Citation Nr: 18149965 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-26 392 DATE: November 14, 2018 ORDER The motion to reverse or revise the August 2005 Rating Decision that denied entitlement to service connection for a lower back disorder on the basis of clear and unmistakable error (CUE) is denied. Entitlement to an effective date of August 26, 2010, for the grant of service connection for radiculopathy of the right lower extremity is granted. Entitlement to an effective date of December 11, 2012, for the grant of service connection for radiculopathy of the left lower extremity is granted. Entitlement to an effective date earlier than October 21, 2016, for the grant of a 20 percent evaluation for left shoulder rotator cuff tear with labral tear, including superior labral anterior-posterior (SLAP) and glenohumeral joint dislocation, is denied. REMANDED Entitlement to increased evaluations for lumbar spine intervertebral disc syndrome with degenerative arthritis of the spine, evaluated as 10 percent disabling prior to February 3, 2016, and as 20 percent disabling since February 3, 2016, is remanded. Entitlement to an evaluation in excess of 10 percent for left knee instability is remanded. Entitlement to an evaluation in excess of 10 percent for limited left knee flexion is remanded. Entitlement to an evaluation in excess of 10 percent for radiculopathy of the left lower extremity is remanded. Entitlement to increased evaluations for radiculopathy of the right lower extremity, evaluated as 10 percent disabling prior to February 3, 2016, and as 20 percent disabling since February 3, 2016, is remanded. Entitlement to an evaluation in excess of 20 percent for left shoulder rotator cuff tear with labral tear, including superior labral anterior-posterior (SLAP) and glenohumeral joint dislocation, is remanded. Entitlement to an evaluation in excess of 10 percent for chronic right sternocleidomastoid muscle strain, is remanded. FINDINGS OF FACT 1. The August 2005 Rating Decision was supported by the evidence then of record, and it is not shown that the applicable statutory and regulatory provisions existing at that time were incorrectly applied. 2. Magnetic resonance imaging (MRI) conducted on August 26, 2010, revealed a small, broad-based posterior central disc herniation at L5-S1 which may be symptomatic for the impingement of the descending S1 nerve roots, and was later diagnosed as right lower extremity radicular symptoms. 3. A December 11, 2012 Independent Medical Review diagnosed the Veteran as having bilateral sciatic nerve radiculopathy. 4. On October 21, 2016, the Veteran submitted an Application for Increased Compensation Based on Unemployability, at which time he indicated that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected IVDS, lumbar radiculopathy, rotator cuff, left knee, and left wrist disabilities; entitlement to a 20 percent evaluation for the Veteran’s service-connected left shoulder disability did not arise during the one year period prior to the October 21, 2016, claim. CONCLUSIONS OF LAW 1. Clear and unmistakable error is not shown in the August 2005 Rating Decision. 38 U.S.C. § 5109A (2012); 38 C.F.R. §§ 3.105 (2017). 2. The requirements for an effective date of August 26, 2010, but no earlier, for the grant of entitlement to service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.114, 3.155, 3.158, 3.400 (2017). 3. The requirements for an effective date of December 11, 2012, but no earlier, for the grant of entitlement to service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1(p), 3.114, 3.155, 3.158, 3.400 (2017). 4. The criteria for an effective date earlier than October 21, 2016, for the grant of a 20 percent disability evaluation for left shoulder disability have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.155; 38 C.F.R. §§ 3.1(p), 3.114, 3.155, 3.158, 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2002 to July 2005. In his April 2018 Argument in Support of Appeal, the Veteran’s attorney asserted that in the Veteran’s March 2012 Notice of Disagreement, he alleged clear and unmistakable error (CUE) in the August 2005 Rating Decision with respect to its denial of entitlement to service connection for vision loss. As the RO never adjudicated the Veteran’s claim of CUE with respect to its August 2005 denial of his claim of entitlement to vision loss, the Board refers that CUE claim to the RO for adjudication. Neither the Veteran nor his attorney has raised any issues with regard to 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). 1. The motion to reverse or revise the August 2005 Rating Decision that denied entitlement to service connection for a lower back disorder on the basis of CUE The Veteran seeks an effective date earlier than May 11, 2010, for the grant of entitlement to service connection for lumbar spine intervertebral disc syndrome with degenerative arthritis of the spine, on the basis that there was CUE with an August 2005 Rating Decision which denied entitlement to service connection for a lower back disorder. Specifically, the Veteran’s attorney argues that since a back disability was not noted on the Veteran’s entrance examination, and since there was no medical evidence of record to support a finding that the back disability was a congenital or developmental defect, the RO was obligated to provide clear and unmistakable evidence that the Veteran’s back