Citation Nr: 18157392 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 11-00 050A DATE: December 13, 2018 ORDER Entitlement to a rating in excess of 20 percent for chronic lower back strain with mild degenerative disc disease is denied. Entitlement to an effective date of November 24, 2006 is granted for the award of a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. Entitlement to an effective date of November 24, 2006 is granted for basic eligibility to dependents’ educational assistance (DEA) benefits. REMANDED Entitlement to an effective date earlier than September 30, 2014 for the grant of service connection for sciatic radiculopathy of the left lower extremity is remanded. FINDINGS OF FACT 1. Since service connection was established effective February 19, 2009, the chronic lower back strain with mild degenerative disc disease has been manifested at worst by forward flexion limited to 40 degrees and a combined range of motion of thoracolumbar spine of 135 degrees with pain on motion. 2. A prior Board Remand found the May 2007 rating decision denying entitlement to a TDIU did not become final and extended the presumption of regularity to the Veteran’s attorney with respect to his claim that he submitted a notice of disagreement by certified mail on February 11, 2009, following a June 2008 rating decision that denied entitlement to a TDIU; accordingly, the Veteran’s informal claim for a TDIU was received on November 24, 2006. 3. Since the claim for a TDIU was received in November 2006 and prior to February 19, 2009, service connection had been established for a total abdominal hysterectomy (rated 30 percent disabling), medial meniscectomy of the right knee status post total knee replacement (rated 30 percent disabling), bursitis of the right (dominant) shoulder (rated 20 percent disabling), left knee chondromalacia (rated 10 percent disabling), sinusitis with allergic rhinitis (rated 10 percent disabling), fracture of the left ankle with achilles tendonitis (rated 10 percent disabling), bronchitis (rated 10 percent disability), and other disabilities rated noncompensably disabling; the combined evaluation for compensation was 80 percent. 4. From November 24, 2006, the evidence of record shows that the Veteran was unable to secure or follow a substantially gainful occupation consistent with her high school education and occupational history as a patient service assistant at VA medical facilities due to service-connected disabilities, resulting in a total service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for chronic lower back strain with mild degenerative disc disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to a TDIU are met from November 24, 2006. 38 U.S.C. §§ 1155, 5101, 5107, 5110 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.15, 4.16(a), 4.25, 4.26 (2017). 3. The criteria for an effective date of November 24, 2006 for basic eligibility to DEA benefits have been met. 38 U.S.C. §§ 3500, 3501, 5110 (2012); 38 C.F.R. §§ 3.400, 3.807 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1978 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2010 rating decision, which granted service connection for a low back disability and assigned a 20 percent rating and granted a TDIU and basic entitlement to DEA benefits, each effective from February 19, 2009. In March 2014, December 2015, and March 2018, the Board remanded the issues on appeal for additional development. 1. Entitlement to an initial rating in excess of 20 percent for chronic lower back strain with mild degenerative disc disease Since service connection was established effective February 19, 2009, the Veteran’s low back disability has been rated 20 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242, which pertains to degenerative arthritis of the spine. She contends that a higher disability rating is warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Generally, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also for consideration in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Analysis in this decision has therefore been undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. Functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on undertaking the motion. Id.; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Factors of joint disability reside in reductions of their normal excursion of movements in different planes and consideration will be given to less movement or more movement than normal, weakness, excess fatigability, incoordination, painful movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Instability of station, disturbance of locomotion, interference with sitting, standing and weight-bearing are related considerations. Id. Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell, 25 Vet. App. at 43. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). In this case, Diagnostic Code 5242 pertains to degenerative arthritis of the spine, which is rated under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply to disability of the thoracolumbar spine. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note 2. Range of motion measurement is rounded to the nearest five degrees. Id. Note 4. Associated objective neurologic abnormalities are evaluated separately, under an appropriate diagnostic code. Id. Note 1. The Board notes that service connection has already been established for sciatic radiculopathy of the right and left lower extremities and for femoral radiculopathy of the right lower extremity. The assigned ratings for these disabilities are not on appeal. Turning to the evidence, an August 2009 VA emergency department record reflects the Veteran presented with complaints of increased low back pain rated 8/10 in severity since lifting a water bucket two days earlier. Prescribed Vicodin did not help the pain. She stated she had begun an exercise program two months earlier, including “cardio exercise” and walking 1.5 miles three times per week. Examination of the lumbar spine revealed tenderness to palpation and limited range of motion. She used a quad cane for ambulation. The physician prescribed a short course of steroids and muscle relaxant. Among private and VA treatment records dating to August 2018, subsequent emergency department visits were for a variety of medical problems unrelated to the Veteran’s low back disability. A November 2009 VA primary note reflects the Veteran’s report that her current chiropractic treatment did not seem to be helping her chronic low back pain, which she rated as 4/10 in severity. The physician prescribed daily methadone and Vicodin as needed for severe flare-ups. During a January 2010 primary care visit, she endorsed continued back pain, but stated that the chiropractic treatment did seem to help. A January 2010 orthopedic consultation report related to the left shoulder noted she “likes to walk about two miles a day.” At a March 2010 primary care follow-up visit, she reported that her chronic pain was “much improved” with use of methadone, her TENS unit, and rare use of Vicodin. An August 2010 VA chiropractic note reflects the Veteran rated her back pain as 7/10 in severity, stating that it was getting worse. The next day in September 2010, the Veteran was afforded a VA examination. She described her history of low back pain during military service and her current symptoms of sharp, stabbing daily pain rated 10/10 in severity, which decreased to 7/10 when using pain medications, without radiation to the extremities. Other reported low back symptoms included fatigue, decreased motion, stiffness, weakness, and spasm. She endorsed having severe, weekly flare-ups lasting more than a month. She estimated having 20 episodes in the last year when she could not get out of bed due to low back pain, which resulted in some urinary incontinence. She reported needing to go to the emergency department and experiencing increased back pain with rainy weather, getting out of bed, going up or down stairs, or walking, standing, or sitting too long. She described improved symptoms with taking medications Lortab and Methadone, using a TENS unit, and icing and resting. She used a cane and brace and indicated she was unable to walk more than a few feet. Rounded to the nearest 5 degrees, thoracolumbar spine range-of-motion testing revealed flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 20 degrees each, and right and left rotation to 20 degrees each. There was objective evidence of pain with active range of motion and although the examiner was unable to perform repetitive-use testing due to back pain with spasm and the Veteran crying, the examiner concluded there was also objective evidence of pain following repetitive motion. Other thoracolumbar spine examination findings included abnormal gait; abnormal spinal curvature manifested by scoliosis; spasm, guarding, and tenderness severe enough to result in abnormal gait or abnormal spinal contour; weakness; no ankylosis or atrophy; normal reflex and sensory function; and some motor impairment manifested by active movement against some resistance with lower extremity flexion and extension. X-ray examination of the thoracolumbar spine demonstrated mild degenerative changes. The examiner noted that prior imaging studies also showed spondylosis and degenerative spurring. There were no incapacitating episodes due to intervertebral disc syndrome. The examiner remarked that the Veteran was unemployable due to her back disability and multiple other medical issues. During a primary care visit later in September 2010, the Veteran stated that her back pain remained constant, but was helped by chiropractor care and had been taking methadone only once daily. She reported just buying a new home and painting the next weekend. In June 2011, the Veteran was afforded a VA spine examination to determine whether she had right lower extremity radiculopathy. She reported having constant low back pain rated as 4/10 in severity with no flare-ups or incapacitating episodes. She denied associated bowel or bladder dysfunction, difficulty walking, fatigue, decreased motion, stiffness, weakness, or spasm. The examiner observed she walked with a cane. On examination, she had normal posture, gait, and spinal curvatures. There was no thoracolumbar spine ankylosis, spasm, atrophy, guarding, pain with motion, tenderness, or weakness. On thoracolumbar spine range-of-motion testing, the Veteran had flexion to 60 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees each, and right and left rotation to 30 degrees each. There was no objective evidence of pain on active range of motion and no additional limitation following three repetitions of range-of-motion testing, including any pain. Reflex, sensory, and motor examination findings were reported as normal. Imaging studies from April 2011 documented mild lumbosacral spondylosis, unchanged. The examining physician explained that the Veteran had no clinical evidence of right lower extremity radiculopathy. Subsequent VA treatment records reflect ongoing