Citation Nr: 21074589 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-37 445 DATE: December 15, 2021 ORDER Entitlement to an earlier effective date of April 17, 2009 for service connection for left lower extremity radiculopathy (previously claimed as bilateral lower extremity tinging in feet) as secondary to the service-connected disability of lumbosacral degenerative arthritis (claimed as residuals, low back strain) is granted. Entitlement to an earlier effective date of April 17, 2009 for service connection for right lower extremity radiculopathy (previously claimed as bilateral lower extremity tinging in feet) as secondary to the service-connected disability of lumbosacral degenerative arthritis (claimed as residuals, low back strain) is granted. REMANDED Entitlement to an initial disability rating in excess of 10 percent for lumbosacral degenerative arthritis for the period prior to November 9, 2015 is remanded. Entitlement to a disability rating in excess of 20 percent from November 9, 2015 for lumbosacral degenerative arthritis is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, he had left lower extremity radiculopathy throughout the pendency of the appeal for a higher initial rating for that disability. 2. Resolving reasonable doubt in the Veteran's favor, he had right lower extremity radiculopathy throughout the pendency of the appeal for a higher initial rating for that disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an earlier effective date of April 17, 2009 for service connection for left lower extremity radiculopathy (previously claimed as bilateral lower extremity tinging in feet) as secondary to the service-connected disability of lumbosacral degenerative arthritis (claimed as residuals, low back strain) have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.160; 38 C.F.R. §§ 3.102, 3.159,3.400, 20.1104. 2. The criteria for entitlement to an earlier effective date of April 17, 2009 for service connection for right lower extremity radiculopathy (previously claimed as bilateral lower extremity tinging in feet) as secondary to the service-connected disability of lumbosacral degenerative arthritis (claimed as residuals, low back strain) have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.155, 3.160; 38 C.F.R. §§ 3.102, 3.159,3.400, 20.1104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1968 to January 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal of the January 2012 and June 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran is deceased. The Veteran's spouse is the Appellant. The Veteran requested a hearing in the September 2017 Form 8. However, in October 2021, the Appellant submitted a Statement in Support of the Claim indicating that she would like to withdraw her request for a BVA hearing and is requesting that a decision be made based on the evidence of record. The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in this decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Effective Date The effective date for a grant of service connection is the day following the date of separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, 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), (b); 38 C.F.R. § 3.400(b). For a claim reopened after final disallowance, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400(q) Regulations that were in effect prior to March 24, 2015, required that an informal claim "must identify the benefit sought." See 38 C.F.R. §§ 3.155, 3.160. The regulations also provided that a claim may be either a formal or informal written communication "requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). The regulations in effect since March 24, 2015, do not allow for informal claims that are not submitted on an application form prescribed by the Secretary. See 38 C.F.R. §§ 3.155, 3.160. The Board will apply the regulations in effect prior to March 24, 2015, for all communications received prior to March 24, 2015. 1. Entitlement to an earlier effective date of April 17, 2009 for service connection for left lower extremity radiculopathy (previously claimed as bilateral lower extremity tinging in feet) as secondary to the service-connected disability of lumbosacral degenerative arthritis (claimed as residuals, low back strain) 2. Entitlement to an earlier effective date of April 17, 2009 for service connection for right lower extremity radiculopathy (previously claimed as bilateral lower extremity tinging in feet) as secondary to the service-connected disability of lumbosacral degenerative arthritis (claimed as residuals, low back strain) The Veteran seeks entitlement to an effective date earlier than December 18, 2015 for the grant of service connection for bilateral lower extremity radiculopathy (previously claimed as bilateral lower extremity tingling in feet) as secondary to the service-connected disability of lumbosacral degenerative arthritis (claimed as residuals, low back strain). The Veteran asserted that the effective date for his radiculopathy should be granted on April 17, 2009, the day he became service connected for his lumbosacral degenerative arthritis disability. Turning to the evidence of record, the Veteran submitted a request to reopen his claim for entitlement to service connection for lumbosacral degenerative arthritis and for radiculopathy bilateral lower extremities claimed as tingling of feet on April 17, 2009 and February 1, 2010. In January 2012, the AOJ issued a rating decision granting the Veteran service connection for lumbosacral degenerative arthritis (claimed as residuals low back strain), with a 10 percent disability rating, effective April 17, 2019. The AOJ denied the Veteran's claim for radiculopathy bilateral lower extremities claimed as tingling of feet. In July 2012, the Veteran submitted a notice of disagreement for all issues in the January 2012 rating decision. While the AOJ addressed some of the claims that are not currently on appeal, the AOJ failed to issue a Statement of the Case (SOC), regarding the Veteran's back or radiculopathy claims, and thus this matter is still pending. The Veteran's representatives have filed several documents informing the AOJ that this matter should still be adjudicated, but the AOJ did not address these claims. In December 2015, the Veteran filed a new claim for his lumbosacral degenerative arthritis and for radiculopathy bilateral lower extremities. In June 2016, the AOJ issued a rating decision increasing the Veteran's disability rating to 20 percent for his lumbosacral degenerative arthritis disability, effective December 18, 2015. The AOJ awarded the Veteran service connection for his left and right lower extremity radiculopathy (previously claimed as bilateral lower extremity tingling in feet) with a 10 percent rating, effective December 18, 2015. The Board considered remanding this matter back to the AOJ so that an SOC could be issued. However, the AOJ issued an SOC in May 2017 that addressed the Veteran's contentions from the January 2012 rating decision, so this would be redundant. The examiner in the July 2004 radiological examination report indicated that the Veteran reported having more pain and paresthesias in both lower legs and feet. The examiner's impression, "moderate to severe canal stenosis at L4-L5, due to a mixture of congenitally short pedicles, facet hypertrophy, and circumferential disc bulge and small protrusion. This all likely causes central canal stenosis at this focal level." In a March 2008, private treatment record, the examiner noted that the Veteran had tingling in his feet. The Veteran reported he has had lower back pain with parathesis bilateral feet since 1968. The examiner noted that if the Veteran's back or leg pain worsens that they would consider new radiological studies, but there are currently no motor or sensory deficits. In April 2009, the Veteran submitted a statement that indicated that when he gets up in the morning his back is stiff. He also indicated that his back condition has caused tingling in his feet. See April 2009 Statement in Support of Claim. In July 2011, the Veteran was afforded a VA examination for his back and radiculopathy. The Veteran reported constant tingling on the top of both feet. The examiner opined that the Veteran's paresthesias described on the feet are not likely due to the back condition and are instead due to diabetic neuropathy. In the November 2015 DBQ, the private examiner indicated that the Veteran had mild paresthesias in both lower extremities and overall moderate radiculopathy that affected the sciatic nerve. In June 2016, the Veteran was afforded a VA examination for his back and radiculopathy. The examiner indicated that the Veteran had radiculopathy that manifested as moderate intermittent pain; and mild paresthesias and/or dysesthesias that affected the sciatic nerve. The examiner noted that the overall radiculopathy was mild. In Sears v. Principi, 349 F.3d 1326 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the earliest possible effective date of service connection for a reopened claim was the date the reopened claim was received. As the Federal Circuit explained, "[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." Id. at 248. In this case, the Veteran appealed the January 2012 rating decision that awarded the Veteran service connection for his lumbosacral degenerative arthritis (claimed as residuals, low back strain) disability, and denied his bilateral lower extremity radiculopathy (previously claimed as bilateral lower extremity tingling in feet) as secondary to the service-connected disability of lumbosacral degenerative arthritis disability. The AOJ originally failed to issue an SOC for this claim as a service connection claim, but later issued an SOC after the Veteran refiled his claim for the effective date and discussed the merits. The Board finds that the Veteran is competent to report symptoms such as his feet tingling constantly. The Veteran has consistently reported that his feet have tingled since he hurt his back throughout his treatment records, including VA examinations. The examiner in the July 2004 radiological examination report indicated that the Veteran reported having more pain and paresthesias in both lower legs and feet. The examiner attributed the Veteran's symptoms to various reasons including "circumferential disc bulge and small protrusion." The July 2011 VA examiner attributed the Veteran's symptoms of paresthesias to diabetes. However, the examiner did not reconcile the fact that the Veteran has complained of tingling in both of his feet since service or the July 2004 radiological report. The Veteran has continued to pursue his claim for bilateral lower extremity radiculopathy, even though the AOJ failed to acknowledge it. The November 2015 private examiner and June 2016 VA examiner both determined that the Veteran's bilateral radiculopathy affected the Veteran's sciatic nerve. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's claim for an effective date of April 17, 2009, the day he became service connected for his lumbosacral degenerative arthritis disability is warranted. REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for lumbosacral degenerative arthritis prior to November 9, 2015 is remanded. 2. Entitlement to a disability rating in excess of 20 percent from November 9, 2015 for lumbosacral degenerative arthritis is remanded. The Veteran seeks a higher initial disability rating for his service-connected lumbosacral degenerative arthritis (back disability). The Board recharacterized the issues to more accurately reflect the Veteran's contentions. As discussed above, the Veteran appealed the January 2012 rating decision which awarded the Veteran with service connection for his back disability, with a 10 percent rating. However, the AOJ did not issue an SOC or develop this claim. Then in December 2015, the Veteran filed a new claim for his back disability. In June 2016, the AOJ issued a rating decision increasing the Veteran's disability rating to 20 percent for his lumbosacral degenerative arthritis disability, effective December 18, 2015. The AOJ awarded the Veteran service connection for his left and right lower extremity radiculopathy (previously claimed as bilateral lower extremity tingling in feet) with a 10 percent rating, effective December 18, 2015. In August 2016/September 2016 the Veteran submitted a notice of disagreement and checked the effective date of the award, as the area of disagreement. The Board finds that it would not be prudent to attempt to determine if the effective date was proper for the 20 percent disability rating for the Veteran's back disability without first ensuring that the Veteran's increased rating claim was properly developed. The Board finds that the examinations within the record are inadequate because the examiner's failed to estimate the Veteran's range of motion during flare-ups. The Board finds that recharacterizing the entire matter as an increased rating claim would satisfy the Veteran's contentions because the entire appeal period would be evaluated, and thus the Veteran or Appellant would not be prejudiced. The Board acknowledges that the Veteran is deceased, however because the examinations were inadequate for adjudication purposes, the Board finds that a remand is warranted to obtain an addendum opinion, to clarify if the Veteran's flare-ups and/or repeated use over time, would have further limited his range of motion. The matter is REMANDED for the following action: 1. First obtain an addendum opinion from an appropriate clinician, to determine the level of severity of the Veteran's service-connected cervical disability from April 17, 2009 to October 4, 2018 (Veteran's death). The examiner should review a complete copy of the claims file including this remand. The examiner should provide an opinion as to whether there would be additional functional impairment on repeated use over time or during flare-ups based upon the Veteran's symptoms for the period from April 17, 2009 to October 4, 2018. The examiner should estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran's description of his flares' severity, frequency, duration, and/or functional loss manifestations, and should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, if possible. If it is not feasible to determine the extent to which the Veteran experienced additional functional loss on repeated use over time or during flare-ups prior from April 17, 2009 to October 4, 2018, without resorting to speculation, the examiner must provide a complete explanation for why this is the case. 2. The AOJ must review this opinion to ensure it is adequate and complies with the Board's specific remand directives herein. If deficient in any manner, corrective action must be taken at once. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that AOJ compliance with Board remand directives is not discretionary or optional). (Continued on the next page) 3. Then, the Veteran's claim must be readjudicated. If the benefit sought on appeal is not granted to the Appellant's satisfaction, the Appellant and her representative must be provided a Supplemental Statement of the Case and be given an adequate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate action. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Quist 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.