disability existed prior to service. A claimant whose VA claim has been adjudicated by the RO has one year after the issuance of written notification in which to initiate an appeal to the Board by filing a notice of disagreement. If no appeal is filed, then the decision is final, and is not subject to revision on the same factual basis. Such a final decision, however, may be reversed where evidence establishes that it was a product of CUE. 38 C.F.R. § 3.105(a) (2017). A final and binding RO decision will be accepted as correct in the absence of CUE. Where the evidence establishes such an error, the prior decision will be reversed and it will have the same effect as if the corrected decision had been made on the same date as the reversed or amended decision. Id. CUE is an administrative failure to apply the correct statutory and regulatory provisions to the correct and relevant facts: it is not mere misinterpretation of facts. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1991). CUE is a very specific and rare kind of error. Fugo v. Brown, 6 Vet. App. 40, 43 (1993). 38 C.F.R. § 20.1403(a) (2017). It is the kind of error of fact or law which, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. 38 C.F.R. § 20.1403(a) (2017); see Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc); see also Bustos v. West, 179 F.3d 1378, 1380-81 (Fed. Cir. 1999). A mere disagreement with how the facts were weighed or evaluated is not enough to substantiate a CUE motion. Damrel v. Brown, 6 Vet. App. 242, 245 (1994); see also Crippen v. Brown, 9 Vet. App. 412 (1996) (finding that the claimant simply requesting that the Board reweigh or reevaluate the evidence is not a valid claim of CUE). The Court has established a three-pronged test to determine whether CUE is present in a prior determination: (1) "[E]ither the correct facts, as they were known at the time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated) or the statutory or regulatory provisions extant at the time were incorrectly applied," (2) the error must be "undebatable" and of the sort "which, had it not been made, would have manifestly changed the outcome at the time it was made," and (3) a determination that there was CUE must be based on the record and the law that existed at the time of the prior adjudication in question. Damrel, 6 Vet. App. at 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). Only the law as it existed at the time of the prior decision may be considered. See 38 C.F.R. § 20.1403(b) (2017). The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 (2012) and 38 C.F.R. § 3.400 (2017). Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection, claim reopened after final adjudication, or a claim for increase of compensation, "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400(b). Additionally, with a claim for service connection, the effective date of an award will be (1) the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service or (2) the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2017). A "claim" or "application" means 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) (2017). An informal claim is any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA; however, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2017). Pursuant to 38 C.F.R. § 3.1 (r), the date of receipt means the date on which a claim, information, or evidence was received in the Department of Veterans Affairs. A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131 (2012). To establish service connection, the veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). The presumption is rebutted where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior to service and was not aggravated by such service. 38 U.S.C. § 1111, 1137. The VA Office of General Counsel and the appellate courts have issued clarifying precedent decisions regarding application of the presumption of sound condition upon entry into service. Under this guidance, to rebut the presumption of sound condition under 38 U.S.C. § 1111, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service. A veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGCPREC 3-2003; see also Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). A review of the evidence and the RO's August 2005 Rating Decision does not show that the decision was based on incorrect facts or an incorrect application of the law. The facts cited in its decision are consistent with the evidence associated with the claims file at the time of the decision. Additionally, the law as it was interpreted at that time was correctly applied. At the outset, at the time of the August 2005 Rating Decision, the Veteran’s service treatment records reflected that he was presumed to be in sound condition when examined, accepted, and enrolled for service. Specifically, the Veteran’s March 2001 Report of Medical Examination upon enlistment indicated that his spine and other musculoskeletal groups were within normal limits. Similarly, on his corresponding March 2001 Report of Medical History upon enlistment, the Veteran reported that he was in good health and never suffered from recurrent back pain; arthritis, rheumatism, or bursitis; bone, joint, or other deformity; or lameness. The Veteran was found to be qualified for service at that time. Additionally, one year later, in March 2002, the Veteran was provided with another Report of Medical Examination for the