complaints, evaluation, and treatment for back pain. They also reflect the Veteran increased her activity level, walking three miles per day, doing water aerobics, and gradually losing weight. During April 2014 primary care treatment, she reported worsening back pain to a 6/10 severity-level chronically, which was worse with standing. She disclosed that she babysits her two-year-old grandchild while her daughter finishes nursing school. She denied bowel or bladder changes. She indicated her TENS machine had broken. During a September 2014 VA examination, the Veteran described constant, throbbing low back pain that radiated to the buttocks and right upper thigh, which caused problems sleeping due to repositioning herself throughout the night. She reported taking diclofenac and cyclobenzaprine daily for her back pain and hydrocodone/acetaminophen about three times per week. She stated she had flare-ups twice per month during which she could “barely walk,” used her TENS unit for two days to get relief, and “doubled up” on her pills. She denied having any back surgery and did not use any assistive device for locomotion. On thoracolumbar range-of-motion testing, the Veteran had forward flexion to 70 degrees with pain beginning at 50 degrees, extension to 20 degrees with no objective evidence of painful motion, right lateral flexion to 30 degrees without pain, left lateral flexion to 15 degrees with pain beginning at 5 degrees, and right and left rotation to 30 degrees without pain. Repetitive-use testing revealed no additional limitation in range of motion. The examiner identified less movement than normal and pain on movement as contributing to the Veteran’s functional impairment. Other examination findings included tenderness to palpation; no muscle spasm or guarding; no ankylosis; no intervertebral disc syndrome; normal muscle strength without atrophy; and normal deep tendon reflexes, sensory function, and straight leg raising. She had mild radiculopathy affecting each lower extremity. The examiner reviewed a lumbosacral spine x-ray from July 2014, which demonstrated stable degenerative changes noted in the lumbosacral spine. Regarding any functional loss during flare-ups or after repeated use of the spine, the examiner explained she could not estimate any such effects because she does not have the opportunity to observe the Veteran during flare-ups or performing repetitive activity in real-life circumstances. A December 2015 VA treatment record reflects the Veteran’s complaint of neck and upper back pain since she slipped on water and fell on her back in August 2015. She denied current low back pain or radiation to the lower extremities. Examination of the spine documented full range of motion of the lumbar spine. VA treatment records show she also fell at her daughter’s home in May 2017. A June 2017 letter to the Veteran notified her that x-ray examination of her low back showed no fracture, but did show chronic arthritic changes. She received injections at a private pain clinic for her low back pain. In May 2018, she told her VA primary care physician that the injections did not help the pain. She reported doing water aerobics five days per week and using her TENS unit. The physician issued a back brace. During an April 2018 VA examination, the Veteran reported having progressive, increasing back pain with radiculopathy to both lower extremities with unstable gait, decreased range of motion, and decreased endurance. She rated the severity of her back pain as 5 to 6/10 on most days, increasing to 10/10 during flare-ups, which occurred with sitting, standing, or walking for extended periods of time; attempting to use stairs; bending; or sudden motion of the back. Regarding the functional impact on her ability to work, she stated she would have difficulty performing occupational tasks that would require extended standing, sitting, or walking; using stairs; bending; running; sudden or repetitive motion of her back; or lifting, carrying, pushing, or pulling any object. She indicated she stopped working in 2005 when she had [right] knee replacement, adding that her back was “very painful” at the time. Range-of-motion tested revealed forward flexion to 55 degrees, extension to 20 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, and right and left rotation each to 20 degrees. The examiner observed there was objective evidence of pain in all planes of motion and on weight-bearing. Following repetitive-use testing, there was no additional loss of function or limitation of motion. Other findings included pain on palpation of the low back, muscle spasm and guarding resulting in abnormal gait or abnormal spinal contour, decreased muscle strength manifested by active movement against some resistance, no muscle atrophy, hypoactive deep tendon reflexes, decreased sensation of the lower extremities, and radiculopathy of the lower extremities. There was no intervertebral disc syndrome and the Veteran did not use an assistive device for ambulation. Consistent with the September 2014 VA examiner, the April 2018 VA examiner explained that she could not identify the effects of flare-ups or repetitive motion over time, including due to pain, weakness, fatigability, or incoordination, because such effects would vary from incident to incident in intensity and severity and she did not have the opportunity to observe any effects flare-ups or repetitive motion may have on the Veteran’s function. Having considered the medical and lay evidence of record, the Board