition, there is no other basis for reconsideration of the claim, therefore the instant appeal must be denied. Because the law is dispositive of the issue, and because the facts are not in dispute, the VCAA is not applicable. See 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2014), 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015); Mason v. Principi, 16 Vet. App. 129, 132 (2002); see also Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Further, even if the Board had determined that the Veteran's substantive appeal had been timely received, the RO's reduction of his compensation benefits from 40 to 10 percent due to incarceration for more than 60 days following conviction for a felony was appropriate. By law, if an incarcerated beneficiary is rated as 20 percent or more disabling, which is the case here, the monthly benefit authorized during incarceration may be no greater than the amount allowed for a 10 percent rating. 38 U.S.C.A. § 5302, 1114(a) (2015). III. Background Evidence For Remaining Claims During active service in September 1989, the Veteran was involved in an accident during which a 5-ton truck that he was a passenger in rolled over. He ultimately suffered head trauma. Two months later, he sought medical treatment for low back pain which he stated had been present since the accident. X-rays of the lumbar spine taken in November 1989 showed evidence of facet joint arthritis at L5-S1 and a "little" narrowing at L5-S1. Pain in his lumbar spine continued despite conservative treatment for over a year. A CAT scan showed evidence of severe degenerative arthritis of the L5-S1 facet joints and what appeared to be a nerve root impingement. He ultimately underwent a lumbar fusion. Thereafter, in August 1990, the Veteran was evaluated by a Medical Board at the Naval Hospital. The Medical Board indicated that the Veteran continued to complain of back pain and claimed that his right foot occasionally turned numb. On examination, his incision was noted as exquisitely tender. Deep tendon reflexes were normal and there was no obvious motor loss or objective sensory loss in the right foot. The medical Board noted that there was some question as to whether the interpediculative screw might have been slightly impinging on a foramen but stated that it did not correlate with the symptoms and looked fully in the pedicle on x-rays. Final diagnosis was status-post lumbar spine fusion. He was accordingly found not fit for full duty status and placed on a six-month limited duty status. The Veteran was examined again in November 1991 by the Medical Board. On examination, he had flexion of the lumbar spine to 90 degrees and mild, referred pain into the right buttock. He had negative straight leg raising. Due to continued pain, he was not able to do heavy manual labor and the Medical Board concluded that he was unable to fulfill the duties of an active duty member. Accordingly, a December 1991 Physical Evaluation Board determined that the Veteran was unfit for duty due to traumatic arthritis and status post lumbar fusion. As a result, it was determined that he would be separated from service with severance pay. He separated from service in February 1992. VA received the Veteran's original service connection claim for a lumbar spine in March 1992. In a September 1992 rating decision, the RO granted service connection for status-post lumbar fusion with posttraumatic arthritis and assigned a 40 percent rating, from February 12, 1992, one day following service separation. Notice of his right to appeal was provided to the Veteran in an October 1992 letter. He did not appeal the decision and it became final. Treatment notes dated in March 1995 from Kaiser Permanente showed the veteran's complaints of continued severe low back pain into the posterior right leg. Orthopedic consultation conducted in April 1995 revealed paraspinal tenderness more prominent on the right with a positive root test positive for pain in the right posterior thigh. Deep tendon reflexes were 1+, and motor and strength testing was intact. Impression was rule-out nerve compression and possible nonunion of fusion with Steffe instrumentation. A June 1995 private lumbar myelogram and July 1995 treatment notes showed no specific evidence of disc herniation; however the possibility of nerve irritation of a bulging disc was discussed. Rating decisions dated in February 1995 and July 1995 continued the 40 percent rating for the-service connected lumbar spine disability. Notice letters were sent to the Veteran in February 1995 and August 1995, respectively. He did not appeal those rating decisions and they became final. Thereafter, an August 2001 rating decision also continued the 40 percent rating, and also determined that clear and unmistakable error had not been made in assigning a single 40 percent rating for the spine disability, as opposed to separate ratings for limitation of motion due to fusion and limitation of motion due to arthritis. Notice of his appellate rights was provided to the Veteran in an August 2001 letter. The Veteran did not appeal that rating decision and it also became final. VA received the Veteran's increased rating claim for lumbar spine disability on December 31, 2012. The RO's January 2014 rating decision increased the rating to 50 percent for lumbar spine disability, effective December 31, 2012, and granted service connection for radiculopathy of the right and left lower extremities, effective December 31, 2012. That rating decision also granted service connection for the surgical scar on the lumbar spine, and assigned a noncompensable rating from February 12, 1992. The Veteran appealed the January 2014 rating decision and this appeal ensued. IV. Earlier Effective Date Claim For the Award of Service Connection The Veteran seeks earlier effective dates for separate awards of service connection for radiculopathy of the right and left lower extremities. As determined below, the Board awards an earlier effective date for radiculopathy of the right lower extremity and remands the earlier effective date claim for radiculopathy of the left lower extremity for further development. A. Applicable Law Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C.A. § 5110 (a) (West 2014); 38 C.F.R. § 3.400 (2015). Unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110 (a). Appellate review of a rating decision is initiated by a NOD and completed substantive appeal after a SOC has been furnished. 