Citation Nr: 18157995 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-39 051 DATE: December 14, 2018 ORDER Entitlement to an effective date of October 29, 2010 for the grant of service connection for left lower extremity radiculopathy is granted. Entitlement to an effective date of October 29, 2010 for the grant of service connection for right lower extremity radiculopathy is granted. Entitlement to an effective date earlier than October 29, 2010 for surgical scar, lower lumbar area is denied. FINDINGS OF FACT 1. The Veteran’s claims for service connection for bilateral lower extremity radiculopathy arise from the Veteran’s October 29, 2010 claim of entitlement to service connection for a low back disability. 2. The Board of Veterans’ Appeals (Board) denied service connection for a low back disorder in a September 2007 decision. This was affirmed by a Court of Appeals for Veterans Claims (CAVC) decision in September 2008 and the September 2007 Board decision became final. 3. The earliest communication that may be reasonably construed as seeking to reopen a claim of entitlement to service connection for a low back disability is the Veteran’s petition to reopen received by VA on October 29. 2010. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of October 29, 2010 for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 5107 (b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). 2. The criteria for entitlement to an effective of October 29, 2010 for service connection for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 5107 (b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). 3. The criteria for entitlement to an effective date earlier than October 29, 2010 for a lower lumbar surgical scar have not been met. 38 U.S.C. §§ 5107 (b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1974 to April 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Ft. Harrison, Montana. The RO granted service connection for a low back disability at 10 percent disabling, as well as noncompensable low lumbar surgical scar in March 2015. The notification letter was dated April 2, 2015. In June 2015, the Veteran filed a notice of disagreement with this decision, contending he was entitled to higher disability ratings. In November 2015, the Veteran was granted service connection for left and right lower extremity radiculopathy at 10 percent disabling as part-and-parcel of the Veteran’s increased rating claim, as well as a disability rating of 10 percent for his low lumbar surgical scar. In November 2015, the RO issued a rating decision issuing a partial grant of benefits, and a statement of the case concerning increased disability ratings for the low back disability, bilateral lower extremity radiculopathy, and low lumbar surgical scar. The Veteran did not submit a VA Form 9. The Veteran later submitted a notice of disagreement with the November 2015 rating decision contesting the effective dates and evaluations of his bilateral lower extremity radiculopathy and low lumbar surgical scar, as well as the evaluation of his low back disability. This notice of disagreement was dated December 2015, but received by the RO April 18, 2016—outside of the appeal period, which expired April 2, 2016. As the Veteran did not perfect his appeals for increased disability ratings for the low back disability, bilateral lower extremity radiculopathy, and low lumbar surgical scar, these issues are not currently on appeal. Effective Date The law regarding effective dates provides that, 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). This statutory provision is implemented by a VA regulation, which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. For claims specifically reopened on the basis of new and material evidence after a final disallowance under 38 C.F.R. § 3.156(a), the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). A specific claim in the form prescribed by the Secretary 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). The term “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). For claims received on or after March 24, 2015, VA amended its regulations governing how to file a claim. The effect of the amendment was to standardize the process of filing claims, as well as the forms accepted, in order to increase the efficiency, accuracy, and timeliness of claims processing, and to eliminate the concept of informal claims. See 38 C.F.R. § 3.155 (2018); 79 Fed. Reg. 57660-01. However, prior to the effective date of the amendment, VA law provided that any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA, from a veteran or his representative, may be considered an informal claim. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the veteran, it will be considered filed as of the date of receipt of the informal claim. Even with respect to informal claims, such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (for claims received prior to March 24, 2015). General rules defining informal claims apply to claims for entitlement to disability benefits raised under a theory of secondary causation. See Ellington v. Nicholson, 22 Vet. App. 141, 145-47 (2007). Entitlement to an effective date earlier than September 5, 2015 for service connection for bilateral lower extremity radiculopathy The Veteran contends that he is entitled to an effective date earlier than September 5, 2015 for service connection for bilateral lower extremity radiculopathy. Specifically, the Veteran contends that he demonstrated symptoms of radiculopathy prior to the September 2015 VA examination, which served as the basis for the RO’s grant of service connection. The Veteran did not file a claim for bilateral lower extremity radiculopathy per se; rather, the RO granted service connection for such disability on its own initiative after receiving the medical findings from a September 2015 VA examination which related his bilateral lower extremity radiculopathy to his service-connected lumbar spine disability. The effective date assigned was September 5, 2015, the date of that examination. The Veteran asserts that an earlier effective date is warranted. The Court of Appeals for Veteran’s Claims (CAVC)has held that a claimant’s identification of the benefit sought does not require any technical precision. See Ingram v. Nicholson, 21 Vet. App. 232, 256-57 (2007). Rather, “[a] claimant may satisfy this requirement by referring to a body part or system that is disabled or by describing symptoms of the disability.” Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009). Thus, the scope of the Veteran’s claim for a lumbar spine disability includes any disability that reasonably may be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). The Veteran first filed a claim for service connection for a low back disorder in April 1976 upon separation from service. The Veteran’s claim was denied in an August 1977 rating decision. In June 2001, the Veteran filed a claim to reopen entitlement to service connection for a low back disorder, which was reopened and denied on the merits in a February 2002 rating decision. The Veteran subsequently appealed this decision to the Board. The Board denied the Veteran’s claim in a September 2007 decision, which was affirmed by a September 2008 CAVC decision. The Veteran filed a claim to reopen entitlement to service connection for a low back disorder which was received by the RO on October 29, 2010. In his claim to reopen, the Veteran noted that after his back injury in service, he experienced pain radiating from his low back down both thighs. The Veteran submitted a buddy statement in conjunction with his claim to reopen also noted that the Veteran’s back pain radiated down his thighs. In his July 2017 VA Form 9, the Veteran noted experiencing “foot pain” as a result of his low back disorder. Accordingly, the Board finds that the Veteran’s claims for service connection for bilateral lower extremity radiculopathy arise from his October 29, 2010 claim for service connection for a low back disorder. The Veteran demonstrated a long history of radicular symptoms stemming from his low back disorder. VA treatment records in September 1977 and October 1977 note low back pain with radiation down the right and left legs. A March 1985 private treatment record notes that the Veteran had “shooting pain into the left posterolateral leg in association with episodic numbness and tingling of the left dorsum of the foot.” An April 1985 private treatment record noted the Veteran experienced numbness and tingling on the dorsum of the left foot and had begun to get right-sided symptoms as well. A May 1992 private treatment record noted the Veteran demonstrated radiation into his posterior thighs. The Veteran denied radicular pain in a September 2002 private treatment record. An August 2008 VA treatment record noted the Veteran reported pain in his feet but did not relate this pain to the type of pain he experienced with radiculopathy-type symptoms. A September 2011 VA examination of the Veteran’s spine noted no nerves affected in the Veteran’s bilateral lower extremities. A December 2012 VA treatment record noted the Veteran reported numbness in his left 3-4 toes and “wonder[ed] about neuroma.” The examiner indicated it “seem[ed] more likely radiculopathy.” A later VA treatment record in December 2012 noted a diagnosis of peripheral neuropathy/radiculopathy. A May 2015 private treatment record noted complaints of radicular symptoms of his feet in toes 2-4. After a review of the evidence, the Board finds that an effective date of October 29, 2010 is warranted for the award of service connection for bilateral lower extremity radiculopathy. In filing his claim to reopen entitlement to service connection for a low back disability, the Veteran noted radicular symptoms associated with his low back disability. Moreover, at that time, the record had already contained numerous complaints of numbness and tingling in his bilateral lower extremities as shown on the Veteran’s STRs and private and VA treatment records. Thus, under Clemons, the Board finds that the Veteran’s claim to reopen service connection for a lumbar spine disability reasonably encompassed a related lower extremity disability. Accordingly, the Board finds that an earlier effective date of October 29, 2010, (though no earlier) is warranted for the grant of service connection for the bilateral lower extremity radiculopathy as secondary to the service-connected lumbar spine disability, as this was the date of receipt of the Veteran’s claim to reopen service connection for the lumbar spine disability. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (2015). However, an effective date prior to October 29, 2010, may not be assigned for this disability as the effective date of service connection for this secondarily service-connected disorder may not be earlier than the effective date of service connection for the precipitating cervical spine disability. Id.; Ellington, supra. Entitlement to an effective date earlier than October 29, 2010 for surgical scar, lower lumbar area The Veteran contends that he is entitled to an earlier effective date for the grant of service connection for his lower lumbar surgical scar. The Veteran has not articulated a specific theory of entitlement for this claim. The Veteran did not file a claim for a surgical scar per se; rather, the RO granted service connection for such disability on its own initiative after receiving the medical findings from an October 2010 VA examination which related his lower lumbar scar to his service-connected lumbar spine disability. The effective date assigned was October 29, 2010, the date of the Veteran’s claim. The Veteran asserts that an earlier effective date is warranted. As noted above, the Veteran first filed a claim for service connection for a low back disorder in April 1976, which was denied in an August 1977 rating decision. In June 2001, the Veteran filed a claim to reopen entitlement to service connection for a low back disorder, which was reopened and denied on the merits in a February 2002 rating decision. The Veteran subsequently appealed this decision to the Board, which denied the Veteran’s claim in a September 2007 decision, affirmed by a September 2008 CAVC decision. The Veteran filed a claim to reopen entitlement to service connection for a low back disorder which was received by the RO on October 29, 2010. The RO granted service connection for a low back disorder as well as a lower lumbar surgical scar. Although the Veteran asserts his entitlement to an earlier effective date for the awards of service connection, considering the record in light of the governing legal authority, the Board finds that no earlier effective date is assignable. The Board notes, initially, that the September 2007 Board decision is final as to the evidence then of record. See 38 U.S.C. § 7105 (b) (2012); 38 C.F.R. §§ 3.104, 20.200. 20.201, 3.104, 20. 302, 20.1103 (2018). The claims file includes no statement or communication from the Veteran, received after the September 2007 denial but prior to October 29, 2010, that constitutes a pending claim for service connection for a low back disability or the low lumbar surgical scar. Notably, VA did not receive any correspondence from the Veteran mentioning his low back or low lumbar scar and/or indicating an intent to apply for service connection for these disabilities. The Veteran filed a claim for service connection for posttraumatic stress disorder in March 2010, but did not mention his low back disorder. Under the law, October 29, 2010, is the proper effective date for the grant of service connection for a low lumbar surgical scar because it is the date to reopen entitlement to service connection for a low back disability. An effective date prior to October 29, 2010, may not be assigned for this disability as the effective date of service connection for this secondarily service-connected disorder may not be earlier than the effective date of service connection for the precipitating cervical spine disability. Id.; Ellington, supra. There is no basis to assign an effective date earlier than October 29, 2010. Indeed, CAVC held, in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, “[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim.” KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Duthely, Associate Counsel