Citation Nr: 21064727 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 17-28 603 DATE: October 21, 2021 ORDER An effective date of October 22, 2014, but no earlier, for the award of service connection for radiculopathy of the right lower extremity is granted, subject to regulations governing the payment of monetary awards. An effective date of October 22, 2014, but no earlier, for the award of service connection for radiculopathy of the left lower extremity is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. Entitlement to special monthly compensation for aid and attendance (SMC) is remanded. Entitlement to a rating in excess of 10 percent for the period prior to September 6, 2019 for degenerative disc disease, lumbar with vertebral fracture at T12 and intervertebral disc syndrome (back condition) is remanded. FINDINGS OF FACT 1. The Veteran filed an increased rating claim in August 2012 and this claim would have included consideration of entitlement to separate ratings for associated neurologic abnormalities, including radiculopathy; however, the decision and claim became final. 2. An increased rating claim for a back condition received October 22, 2014 included consideration of entitlement to a separate rating for associated neurologic abnormalities, including radiculopathy. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of October 22, 2014, but no earlier, for the award of service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400. 2. The criteria for an earlier effective date of October 22, 2014, but no earlier, for the award of service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.155, 3.156, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to July 1982 and had a period of active duty for training (ACDUTRA) from January 1979 to April 1979. The Veteran's increased rating claims for a back condition and bilateral hearing loss are on appeal from a February 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). His claims for an earlier effective date for the award of service connection for radiculopathy of the right and left lower extremities and entitlement to SMC are on appeal after being raised during the course of the Veteran's appeal for an increased rating for his service-connected back condition. These matters were previously before the Board in February 2020. In that decision, the Board denied a rating in excess of 10 percent prior to September 6, 2019 and awarded a 40 percent rating (but no higher) for the period thereafter for the Veteran's back condition. The Board also awarded separate 10 percent ratings for the period from April 4, 2015 to September 5, 2019 and a 40 percent rating for the period from September 6, 2019 for radiculopathy of the right and left lower extremities. The issues of entitlement to a compensable rating for bilateral hearing loss and entitlement to SMC were remanded. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted a Joint Motion for Partial Remand (JMPR) by the Veteran's attorney and the VA General Counsel. The JMPR specifically states that the appellant did not contest the portions of the Board's decision that denied entitlement to a rating in excess of 40 percent for the lumbar spine from September 6, 2019, the ratings in excess of 10 percent for radiculopathy of the left and right lower extremities from April 4, 2015 to September 5, 2019, and the ratings in excess of 40 percent for radiculopathy of the left and right lower extremities from September 6, 2019 and that appeals of those issues were abandoned. As such, the February 2020 Board decision is final as to those issues and they are not before the Board. A September 2020 rating decision granted a total disability rating for individual unemployability (TDIU), effective July 30, 2019. As the decision constitutes a full grant of the claim previously before the Board, the matter is no longer before the Board and will not be discussed further. The Veteran has separately appealed the effective date assigned to the award of TDIU under the modernized Appeals Modernization Act (AMA) system and a Board decision on that matter under the AMA will be issued at a later time. Effective Dates 1. An effective date of October 22, 2014, but no earlier, for the award of service connection for radiculopathy of the right lower extremity is granted. 2. An effective date of October 22, 2014, but no earlier, for the award of service connection for radiculopathy of the left lower extremity is granted. The Veteran and his attorney generally contend that the Veteran is entitled to an effective date earlier than April 4, 2015 for the award of service connection for radiculopathy of the right and left lower extremities. Except as otherwise provided, the effective date of an award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase shall be fixed in accordance with the facts found, but shall be no earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The statutory provision is implemented by regulation, which provides that the effective date for an evaluation and award of compensation based on an original claim, a claim reopened after 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 C.F.R. § 3.400. An application that had been previously denied cannot preserve an effective date for a later grant