Citation Nr: 21066036 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 15-37 534 DATE: October 28, 2021 ORDER An effective date March 18, 2009 for right lower extremity (RLE) radiculopathy is granted. An effective date of March 18, 2009 for left lower extremity (LLE) radiculopathy is granted. FINDINGS OF FACT 1. The competent and credible reflects that the Veteran had experienced onset of right lower extremity radiculopathy as of March 18, 2009. 2. The competent and credible reflects that the Veteran had experienced onset of left lower extremity radiculopathy as of March 18, 2009. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 18, 2009, but no earlier, for the award of a separate rating for right lower extremity radiculopathy are met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400. 2. The criteria for an effective date of March 18, 2009, but no earlier, for the award of a separate rating for left lower extremity radiculopathy are met. 38 U.S.C. §§ 5107(b), 5110; 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1955 to May 1981. In March 2019, November 2020, and April 2021, the Board of Veterans' Appeals (Board) remanded this case for additional development. As noted in the April 2021 Board remand, the record reflects that the Veteran received a letter in October 2020 indicating he could request a virtual tele-hearing instead of waiting for a travel board hearing. The Veteran does not have a pending hearing request as he was scheduled for a hearing before the Board in January 2019 and failed to attend that hearing. Therefore, the Veteran's hearing request is considered withdrawn. Additionally, in April 2021, the Board decided three issues and remanded two issues for additional developmententitlement to a separate rating for left lower extremity (LLE) radiculopathy and entitlement to a separate rating for right lower extremity (RLE) radiculopathy prior to December 22, 2020. Subsequently, a July 2021 rating decision granted service connection for LLE radiculopathy and assigned an initial 10 percent rating, effective March 27, 2018 and it also granted an earlier effective date of March 27, 2018 (previously it was December 22, 2020) for the 20 percent rating for the RLE radiculopathy. After a July 2021 supplement statement of the case, the issue of entitlement to a separate rating for right lower extremity (RLE) radiculopathy prior to March 27, 2018 was returned to the Board. The Board notes that while the July 2021 rating decision awarded service connection for left lower extremity radiculopathy, this was not a full grant of benefits as an effective date prior to March 27, 2018 is still pending. 1. Entitlement to an effective date prior to March 27, 2018 for right lower extremity radiculopathy 2. Entitlement to an effective date prior to March 27, 2018 for left lower extremity radiculopathy The Veteran was initially awarded service connection for a lumbar spine disability effective March 18, 2009 (the date of the Veteran's claim for service connection for a lumbar spine disability) and effectuated in June 2009 rating decision. Generally, the effective date for the grant of service connection will be the day following separation from active service or the date entitlement arose if the claim is received within one year after discharge from service. Otherwise, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is 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. Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This case involves dates prior to March 24, 2015, so the regulations in place prior to that date are applicable and are referred to in this section. A "claim" is defined broadly to include 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). A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant's behalf, that indicates intent to apply for a benefit, and identifies that benefit, may be considered an informal claim. 38 C.F.R. § 3.155(a). The "effective date assigned for a secondarily service-connected condition is governed by 38 C.F.R. § 3.400 ," Ellington v. Nicholson, 22 Vet. App. 141, 145 (2007), which provides that the effective date of an award of service connection will be the "date of receipt of claim, or date entitlement arose, whichever is later." 38 C.F.R. § 3.400(b)(2). The Board notes that the rating regarding the lumbar spine disability has been pending since on appeal from an August 2011 rating decision until a Board decision in April 2021 adjudicated the rating regarding the lumbar spine. In that same decision in April 2021, the Board remanded the matters currently at issue in this decision. 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."). The Veteran's right and left lower extremity radiculopathy is rated under Diagnostic Code (DC) 8520 and has been assigned an effective date March 27, 2018. The first evidence of right and left lower extremity radiculopathy was noted in a June 2009 VA examination report shows that the Veteran reported lower back pain shooting down into both legs. The examiner noted normal sensations and normal deep tendon reflexes for the lower extremities. A May 2010 VA lumbar spine examination report reflects no radicular signs or symptoms. A March 2012 VA examination report cited to an October 2011 report showing a provisional diagnosis of lumbar spine radiculopathy after self-reporting low back pain radiating into the lower extremities. A subsequent electromyography (EMG) of the right side was ordered and conducted; however, the examination yielded normal results. In a July 2015 VA examination, the examiner indicated that the Veteran displayed no radicular symptoms associated with his thoracolumbar spine condition. A May 2021 VA examination report shows that the examiner opined that it was as likely as not that the Veteran had right lower extremity radiculopathy prior to December 22, 2020 and that there was a current diagnosis of left lower extremity radiculopathy. The examiner noted conflicting evidence contained in the medical records and that with no documented clear evidence of right sided radiculopathy prior to December 22, 2020 and that the Veteran's self-reports would need to be relied upon to establish right sided radicular involving. The examiner noted that radicular symptoms for the right and left lower extremities could wax and wane, come and go, and may not be present all the time which is a nature of the condition. The examiner reported that it was very common to have radicular symptoms off and on with a diagnosis of degenerative disc disease and degenerative joint disease of the lumbar spine. The examiner also reported that the June 2009 and May 2010 spine exams did not mention radiculopathy affecting the right and left lower extremities, therefore radiculopathy most likely onset after 2010. The RO having concluded that an effective date of March 18, 2009, was warranted for the award of service connection for the Veteran's lumbar spine disability, the Board further finds that this grant of an earlier effective date extends to the grant of service connection for radiculopathy of the right and left lower extremities. While the May 2021 VA examiner determined that the radiculopathy of the right lower extremity onset after 2010 and did not opine as to the onset date of the left lower extremity, the examiner also reported that the Veteran's self-reports would need to be relied upon to establish radicular symptoms. Here, as noted above the Veteran reported right and left lower extremity radiculopathy symptoms at the 2009 VA examination. The Board finds that the Veteran is competent and credible to describe symptoms and onset of shooting pain in the right and left lower extremities. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (stating that lay testimony is competent to establish the presence of observable symptomatology). Accordingly, the earlier effective date of March 18, 2009, is granted for the award of service connection for radiculopathy of the right and left lower extremities. Earlier effective dates are not warranted, as there is no argument or indication that the Veteran raised the issue of entitlement to service connection for radiculopathy at any time prior to March 18, 2009. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dworkin, 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.