Citation Nr: 18152251 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 18-13 121 DATE: November 21, 2018 ORDER Entitlement to an effective date of November 18, 2010, but not earlier, is granted for the assignment of a separate service-connected rating for radiculopathy of the right lower extremity associated with the service-connected degenerative disc disease (DDD) of the lumbosacral spine. REMANDED The issue of entitlement to a disability rating in excess of 10 percent for the orthopedic manifestations of the service-connected DDD of the lumbar spine is remanded. FINDINGS OF FACT 1. In a December 2008 decision, the Board denied entitlement to a compensable disability rating for the service-connected lumbar spine disability; the Veteran neither requested reconsideration of that decision nor appealed the determination to the United States Court of Appeals for Veterans Claims (CAVC). 2. On November 18, 2010, the RO received the Veteran’s claim for an increased rating for the service-connected DDD of the lumbar spine, which includes an inferred claim for entitlement to a separate disability rating based on any neurologic manifestations associated with the service-connected DDD of the lumbar spine; that was the first communication from the Veteran since the Board’s December 2008 decision. 3. In an October 2011 rating decision, the RO granted an increased rating to 10 percent for orthopedic manifestations of the Veteran’s DDD of the lumbar spine, effective from November 18, 2010. 4. On December 28, 2011, the RO received the Veteran’s Notice of Disagreement (NOD), which includes dissatisfaction with the effective date assigned for the compensable rating, as well as with the 10 percent rating assigned. 5. The RO did not thereafter issue a Statement of the Case addressing these issues; thereby vitiating the finality of the October 2011 rating decision. 6. On October 19, 2013, the Veteran once again requested an increased rating for the service-connected DDD of the lumbar spine. 7. In a February 2014 rating decision, the RO confirmed and continued the previously assigned 10 percent rating assigned for the orthopedic manifestations of the service-connected DDD of the lumbar spine; and, awarded a separate grant of service connection for radiculopathy of the right lower extremity as a neurological manifestation of the service-connected DDD with an initial 10 percent rating, effective from October 19, 2013. 8. The Veteran’s right lower extremity radiculopathy was factually ascertainable for more than one year prior to the November 18, 2010 claim for an increased rating. CONCLUSIONS OF LAW 1. The December 2008 Board decision is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 20.1000, 20.1100 (2017). 2. The November 18, 2010 rating decision did not become final and the Veteran’s claims for a higher rating and earlier effective date for the rating assigned for the DDD of the lumbar spine have remained pending since that time. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 20.1103 (2017). 3. The criteria for entitlement to an effective date of, November 18, 2010, but no earlier, for the award of 10 percent for service-connected radiculopathy of the right lower extremity as a neurological manifestation of the service-connected DDD, have been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Marine Corps from March 1968 to March 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision by the Atlanta, Georgia (RO) of the Department of Veterans Affairs (VA) in which the RO, inter alia, granted service connection for radiculopathy, right lower extremity and assigned an effective date of October 19, 2013. The Veteran timely filed a notice of disagreement (NOD) and timely disagreed with the effective date assigned. 1. Entitlement to an earlier effective date for the assignment of a separate 10 percent rating for the service-connected radiculopathy of the right lower extremity as a neurological manifestation of the service-connected DDD of the lumbar spine. Generally, except as otherwise provided, the effective date of an award of compensation based on an original claim will be 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. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award of disability compensation is set in accordance with the facts found, but cannot be earlier than the date of receipt of the claim for the compensation that was granted. 38 U.S.C. § 5110 (a). If the claim for compensation was received within one year of separation from service, the effective date is the day following separation from service. See 38 U.S.C. § 5110 (b)(1). Otherwise, the effective date for a claim for disability compensation is the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (b)(2)(i). Although the regulations relating to what constitutes a claim were recently amended, effective March 24, 2015, given that the claim in this case was filed prior to that date, the former regulations are applicable. Under those regulations, a “claim” was defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Any communication indicating intent to apply for a benefit under the laws administered by the VA was considered an informal claim provided it identified, but not necessarily with specificity, the benefit sought. 38 C.F.R. § 3.155 (a). To determine when a claim was received under the relevant regulations prior to their recent amendment, the Board must review all communications that may be construed as an application or claim. Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Any communication or action that demonstrates an intent to apply for an identified benefit may be considered an informal claim. See 38 C.F.R. § 3.155 (a). In this instance, service connection for radiculopathy of the right lower extremity was granted in a February 2014 rating decision and an effective date of October 19, 2013 for the award of service connection was assigned. The award was assigned based on the Veteran’s October 19, 2013 claim for an increased rating for his service-connected DDD of the lumbar spine. Although the RO awarded a separate grant of service connection, the 10 percent rating was assigned for the neurological manifestations of the already-service-connected DDD of the lumbar spine, and it was assigned in response to a claim for an increased rating. According to 38 C.F.R. § 4.71a, the General Rating Formula for Diseases and Injuries of the Spine, Note (1) instructs that any associated objective neurologic abnormalities should be evaluated separately under the appropriate diagnostic code. In this case, the RO’s grant of service connection was merely a formality, and the assignment of a separate 10 percent rating for RLE radiculopathy is, in essence, the assignment of an increased rating on the basis of neurologic manifestations associated with the DDD of the lumbar spine. When the RO assigned an effective date of October 19, 2013 for the assignment of the 10 percent rating for radiculopathy of the right lower extremity, it presumably did so based on the date that the Veteran filed his most recent claim for an increased rating. However, the Board finds that the Veteran had a pending claim for an increased rating for the service-connected DDD of the lumbar spine dating back to November 18, 2010. Specifically, in November 2010, the Veteran submitted a claim for an increased rating for his service-connected back disability. In an October 2011 rating decision, the RO increased the evaluation for the lumbosacral back disability to 10 percent effective November 18, 2010, the date of the claim. The Veteran filed a timely NOD in December 2011 wherein he disagreed with the rating assigned, as well as the effective date. However, the RO did not thereafter issue an SOC in response to that NOD. Thereafter, in August 2013, the Veteran once again submitted an NOD to the October 2011 rating decision. This NOD was submitted on a standardized NOD VA Form 21-0958 (the standardized form is now required for a valid NOD, but this form was not required at the time the Veteran submitted his initial NOD in December 2011). In response, the RO notified the Veteran in September 2013 correspondence that his August 2013 NOD could not be accepted because it was not timely. However, the RO failed to realize that the Veteran had indeed submitted a timely NOD to the October 2011 rating decision in December 2011. Thereafter, in October 2013, the Veteran filed another increased rating claim for his service-connected DDD of the lumbar spine. In February 2014, the RO granted service connection for radiculopathy, right lower extremity and assigned an effective date of October 19, 2013. Although the Veteran timely appealed this determined, the Board finds that the appeal of the October 2011 rating decision remained pending at the time the October 2013 claim was filed; and, at the time the February 2014 rating decision was issued. In other words, when the Veteran filed a timely NOD in December 2011, but no SOC was subsequently issued, the November 2010 claim remained pending. See Myers v. Principi, 16 Vet. App. 228 (2002) (where a veteran had filed a timely appeal from a prior RO decision and VA failed to recognize the appeal, neither the prior RO decision nor its subsequent denial of reopening of the claim becomes final). See also Jones v. Shinseki, 23 Vet. App. 122, 125 (2009), aff’d, 619 F.3d 1368 (Fed. Cir. 2010) (“[O]nce an NOD has been filed, further RO decisions, which do not grant the benefit sought, cannot resolve the appeal that remains pending before the Board. Only a subsequent Board decision can resolve an appeal that was initiated but not completed”) (quoting Juarez v. Peake, 21 Vet. App. 537, 543 (2008)). As discussed above, the effective date here must be the date of claim or the date entitlement arose, whichever is later. With respect to the phrase “the date entitlement arose,” the U.S. Court of Appeals for Veterans Claims (Court) has stressed what that phrase does not mean. “[T]he effective date of an award of service connection is not based on the date of the earliest medical evidence demonstrating a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA.” Lalonde v. West, 12 Vet. App. 377, 382 (1999). Here, given that the Veteran filed a claim for an increased rating for the back disability on November 18, 2010, and an appeal remains pending, the Board finds that the correct effective date for the assignment of the separate 10 percent rating for neurological impairment associated with the service-connected DDD of the lumbar spine is November 18, 2010. Regardless of whether we consider the award as a new grant of service connection or an increased rating, the effective date for the assignment of the 10 percent rating for radiculopathy of the right lower extremity can be no earlier than November 18, 2010. In this regard, November 18, 2010 is the first communication from the Veteran since the Board’s December 2008 final decision was issued that could be construed as a claim for a separate rating for neurological manifestations associated with the service-connected DDD of the lumbar spine. The Board acknowledges that the Veteran contends that the effective date should be January 23, 2004, the date the Veteran contends a claim for increased rating for the back disability was submitted. The Board notes that the claim was, in fact, received at the RO on February 11, 2004. The RO subsequently denied the claim for an increased rating in an October 2004 rating decision and the Veteran timely filed a NOD and substantive appeal to the Board. In a December 2008 Board decision, the Board denied the claim for a compensable rating for a lumbosacral strain. The Board decision subsumed the RO decision, 38 C.F.R. § 20.1104, and became final on the date stamped on the face of the decision. 38 C.F.R. § 20.1100 (a). Notably, Board decisions are final when issued, unless the Board Chairman orders reconsideration. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). The Veteran did neither requested reconsideration nor was it granted, see 38 U.S.C. §§ 7103 (a), 7104(a); 38 C.F.R. § 20.1100 (a), and the Veteran did not appeal the Board’s decision to the CAVC, see 38 U.S.C. § 7252 (a) (giving the Court exclusive jurisdiction to review Board decisions). As the Board decision became final, the only ways to revise the effective date to 2004 for the grant of service connection for radiculopathy of the right lower extremity would be either to request a revision of a prior decision denying service connection based on clear and unmistakable error (CUE) or a request for revision of the December 2008 Board decision denying his claim on the basis of CUE. The Veteran has not filed a claim for CUE and he has not alleged any specified error of fact or law. Thus, the assignment of an effective date prior to November 18, 2010 for the assignment of a separate 10 percent rating for service-connected radiculopathy of the right lower extremity is not warranted. Here, radiculopathy was indicated at some point in 2004. Then, in a November 2010 VA treatment note, the physician noted a history of right and left lower extremity radiculopathy with numbness. VA treatment notes from January 2012 reflect that the Veteran had lumbar radiculopathy. Subsequently, in December 2014, a VA examination notes a diagnosis of radiculopathy in the right lower extremity. In determining the date entitlement arose, when an original claim for benefits is pending, the Board must determine when a claimant’s disability manifested itself under all the “facts found” and “the date on which the evidence is submitted is irrelevant.” McGrath v. Gober, 14 Vet. App. 28, 35 (2000). In this case, radiculopathy of the right lower extremity was demonstrated by the record long before November 2010. Thus, if we consider the regulations governing service connection effective dates, the proper effective date is the date of receipt of claim or the date entitlement arose which is later. Here, the later date is the date of claim, November 18, 2010. Likewise, if we consider the regulations governing the effective dates for increased ratings, the outcome is the same. As noted above, under 38 U.S.C. § 5110 and 38 C.F.R. § 3.400 the effective date “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof,” unless specifically provided otherwise. 38 U.S.C. § 5110 (a). Section 5110(b)(2) provides otherwise by stating that the effective date of an increased rating “shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date.” Under 38 C.F.R. § 3.400 (o)(1), except as provided in paragraph (o)(2), the effective date is “date of receipt of claim or date entitlement arose, whichever is later.” 38 C.F.R. § 3.400 (o)(2) provides that the effective date is the “earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date, otherwise date of receipt of claim.” See Harper v. Brown, 10 Vet. App. 125 (1997). Thus, three possible dates may be assigned for the effective date of an increased rating claim depending on the facts of the case: (1) If an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) If an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2); or (3) If an increase in disability precedes the claim by more than a year, the date that the claim was received (date of claim) (38 C.F.R. § 3.400 (o)(2)). 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1) and (2). As applied to the facts in this case, the appropriate effective date of the increased award in this case is November 18, 2010, the date the Veteran’s claim for increase was received, because an increase in disability was shown as early as 2004, which is more than one year prior to the date of claim. For all the foregoing reasons, the evidence is against a finding that an effective date earlier than November 18, 2010, is warranted and the benefit of the doubt doctrine is therefore not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND As noted above, the RO failed to issue a Statement of the Case following the Veteran’s timely December 2011 NOD with the October 2011 rating decision. Accordingly, the Veteran has had a claim for increased compensation based on orthopedic manifestations associated with the service-connected DDD of the lumbar spine pending since that time. Although the RO subsequently awarded an increased rating for the neurological impairment by granting service connection for radiculopathy of the right lower extremity, a claimant is presumed to seek the maximum available benefit for a disability under any applicable DC; thus, the claim for an increased rating for the service-connected DDD of the lumbar spine remains viable on appeal, at least with regard to the orthopedic manifestations. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Because the filing of a notice of disagreement initiates appellate review, the claim must be remanded for the preparation of an SOC as to the issue of entitlement to a higher rating for the service-connected DDD of the lumbar spine in accordance with 38 U.S.C. § 7105 and 38 C.F.R. §§ 19.29, 19.30. The failure to issue an SOC is a procedural defect requiring a remand. Manlincon v. West, 12 Vet. App. 238 (1999) On remand, the Veteran will have the opportunity to file a timely substantive appeal if he wishes to complete an appeal as to this matter. The matter is REMANDED for the following action: Issue a SOC on the issue of entitlement to an increased rating for the service-connected DDD of the lumbar spine in response to the Veteran’s December 2011 NOD to the October 2011 rating decision. Notify the Veteran and his representative that a timely substantive appeal is required to complete an appeal on this issue and afford them an appropriate amount of time to do so. Thereafter, if the Veteran perfects his appeal by submitting a timely and adequate substantive appeal, return the case to the Board for the purpose of appellate disposition, if appropriate, following any development deemed necessary. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Laroche, Associate Counsel