of benefits based on a new application. See Wright v. Gober, 10 Vet. App. 343, 346-47 (1997); see also Washington v. Gober, 10 Vet. App. 391, 393 (1997) ("The fact that the appellant had previously submitted claim applications, which had been denied, is not relevant to the assignment of an effective date based on a current application."). "The 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." Sears v. Principi, 16 Vet. App. 244, 248 (2002). Thus, the effective date of an award of service connection is not based on the earliest medical evidence showing a causal connection, but on the date that the application upon which service connection was eventually awarded was filed with VA. Lalonde v. West, 12 Vet. App. 377, 382 (1999). Once a rating decision is final, only a request for a revision premised on clear and unmistakable error (CUE) can result in the assignment of an earlier effective date. See Rudd v. Nicholson, 20 Vet. App. 296 (2006); see also Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) ("[A]bsent a showing of CUE, [the Veteran] cannot receive disability payments for a time frame earlier than the application date of his claim to reopen, even with new evidence supporting an earlier disability date."); Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("[W]hen a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."); Bingham v. Nicholson, 421 F.3d 1346 (Fed. Cir. 2005). Regulations defining a "claim" were revised, effective March 24, 2015. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). The revision eliminated informal claims and required claims on specific forms. In this case, however, the applicable regulations are those prior to the revision, as these claims were pending prior to March 24, 2015. As such, the Board will apply the regulations effective prior to March 24, 2015 regarding defining a claim. A specific claim in the form prescribed by the Secretary is necessary for disability benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151. For VA compensation purposes, a "claim" is 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). An informal claim is any communication or action indicating an intent to apply for one or more benefits, and identifying the benefit sought from a claimant, his or her authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris. See 38 C.F.R. § 3.155(a). 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 after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(b). 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). VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). Secondary service connection is granted for a "disability which is proximately due to or the result of a service-connected disease or injury." 38 C.F.R. § 3.310(a). "When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310(a). The "plain meaning of th[is] regulation is and has always been to require VA to afford secondarily service-connected conditions the same treatment (no more or less favorable treatment) as the underlying service-connected conditions for all determinations." Roper v. Nicholson, 20 Vet. App. 173, 181 (2006). Building on Roper, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that "a requirement that a secondary condition 'be considered a part of [an] original condition' does not, in our view, establish that the original condition and the secondary condition must receive identical effective dates." Ellington v. Peake, 541 F.3d 1364, 1369 (Fed. Cir. 2008). "Indeed, a per se rule requiring identical effective dates for primary and secondary conditions would be illogical, given that secondary conditions may not arise until years after the onset of the original condition." Id. The Federal Circuit concluded that "the effective date for secondary conditions is governed by [38 C.F.R. §] 3.400, which establishes the effective date as the 'date of receipt of claim, or [the] date entitlement arose, whichever is later.'" Id. The Federal Circuit explained: "[T]his result is consistent with 38 U.S.C. § 5110, the statute which governs the effective date of awards. Section 5110(a) provides generally that '[u]nless specifically provided otherwise in this chapter, the effective date of an award based on an original claim... shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.' The statute contains no exception to this rule for a claim." Id. at 1370; see Manzanares v. Shulkin, 863 F.3d 1374 (Fed. Cir. 2017). In this case, the Veteran has been separately awarded service connection for radiculopathy of the right and left lower extremities as secondary to his service-connected back condition. The Veteran was awarded service connection for a back condition effective November 28, 2011, in a March 2012 rating decision. In a February 2020 decision, the Board awarded service connection for radiculopathy of the right and left lower extremities by granting separate 10 percent ratings for the right and left lower extremities, effective April 4, 2015. The record illustrates that the Veteran did not file an informal or formal claim for entitlement to service connection for radiculopathy of the bilateral lower extremities as there is no record of a written communication reflecting an intent to apply for benefits for radiculopathy of the bilateral lower extremities. The Veteran did, however, assert entitlement to an increased rating for his back disability following the initial grant of service connection for the back condition. After review of the evidence of record, the Board concludes that an earlier effective date of October 22, 2014 for the awards of service connection for radiculopathy of the right and left lower extremities is appropriate. The Board notes that the Veteran's application for an increased rating for a back disability received on October 22, 2014 constitutes the date of claim for service connection for lower extremity radiculopathy. The rating criteria used to evaluate spine disabilities provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a, DC 5242-5237, Note (1). While the evidence of record reflects radicular pain beginning in 2013, the Board notes the exact date on which entitlement arose need not be ascertained in order to conclude that an effective date of October 22, 2014 is the earliest possible effective date with regards to the claims of service connection for radiculopathy of the right and left lower extremities. If entitlement arose prior to October 22, 2014, then the date of the claim would be the later of the two, and hence, the correct effective date as provided by 38 C.F.R. § 3.400(b)(2). The Board acknowledges that the Veteran filed an increased rating claim in August 2012 (prior to his October 22, 2014 claim). As the rating criteria provide for consideration of any associated neurologic abnormalities, including radiculopathy, the AOJ would have considered in conjunction with that claim whether any separate ratings were warranted for radiculopathy of the lower extremities. See 38 C.F.R. § 4.71a. In an October 2012 rating decision, the AOJ denied an increased rating for the Veteran's back disability. However, the Veteran did not file a notice of disagreement or identify or submit new and material evidence within one year of the October 2012 decision, so the decision and underlying claim became final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 19.20, 19.21, 19.52, 20.1103. The Veteran has not alleged CUE in that decision. Furthermore, even with sympathetic construction of the evidence, the record does not contain any informal or formal claim after the October 2012 rating decision. As the Veteran's October 2014 application for a back disability (which encompasses associated neurologic abnormalities, including lower extremity radiculopathy) was filed more than one year after the October 2012 rating decision, the effective date can be no earlier than the date of receipt of the claim for increase, which raised a claim seeking entitlement to service connection for bilateral lower extremity radiculopathy by virtue of the claim for an increased rating for the spine disability. 38 C.F.R. §§ 3.155, 4.71a, DC 5242-5237, Note (1). Consequently, the Board finds an earlier effective date of October 22, 2014, but no earlier, for the award of service connection for radiculopathy of the right and left lower extremities is warranted. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss is remanded. 2. Entitlement to SMC is remanded. 3. Entitlement to a rating in excess of 10 percent for the period prior to September 6, 2019 for a back condition is remanded. Although the additional delay is regrettable, the Board finds further development is required before a decision can be made on the Veteran's claims. Regarding the Veteran's claims for bilateral hearing loss and SMC, the record reflects that, in the February 2020 Board remand order, the Board directed the AOJ to obtain and associate with the Veteran's claims file any outstanding private medical records relevant to the Veteran's claims. In March 2020, the AOJ sent the Veteran two letters asking that he complete and return the enclosed VA Form 21-4142 authorizing VA to obtain any private treatment records on the Veteran's behalf. However, March 2020 notations in the file indicate that the letters were returned as undeliverable. While the record does indicate the AOJ made attempts to verify the Veteran's current address in April and July 2020, there is no indication in the file that the Veteran was sent another letter to ensure receipt. Therefore, remand is required to ensure substantial compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where the remand orders of the Board are not substantially complied with, the Board errs as a matter of law when it fails to ensure substantial compliance). Regarding the Veteran's back claim, the record reflects that the Veteran contends he is entitled to SMC as a result of his back condition. Therefore, the Board finds any private medical records identified by the Veteran for his SMC claim could contain evidence relevant to the time period encompassed by his back claim. Therefore, the increased rating claim for a back condition must also be remanded. The matters are REMANDED for the following action: 1. Obtain any updated VA treatment records for the period from August 2020 to the present. (CONTINUED ON NEXT PAGE) 2. Obtain and associate with the claims file any outstanding private treatment records relevant to the Veteran's claims. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Jiggetts 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.