Citation Nr: 21002682 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-31 174 DATE: January 14, 2021 ORDER Entitlement to an effective date earlier than December 31, 2012 for the award of service connection for left lower extremity radiculopathy is denied. FINDING OF FACT Prior to December 31, 2012, the record does not show that the Veteran’s service-connected lumbar spine disability was productive of left lower extremity radiculopathy. CONCLUSION OF LAW The criteria for an effective date prior to December 31, 2012, for the award of service connection for left lower extremity radiculopathy have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Marine Corps from April 1988 to February 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In January 2017, the Veteran’s appeal was remanded by the Board to procure records from VA Medical Centers (VAMCs) located in Detroit Michigan and Durham, North Carolina for the period prior to 2012. The appeal has been returned to the Board for appellate review. The Veteran testified before the Board at a July 2016 videoconference hearing. A transcript has been associated with the claims file. In November 2020, the Veteran was advised that the Veterans Law Judge before whom he testified was no longer employed by the Board. He was offered the opportunity to testify at an additional Board hearing. He did not respond within the period set forth in the November 2020 letter. Thus, the Board may assume that the Veteran does not desire an additional hearing, and will proceed with adjudication of the appeal. Effective Date Entitlement to an effective date earlier than December 31, 2012 for left lower extremity radiculopathy is denied. In assigning effective dates for service connection claims, the general rule is that, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after a final disallowance, or 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(a); 38 C.F.R. § 3.400. The date of entitlement is the date the claimant meets the basic eligibility criteria for the benefit. Prior to March 24, 2015, a claim was defined as 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 intent to apply for one or more benefits administered by VA may be considered an informal claim. 38 C.F.R. § 3.155(a). The benefit sought must be identified, though it need not be specific. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). Thus, the essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). By way of background, in its January 2017 decision, the Board found that the Veteran’s initial claim for service connection for a lumbar spine disability reasonably encompassed any related neurologic impairment in the right lower extremity. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (per curiam). The Board observed that when the Veteran had filed his original service connection claim for a lumbar spine disability in February 1992, the record contained numerous complaints in his service treatment records of radicular pain in his right leg, as well as x-ray evidence of related nerve root impingement. The Board acknowledged that the effective date for a secondarily service-connected condition (such as the Veteran’s radiculopathy) is not necessarily identical to that of the original condition (lumbar spine disability). The Board noted the general rule that an effective date can arise no earlier than the date on which the Veteran applied for benefits for the secondary condition. See Ellington v. Peake, 531 F.3d. 1364 (Fed. Cir. 2008); Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). The Board then identified an exception to the general rule, namely that if it is shown that the Veteran’s 1992 claim implicitly encompassed neurologic manifestations in addition to the explicitly raised claim for a lumbar spine disability, the general rule would not apply. In identifying this exception, the Board relied on the holding of Roebuck, which recognized that although there may be multiple theories or means of establishing entitlement to a benefit for a disability, if the theories all pertain to the same benefit for the same disability, they constitute the same claim. Roebuck v. Nicholson, 20 Vet. App. 307 (2006). The Board proceeded to resolve reasonable doubt in the Veteran’s favor and granted an earlier effective date of February 12, 1992 because the evidence demonstrated that as of February 12, 1992, the record indeed contained evidence that the Veteran’s lumbar spine disability had also manifested with right lower extremity radicular symptoms. However, the Board found that while the record contained evidence that the Veteran’s radicular symptoms extended to his right lower extremity, the record did not contain evidence that the Veteran’s radicular symptoms extended to his left lower extremity. See January 2017 Board Decision. Nevertheless, the Board looked to the testimony of the Veteran during his July 2016 Board hearing and recognized that outstanding evidence that had not yet been associated with the Veteran’s claim could potentially substantiate the Veteran’s claim that he had experienced left lower extremity radicular symptoms prior to the date upon which he had filed a claim for increase in his service-connected lumbar spine disability. See July 2016 Board Transcript; January 