Citation Nr: 18154228 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 15-00 454A DATE: November 29, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for lumbar strain with degenerative disc disease for the period prior to August 18, 2016 is dismissed. Entitlement to a disability rating in excess of 40 percent for lumbar strain with degenerative disc disease for the period from August 18, 2016 is dismissed. Entitlement to a disability rating in excess of 10 percent for sciatic radiculopathy of the right leg for the period prior to June 8, 2015 is dismissed. Entitlement to a disability rating in excess of 20 percent for sciatic radiculopathy of the right leg for the period from June 8, 2015 is dismissed. Entitlement to a compensable disability rating for external cutaneous radiculopathy of the right leg is dismissed. Entitlement to a disability rating in excess of 10 percent for sciatic radiculopathy of the left leg is dismissed. Entitlement to an effective date prior to December 5, 2008 for service connection for lumbar strain with degenerative disc disease is denied. Entitlement to an effective date prior to December 5, 2008 for service connection for sciatic radiculopathy of the right leg is denied. REFERRED The issue of whether there is clear and unmistakable error (CUE) in the May 1994 rating decision which denied entitlement to service connection for a low back condition with numbness of the legs was raised at the March 2017 hearing and is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. FINDINGS OF FACT 1. On March 30, 2017, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of the appeal with respect to all issues seeking increased ratings was requested. 2. The Veteran's claim to reopen the previously denied claim for service connection for a low back condition with numbness of the legs was received by VA on December 5, 2008. CONCLUSIONS OF LAW 1. The criteria for withdrawal of all issues on appeal related to increased disability ratings for the service-connected low back disability, including radiculopathy of the lower extremities, by the appellant have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. . The criteria for an effective date prior to December 5, 2008 for November 5, 2013 for the grant of service connection for lumbar strain with degenerative disc disease have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.114, 3.155, 3.157, 3.400 (2018). 3. The criteria for an effective date prior to December 5, 2008 for November 5, 2013 for the grant of service connection for radiculopathy of the right leg have not been met. 38 U.S.C. §§ 5110, 5107 (2012); 38 C.F.R. §§ 3.114, 3.155, 3.157, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1977 to June 1980. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this testimony is associated with the claims file. Withdraw of Appeals for Increased Ratings The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the March 2017 Board hearing, the Veteran explicitly, unambiguously, and with a full understanding of the consequences, withdrew his appeal with respect to all issues involving entitlement to increased disability ratings which include: entitlement to a disability rating in excess of 10 percent for lumbar strain with degenerative disc disease for the period prior to August 18, 2016; entitlement to a disability rating in excess of 40 percent for lumbar strain with degenerative disc disease for the period from August 18, 2016; entitlement to a disability rating in excess of 10 percent for sciatic radiculopathy of the right leg for the period prior to June 8, 2015; entitlement to a disability rating in excess of 20 percent for sciatic radiculopathy of the right leg for the period from June 8, 2015; entitlement to a compensable disability rating for external cutaneous radiculopathy of the right leg; and, entitlement to a disability rating in excess of 10 percent for sciatic radiculopathy of the left leg. The undersigned clearly identified the withdrawn issue, and the Veteran affirmed that he was requesting a withdrawal as to those issues on appeal. See, Hearing Transcript at 2-4. In addition, the Veteran was very explicit that he was only interested in pursuing the claims for earlier effective dates for service connection. See, Hearing Transcript; See also, Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). In the present case, the appellant has withdrawn the appeal with respect to all issues involving increased disability ratings for his service-connected low back disability and the associated radiculopathy of the legs and, hence, there remain no allegations of errors of fact or law for appellate consideration with respect to those issues. Accordingly, the Board does not have jurisdiction to review the appeal with respect to those issues and they are dismissed. Effective Date Service connection for lumbar strain with degenerative disc disease and radiculopathy of the right leg was granted effective December 5, 2008. The Veteran asserts that the effective date is incorrect and that he warrants the assignment of an earlier effective date for service connection. The Veteran originally filed a claim for service connection for a low back disorder in the 1990s. After development, the RO denied service connection for a low back condition with numbness of the right leg and toes in a May 1994 rating decision. The Veteran was notified of this rating decision later that same month. The notification letter is of record and indicates that the rating decision and the appropriate appeal forms were enclosed and that the Veteran’s representative had been copied on the correspondence. In September 1994, the Veteran submitted a letter which requested copies of his medical records. However, this correspondence did not indicate disagreement with the May 1994 rating decision. A VA Form 70-5572 reveals that the Veteran's request for his medical records was fulfilled by the RO privacy officer in November 1994, no other contact with the Veteran occurred until he filed a claim to reopen the claim for service connection for a low back disorder with radiculopathy which was received December 5, 2008. The Veteran testified at length that he did not believe that the May 1994 rating decision was final. He testified that he did not receive any notice or the forms with which to appeal. The record reflects otherwise. The May 1994 notification letter indicates that both the Veteran and his representative at the time were properly notified of the decision and that he was provided the proper appellant forms as an enclosure. Moreover, the Veteran communicated with the RO making a FOIA request for copies of his medical records which was fulfilled in November 1994. The record establishes that the Veteran did not initiate an appeal with respect to the May 1994 rating decision denying service connection for a low back condition with numbness of the right leg and that that decision is final. 38 U.S.C. § 7105(c). The Veteran also made assertions with respect to error in the May 1994 rating decision; the issue of whether there is CUE in the May 1994 rating decision which denied entitlement to service connection for a low back condition with numbness of the legs has not been adjudicated and is not properly before the Board at this time. This issue has been referred to the AOJ for adjudication above. In general, the effective date of an award of disability compensation based on a claim for service connection or a claim reopened after final disallowance, shall 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. Prior to 2015, a claim is 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) (2014). Any communication or action indicating an intent to apply for VA benefits from a claimant may be considered an informal claim; such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). Simply put, the Veteran’s claim to reopen his claim for service connection for a low back disorder with radiculopathy was received on December 5, 2008. There is no communication from the Veteran between the May 1994 denial of service connection and December 2008 which can be construed as a claim. Accordingly, he cannot be granted effective dates for service connection for lumbar strain with degenerative disc disease or sciatic radiculopathy of the right leg prior to the date of his claim to reopen. 38 C.F.R. § 3.400. Consequently, the Board finds that an effective date earlier than December 5, 2008 for the grant of service connection for lumbar strain with degenerative disc disease and for service connection for sciatic radiculopathy of the right leg is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Havelka, Counsel