38 U.S.C.A. § 7105 (a); 38 C.F.R. § 20.200. Failure to perfect an appeal renders a rating decision final. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.160 (d), 20.200, 20.302, 20.1103. A final decision is generally not subject to revision on the same factual basis. 38 C.F.R. § 3.104 (a). Previous determinations that are final and binding, including decisions of service connection, degree of disability, age, marriage, relationship, service, dependency, line of duty, and other issues, will be accepted as correct in the absence of clear and unmistakable error (CUE). 38 C.F.R. §§ 3104 (b), 3.105(a). The effective date based on the submission of new and material evidence received after a final disallowance is the date of the receipt of the new claim. 38 U.S.C.A. § 5110 (a); 38 C.F.R. §§ 3.400 (q)(2), 3.400(r). It is settled law that the effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) ("the Court thus holds that the effective date statute, 38 U.S.C.A. § 5110 (a) , is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed"). In the Sears case, the Court explained that the statutory framework did not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim. The Court explained that the term, new claim, as it appeared in 38 C.F.R. § 3.400 (q), means a claim to reopen a previously and finally decided claim. Under VA regulations, a claim includes 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication or action, indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. General rules defining informal claims apply to claims for entitlement to disability benefits raised under a theory of secondary causation. See Ellington v. Nicholson, 22 Vet. App. 141, 145-47 (2007). Secondary service connection is granted for a "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310 (a). "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310 (a). The "plain meaning of th[is] regulation is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations." Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). Building on Roper, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a requirement that a secondary condition 'be considered a part of [an] original condition' does not, in our view, establish that the original condition and the secondary condition must receive identical effective dates." Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). "Indeed, a per se rule requiring identical effective dates for primary and secondary conditions would be illogical, given that secondary conditions may not arise until years after the onset of the original condition." Id. The Federal Circuit concluded that "the effective date for secondary conditions is governed by [38 C.F.R. §] 3.400, which establishes the effective date as the 'date of receipt of claim, or [the] date entitlement arose, whichever is later.' " Id. It explained: We think this result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards. Section 5110(a) provides generally that "[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim ... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." The statute contains no exception to this rule for a claim, such as the one filed in this case, seeking service connection for an alleged secondary condition. Id. at 1370 (emphasis added). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Analysis - Earlier Effective Date for Radiculopathy of the Right Left Lower Extremity The Veteran asserts that an effective date earlier than December 31, 2012, is warranted. Notably, on his original claim for service connection for lumbar spine disability received in March 1992, he stated that "I desire to file my first claim related to service connected back spinal fusion condition for disability rating due to the severity of my condition." He stated further that he could not stand on his feet for more than 15 minutes, noting that he did not have the strength to work in law enforcement which he was trained to do. The scope of the Veteran's claim for a lumbar spine disability includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). Regardless of whether a claimant identifies a particular disorder upon filing the claim, the scope of the claim is not limited to that condition, but is considered a claim for any disability that reasonably may be encompassed by several factors - including his description of the claim, the symptoms he describes, and the information he submits or that VA obtains in support of his claim. See Clemons, supra. The Board observes that when the Veteran filed his original service connection claim for a lumbar spine disability, the record had already contained numerous STR complaints of radicular pain into the right leg, as well as x-ray evidence of a nerve root impingement. Thus, under Clemons, the Board finds that the Veteran's initial claim for service connection for a lumbar spine disability reasonably encompassed any related neurologic impairment in the right lower extremity. But having said that, the effective date for a secondarily service-connected condition (such as the Veteran's radiculopathy) is not necessarily identical to that of the original condition (lumbar spine disability). Instead, the effective date can arise no earlier than the date on which the Veteran applied for benefits for the secondary condition. See Ellington v. Peake, 531 F.3d 1364 (Fed. Cir. 