2014 Rating Decision, (granting entitlement to service connection for right and left lower extremity radiculopathy, involving the sciatic nerve); December 2012 Informal Claim for Increased Rating. In particular, the Veteran identified outstanding VAMC records from Detroit, Michigan and Durham, North Carolina that could potentially show complaints for left lower extremity radiculopathy (or equivalent radicular symptoms). The Board remanded the Veteran’s appeal so that these outstanding VAMC medical records could be associated with the Veteran’s claim. The key question in this matter is whether these records (or any other records associated with the Veteran’s claim) show the presence of left lower extremity radiculopathy at any point prior to the Veteran’s informal claim, which VA received on December 31, 2012. On account of the Board finding that the Veteran’s February 1992 claim reasonably encompassed right lower extremity radiculopathy (and leads to the inference that his February 1992 claim also would have encompassed left lower extremity radiculopathy), if the answer to this key question is yes, then the Veteran is entitled to an earlier effective date commensurate with the date entitlement arose. If this is not shown, then as a matter of law, the Veteran’s effective date can be no earlier than the date which is already assigned. The Veteran’s Detroit, Michigan and Durham, North Carolina VAMC records prior to 2012 were received on February 3, 2017. These records do not show diagnoses, treatment, or complaints related to left lower extremity radiculopathy prior to December 31, 2012. Moreover, these records tend to establish that the Veteran was not experiencing left lower extremity radiculopathy prior to December 31, 2012. An April 2013 physical therapy outpatient consultation referral from Dr. P.M. (the same physician referred to by the Veteran during his July 2016 Board hearing) assigned a provisional diagnosis to the Veteran of radiculopathy, noting that the Veteran had undergone spinal stenosis surgery in 1990 and began to experience worsening symptoms associated with a fall in June 2012. Dr. P.M. added that the symptoms were in the Veteran’s right leg. Additionally, the records obtained on remand show that a March 2014 VA EMG (electromyography) consultation report identified a “normal exam of the left lower extremity and lumbar paraspinal muscles without electrodiagnostic evidence of lumbar radiculopathy.” The Board acknowledges the Veteran’s lay testimony that he experienced radiculopathy in his left lower extremity prior to December 31, 2012. However, the Board does not find the Veteran credible in this regard. VA shall consider all information and lay and medical evidence of record in a case and make appropriate determinations as to competence, credibility, and weight. 38 U.S.C. § 5107; 38 C.F.R. § 3.303; Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Competent lay evidence also means any evidence not requiring that the proponent have specialized education, training, or experience. Id. In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self-interest, malingering, desire for monetary gain, and witness demeanor. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995), (aff’d per curiam), 78 F.3d. 604 (Fed. Cir. 1996). Here, the very physician identified by the Veteran during his hearing, as a potential source of medical evidence establishing left lower extremity radiculopathy prior to December 31, 2012, has reported a narrative that conflicts with the Veteran’s testimony. Dr. P.M.’s decision to assign a provisional diagnosis to the Veteran of radiculopathy in April 2013 strongly supports an inference that Dr. P.M. had not previously diagnosed or treated the Veteran for lower extremity radiculopathy. Moreover, Dr. P.M. identified a suspected etiology for these worsening symptoms – a fall in June 2012. The Board notes that the Veteran made no reference to such a fall during his July 2016 Board hearing, despite its apparent significance to his physician. Furthermore, in April 2013, Dr. P.M. identified radicular symptoms only in the Veteran’s right lower extremity, but not in his left lower extremity – again strongly supporting an inference that the Veteran’s left lower extremity radiculopathy had not developed prior to December 31, 2012. Lastly, the normal March 2014 EMG report – though not dispositive, in of itself – casts additional doubt on the Veteran’s claim that his left lower extremity radiculopathy emerged prior to December 31, 2012. For these reasons, the Board does not find the Veteran credible insofar as he reports that his left lower extremity radiculopathy developed prior to December 31, 2012. Additionally, there is no medical evidence that supports the Veteran’s claim that his left lower extremity radiculopathy developed prior to December 31, 2012, and the medical evidence of record points to an onset date after December 31, 2012. The preponderance of the evidence weighs against a finding that the Veteran’s left lower extremity radiculopathy manifest at any point prior to December 31, 2012. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.K. Barone Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Hennessy, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.