Citation Nr: 18146254 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 14-17 369 DATE: October 31, 2018 ORDER Entitlement to an effective date earlier than June 19, 2013 for the award of a 20 percent disability rating for radiculopathy of the right lower extremity is denied. FINDING OF FACT It is not factually ascertainable that the Veteran satisfied any of the schedular criteria for a 20 percent rating for radiculopathy of the right lower extremity prior to June 19, 2013. CONCLUSION OF LAW The criteria for an effective date prior to June 19, 2013, for the grant of a 20 percent disability rating for the service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400, 4.96, 4.97, Diagnostic Code (DC) 8521 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 2005 to April 2008. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The Board notes that the RO initially assigned an effective date of June 19, 2013 for service connection for radiculopathy of the right upper extremity, secondary to cervical spine stenosis, which was previously on appeal. An October 2017 rating decision awarded an earlier effective date for service connection for radiculopathy of the right upper extremity effective July 30, 2009, the date of service connection for the cervical spine disability. Because the grant of service connection for radiculopathy of the right upper extremity was based upon a finding that it was secondary to the Veteran’s service-connected cervical spine disability, an effective date for the grant of secondary service connection for radiculopathy cannot, as a matter of law, be granted prior to the effective date for the award of service connection for the Veteran’s cervical spine stenosis. Thus, as the award of the July 30, 2009 effective date constitutes a full grant of the benefits sought, this issue is no longer on appeal. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Additionally, the Veteran’s prior attorney submitted a Notice of Disagreement dated October 2013 in response to the effective dates assigned in the July 2013 rating decision, in which he raised the issue of clear and unmistakable evidence (CUE). This attorney subsequently withdrew from the claim and the Veteran has proceeded with his appeal for an earlier effective date for a 20 percent rating for radiculopathy of the right lower extremity. As the July 2013 rating decision is not final; rather, it is the rating decision that is currently on appeal, there is no CUE claim. Effective Date The issue of entitlement to an effective date earlier than June 19, 2013 for the award of a 20 percent disability rating for radiculopathy of the right lower extremity is denied. Generally, the effective date of a rating and award of compensation is the later of the date of receipt of the claim or the date entitlement arose. See 38 U.S.C. § 5110(a) (2012); see also 38 C.F.R. § 3.400(o)(1) (2017). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. See 38 U.S.C. § 5110(b)(2) (2012); see also 38 C.F.R. § 3.400(o)(2) (2016); see also Harper v. Brown, 10 Vet. App. 125 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran’s claims file. See Quarles v. Derwinski, 3 Vet. App. 129 (1992). Here, the RO awarded a 20 percent disability rating for the Veteran’s service-connected radiculopathy of the right lower extremity effective June 19, 2013, the date of the exam demonstrating an increase in the severity of this condition. For the reasons explained below, the Board finds that an effective date earlier than June 19, 2013 for the grant of a 20 percent rating for radiculopathy of the right lower extremity is not warranted. The Veteran’s service-connected radiculopathy of the right lower extremity is rated under DC 8521. 38 C.F.R. § 4.124a, DC 8521. Under DC 8521, mild incomplete paralysis is rated as 10 percent disabling, moderate incomplete paralysis is rated 20 percent disabling, and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, involving foot drop and slight drop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Prior to June 19, 2013, the Veteran’s radiculopathy was rated 10 percent disabling under DC 8521. A higher rating under that diagnostic code requires symptomatology indicative of moderate incomplete paralysis. 38 C.F.R. § 4.124a, DC 8521. The Board notes that the evidence of record does not indicate that the Veteran experienced symptoms reflective of moderate incomplete paralysis of the right lower extremity prior to June 19, 2013. Post-service treatment records reflect that Veteran reported numbness and tingling in the right lower extremity. See Sentara Medical Group Private Treatment Record dated February 3, 2010. However, there is no evidence that he experienced moderate incompletes paralysis prior to the June 2013 VA examination. The remainder of the record for this period is silent regarding any complaints, symptomatology, or treatment showing that the Veteran’s radiculopathy worsened to the degree approximated by the 20 percent rating prior to June 19, 2013. Therefore, the Board finds that the preponderance of the evidence weighs against a finding that the Veteran is entitled to an effective date earlier than June 19, 2013, for the grant of a 20 percent disability rating for his radiculopathy of the right lower extremity. See 38 C.F.R. § 4.97, DC 8521. Consequently, the benefit of the doubt rule does not apply and the claim is denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Erin J. Trojanowski, Associate Counsel