Citation Nr: 18141283 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 15-32 950 DATE: October 10, 2018 ORDER Resolving all reasonable doubt in favor of the Veteran, an effective date of April 17, 2011 for the increase to 10 percent for sciatica involving the right lower extremity associated with degenerative disc disease of the lumbar spine at the L4-L5 level is granted. FINDINGS OF FACT 1. The Veteran filed a claim for an increased rating for his service-connected lumbar spine disability, which by law must include consideration of his service-connected sciatica, and was received by VA on April 17, 2012. 2. By the Veteran’s lay statements, it is reasonably ascertainable that an increase in the severity of the Veteran’s right lower extremity sciatica disability occurred within the allowable one-year period prior to that date. CONCLUSION OF LAW The criteria for an effective date of April 17, 2011 for the award of an increase to 10 percent for sciatica involving the right lower extremity associated with degenerative disc disease of the lumbar spine at the L4-L5 level have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Navy from September 1990 to March 1995 and from August 1999 to June 2003. An effective date of April 17, 2011 for the increase to 10 percent for sciatica involving the right lower extremity associated with degenerative disc disease of the lumbar spine at the L4-L5 level is granted. As an initial point of clarification, the Board acknowledges that this appeal stems from an increased rating claim filed in April 2012 that followed a previous reduction in disability rating which became effective in April 2011. This appeal did not procedurally arise from the propriety of the reduction itself, and the Board does not address that matter here. However, because regulations regarding effective dates state that an award of increased compensation shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred, if application is received within one year from such date, there is essentially a one-year “look back” period prior to the date of an increased rating claim of this nature. 38 C.F.R. § 3.400(o)(2). In this case, that one-year period prior to the date of claim allows the earliest possible effective date to be established as April 17, 2011, resulting in the previously established rating reduction ultimately being in effect only for a matter of days. Nonetheless, due to the procedural posture of the appeal currently before the Board, this decision does not address the merits of that rating reduction, but only applies the law regarding the effective date for the increase in question. The appeal is granted for the reasons below. The regional office previously established the January 14, 2013 effective date of the increase to a 10 percent rating for right lower extremity sciatica based on the date of a VA examination showing mild right lower extremity numbness as a symptom due to radiculopathy. Upon review of the claims file, the Board also finds a June 2012 VA treatment note that describes the Veteran’s report of pain rated as a 7 out of 10 on a pain scale for constant aching throbbing radiating pain with numbness to the right lower extremity, as well as the right shoulder. In the Veteran’s February 2013 notice of disagreement, he also credibly describes experiencing numbness in his legs for “about 2 years.” In the notice of disagreement, he only sought an effective date consistent with his 2012 date of claim. However, as described above, the law provides that an effective date within one year prior to the date of claim may be awarded if it is factually ascertainable that an increase occurred during that time. Resolving all reasonable doubt in favor of the Veteran, a factually ascertainable increase during that one-year period is consistent with the Veteran’s credible report of numbness in the right lower extremity for approximately two years prior to February 2013, i.e. since around February 2011. Therefore, the Board will assign the earliest possible effective date of April 17, 2011, one year prior to the date that the Veteran’s April 2012 increased rating claim was received. 38 C.F.R. § 3.400(o)(2). The appeal is granted. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. McDonald