finds that an initial rating in excess of 20 percent is not warranted at any time during the appeal. Since service connection was established effective February 19, 2009, the Veteran’s low back disability has been manifested at worst by forward flexion limited to 40 degrees with a combined range of motion of 135 degrees with objective evidence of pain on motion on VA examination in September 2010. These findings are consistent with the 20 percent rating assigned based on forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. A higher, 40 percent rating is not warranted because forward flexion of the thoracolumbar spine has not been limited to 30 degrees or less and because the medical evidence documents no ankylosis, either favorable or unfavorable, of the thoracolumbar spine. Although the record establishes that the Veteran experiences significant pain with flareups, the United States Court of Appeals for Veterans Claims has indicated that pain alone does not provide a basis for a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43 (2011). Rather, pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance to constitute a functional loss. Id. The Board has considered the Veteran’s competent reports regarding the frequency and severity of her pain and flare-ups, but finds that the overall record, including the objective clinical findings, does not support the assignment of a higher rating based on those factors. The examination reports have identified no atrophy or other clinical indicia of disuse. In addition, from a functional perspective, the record reflects that the Veteran has been able to engage in an exercise program, including between 1.5 to 3 miles several times weekly to daily and performing water aerobics. It is noted in the clinical record that she watches her grandchild. Overall, the Board concludes that the record suggests that any functional loss due to pain or during a flare-up is equivalent to forward flexion greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion not greater than 120 degrees, such that a higher rating would not be warranted. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that the rating schedule provides for separate ratings for associated objective neurologic abnormalities or chronic neurologic manifestations. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243, General Rating Formula, Note 1. In this case, the Veteran is already in receipt of separate ratings for radiculopathy of the left and right lower extremities. Although she reported one instance of urinary incontinence, objective examination has not shown the presence of bladder impairment secondary to the service-connected low back disability. No other neurological impairments have been shown or alleged. Similarly, because the medical evidence shows the Veteran does not have intervertebral disc syndrome and has not had an incapacitating episode having a total duration of at least 4 weeks but less than 6 weeks during a 12-month period that required bed rest prescribed by a physician and treatment by a physician, a higher rating under the rating criteria for intervertebral disc syndrome is not warranted. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Moreover, neither the Veteran nor her attorney has raised any other issues with respect to the increased rating claim on appeal, nor have any other assertions been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the Veteran’s claim for a higher initial rating than currently assigned, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Effective Dates Entitlement to a TDIU and basic eligibility to DEA benefits were awarded effective February 19, 2009. The Veteran, through her attorney, asserts that an earlier effective date is warranted from November 24, 2006. Initially, the Board notes that VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claims and appeal in this case were filed prior to that date, the amendments are not applicable in this instance and the regulations in effect prior to March 24, 2015 will be applied. A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a) (2012); 38 C.F.R. § 3.151(a) (2014). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). When a claim has been filed which meets the requirements of 38 C.F.R. § 3.151, an informal request for increase or reopening will be accepted as a claim. 38 C.F.R. § 3.155(c). Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400 (2017). Except as otherwise provided, the effective date of a claim for increase 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. The effective date of an award of increased compensation 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. 38 U.S.C. § 5110(b)(2). Otherwise, it is the date of receipt of the claim. 38 C.F.R. § 3.400(o)(2); see also Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992) (holding that evidence in a claimant’s file which demonstrates that an increase in disability was “ascertainable” up to one year prior to the claimant’s submission of a claim for VA compensation should be dispositive on the question of an effective date for any award that ensues). The grant of a TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23, 32-34 (2007). Thus, in fixing an effective date for an award of increased compensation, VA must make two essential determinations. It must determine when a claim for increased compensation was received, and when a factually ascertainable increase in disability occurred. Following notification of an initial review and adverse determination by the RO, a notice of disagreement (NOD) must be filed within one year from the date of notification thereof; otherwise, the determination becomes final. 38 U.S.C. § 7105; 38 C.F.R. § 20.200. An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the decision by the agency of original jurisdiction (AOJ) and a desire to contest the result. 38 U.S.C. § 7105(b); 38 C.F.R. § 20.201. As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the statement of the case (SOC) or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105(d)(1); 38 C.F.R. § 20.302(b). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200. If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 19.32. Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(1)(ii). 2. Entitlement to an effective date earlier than February 19, 2009 for the award of a TDIU due to service-connected disabilities Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of one or both lower extremities, including the bilateral factor, are considered to be one disability. 38 C.F.R. § 4.16(a)(1). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Thus, the Board may not consider the effects of nonservice-connected disabilities on the Veteran’s ability to function. The evidence of record shows the Veteran completed high school and after military service worked as a permits clerk for city government from 1991 to November 1997 and as a patient service assistant at several VA medical facilities from November 1997 until August 2005 when she underwent a right knee total arthroplasty. In her November 2006 claim for disability benefits from the Social Security Administration (SSA), she described her work duties at VA to include checking patients in and out, making rounds with records, answering phones, typing, filing, and boxing. Among disabilities claimed to limit her ability to work were arthritis, right and left knee problems, chronic back pain, and other nonservice-connected disabilities. In November 2007, an administrative law judge determined the Veteran had not engaged in substantial gainful activity since August 2005 and had been disabled from that date for SSA purposes due to right knee, left knee, lumbar spine, and bilateral shoulder disabilities. Regarding the claim for a TDIU, on November 24, 2006, VA received correspondence from the Veteran requesting permanent, 100 percent disability benefits based on unemployability. She stated she last worked in August 2005 and reapplied in August 2006, but was not re-hired. She described having difficulty with both knees giving out since knee replacement surgery. Her last employer verified that her employment as a patient representative ended in September 2005 for unknown reasons and that no concessions had been made for disability. The claim for a TDIU was denied in a May 2007 rating decision. Although the Veteran was represented at that time by a national service organization, she did not express disagreement with that decision. Instead, on May 23, 2008, VA received her new claim of entitlement to a TDIU submitted by her representative, who provided new evidence consisting of the November 2007 SSA decision. A June 2008 rating decision again denied the claim for a TDIU. In a June 30, 2008 letter, the AOJ notified the Veteran and her representative of the decision. VA did not receive any communication from the Veteran or her representative expressing disagreement with the decision within one year of the notice of the decision. On February 19, 2009, VA received the Veteran’s request to reopen her previously denied claim for a low back disability and a form appointing the current attorney as her representative, which he signed February 9, 2009. In March 2009, the attorney submitted a duplicate request for records. In correspondence received in April 2009, he notified VA of the Veteran’s new telephone number. In May 2009, VA received correspondence from the attorney by certified mail in which he included the 20-digit tracking number, providing a new address for the Veteran in another state. He resubmitted all the documents he had previously sent to VA between February and April 2009. On August 17, 2009, VA received from the Veteran’s attorney a request for a “current status of the claim(s). Individual Unemployability.” On November 2, 2009, VA received an NOD with the initial rating assigned for the low back disability; the correspondence was sent by certified mail and included the 20-digit tracking number. On November 16, 2009 and January 27, 2010, VA received additional requests from the Veteran’s attorney regarding a “current status of the claim(s). Individual unemployability.” On April 8, 2010, VA mailed a copy of the June 2008 rating decision, which denied entitlement to a TDIU, to the attorney. On April 19, 2010, VA received correspondence from the Veteran’s attorney, claiming that on February 11, 2009, he had sent via certified mail an NOD with the June 2008 rating decision and a form electing the traditional appeal process. He also requested “the status of the statement of the case.” He enclosed an NOD dated February 11, 2009 with the June 2008 rating decision that denied entitlement to a TDIU. The February 11, 2009 NOD indicated it was sent by certified mail; however, it did not include a tracking number. On June 2, 2010, VA received the appeal process election form dated February 11, 2009. On the same day, VA notified the attorney there was no record of a February 11, 2009 NOD received within the one-year appeal period to initiate an appeal of the June 2008 rating decision. The attorney responded the same month, submitting by certified mail, including a 20-digit tracking number, a duplicate copy of the February 2009 NOD. A December 2010 rating decision granted a TDIU effective from February 19, 2009, which is the date VA received the service connection claim for a low back disability. As to whether VA received any NOD in February 2009, the Board recognizes that “[a]lthough the presumption of regularity ‘usually runs in favor of the government, it is equally applicable and appropriately applied in favor’ of individuals who are litigating against the Government. Marsh v. Nicholson, 19 Vet. App. 381, 385 (2005) (quoting Ala. Airlines, Inc. v. Johnson, 8 F.3d 791, 796 (Fed. Cir. 1993)). To rebut the presumption of regularity as to whether the NOD was timely filed, VA has the burden of demonstrating by clear evidence that the NOD was not postmarked within the appeal period. Marsh, 19 Vet. App. at 387. Despite the fact that the February 11, 2009 NOD differed from all other correspondence sent by certified mail from the attorney in that it did not include a tracking number; that the materials dated from February to April 2009 that were resent to VA in May 2009 did not include the February 11, 2009 NOD; and that the August 2009, November 2009, and April 2010 requests for a “current status of the claim(s)” did not mention any NOD or request a statement of the case; the Board does not reach a conclusion as to whether the presumption of regularity extended to the Veteran’s attorney is rebutted by clear evidence. In this regard, the Board Remand in March 2014 accepted under the presumption of regularity that VA timely received the NOD in February 2009. Because new and material evidence (the SSA decision) had been received within one year of the May 2007 rating decision denying entitlement to a TDIU, that decision did not become final. Based on these facts, including acceptance of the February 2011 NOD, the Board finds that VA received the informal claim for a TDIU on November 24, 2006. Turning to the merits of the claim, since November 2006, service connection had been established for a total abdominal hysterectomy (rated 30 percent disabling), medial meniscectomy of the right knee status post total knee replacement (rated 30 percent disabling), bursitis of the right (dominant) shoulder (rated 20 percent disabling), left knee chondromalacia (rated 10 percent disabling), sinusitis with allergic rhinitis (rated 10 percent disabling), fracture of the left ankle with achilles tendonitis (rated 10 percent disabling), bronchitis (rated 10 percent disability), and other disabilities rated noncompensably disabling. The combined evaluation for compensation, including the bilateral factor for both knees and left ankle, was 80 percent. Applying the bilateral factor and combined ratings table to the Veteran’s lower extremity disabilities, including the right knee, left knee, and left ankle, results in a 50 percent disability rating for the lower extremities, considered as one disability for TDIU purposes. 38 C.F.R. §§ 4.16(a)(1), 4.25, 4.26. Thus, the Veteran meets the threshold schedular criteria for a TDIU since the date of her claim and the question is whether her service-connected disabilities preclude gainful employment consistent with her education and occupational experience. Considering the Veteran’s reported job duties in her usual occupation as a patient service assistant, such as making rounds with records, filing, and boxing; her high school education; and the documented functional impairment caused by service-connected right knee, left knee, right shoulder, and left ankle disabilities in particular; the Board finds the lay and medical evidence is approximately balanced as to whether her service-connected disabilities rendered her unable to secure and follow substantially gainful employment since November 24, 2006. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted from November 24, 2006. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to an effective date earlier than February 19, 2009 for basic eligibility to DEA benefits Dependents’ educational assistance under Chapter 35 may be paid to a child or spouse of a veteran who meets certain basic eligibility requirements, of a discharge from service under conditions other than dishonorable, and having permanent total service-connected disability. 38 U.S.C. §§ 3500, 3501; 38 C.F.R. § 3.807. Given the award herein of an earlier effective date for a TDIU, the corresponding effective date of DEA entitlement also should be November 24, 2006. REASONS FOR REMAND Entitlement to an effective date earlier than September 30, 2014 for the grant of service connection for sciatic radiculopathy of the left lower extremity is remanded. Regarding the claim of entitlement to an effective date earlier than September 30, 2014 for the grant of service connection for sciatic radiculopathy of the left lower extremity, the Veteran’s attorney submitted on her behalf a timely notice of disagreement received in July 2016 with a February 2016 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). (Continued on the next page)   The matter is REMANDED for the following action: Send the Veteran and her attorney a statement of the case that addresses the issue of entitlement to an effective date earlier than September 30, 2014 for the grant of service connection for sciatic radiculopathy of the left lower extremity. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel