Citation Nr: 18149729 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-05 044 DATE: November 13, 2018 ORDER Entitlement to an effective date prior to February 17, 2015, for service connection for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected psychiatric disability, is remanded. Entitlement to a rating in excess of 40 percent for a low back disability is remanded. Entitlement to a rating in excess of 30 percent for a psychiatric disability is remanded. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Entitlement to an effective date prior to February 17, 2015, for the assignment of a 40 percent rating for low back disability is remanded. FINDING OF FACT The date of the routine future medical examination, performed on February 17, 2015, was the earliest factually ascertainable date that the Veteran experienced compensable right lower extremity radiculopathy symptomatology. CONCLUSION OF LAW The criteria for an earlier effective date, prior to February 17, 2015, for service connection for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to a effective date prior to February 17, 2015, for service connection for radiculopathy of the right lower extremity Generally, the effective date for service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service. Otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. VA regulations allow Veterans to have separate ratings under different diagnostic codes for the same injury; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259 (1994). The Veteran did not file a claim for service connection for radiculopathy of the right lower extremity. Instead, the Veteran reported for a routine future examination for a service-connected low back disability on February 17, 2015. At that time, it was determined that the Veteran had radiculopathy of the right lower extremity related to a service-connected low back disability, and meeting the criteria for a compensable rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520. As the radicular symptoms were not duplicative or overlapping with the other low back disability symptoms already rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237, VA assigned a separate rating for the Veteran's radiculopathy symptoms in the right lower extremity. The record of evidence does not contain any evidence suggesting diagnosis or treatment for compensable radiculopathy symptoms prior to February 17, 2015. The Veteran also did not report any symptoms to VA prior to that date. The Veteran separated from service in October 2006, the date of the examination was more than a year after the Veteran's discharge from service. Therefore, the date of the routine VA medical examination, performed on February 17, 2015, was the earliest factually ascertainable date that the Veteran experienced compensable right lower extremity radiculopathy symptomatology, and was the earliest date as of which it could be said that service connection for right lower extremity radiculopathy was sought. Therefore, the Veteran’s claim for an earlier effective date, prior to February 17, 2015, is denied. 38 C.F.R. § 3.400. The Board finds that the preponderance of the evidence is against the claim for service connection and for a compensable rating for right lower extremity radiculopathy prior to February 17, 2015. Therefore, the claim must be denied. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction, claimed as secondary to a service-connected psychiatric disability, is remanded. The Veteran essentially contends that he experiences erectile dysfunction related to a service-connected psychiatric disability. The Veteran did not appear for a VA examination scheduled on March 23, 2016, and the claim was denied. However, the record indicates that the Veteran had changed addresses close to the scheduled time of the examination. Specifically, on March 18, 2016, a letter was issued to the Veteran at an apartment in Jacksonville, Florida. On March 23, 2016, another letter was issued to the Veteran, responding to an intent to file a claim received from the Veteran on March 23, 2016. Although the intent to file is not included in the record of evidence, the response letter indicates that the Veteran advised the VA that he had moved, as it was addressed to a different apartment than that noted in the March 18, 2016, letter. As the record suggests that the Veteran was either in the process of moving or had recently moved when VA issued notice to him of the March 23, 2016, examination, the Board finds that the Veteran had good cause for not attending that examination. A remand is necessary to schedule an additional examination, with notice provided to the most recent address of record. 2. Entitlement to a rating in excess of 40 percent for a low back disability is remanded. 3. Entitlement to a rating in excess of 30 percent for a psychiatric disability is remanded. 4. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity is remanded. Since the most recent adjudication of the claims for increased ratings for low back, radiculopathy, and psychiatric disabilities, VA has added additional VA treatment records to the record of evidence. The Veteran has not waived his right to have that relevant evidence reviewed by the Agency of Original Jurisdiction prior to Board review. A remand is necessary for readjudication and the issuance of a supplemental statement of the case. Additionally, in an August 2018 statement, the Veteran asserted that the service-connected psychiatric disability had increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of a psychiatric disability. 5. Entitlement to an effective date prior to February 17, 2015, for the assignment of a 40 percent rating for low back disability is remanded. The claim for an earlier effective date for the assignment of a 40 percent rating for a low back disability is inextricably intertwined with the issue of an increased rating for that disability and must be remanded with the claim for an increased rating. The claims are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of a service-connected psychiatric disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. The examiner should opine as to the levels of social and occupational impairment caused by the psychiatric disability and should describe the frequency and severity of symptoms that result in those levels of impairment. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any erectile dysfunction. The examiner must opine whether it is at least as likely as not that erectile dysfunction is (1) proximately due to the service-connected psychiatric disability, or (2) aggravated (permanently increased in severity beyond its natural progression) by a service-connected psychiatric disability. 4. Then, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to an earlier effective date for the assignment of a 40 percent rating for a low back disability. If any decision is adverse to the Veteran, issue a supplemental statement of the case and provide an opportunity to respond. Then, return the case to the Board for further appellate review. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T.M. Gillett, Counsel