Citation Nr: 21003322 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 17-42 718 DATE: January 21, 2021 ORDER Entitlement to an effective date of February 5, 2007, but no earlier, for the award of a separate 10 percent evaluation for right lower extremity radiculopathy is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT A February 5, 2007 VA treatment record reflects that the Veteran’s lumbar spine disability had increased in severity to manifest in right lower extremity radiculopathy. CONCLUSION OF LAW The criteria for an effective date of February 5, 2007, but no earlier, for the award of a separate 10 percent evaluation for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 5107(b), 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400 (2014).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1985 to June 1986. This matter is on appeal from a November 2014 decision of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in April 2019 when an effective date of April 25, 2008 was assigned for the award of a separate evaluation for right lower extremity radiculopathy. The Veteran appealed the April 2019 decision to the United States Court of Appeals for Veterans Claims (Court) to the extent that it denied an effective date prior to April 25, 2008. In September 2020, the Court granted a Joint Motion for Partial Remand (JMR) that remanded the Board’s decision for further action. Earlier Effective Date The Veteran contends that he is entitled to an effective date prior to April 25, 2008 for the award of a separate evaluation for right lower extremity radiculopathy. The Veteran was initially awarded service connection for degenerative disc disease and degenerative joint disease of the lumbosacral spine effective June 20, 1986. Neurologic abnormalities, such as radiculopathy, are considered as part of the evaluation for claims involving spinal injuries. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237, Note (1) (“Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.”) For non-initial claims, the effective date for an increased rating will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2). Generally, the mere existence of medical records cannot be construed as an informal claim. Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006); 38 C.F.R. § 3.155(a) (2006) (“Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [the Secretary]... may be considered an informal claim.” (emphasis added)). However, an exception applies when an underlying claim has been awarded, such as in this case, and the medical records demonstrate that the Veteran’s disability has increased. Id. The report of an examination or hospitalization may constitute an informal claim for increase when the report relates to examination or treatment of a disability for which service connection has previously been established. 38 C.F.R. § 3.157(b)(1). To determine whether an increase occurred, VA applies the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s right lower extremity radiculopathy is rated under Diagnostic Code (DC) 8520. DC 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, February 5, 2007 VA treatment records note that the Veteran reported that his low back was sore, and he had a dull ache down his right leg. The clinician noted muscle spasm, hypomobility, and fixation and provided a diagnosis of somatic dysfunction of the thoracic, lumbar, and pelvic area. March 2008 VA treatment records note that the Veteran reported “his right foot dorsal aspect is a bit numb at times, [and] his chiropractor thinks his low back is the cause.” March 2008 private treatment records note that the Veteran was still experiencing numbness in his right dorsal foot and right big toe. Upon consideration of the record, the Board finds that § 3.157 is applicable in this case, as the February 5, 2007 record reflects that the Veteran’s lumbar spine disability had increased in severity to the extent that it was now affecting his right lower extremity. As such, the February 5, 2007 VA treatment record can be construed as an informal claim that manifestations of the Veteran’s lumbar spine disability had increased to allow for entitlement to a separate rating for right lower extremity radiculopathy under Note 1 of § 4.71a, Diagnostic Code 5010-5237. The subsequent March 2008 records support that the Veteran was experiencing symptoms of lumbar radiculopathy to the right lower extremity and reflect that it was factually ascertainable during the time period beginning on February 5, 2007 that such an increase in disability had occurred. The record does not reflect, and the Veteran has not contended, that any record of treatment prior to February 5, 2007 would qualify as an informal claim under § 3.157(b) and there is no evidence of a factually ascertainable increase in lumbar radiculopathy shown in the records prior to that date. Accordingly, an effective date of February 5, 2007, but no earlier, for the award of a separate 10 percent evaluation for right lower extremity radiculopathy is warranted, and the claim is granted to that extent. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. H. White, 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.