purpose of nuclear field duty and ionizing radiation work, at which time his spine and other musculoskeletal groups were again found to be within normal limits. Similarly, on his corresponding March 2002 Report of Medical History, the Veteran again reported that he was in good health and never suffered from recurrent back pain; arthritis, rheumatism, or bursitis; bone, joint, or other deformity; or lameness. Indeed, it was not until a May 2005 Report of Medical History that the Veteran reported recurrent middle back pain after waking in the morning. The Veteran was provided with a VA examination in June 2005, prior to his July 2005 separation from service, at which time he was diagnosed as having lumbar scoliosis and resulting lumbar muscle spasm due to shorter left leg by 1¼ centimeters. Based on the results of this examination, the RO issued an August 2005 Rating Decision which denied entitlement to service connection for lumbar scoliosis (claimed as lower back) on the basis that it was considered a congenital or developmental defect which was unrelated to military service and not subject to service connection. To this point, the Board acknowledges that certain abnormal curvatures of the spine, including scoliosis, may be the result of a congenital or developmental defect, which are not considered diseases or injuries for VA compensation purposes. See 38 C.F.R. §§ 3.303(c), 4.9 (2017); see also Winn v. Brown, 8 Vet. App. 510, 516 (1996) (stating that congenital or developmental defects are not diseases or injuries within the meaning of VA law and regulation). As such, a congenital or developmental defect generally may not be service-connected as a matter of law. Nevertheless, service connection may still be granted due to aggravation of a congenital or developmental defect by a superimposed disease or injury. See VAOPGCPREC 82-90 (July 18, 1990) (cited as 55 Fed. Reg. 45,711) (Oct. 30, 1990) (service connection may not be granted for defects of congenital, developmental, or familial origin, unless the defect was subject to a superimposed disease or injury). See also Carpenter v. Brown, 8 Vet. App. 240 (1995); Monroe v. Brown, 4 Vet. App. 513 (1993). However, the Board emphasizes that the June 2005 VA examination, the only VA examination of record at the time of the August 2005 Rating Decision at issue, concluded that the Veteran’s diagnosed lumbar scoliosis and resulting lumbar muscle spasm was due to him having a shorter left leg by 1¼ centimeters. The Veteran’s attorney argues that since a back disability was not noted on the Veteran’s entrance examination, and since there was no medical evidence of record to support a finding that the back disability was a congenital or developmental defect, the RO was obligated to provide clear and unmistakable evidence that the Veteran’s back disability existed prior to service. To this point, however, the Board emphasizes that the Veteran is alleging CUE in the August 2005 Rating Decision in order to obtain an earlier effective date for the grant of service connection for lumbar spine intervertebral disc syndrome with degenerative arthritis of the spine. However, there is no evidence of intervertebral disc syndrome and/or degenerative arthritis of the lumbar spine in service or within one year of service separation. To the contrary, the June 2005 VA examiner explicitly found that there was no evidence of intervertebral disc syndrome with chronic and permanent nerve root involvement, and X-rays at that time showed no evidence of degenerative changes of the lumbar spine. Indeed, the Veteran was never granted entitlement to service connection for lumbar scoliosis and resulting lumbar muscle spasm. Rather, in May 2010, the Veteran filed a new claim of entitlement to service connection for a back disability as secondary to his service-connected left knee symptomatology. When the Veteran was eventually granted entitlement to service connection for lumbar spine intervertebral disc syndrome with degenerative arthritis of the spine in an April 2014 Rating Decision, it was for back disabilities that developed since the June 2005 VA examination due to an abnormal antalgic gait caused by his service-connected left knee disabilities. Significantly, this RO decision was based on a December 2012 Independent Medical Review authored by a private orthopedic physician hired by the Veteran’s attorney to provide an opinion regarding the Veteran’s back symptomatology. This private orthopedic physician opined that: The veteran has been diagnosed with a leg length discrepancy of 1¼ cm difference. This is not due to the surgical procedures or pathology involving his left knee. Rather it is a developmental problem that was fully present prior to his joining the military. However, the combination of his leg length discrepancy, the antalgic gait (resulting from the left knee instability and traumatic arthritis following the military injury), and his level of activity while in the military have resulted in his subsequent lumbar pathology. The veteran has continued to favor his left knee over the past eight years. By doing so [the Veteran] has developed an abnormal antalgic gait that has resulted in an abnormal alignment of his hips that in turn accentuated his spinal noted supra)) is the direct result of the natural progressive history of a patient who has an insufficient functioning ACL and meniscus damage. Similarly, the report