2008); Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). Nonetheless, if it is shown that his 1992 claim was for neurologic manifestations, not just for a lumbar spine disability, he could circumvent this general rule or it would not apply to his particular situation and circumstances. Although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. See Roebuck v. Nicholson, 20 Vet. App. 307 (2006). Thus, resolving all reasonable doubt in the Veteran's favor, the RO had constructive notice of the Veteran's claim for associated neurologic manifestations in his right lower extremity since the filing of the original lumbar spine claim; therefore, such claim reasonably included secondary radiculopathy in the right lower extremity. Accordingly, the Board finds that an earlier effective date of February 12, 1992, (though no earlier) is warranted for the grant of service connection for the radiculopathy of the right lower extremity as secondary to the service-connected lumbar spine disability, as this was the date of receipt of the Veteran's original claim for service connection for the lumbar spine disability. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400 (2015). There is no basis for an even earlier effective date. C. Earlier Effective Date for Assignment of 50 Percent Rating for Lumbar Spine Disability The method of determining the effective date of an increased evaluation is set forth in 38 U.S.C.A. § 5110 (a) and (b)(2), and 38 C.F.R. § 3.400 (o). The general rule with respect to the effective date of an award of increased compensation is that the effective date of such award "shall not be earlier than the date of receipt of application thereof." 38 U.S.C.A. § 5110 (a). This statutory provision is implemented by regulation which provides that 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. 38 C.F.R. § 3.400 (o)(1). An exception to the rule applies, however, under circumstances where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. In that regard, the law provides that the effective date of the award "shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date, otherwise the date of receipt of the claim." 38 U.S.C.A. § 5110 (b)(2). See 38 C.F.R. § 3.400 (o)(2). The phrase "otherwise, date of receipt of claim" applies only if a factually ascertainable increase in disability occurred more than one year prior to filing the claim for an increased rating. Harper v. Brown, 10 Vet. App. 125 (1997). Moreover, the term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R § 3.400 means an increase to the next disability level. See Hazan v. Gober, 10 Vet. App. 511 (1997). The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). A claim is 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); 3.155. The regulation which governs informal claims, 38 C.F.R. §3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. Further, under 38 C.F.R. §3.157 (b)(1), an informal claim may consist of a VA report of examination or hospitalization. Under this regulatory provision, the date of the VA outpatient examination or hospital admission will be accepted as the date of receipt of a claim if such a report relates to examination or treatment of a disability for which service connection has previously been established. The basic facts in this case are not in dispute. The RO initially granted service connection for status-post lumbar spine fusion with posttraumatic arthritis in a September 1992 rating decision, and assigned a 40 percent rating, effective February 12, 1992, the day after service separation. The Veteran did not appeal that decision and it therefore became final. Subsequent rating decisions dated in February 1995, July 1995 and August 2001 that continued the 40 percent rating also became final. Thereafter, VA received a claim for increase on December 31, 2012. On review, the Board finds that an earlier effective date is not warranted for the award of the 50 percent rating. The date of the claim is December 31, 2012, the date the RO received the Veteran's claim for increase. Significantly, there are no pending, unadjudicated formal or informal claims for increase prior to December 31, 2012. The Board recognizes that the Veteran submitted medical evidence showing low back treatment and evaluations earlier than December 2012; however, none of those prior medical records can serve as an informal claim as those pieces of evidence have already been considered by the RO in the February 1995, July 1995 and August 2001 rating decisions that are now final. On the question of when entitlement arose, December 2013 is the earliest evidence showing that the Veteran met the criteria for a 50 percent rating under the General Formula for Rating Disabilities of the Spine (38 C.F.R. § 4.71a (2015)). In this regard, unfavorable ankylosis of the entire thoracolumbar spine was shown during a December 2013 VA examination. VA regulations provide that the effective date will be the date of receipt of claim (December 2012) or date entitlement arose (December 2013), whichever is later. 38 C.F.R. § 3.400 (o)(1) (2015). Although the later of the two dates is December 2013, the Board will not disturb the earlier assigned effective date of December 31, 2012 (the date of the claim), for the award of the 50 percent rating. Generally, the effective date can be no earlier than the date of receipt of the claim for increase. The Board has considered the exception to that general rule, however, the evidence does not demonstrate that it was not factually ascertainable that the Veteran's service-connected lumbar spine disability was 50 percent disabling within the one year prior to December 31, 2012. 38 C.F.R. § 3.400 (o)(2). Specifically, medical evidence of record dated from December 31, 2011, to December 31, 2012, does not demonstrate that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. Thus, an effective date earlier than December 31, 2012, is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is inapplicable. 38 U.S.C.A. § 5107 (b) (West 2014); 38 C.F.R. § 3.102 (2015). The claim is therefore denied. V. Applicable Law Governing Increased Rating Claims Disability ratings are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. Part 4 (2015). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged rating." See Fenderson v. West, 12 Vet. App 119 (1999). The Court has also held that staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2015). The Veteran in this case seeks an initial, higher rating for his service-connected lumbar spine scar which is rated noncompensably (0 percent) disabling. Scars are rated under diagnostic codes 7800-7805. 38 C.F.R. § 4.118 (2015). DC 7801 evaluates scars based upon their size that are not located on the head, face, or neck, and that are deep and nonlinear. DC 7802 assigns a 10 percent rating for scars covering an area or areas of 144 square inches (929 square centimeters) or greater that are not located on the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118 (2015). Neither diagnostic code apples in this case. DC 7804 evaluates painful or unstable scars. A 10 percent rating is awarded for one or two scars that are unstable or painful. A 20 percent rating is awarded for 3 or 4 scars that are unstable or painful. A 30 percent rating is awarded for 5 or more scars that are unstable or painful. 38 C.F.R. § 4.118 (2015). The Veteran's STRs reveal that his incision scar on his lumbar spine was described as "exquisitely" tender in the months following the lumbar fusion, and although his post-service medical records indicate that the scar has since healed, the Veteran reported to the December 2013 VA examiner that he experiences pain in his scar, particularly during the cold weather months. There is nothing in his records indicating that the Board should question his credibility with regard to the statements he has made in support of this claim. Pain, being lay-observable, is a symptom, he is credible to report. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 434 (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the pain in the scar that the Veteran experiences does not appear to be constant, he competently and credibly reported that it is painful in the winter months. There is no medical or lay evidence that the scar causes any limitation of motion or function. Thus, with resolution of all doubt in his favor, he has one painful scar on his lumbar spine and is therefore assigned a 10 percent rating, but no higher, under DC 7804. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The evidence in this case does not show such an exceptional disability picture that the available schedular rating for the service-connected scar is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability, with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Veteran's scar is productive of pain, which is a symptom that is contemplated by the rating schedule. Accordingly, the rating criteria contemplate the Veteran's service-connected connected lumbar spine scar. There is no evidence in the record or allegation of symptoms of and/or impairment due to this disability not encompassed by the criteria for the schedular ratings assigned. Referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321 (b)(1) is therefore not warranted. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be entitled to "consideration [under 38 C.F.R. § 3.321 (b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321 (b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. ORDER The substantive appeal of a January 2010 rating decision that reduced the Veteran's VA compensation benefits from 40 to 10 percent due to incarceration following conviction of a felony was not timely received. An effective date of February 12, 1992, for the award of service connection for radiculopathy of the right lower extremity is granted. An effective date earlier than December 31, 2012, for the award of a 50 percent rating for service-connected residuals of lumbar spine fusion with posttraumatic arthritis is denied. A 10 percent rating for service-connected scar associated with residuals of lumbar fusion is granted, subject to the laws and regulations governing monetary benefits. REMAND Remand is necessary prior to analyzing the earlier effective date claim for the award of service connection for radiculopathy of the left lower extremity. As decided above, the Board found that the Veteran's original claim of service connection for a lumbar spine disability reasonably encompassed any neurologic manifestations. Although the evidence of record at the time of the September 1992 RO adjudication showed complaints of radicular pain into the right lower extremity, there was no evidence of any similar complaints in the left lower extremity. The Veteran asserts that an effective date in 2008 is appropriate for his radiculopathy in the left lower extremity. When he testified before the undersigned VLJ in July 2016, he indicated that he first received treatment for radiculopathy of the left leg, as relevant here, in 2008 at the VA Medical Center in Detroit, or possibly even before earlier at the VAMC in Durham. See Hearing Transcript, p. 11. There is no indication that these records have been requested and they are not in the claims file. Therefore, on remand, the identified records should be obtained. Accordingly, the case is REMANDED for the following action: 1. Request and associate with the claims file all outstanding treatment records from the VAMCs in Durham and Detroit dated prior to 2012. 2. Thereafter, readjudicate the issue of entitlement to an earlier effective date for the award of service connection for radiculopathy of the left lower extremity. If the benefit remains denied, provide the Veteran and his representative a SSOC and an appropriate period of time for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs