Citation Nr: 21075427 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-63 708 DATE: December 20, 2021 ORDER An earlier effective date of April 30, 2013 for the award of service connection for intervertebral disc syndrome (IVDS) of the thoracolumbar spine is granted. An earlier effective date of April 30, 2013 for the award of service connection for radiculopathy of the right lower extremity is granted. An earlier effective date of April 30, 2013 for the award of service connection for radiculopathy of the left lower extremity is granted. An effective date earlier than April 30, 2013 for service connection for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to a rating higher than 20 percent for intervertebral disc syndrome (IVDS) of the thoracolumbar spine is remanded. Entitlement to a rating higher than 20 percent for radiculopathy of the right lower extremity, as secondary to service-connected IVDS, is remanded. Entitlement to a rating higher than 10 percent for radiculopathy of the left lower extremity, as secondary to service-connected IVDS, is remanded. Entitlement to a rating higher than 10 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. IVDS existed at least one year prior to the date of the Veteran's claim for service connection for a back disability, received on April 30, 2014. 2. The grant of service connection for right lower extremity radiculopathy is based on the grant of service connection for IVDS, which was diagnosed at least one year prior to the date of the Veteran's claim for service connection, received on April 30, 2014. 3. The grant of service connection for left lower extremity radiculopathy is based on the grant of service connection for IVDS, which was diagnosed at least one year prior to the date of the Veteran's claim for service connection, received on April 30, 2014. 4. The Veteran submitted a claim for service connection for posttraumatic stress disorder (PTSD) on April 30, 2014, and pursuant to Honoring America's Veterans Act, Public Law 112-154, Section 506, he received a retroactive effective date of April 30, 2013 under these provisions. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date of April 30, 2013 for the grant of service connection for intervertebral disc syndrome of the thoracolumbar spine have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. The criteria for entitlement to an effective date of April 30, 2013 for service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria for entitlement to an effective date of April 30, 2013 for service connection for radiculopathy of the left lower extremity have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for an earlier effective date prior to April 30, 2013 for service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 2002 to July 2002 and from November 2003 to March 2005. The Veteran testified before the undersigned Veterans Law Judge during an October 2021 Board hearing. A copy of the transcript has been associated with the file. The evidence suggests that the Veteran's service-connected PTSD impacts his ability to work; therefore, the Board infers a TDIU claim as part of the Veteran's claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Unfortunately, as explained below, the claim for a TDIU must be remanded to the agency of original jurisdiction (AOJ), as well as the claim for an increased rating for PTSD. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900. Effective Date Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim for increase, or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. But unless otherwise provided, the effective date of compensation will not be earlier than the date of receipt of the claimant's application. 38 U.S.C. § 5110(a). VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57, 660 (Sept. 25, 2014). The amendments are only effective for claims and appeals filed on or after March 24, 2015. Retroactive effective dates are allowed, to a certain extent, in cases where an award or increase of compensation is granted pursuant to a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114. To be eligible for a retroactive payment under these provisions, the claimant must have met all eligibility criteria for the liberalized benefit on the effective date of the liberalizing law or VA issue, and the claimant must have been continuously eligible from that date to the date of claim or administrative determination of entitlement. In such cases, the effective date of the award or increase shall be fixed in accordance with the facts found, but the effective date shall not be earlier than the effective date of the liberalizing law or VA issue. 38 C.F.R. § 3.114(a). If a claim is reviewed at the claimant's request more than one year after the effective date of the law, the effective date of the award may be one year prior to the date of receipt of such request, if the veteran met all the criteria of the liberalizing law or issue as of the effective date of the liberalizing law. 38 C.F.R. § 3.114(a)(3). The Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012 (Honoring America's Veterans Act), Public Law 112-154, Section 506 amended 38 U.S.C. § 5110 to allow up to a one-year retroactive effective date for awards of disability compensation based on fully developed original claims for compensation received from August 6, 2013 through August 5, 2015. See 38 U.S.C. § 5110(b)(2)(A). Under the Act, an effective date of up to one year prior to submission of the claim can be assigned when evidence demonstrates that the disability existed for one year prior to submission of the claim. If, however, the Veteran submits additional information or evidence after the submission of a fully developed claim (FDC), the VA will remove the claim from the FDC expedited process and process it in the standard claim process and an earlier effective date one year prior to his formal claim cannot be granted. See Id. Here, the evidence of record shows that on April 30, 2014, the VA received a Fully Developed Claim for benefits for PTSD, right lower extremity radiculopathy (also claimed as right leg pain), and IVDS (also claimed as lower back disability), within the timeframe specified in the provisions of the Honoring America's Veterans Act. The Veteran's claim was an FDC as it was submitted on a VA Form 21-526EZ. The Board finds that this claim is an original claim for compensation, as there are no other previous filings or correspondence related to these claims. Accordingly, the Veteran's original claims of service connection for PTSD, a back disability and right leg disability meet the first step of eligibility under Section 506, Public Law 112-154. The next question is whether the Veteran's claimed disabilities existed for at least one year prior to the April 2014 submission of the fully developed claim. IVDS Right lower extremity radiculopathy Left lower extremity radiculopathy As to the IVDS claim and bilateral lower extremity radiculopathy as secondary to IVDS, an earlier effective date can be granted under 112-154, Section 506. This is because the medical evidence shows the diagnosis of IVDS in 2005. This evidence indicates that the Veteran's disorder existed within one year prior to his submission of his April 30, 2014 fully-developed claim for service connection. Thus, the second step of eligibility under Section 506, Public Law 112-154, that requires the existence of the claimed disability for a year prior to the claim is met. Accordingly, under 38 U.S.C. § 5110(b)(2), the Veteran is entitled to an effective date of April 30, 2013, one year prior to receipt of his April 30, 2014 fully developed claim for IVDS, right lower extremity radiculopathy, and left lower extremity radiculopathy. PTSD In a December 2014 rating decision, the agency of original jurisdiction (AOJ) granted entitlement to an effective date of service connection for PTSD of April 30, 2013, which is one year prior to VA's receipt of the claim based on a liberalizing law. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114(a); Public Law 112-154, Section 506. Accordingly, as the Veteran is already in receipt of the one-year retroactive effective date for PTSD under Public Law 112-154, Section 506, an effective date earlier than April 30, 2013 is denied. REASONS FOR REMAND 1. Entitlement to a rating higher than 20 percent for IVDS is remanded. The Veteran, in his October 2021 Board hearing before the undersigned, testified as to increased severity of his back symptoms since his most recent examination for his back, in January 2015. Particularly, he testified to flare-ups, incapacitation, and worsening range of motion. Therefore, to the extent that it has been over six years since his most recent examination, and he testified to worsening symptoms, the Board will remand this appeal so that a new examination of his back can be accomplished. See Snuffer v. Gober, 10 Vet. App. 400 (1997). On remand, the Board also finds that any outstanding treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b); see also Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016) (where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information). Bell v. Derwinski, 2 Vet. App. 611 (1992). The Veteran testified to receiving treatment for his legs and back in the early-2000s, but those records are not associated with the file. See Hearing Transcript, Page 16. 2. Entitlement to a rating higher than 20 percent for radiculopathy of the right lower extremity is remanded. 3. Entitlement to a rating higher than 10 percent for radiculopathy of the left lower extremity is remanded. Regarding the Veteran's lower extremity radiculopathy, he was most recently evaluated in January 2015. In his October 2021 hearing before the undersigned, the Veteran testified to increased symptoms since his most recent examination, to include radiating pain down his right leg and weakness in his left leg. As the Veteran testified as to worsening symptoms and expressed his willingness to appear for a new examination, the Board will remand this claim for further development. 4. Entitlement to a rating higher than 10 percent for PTSD is remanded. The Veteran contends that he is entitled to a higher rating for his service-connected PTSD. At his October 2021 Board hearing, the Veteran testified that the severity of his symptoms has gotten worse since his most recent VA examination in December 2014, describing increased anxiety, strained relationships, and occupational impairment. Therefore, to the extent that it has been over seven years since his most recent examination, and he testified to worsening symptoms, the Board will remand this appeal so that a new examination for PTSD can be accomplished. 5. Entitlement to a total disability based on individual unemployability due to service-connected disabilities is remanded. Because a change of the evaluation regarding the remanded issues above could significantly impact a decision on the TDIU claim, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, remand of the inextricably intertwined TDIU claim is also required. The matters are REMANDED for the following action: 1. Ask the Veteran to identify all medical providers who have treated him for his bilateral lower extremity disability or his back disability since 2005 when he left service. After receiving this information and any necessary releases, obtain copies of the related medical records which are not already in the claims file. 2. Schedule the Veteran for an examination by an appropriate clinician who has not previously examined the Veteran, to determine the current severity of his service-connected IVDS. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In doing so, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Further, the examiner must attempt to elicit information from the Veteran regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups, to include providing an estimate of the extent to which the back disability limits the Veteran's functioning during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for a VA peripheral nerves examination by an appropriate clinician who has not previously examined the Veteran, to determine the current severity of his bilateral lower extremity radiculopathy. The examiner must clearly state which nerves are involved, and the extent of the impairment (mild, moderate, moderately severe, severe incomplete, or complete paralysis of each affected nerve). The examiner should consider any and all reports of pain and numbness reported by the Veteran, including reports of daily burning pain and moderate numbness of the right leg during the January 2015 VA examination. The examiner should also comment on the expected impact of the Veteran's bilateral lower extremity radiculopathy symptoms on his occupational functioning, to specifically include identifying the types of work or tasks that would remain feasible despite such disabilities and those that would be precluded. 4. Schedule the Veteran for an examination by an appropriate clinician who has not previously examined the Veteran, to determine the current severity of the Veteran's service-connected PTSD. The examiner should provide a full description of the disability, reporting all signs and symptoms necessary to evaluate the Veteran's PTSD under the rating criteria. If possible, the examiner should provide a retrospective opinion of the severity of the Veteran's PTSD in 2014 when service connection was granted, and specifically address (1) the April 2014 treatment note that reported the Veteran had no friends and doesn't go out and do anything (2) the August 2014 Emergency Department note indicating the Veteran was seen for worsening PTSD and depression, with the Veteran's wife reporting an incident where the Veteran hyperventilated and experienced a panic attack after being in a crowd (3) the October 2014 treatment note reporting (5) suicide attempts, the Veteran was socially isolated, and had multiple attempts to work but was fired or quit due to aggression (4) the December 2014 VA examination that noted an attempted suicide in 2012 and that the Veteran "reported a couple of other times he had suicidal thoughts with a plan and means" and (5) Emergency Room visit from July 2015 in which the Veteran presented with suicidal ideation with plan and was involuntarily admitted to E-2 for potential risk of suicide. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any PTSD symptoms and the effect on his ability to secure and follow gainful employment. Consideration should be given to the Veteran's statements regarding the severity of his PTSD symptoms throughout the entire appeal period. The examiner is asked to specifically address the Veteran's history of suicidal ideation, including attempts. 5. When the development sought above is completed, arrange for all further development necessary, and adjudicate the claim of entitlement to a TDIU rating. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Krista Johnson, 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.