of a March 2014 VA Back (Thoracolumbar Spine) Conditions examination diagnosed the Veteran as having intervertebral disc syndrome L5-S1 with radiculopathy as well as degenerative arthritis of the spine. The March 2014 VA examiner also opined that these disabilities were proximately due to or the result of the antalgic gait caused by his service-connected left knee symptomatology. However, this VA examiner also emphasized that the Veteran’s left leg discrepancy was not due to his service-connected knee surgeries or his military service, but was rather developmental and present prior to his military service. Although these more recent medical opinions are not relevant to the specific question of whether there was CUE in the August 2005 Rating Decision, they help illustrate the fact that the Veteran is currently service connected for lumbar spine intervertebral disc syndrome with degenerative arthritis of the spine as secondary to his service-connected left knee symptomatology, and that the Veteran was never service connected for lumbar scoliosis and resulting lumbar muscle spasm, which was found by all medical professionals to be caused by a developmental left leg discrepancy that preexisted service and was not aggravated by his service-connected left leg symptomatology. The Board emphasizes that both the VA examiner and the Veteran’s own private orthopedic physician agreed that his left leg discrepancy (and resulting lumbar scoliosis and resulting lumbar muscle spasm) were not due to his service-connected knee surgeries or his military service, but were rather developmental and present prior to his military service. Indeed, the June 2005 VA examination (the only relevant VA examination of record at the time of the August 2005 Rating Decision at issue) diagnosed the Veteran as having lumbar scoliosis and resulting lumbar muscle spasm due to shorter left leg by 1¼ centimeters. The June 2005 VA examiner did not suggest that the Veteran’s lumbar scoliosis and resulting lumbar muscle spasm were caused or aggravated by any other factors. Based upon the examiner's findings that the Veteran’s diagnosed lumbar scoliosis and resulting lumbar muscle spasm were due to a shortened left leg, the RO denied entitlement to service connection for lumbar scoliosis and resulting lumbar muscle spasm on the basis that it was a congenital or developmental defect which was unrelated to military service and not subject to service connection. This was a correct application of the law (as it was then interpreted) to the correct facts and does not support a finding of CUE. Essentially, the attorney’s arguments imply that the Veteran was eventually granted entitlement to service connection for lumbar scoliosis and resulting lumbar muscle spasm, or that the lumbar spine intervertebral disc syndrome with degenerative arthritis of the spine for which he was eventually granted entitlement to service connection was somehow related to the 2005 diagnosis of scoliosis and spasm. However, as demonstrated in the medical opinions above, they were not related. Rather, the Veteran’s lumbar scoliosis and resulting lumbar muscle spasm was found to be due to a developmental left leg discrepancy that preexisted service and was not aggravated by his service-connected left leg symptomatology, while his service-connected intervertebral disc syndrome and degenerative arthritis of the spine (which developed at some point subsequent to the June 2005 VA examination) were caused by an altered antalgic gait caused by his service-connected left knee symptoms. Although the attorney has plead with specificity the nature of the alleged error, the claimed error is not CUE on its face and he has not provided persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Consequently, the Board finds that the record at the time of the August 2005 Rating Decision presented facts that could be evaluated under the law and regulations in existence at that time in such a way as to support a finding that the Veteran’s diagnosed lumbar scoliosis and resulting lumbar muscle spasm was considered a congenital or developmental defect which was unrelated to military service. There is nothing in the evidence from the time of the August 2005 Rating Decision that would compel a conclusion, to which reasonable minds could not differ, that the entitlement to service connection for lumbar scoliosis and resulting lumbar muscle spasm was warranted. The Board reiterates that the standard for clear and unmistakable error requires that any such error compel the conclusion that reasonable minds could not differ, and that the result would have been manifestly different but for the error. Fugo, 6 Vet. App. at 43-44. Thus, there was no clear and unmistakable error in the August 2005 Rating Decision denying entitlement to service connection for lumbar scoliosis and resulting lumbar muscle spasm. Since there was no CUE in the August 2005 Rating Decision, the claim based on CUE must be denied. 2. Entitlement to an effective date earlier than September 17, 2010, for the grant of service connection for radiculopathy of the right lower extremity and radiculopathy of the left lower extremity The Veteran also seeks an effective date earlier than September 17, 2010, for the grant of service connection for radiculopathy of the right lower extremity, as well as an effective date earlier than March 5, 2014, for the grant of service connection for radiculopathy of the left lower extremity. 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 for service connection, claim reopened after final adjudication, or a claim for increase of compensation, “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110(a) (). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase “will be the date of receipt of the claim or the date entitlement arose, whichever is the later.” 38 C.F.R. § 3.400(b). Additionally, with a claim for service connection, the effective date of an award will be (1) the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service or (2) the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). A “claim” or “application” means 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). An informal claim is any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA; however, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155. Pursuant to 38 C.F.R. § 3.1(r), the date of receipt means the date on which a claim, information, or evidence was received in the Department of Veterans Affairs. The Board must look to all communications in the file that may be interpreted as applications for claims, formal and informal, for benefits and then to all other evidence of record to determine the "earliest date as of which," disability is ascertainable. 38 U.S.C. § 5110(b)(2); see 38 C.F.R. §§ 3.400(o)(2), 3.155(a); Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992); Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Here, the Veteran did not file specific claims of entitlement to service connection for radiculopathy of the right lower extremity and left lower extremity. Rather, in correspondence received May 11, 2010, the Veteran requested to file for an increase in his “service-connected left knee and back conditions.” As the Veteran was not service-connected for a back condition at that time, the RO interpreted his correspondence as a petition to reopen his claim of entitlement to service connection for lumbar scoliosis, which had been previously denied by the RO in August 2005 (as discussed above). In a May 2011 Rating Decision, the RO determined that the claim would remain denied because new and material evidence had not been received. However, the Veteran submitted a timely Notice of Disagreement in December 2011, and, in an April 2014 Rating Decision, the RO granted entitlement to service connection for intervertebral disc syndrome L5-S1/degenerative arthritis of the spine, radiculopathy of the right lower extremity, and radiculopathy of the left lower extremity. Specifically, the RO assigned an effective date of September 17, 2010 (the date the condition was diagnosed at the VA Medical Center in Ann Arbor, Michigan), for the grant of entitlement to service connection for radiculopathy of the right lower extremity, and an effective date of March 5, 2014 (the date of a VA examination which diagnosed the condition), for the grant of entitlement to service connection for radiculopathy of the left lower extremity. However, a review of the claims file indicates that the Veteran is entitled to an effective date of December 11, 2012, for the grant of entitlement to service connection for radiculopathy of the left lower extremity. On that date, a private orthopedic physician hired by the Veteran’s attorney issued an Independent Medical Review in which the Veteran was diagnosed as having bilateral sciatic nerve radiculopathy. The Board finds that an effective date prior to December 11, 2012, is not warranted, however, as there is no diagnosis of left lower extremity radiculopathy prior to that date. Indeed, the Veteran’s attorney requested in his April 2018 Argument in Support of Appeal that the Veteran be granted an effective date of December 11, 2012, at the latest, for the grant of entitlement to service connection for radiculopathy of the left lower extremity. Similarly, a review of the claims file indicates that the Veteran is entitled to an effective date of August 26, 2010, for the grant of entitlement to service connection for radiculopathy of the right lower extremity. On that date, the Veteran underwent magnetic resonance imaging (MRI) of the lumbar spine showing small, broad-based posterior central disc herniation at L5-S1 which “may be symptomatic for the impingement of the descending S1 nerve roots.” Although the Veteran was not officially diagnosed as having right lower extremity radicular symptoms until a September 17, 2010, Manual Medicine Follow-Up at the VA Ann Arbor Healthcare System in Ann Arbor, Michigan, that diagnosis was based on the MRI findings of August 26, 2010. As such, the Board finds that an effective date of August 26, 2010, is warranted for the grant of entitlement to service connection for radiculopathy of the right lower extremity. However, a date prior to August 26, 2010, is not supported by the record. Indeed, in a December 2010 VA treatment note, the Veteran reported that his right-sided radiculopathy had its onset approximately four months prior after doing forward bends in yoga class. Moreover, straight leg raise testing conducted in May 2010 was negative for radicular signs. Accordingly, the Board finds that December 11, 2012, is the appropriate effective date for entitlement to service connection for radiculopathy of the left lower extremity, while August 26, 2010, is the appropriate effective date of entitlement to service connection for radiculopathy of the right lower extremity, as these are the dates when entitlement arose. 38 C.F.R. § 3.400(b). 3. Entitlement to an effective date earlier than October 21, 2016, for the grant of a 20 percent evaluation for left shoulder rotator cuff tear with labral tear, including superior labrum anterior and posterior and glenohumeral joint dislocation The Veteran seeks effective dates earlier than October 21, 2016, for the grant of entitlement to a 20 percent evaluation of 10 percent for left shoulder rotator cuff tear with labral tear, including superior labrum anterior and posterior and glenohumeral joint dislocation. By way of background, the Veteran initially filed a claim of entitlement to service connection for a left shoulder disability in May 2005 under the Pre-Separation Program. In an August 2005 Rating Decision, the RO granted entitlement to service connection for left shoulder rotator cuff or labral tear with history of dislocation and assigned a 10 percent disability evaluation effective July 8, 2005, the day after his separation from active duty service. The Veteran did not submit a timely Notice of Disagreement, and no additional evidence relevant to his left shoulder was received within one year of the August 2005 Rating Decision. As such, the August 2005 rating decision became final. 38 U.S.C. § 7105(b) (2012); 38 C.F.R. § 3.104 (2017). On October 21, 2016, VA received the Veteran’s Application for Increased Compensation Based on Unemployability, at which time the Veteran indicated that he was unable to secure or follow a substantially gainful occupation as a result of his service-connected IVDS, lumbar radiculopathy, rotator cuff, left knee, and left wrist. As a result of this claim, the Veteran was provided with a VA Shoulder and Arm Conditions examination in January 2017, among other examinations, to assess the severity of his service-connected shoulder disability. Based on the results of this examination, in a March 2017 Rating Decision, the RO recharacterized the Veteran’s left shoulder disability as “left shoulder rotator cuff tear with labral tear, including superior labrum anterior and posterior and glenohumeral joint dislocation” and granted an evaluation of 20 percent effective October 21, 2016, the date of his Application for Increased Compensation Based on Unemployability. Because the August 2005 Rating Decision became final, the effective date for an increased rating in this case is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In general, "date of receipt" means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r). Determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155 (in effect prior to March 24, 2015), 3.400(o)(2); see also Hazan v. Gober, 10 Vet. App. 511 (1997). The Court has held that the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In order to obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one-year period prior to the date of the increased rating claim. If the evidence showed that the increase occurred earlier than one year prior to the date of the claim, then, under the analysis in Gaston, 605 F.3d at 984, the effective date is no earlier than the date of the increased rating claim. The Federal Circuit explained that the legislative intent in enacting 38 U.S.C. § 5110(b) was to allow for a grace period of up to one year for a veteran to file the claim once he or she was aware of the increase in disability. Id. The Federal Circuit held that "consistent with the plain language of the statute and this legislative history, the only reasonable construction of 38 U.S.C. § 5110(b)(2) is that a veteran's claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim." After review of all the lay and medical evidence, the Board finds that the Veteran's October 21, 2016, Application for Increased Compensation Based on Unemployability constituted the earliest informal claim for an increased disability rating for the service-connected left shoulder disability. This was the earliest communication received after the final August 2005 Rating Decision that could be construed as a new formal or informal claim for an increased disability rating for the service-connected left shoulder disability. Moreover, neither the Veteran nor his attorney has argued that he filed a claim for an increase prior to October 21, 2016. As explained above, in order to obtain an increased disability rating earlier than the date of the claim, the evidence must show that the increase in disability occurred within the one-year period prior to the date of claim. If the evidence showed that the increase occurred earlier than one year prior to the date of the claim, then the effective date is no earlier than the date of the claim. Here, there is no indication of a formal or informal claim for an increased rating for the service-connected left shoulder disability prior to October 21, 2016. Further, based on a review of the evidence of record, both lay and medical, the weight of the evidence does not show that the increase in the Veteran's left shoulder disability occurred during the one-year period prior to the date of the present claim. Therefore, the appropriate effective date for the grant of entitlement to a 20 percent disability evaluation for the Veteran’s service-connected left shoulder disability is October 21, 2016, the date of receipt of his Application for Increased Compensation Based on Unemployability. In order for the Board to consider an effective date going to the initial August 2005 Rating Decision, the Veteran would have to raise a claim for CUE with the earlier rating decision, as there is no such thing as a free standing earlier effective date claim. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (holding that a freestanding claim for an earlier effective date is a nullity, and the only basis for challenging the effective date of a now final decision is CUE). However, there is no communication from the Veteran or his attorney specifically asserting CUE in any prior rating decision of the RO with respect to his left shoulder disability. The Veteran does not identify a rating decision that was in error that failed to grant a 20 percent disability evaluation prior to October 21, 2016, for his service-connected left shoulder disability. Therefore, the Board concludes that the issue of CUE has not been raised with respect to this claim. The Veteran is free to file a claim of CUE in the future should he desire. Accordingly, an effective date prior to October 21, 2016, for the grant of a disability evaluation of 20 percent for the Veteran’s service-connected left shoulder disability is denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran also seeks entitlement to increased evaluations for lumbar spine intervertebral disc syndrome with degenerative arthritis of the spine; left knee instability; limited left knee flexion; radiculopathy of the left lower extremity; radiculopathy of the right lower extremity; left shoulder rotator cuff tear with labral tear, including SLAP and glenohumeral joint dislocation; and chronic right sternocleidomastoid muscle strain. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to all claims, a review of the records reveals that the Veteran received regular treatment at the VA Ann Arbor Healthcare System in Ann Arbor, Michigan, as well as the Palo Alto VA Medical Center in Palo Alto, California. However, the most recent VA treatment records associated with the claims file are dated in March 2017. As such, any outstanding VA treatment records dated from March 2017 to the present should be obtained and associated with the claims file. See 38 U.S.C. § 5103A(c) (2012); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim). Additionally, the claims of entitlement to increased evaluations for lumbar spine intervertebral disc syndrome with degenerative arthritis of the spine; left knee instability; limited left knee flexion; radiculopathy of the left lower extremity; radiculopathy of the right lower extremity; and chronic right sternocleidomastoid muscle strain were last adjudicated by the RO in two Statements of the Case issued in March 2016. Since that time, additional relevant evidence has been added to the record which has not been reviewed by the Agency of Original Jurisdiction (AOJ). This evidence consists of treatment records from the VA Ann Arbor Healthcare System in Ann Arbor, Michigan, and the Palo Alto VA Medical Center in Palo Alto, California, as well as a January 2017 VA Knee and Lower Leg Conditions examination report, a January 2017 Wrist Conditions examination report, a January 2017 VA Neck (Cervical Spine) Conditions examination report, a January 2017 VA Back (Thoracolumbar Spine) Conditions examination report, and a January 2017 VA Shoulder and Arm Conditions examination report. Although the Veteran’s attorney’s April 2018 Argument in Support of Appeal included a blanket statement waiving the right to have the RO review any newly-submitted argument or evidence, this waiver was not specific to the plethora of VA-generated evidence that was added to the record since the March 2016 Statements of the Case. Indeed, although initial AOJ review is automatically waived for evidence submitted by the Veteran or his representative when the VA Form 9 is received after February 2, 2013, the automatic waiver does not apply to VA-generated evidence, such as VA examination reports or VA treatment records not submitted by the Veteran. 38 U.S.C. § 7105(e) (2012). Waiver of a Supplemental Statement of the Case is only applicable to evidence submitted by the Veteran or his representative. See 38 C.F.R. § 20.1304. As such, these claims must be remanded for AOJ review of the newly received evidence. The matters are REMANDED for the following action: 1. Obtain all VA treatment records of the Veteran from the VA Ann Arbor Healthcare System in Ann Arbor, Michigan, as well as the Palo Alto VA Medical Center in Palo Alto, California, to include any associated outpatient clinics, dated from March 2017 to the present. All attempts to obtain these records should be documented in the file. Any negative replies must be in writing, and associated with the file. 2. Following any additional development deemed appropriate based on the new evidence added to the record since issuance of the March 2016 Statements of the Case, readjudicate the issues on appeal. In doing so, consider all relevant evidence added to the claims file since the most recent March 2016 Statements of the Case, to include all VA treatment records relevant to the Veteran’s increased evaluation claims. If any benefit sought is not granted, then the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and afforded an opportunity to respond before the record is returned to the Board for further review. L. BARSTOW Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel