Citation Nr: 1801450 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-00 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an effective date prior to September 26, 2003 for the grant of service connection for radiculopathy of the right lower extremity. 2. Entitlement to an effective date prior to September 26, 2003 for the grant of service connection for radiculopathy of the left lower extremity. REPRESENTATION Veteran represented by: National Veterans Legal Services Program, Inc. ATTORNEY FOR THE BOARD K. K. Buckley, Counsel INTRODUCTION The Veteran served on active duty from May 1969 to November 1971 and from May 1975 to June 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated August 2008 and November 2011 of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In a September 2016 decision, the Board granted an effective date of September 26, 2003, but no earlier, for the award of service connection for radiculopathy of the right and left lower extremities. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2017 Order, granting a Joint Motion for Remand, the Court vacated, in part, the Board's September 2016 decision and remanded the case for further development in compliance with the directives specified in the Joint Motion. FINDINGS OF FACT 1. In a January 1989 decision, the Board denied the Veteran's claim of entitlement to service connection for a low back disability; the decision was final on the date stamped on the face of the decision. 2. In June 1999, the Veteran filed a claim to reopen the previously denied matter of entitlement to service connection for a thoracolumbar spine disability. In conjunction with the pursuit of the claim, the Veteran submitted evidence and argument concerning radiculopathy of the right and left lower extremities. CONCLUSIONS OF LAW 1. The criteria for assignment of an effective date of June 4, 1999, but no earlier, for the award of service connection for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 5110, 7105(c) (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). 2. The criteria for assignment of an effective date of June 4, 1999, but no earlier, for the award of service connection for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 5110, 7105(c) (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and to Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board finds that VA does not have a duty to assist that was unmet. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). II. Analysis The Veteran requests an effective date prior to September 26, 2003 for the award of service connection for radiculopathy of the right and left lower extremities. He and his representative contend that the effective date for the service-connected left and right lower extremity radiculopathy should be June 4, 1999, the date that the Veteran reopened his claim for his lumbar spine disability. For the reasons discussed below, the Board finds that an effective date of June 4, 1999, for the grant of service connection for a radiculopathy of the right and left lower extremities, is warranted. The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of service connection and compensation based on an original claim or a reopened claim will be the "[d]ate of receipt of claim or date entitlement arose, whichever is later." 38 C.F.R. § 3.400. Generally where evidence requested in connection with an original claim or a claim to reopen is not furnished within 1 year after the date of request, the claim will be considered abandoned. After the expiration of 1 year, further action will not be taken unless a new claim is received. Furthermore, should the right to benefits be finally established, benefits based on such evidence shall commence not earlier than the date of filing the new claim. 38 C.F.R. § 3.158. VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the appeal in this case was filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015, will be applied in this case. Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a veteran or his representative, may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 (a) (in effect prior to March 24, 2015). There is no set form that an informal written claim must take. All that is required is that the communication indicates an intent to apply for one or more benefits under the laws administered by VA, and identify the benefits sought. Rodriguez v. West, 189 F.3d 1351 (1999). For awards of compensation to include increased ratings made pursuant to liberalization of the law, the effective date shall not be earlier than the effective date of the liberalization. 38 U.S.C. § 5110(g) (2012); 38 C.F.R. § 3.114(a) (2017). Notably, neurological disabilities associated with a lumbar spine disability are to be separately evaluated under the appropriate diagnostic codes under the Rating Schedule for thoracolumbar spine disabilities. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Board notes that the Rating Schedule was changed effective September 26, 2003 to require that neurological disabilities associated with thoracolumbar spine disabilities were to be specifically considered and separately rated. When regulations are changed during the course of a veteran's appeal, the criteria that are to the advantage of the veteran should be applied. However, if the revised regulations are more favorable to the veteran, then an award of an increased rating based on a change in law may be granted retroactive to, but no earlier than, the effective date of the change. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000). By way of procedural background, the Veteran initially filed a claim of entitlement to service connection for a back condition in June 1986. His claim was denied in a March 1987 rating decision. He filed a notice of disagreement (NOD) in February 1988; a statement of the case (SOC) was issued in March 1988. The Veteran perfected his appeal by filing a timely VA Form 9 in April 1988. In a January 1989 decision, the Board denied the Veteran's claim of entitlement to service connection for a low back disability. This decision is final. 38 U.S.C. 7104 (2012); 38 C.F.R. § 20.1100 (a) (a Board decision is final on the date stamped on the face of the decision). Thereafter, on June 4, 1999, VA received the Veteran's request to reopen service connection for a lumbar spine disability. In a May 2000 rating decision, the RO declined to reopen the claim for service connection for a low back disability. The Veteran appealed, and in an August 2003 decision, the Board granted service connection for a lumbar spine disability. In an October 2003 rating decision, the RO implemented the Board's grant of service connection for a lumbar spine disability and assigned an initial 10 percent rating effective June 4, 1999 for bilateral L5 spondylosis with "secondary low back pain radiating to left leg." A NOD was filed in February 2004, as to the rating assigned for the lumbar spine disability. A SOC was issued in June 2004, and the Veteran filed a timely substantive appeal. In an October 2005 rating decision, the RO increased the Veteran's lumbar spine rating to 40 percent effective June 4, 1999 based on range of motion being limited to 20 degrees on forward flexion. See A.B. v. Brown, 6 Vet. App. 35 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). Thereafter, in an August 2009 decision, the Board denied a rating in excess of 40 percent for the lumbar spine disability. In the August 2009 decision, the Board noted that service connection had been denied for radiculopathy of the left lower extremity in an August 2008 rating decision and a timely NOD had subsequently been filed. The claim for service connection for left lower extremity radiculopathy was therefore remanded by the Board in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). Thereafter, in an August 2008 rating decision, the RO granted service connection for right lower extremity radiculopathy and assigned a 10 percent rating effective April 11, 2008. In a November 2011 rating decision, the RO granted service connection for radiculopathy of the left lower extremity and assigned a 10 percent rating effective July 11, 2008, and a 20 percent rating was assigned effective August 23, 2010. In the September 2016 decision, the Board determined that the proper effective date for the grant of service connection for left and right lower extremity radiculopathy was September 26, 2003 (the date the Rating Schedule was changed to require that neurological disabilities associated with a thoracolumbar spine disabilities were specifically considered and separately rated). The Board noted that service connection for a lumbar spine disability had been granted in an August 2003 Board decision. In an October 2003 rating decision, the RO implemented the grant of service connection. As the Veteran subsequently appealed the initial rating assigned for the lumbar spine disability, the Board determined that the RO should have considered whether separate ratings for neurological disabilities were warranted. In other words, the Board indicated that issues regarding separate ratings for the right and left lower extremity radiculopathy were inextricably intertwined with the increased rating issue for the lumbar spine disability. The Board then indicated that separate ratings for objective neurologic abnormalities associated with a service-connected spinal disability were allowed only when the revised rating criteria became effective on September 26, 2003. However, as indicated above, in a July 2017 Order, the Court vacated and remanded the part of the Board's September 2016 decision, which determined that an effective date prior to September 26, 2003 was not warranted for the award of service connection of the right and left lower extremities. In the July 2017 Joint Motion, the parties stated, "[a]lthough the Board noted that the 2003 amendment ruled that neurological conditions were to be separately rated as part of thoracolumbar spine disabilities, the parties note that there was nothing precluding the RO from considering whether a neurological condition was secondary to a service-connected disability prior to that date." The parties therefore agreed "that remand is warranted for the Board to discuss the relevant evidence noted above as to whether appellant's June 1999 claim to reopen the back condition claim, also included a secondary service connection claim for left and right lower radiculopathy." Accordingly, the Board has thoroughly reviewed the record in consideration of the findings of the July 2017 Joint Motion. The Board finds that the regulations in effect prior to September 26, 2003 did not preclude separate ratings for radiculopathy of the right and left lower extremities. Moreover, the evidence of record indicates that the Veteran had radiculopathy symptoms of the right and left lower extremities from at least the date of the June 1999 claim to reopen. In particular, the March 1986 Medical Board Proceedings indicated that the Veteran suffered from low back pain with radiation to the left leg. In the Veteran's June 1986 claim, the Veteran asserted that he suffered from left leg symptoms secondary to spinal problems. In an August 2001 letter, Dr. E.L. stated that the Veteran had been diagnosed with L3-4, L4-5 disc protrusion with compressing the thecal sac and radiculopathy by magnetic resonance imaging (MRI) dated January 1999. In his June 2004 VA Form 9, the veteran reported that he suffered from 'great pain' in his legs due to his service-connected back disability. Additionally, in the January 2005 VA examination, the examiner noted that the Veteran experienced pain radiating into the right and left legs. Accordingly, the Board herein finds that the proper effective date for the award of service connection for radiculopathy of the right and left lower extremities was June 4, 1999, the date of the Veteran's claim to reopen the matter of entitlement to service connection for a lumbar spine disability. As there is no evidence or argument that an earlier effective date is warranted, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In addition, the Board has reviewed the record and can identify no communication from the Veteran that would constitute a claim to reopen the matter of entitlement to service connection for low back disability, or a claim of entitlement to service connection for radiculopathy of the right or left lower extremities, prior to June 1999. See Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992) (the Board must look at all communications that can be interpreted as a claim, formal or informal, for VA benefits). The Veteran has identified no such communication. The Court has held that when a claim is reopened, the effective date cannot be earlier than the date of the claim to reopen. Juarez v. Peak, 21 Vet. App. 537, 539-540 (2008) (citing Bingham v. Nicholson, 421 F. 3d 1346 (Fed. Cir. 2005); Leonard v. Nicholson, 405 F.3d. 1333, 1337 (Fed. Cir. 2005); Flash v. Brown, 8 Vet. App. 332, 340 (1995).) A claim to reopen the low back disability was not filed prior to June 1999. As such, an effective date prior to June 4, 1999 for the grant of entitlement to service connection for radiculopathy of the left and right lower extremities is not warranted, nor has the Veteran so contended. Thus, June 4, 1999 is the appropriate effective date for the grant of service connection for radiculopathy of the right and left lower extremities. As there is no evidence or argument that an earlier effective date is warranted, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to an effective date of June 4, 1999, but no earlier, for service connection for radiculopathy of the right lower extremity is granted. Entitlement to an effective date of June 4, 1999, but no earlier, for service connection for radiculopathy of the left lower extremity is granted. ____________________________________________ K. CONNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs